OUTER HOUSE, COURT OF SESSION   [2008] CSOH 73
	OPINION of LORD CARLOWAY   in the petition of   KEVIN McCAHERY,   Petitioner against   ABERDEEN CITY COUNCIL,   Respondents for   Judicial Review ­­­­­­­­­­­­­­­­­________________

 

 

Petitioner: Forsyth; Thompsons

Respondents: Hood; Morton Fraser WS

 

 

16 May 2008

 

(1) Facts

 

The Choices Day Centre, 116 Westburn Road, Aberdeen, has operated for many years as a facility for, amongst others, persons with physical and sensory disabilities. Until recently, it was open from 9 am until 4 pm, Monday to Friday. Persons afforded a place by the respondents could attend on three days out of five. The petitioner suffers from spina bifida and diabetes. He is confined to a wheel chair. The respondents provided him with a place at the Centre because of the need to avoid him becoming socially isolated and depressed. The petition appears to aver that the respondents' provision was following an assessment of the petitioner's needs in terms of their duty under section 12A of the Social Work (Scotland) Act 1968 (c 49) (inserted by section 55 of the NHS and Community Care Act 1990 (c 19)). The duty in relation to the needs of the petitioner arose under section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (c 44) (as applied by the Chronically Sick and Disabled Persons (Scotland) Act 1972 (c 51)).

Although the petitioner avers that he was "an active user of the [Centre] and attends regularly", it was not disputed that he had classes on only two days. On Tuesdays he went to a local history class from 1 pm to 3 pm and on Wednesdays to a computer class from 9.30 am to 1 pm. There is no material produced detailing the nature and extent of the petitioner's entitlement to care at the Centre, or the reasons for it, as assessed by the respondents in terms of the Acts referred to above.

In October 2007, the respondents' officials produced a report (6/4 of process) called "A Strategy for Transforming Adults Services - Health and Care for 2007 to 2010". The report states that it has been formulated after extensive consultation in August and September 2007 with, amongst others, staff, trades unions, service providers and service users. Workshops, meetings and presentations took place following upon the production of a consultative draft of the report. The report stresses the need for the respondents to secure "best value"; that is "continuous improvement in the performance of the authority's functions" (Local Government in Scotland Act 2003 (asp 1) section 1(1) and (2)). It reaches three conclusions (pages 3 and 47). First, "overall the services to Adults are not consistently performing amongst the best in Scotland". Secondly, "the current structure of the services are not consistently citizen focused, and there are significant areas where we are not targeting resources to meet demand". A need to look at ways of adjusting "our resource mix" is identified. A particular concern is said to be the over provision of residential care and the under provision of services that enable adults to live independently ("care in the community"). Thirdly, "we are consuming far more resources than are justified or available in the current environment". The report makes thirty one recommendations, including:

"1^st. Remove low eligibility criteria for all current and future service users...

2^nd. Remove medium eligibility criteria for all current and future service users...

3^rd. Agree revised eligibility criteria...for the services which citizens can expect to receive depending on the outcome of the care assessment.

...

10^th. Reduce... the number of day care places to 135 over a 3 year period, with the principle that 50% of the savings will be redirected into personalised care".

 

The strategy as a whole is a three year plan intended "to meet and preferably exceed all minimum legislative requirements" (para 1.2) yet produce annual revenue savings of £11.388 million, as "the current levels of spend cannot be sustained on a continuing basis and urgent action is required to reduce the [respondents'] recurring levels of expenditure" (p 7). It states that in relation to "Human Rights/Equality/Diversity : The completed strategy will include a Equalities Impact Assessment" (p 9), but such an Assessment is not included in the document. The "National Legislative Context" is noted relative in particular to the provisions of the 2003 Act, but other statutes providing the legislative framework as it applies to "Services to Adults" are specified in an Appendix (1). These include the Disability Discrimination Act 1995.

The report states that the respondents are "committed to supporting the most vulnerable and excluded people; protecting those at risk of harm from themselves and others" (para 5.4). But it considers that "limited...resources are not focused on those citizens most in need" (para 9.1). It notes that the eligibility criteria generally in use for the provision of care are: "critical or emergency, substantial or high, medium or moderate and low". The report observes that some councils only provide care for critical cases, some only for high or critical and some for moderate and above (see p 49 and Appendix 4). Specifically in relation to day care centres, the report states that "limited resources (people, budget and buildings) are not being maximised to deliver the best outcomes for adults" (para 9.3). It focuses on these centres as used by the elderly, rather than persons such as the petitioner, noting that the respondents have a higher rate of day care centre places for older people than other councils (319 places per week) at a cost of £1.3m, even though there is no statutory requirement to provide such places (para 9.3). From that comes an objective to reduce the places over a three year period, in line with the current provision in Edinburgh, from 319 to 135 places. Half of the savings from this are to be "redirected into personalised care" (p 53).

The report was considered at a meeting of the respondents on 1 October 2007 (Minutes, 6/1 of process, p 3208). The recommendations were approved (pp 3211-2). A further meeting took place on 14 February 2008 to approve a large number of budgetary proposals (Minutes, 6/2) partly related to the report's recommendations. These included the reduction of the expenditure on the Choices Day Centre, which was described as "learning disabilities" (p 468) conform to a report not lodged. Although the Minute produced does not appear to contain a decision, it was not disputed that the proposals were approved and that they included, in practical terms, a decision to close Choices Day Centre. The respondents have proceeded to implement a phased closure of the Centre (letter 6/3). It closed on Tuesdays from 31 March, when a variety of therapeutic and social activities were also stopped. These were "complementary therapy, aromatherapy, yoga, gym, ten-pin bowling, indoor bowling, bingo/shopping, and lunch club". From 21 April, the Centre closed on Fridays. From 12 May, it was to close on Mondays. The final closures on Wednesdays and Thursdays are scheduled to be implemented on 26 May and 2 June respectively.

 

(2) The petition and submissions

The petition was presented on 8 May, triggering the respondents' caveat. There was a hearing on 9 May on the petitioner's motion for a first order for intimation and service (which was granted) and interim interdict to prevent the respondents from "taking any step to proceed with the phased closure of Choices Day Centre". The petition itself seeks far wider remedies. Although not entirely clear from the averments (statement 4 is grammatically difficult to follow), it appears to seek the reduction of the respondents' decision on 1 October 2007 to approve the report and the decision on 14 February 2008 to close the Centre. It seeks an order requiring the respondents to restore the "full package of care services and facilities available to the petitioner from Choices Day Centre" and "activities of complimentary therapy, aromatherapy yoga, gym, ten pin bowling, indoor bowling, bingo shopping, and lunch club" (sic).

The petitioner's oral submissions did not advance much beyond the averments in the petition. It was accepted that in order to secure interim interdict, the petitioner required to demonstrate a prima facie case and that the balance of convenience favoured the grant of an interim order. The grounds of challenge advanced by the petitioner are four fold (statement 6). First, it is said that the respondents failed to carry out "meaningful consultation in their decision making process leading to their decision of 1^st October 2007". This individual complaint is not further developed. The second ground is that, in reaching their decisions of 1 October 2007 and 14 February 2008, the respondents failed to comply with section 49A of the Disability Discrimination Act 1995 (c 50) (as amended by the Disability Discrimination Act 2005 (c 13)). The Petitioner refers to the Disability Rights Commission's code "The Duty to Promote Disability Equality", which stresses the general duty on public authorities to promote disability equality in terms of the Act. The petition avers that "The elected Councillors failed to consider their duties under the foregoing Act and Code". The basis for this averment is that the "Disability Equality Duty" was not mentioned in any of the documents provided in advance of the two meetings and the absence of any mention of it at the meetings. The petitioner did stray mildly beyond his averments by referring to a decision of the English High Court of Justice (R (on the application of Chavda) v London Borough of Harrow [2007] EWHC 3064 (Admin), Judge Mackie QC at para 40) for the proposition that the absence of a reference to a particular policy or duty in a written record could yield an inference that no account had been taken of it). The petitioner also complains of the absence of a disability impact assessment prior to what is averred to be "the withdrawal of services" to the petitioner. The third ground is that the respondents failed to comply with their own Disability Equality Scheme published pursuant to regulation 2 of the Disability Discrimination (Public Authorities)(Statutory Duties)(Scotland) Regulations 2005 (SSI 565). This Scheme is not lodged in process but it is averred that paragraph 7.4.2 requires committee reports recommending new policies to contain sections on consultations, sustainability and equal opportunities. The fourth ground is that the respondents have acted unreasonably (and possibly unlawfully and "ultra vires"). Prior to developing that complaint, the petitioner refers to the physically disabled representing not more than 11% of the adult service provision with the day centres representing a very small part of the provision to the disabled, albeit that they especially promote disability equality. The respondents' strategy had referred predominantly to the elderly rather than the disabled. In pursuing the fourth ground, the petitioner maintains that the respondents failed to consult, failed to take into account material considerations and failed to have regard to the statutory duties or those in the Code.

The petition contains no substantive averments on balance of convenience, but the petitioner nevertheless maintained that it favoured the petitioner, as retaining the Centre preserved the status quo and, as there was finance in place for the operation of the Centre until 27 June, no prejudice would be suffered by the respondents were it to remain open until a determination of the petition at a hearing. It was said that the petitioner would suffer prejudice as his place at the Centre would be terminated.

The respondents argued that the interim interdict sought was too wide, as it went beyond what the petitioner was actually benefiting from at the Centre. He was seeking to keep the Centre open not only for himself but for others. He was seeking a "nuclear option". The petitioner was in the "high" need category and the respondents intended to provide him with a package which would include an element of excursion outwith his own home. This package had not yet been formulated. He might be offered a different place at another centre or other establishment. In this regard, the petition was premature. On the other hand, it also came too late. The respondents' decisions had long since been taken and the phased closure policy had commenced on 31 March, when the petitioner must have become aware of what was planned. If the petitioner had presented a petition then, the matter could have been disposed of by now.

The respondents submitted that they would be prejudiced if interim interdict were granted. The closure of the Centre was part of a wider programme and reversing the decision would have implications across the respondents' spectrum of activities. The reason for the phasing of the closure was to allow those using the Centre to make alternative arrangements and to re-deploy and re-train staff (although industrial action was preventing this happening as planned). The Court should be reluctant to grant interdict against a public authority apparently exercising its statutory powers (O'Neill : Judicial Review in Scotland para 1.48) or to grant a negative remedy to enforce a positive obligation (Hampden Park v Dow, unreported, Lord Drummond Young, 13 July 2001).

 

3. Decision

The petitioner has not set out a prima facie case which would warrant the grant of the remedy he seeks ad interim. He is a disabled person and, as he has noted, the respondents have a duty to assess his needs in terms of section 12A of the 1968 Act (supra) and to provide for them under section 2(1) of the 1970 Act (supra). He sues as a disabled person and does not purport to have any other title or interest to challenge the respondents' actions. He does not complain that the decisions in relation to his own assessment or provision have been unlawful. The nature and extent of the provision of care as contained in the assessment is not clear, but it seems safe to proceed on the basis that it centres upon the need for the petitioner to avoid social isolation and depression. The care is designed to avoid those consequences by providing him with an educational focus in a social setting. Hitherto, that setting has been at the Choices Day Centre. But there is nothing in the petition to suggest that the respondents' statutory duty, in terms of their assessment of the petitioner's needs, requires that the petitioner be allowed to attend that Centre, or indeed any other day centre, as distinct from some other institution, such as a college. There is nothing in the petition to suggest that the petitioner's needs might not be addressed in different ways too. In short, the petitioner had not averred any legal basis upon which he can challenge a decision by the respondents to close a particular day centre, including Choices Day Centre. He may well be able to enforce the respondents' statutory duty to provide him with a package of care to meet his needs, if no package or a demonstrably inadequate one were provided. But it is not averred anywhere in the petition that the respondents intend to cease providing him with the care appropriate to his needs. Furthermore, the respondents have stated that he has been assessed as in the "high" need category and that he will be provided with appropriate care. If that turns out not to be the case, then the petitioner may wish to reformulate his petition.

Even if the petitioner had been entitled to challenge the decision to close this particular Centre, there is still no prima facie case to ground a successful challenge. The first ground averred relates to the lack of consultation. But there is nothing in the petition which sets out any legal duty to consult on the strategy adopted. Even if there had been, the terms of the strategy document, which are not disputed on this aspect, describe the carrying out of an extensive consultation process. There is a strange averment that "The petitioner is unaware of disabled service users such as the pursuer (sic) having been consulted". The petitioner's awareness of events in this context is strictly irrelevant.

Section 49A of the 1995 Act (supra) imposes a number of general duties on public authorities to "have due regard to the need" to eliminate unlawful discrimination, to promote equality between disabled persons and others and to take steps which take account of persons' disabilities. The Code provides a gloss on the statutory provisions. The Strategy is a general policy document proposing a number of reforms to the respondents' method of providing care to adults, where that is needed in terms of their statutory obligations. The petitioner is correct when he states that the focus of the Strategy is principally on care of the elderly rather than services for the physically disabled. Nevertheless, there is no substantive basis for supposing, as is baldly averred by the petitioner, that the respondents' officials and councillors are or were ignorant of their general duties under section 49A of the 1995 Act (supra). It would be surprising if they were, and the Strategy's reference, albeit a passing one, to the Act itself and the mention of the need for an Equalities Impact Assessment makes it clear that they are not. That mention involves compliance with terms of the respondents' Disability Equality Scheme as quoted by the petitioner.

Furthermore, the petition does not state with any degree of convincing clarity exactly what duty under section 49A has been breached by the actions of adopting and implementing the Strategy. There is again a bald averment that "Had the elected Councillors observed their duties under the said Section...there would not have been a reduction in services and facilities to disabled people such as the petitioner". But it remains to be seen whether there is to be any unlawful reduction in the services and facilities provided to the petitioner. The closure of day centres does not, of itself, involve the necessary implication that the assessments of physically disabled persons already carried out, and which the Strategy intends should be reviewed, are not to be complied with. The Strategy at least purports to be an attempt at improving services and there is, on the face of the petition, no material to contradict that expressed intention in relation to disabled persons.

It follows from the above that, at least in the absence of more specific averments, there is no prima facie case that the respondents' decisions to adopt and implement the recommendations presented by their officials in a detailed report were unreasonable or ultra vires.

Even if a prima facie case had been made out, the balance of convenience would have favoured the refusal of interim interdict. The respondents' decisions, including that to phase out the Centre, cover the whole range of services to adults. Stopping the implementation of the policy even in relation to one day centre at this stage, in order to preserve one three hour class attended by the petitioner, would involve a substantial disproportionate response relative to the petitioner's care needs, which are, in any event, not demonstrably under threat. The closure of the Centre is one of several measures decided upon as part of a strategy approved some months ago. Although the petitioner does not appear to have delayed acting in any manner which would bar his present challenge, the phased closure of the Centre commenced at the end of March and is now some way down the road to completion. If the petitioner is ultimately successful, some form of programme may require to be devised for him, which will provide him with the necessary appropriate social contact in terms of his care needs assessment. But that does not require the halting of a measure which is a part of a greater overall strategy where it is likely that such a halt may impact on that strategy in terms of relocation of others at the Centre, including both service providers and users.

The motion for interdict ad interim is accordingly refused.