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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 68
P1015/21
OPINION OF LADY CARMICHAEL
In Petition of
AB
Petitioner
for
Judicial Review
Petitioner: Brodie KC, M Crawford; Urquharts
Respondent: R Macpherson; Clyde & Co
20 September 2022
Introduction
[1]
CD has Alzheimer's disease. She formerly attended the Teviot Day Service in Hawick
("the service"). That was a day care service for adults operated by Scottish Borders Council
("the council"). It provided medium to high level care for between 12 and 14 people. On
4 June 2019 an executive committee of the council made a decision accepting the following
recommendation:
"It is recommended that the Executive Committee
(a) notes the expansion of Local Area Co-ordination to all areas of Scottish Borders;
and
(b) agrees to the decommissioning of individual Day Services when suitable
alternatives that meet assessed needs are identified following the introduction of
the new model of Local Area Co-ordination for older adults."
2
[2]
The service stopped operating in March 2020 because of the pandemic. It has never
re-opened. CD now lives in a care home. There have been no new referrals to the service.
The council say that no referrals could be made because of the pandemic, and that, in any
event, it is reasonable that no referrals should be made to a service that is the process of
being decommissioned.
[3]
AB is CD's son and guardian. He argues that the decision of 4 June 2019 was a
decision in form and substance to close the service. He brought a petition for judicial review
in the latter part of 2021. On 8 February 2022 the Lord Ordinary extended the time limit in
terms of section 27A of the Court of Session Act 1988 and granted permission to proceed.
[4]
AB argues that the decision to close the service was unlawful because the council did
not carry out an equality impact assessment. He says also that the council did not fulfil their
duties to consult the users of the service, and that the users had a legitimate expectation that
they would be consulted. The council submits that although the decision was indeed one
to close the service, the actual closure was conditional upon suitable alternatives being
available to the users of the service.
[5]
The council also submits that it is relevant to look at what happened before 4 June
2019. In particular it says that a meeting that took place on 14 March 2019 was in substance
consultation, and that the council took into account what happened at the meeting. It also
invites consideration of some events after 4 June 2019.
The facts
[6]
There is no dispute about the chronology. The following account draws in particular
on the content of AB's affidavit, and that of Mr Michael Curran.
3
[7]
CD attended the service 3 days a week. The council provided a minibus which took
her to and from the service. CD had a good relationship with the staff.
[8]
On 12 March 2019 SB Cares, a care organisation run by the council, sent a letter
to those who attended the service. It gave notice of a meeting on 14 March 2019, which
Michael Curran, a programme manager, would attend. It read:
"Michael will describe the vision for Transformation of Older Adults Day Services
within SB Cares. All service users and their family/carers are invited to come to
this meeting which will provide opportunity to ask questions afterwards."
AB did not understand this to be an indication that the service might be closing. He did not
attend it.
[9]
Michael Curran's account of the meeting is this:
"The March meetings were intended to be conversational, however, there was
significant kickback at the meeting and, for that reason, when the matter was
placed before the Executive in June the approach was moderated and that it was
agreed that no Centre would close until each individual client's needs were fully
assessed and they were able to be given an appropriate alternative provision which
would fully meet those needs. The plan included adaptations to timescales and the
local area co-ordination activity as a result of initial concerns arising from the
consultation. This is seen in the Executive Report."
[10]
On 24 April 2019 AB received a letter from Stuart Easingwood, Chief Social Worker
and Public Protection Officer. It stated:
"As you may be aware, the Council is embarking on the transformation of our
older adults' day service provision across the Scottish Borders. This is in response
to an increase in the number of people choosing to engage with a range of
community based options such as lunch clubs, classes, social centres and other
activities, and a corresponding decrease in those opting to attend day centres.
We would like to reassure you, however, that we are at an early stage in the
engagement process. We will be making arrangements in due course to meet
individually with each day service user like yourself to explain more about the
review and what the potential options might be going forward."
AB got in touch with a Ms Brown, whose mother also attended the service. On 14 May 2019
she received an email from Mr Curran stating that he had been requested to take an update
4
to the council on 4 June 2019. He noted that he would update families following that
meeting. AB received a further letter from Mr Curran on 28 May 2019 announcing that there
would be a meeting at the service on 12 June 2019 to explain more about the changes and
what future services might look like.
[11]
On 3 June 2019 AB learned from a news release of the terms of the recommendation
to be put before the executive committee on the following day. He emailed a number of
councillors expressing his concerns, which included one that there was no suitable
alternative for CD in Hawick.
[12]
Paragraph 7.3 of the report put before the executive committee for the meeting of
4 June 2019 read:
"An Equalities Impact Assessment has been carried out on this proposal and it is
anticipated that there are no adverse equality implications."
Paragraph 8 of the report, which is headed "Consultation", read:
"8.1 The Chief Executive, the Chief Financial Officer, the Monitoring Officer,
the Chief Legal Officer, the Chief Officer Audit and Risk, the Service Director HR
Communications and the Clerk to the Council have been consulted and comments
received have been incorporated into the final report.
8.2 Others consulted were
Corporate Equalities and Diversity Officer
Chief Finance Officer, Integrated Joint Board, Scottish Borders Health and
Social Care Partnership
General Manager - Primary & Community Services. Scottish Borders Health
and Social Care Partnership
General Manager Mental Health and Learning Disability Services, Scottish
Borders Health and Social Care Partnership"
[13]
On 4 June the executive committee made the decision already referred to.
5
[14]
On 6 June AB received a letter from John Lamont MP enclosing an email from the
leader of the council. It included the following:
"the re-imagining of day services in the Scottish Borders has been an ongoing
project for the last five years ...
No day centre will be closed until every client is happy with the package that
is in place for them. That commitment is absolute and is confirmed in the paper
for the Executive. If day centres were the best option and gave the best outcomes,
then we would be continuing with day centres ...
It is always difficult for families when their relative's care package changes.
However, it is important to emphasise that no day care centre will close until
every client has a package in place that they are happy with."
[15]
AB subsequently received various assurances in similar terms. It is not necessary to
narrate the terms or dates of those.
[16]
There were two service users for whom the council was unable to agree alternative
packages of care before the centre closed. One of them was CD.
The Equality Impact Assessment
[17]
Although the council produced a number of assessments, only one clearly relates
to the period before 4 June 2019 (7/1 of process). It is said to date from 2018/2019, but is
undated.
[18]
A further assessment (7/2 of process) is also undated. It contains a link to a Word
document on its second page, described as "Initial Equality impact assessment carried out
on initial project proposals in 2018/19". It goes on to say:
"additional work carried out in February 2019 inserted below
(get this off Iain D)
Translated and additional work carried out to come in line with new EIA policy
August 2019"
6
The document includes references to meetings in March 2019. It is impossible to tell when
any particular words were included in this document. Counsel did not submit that the
document produced as 7/2 was completed before 4 June 2019, and recognised that it might
be as late as August 2019.
[19]
Counsel submitted that because the petition was raised late, it had been harder to
gather information. He recognised, however, that even where there have been various
iterations of a document over a time, involving amendments, it is easy to preserve the
versions in circulation at particular dates. He recognised that the ability to identify
documents as they stood at particular dates might be important, and that it would not be
unreasonable to expect a local authority to keep its records with that in mind. I should
have expected a local authority to be able to identify and to produce an equality impact
assessment where such an assessment had been referred to in a report put before an
executive committee, and to be able to say with some certainty that it was the version
mentioned in the report.
[20]
The title of the proposal to which 7/1 ("the EIA") relates is "Review of Day Services"
(Older People and Learning Disability). The description of the proposal reads:
"The Re-imagining Day Services Review project is ongoing, a key pillar of
the Integration Joint Board Integrated Transformation Programme. Following
implementation of its recommendations, some existing day centre provision
will be decommissioned. This may impact on the current SB Cares General Fund
Contribution level and on the current level of service required from SB Cares.
This will not have a detrimental impact on Health & Social Care staffing although
there may be potential impact for SB cares staff. The Council's HR Policies and
Procedures will be utilised to manage and mitigate any staffing changes/reductions."
The assessment identifies possible negative impacts in relation to the protected
characteristics of age and disability. The explanations given in relation to those
characteristics were, respectively:
7
"Potential to reduce Adult Day Services, Social Centres & Community Health
Teams. Alternatives will be developed and provided for individuals with the
aim of providing more interaction in the community."
"Potential to reduce Learning Disability Day Services/Physical Disability Services.
Alternatives will be provided with the aim of providing more interaction in the
community."
The author of the report indicated that he was "fairly certain" of the answers he had given.
"Fairly certain" is defined in the form as meaning:
"Fairly Certain - but don't have concrete evidence to support my answers so would
recommend further assessment be conducted if the proposal is accepted."
[21]
The EIA does not appear to have been produced as an appendix or supporting paper
with the report put to the committee. The EIA, as already noted, does identify possible
negative impacts in relation to the protected characteristics of age and disability. It is not
clear on what basis the author of the report represented that it was anticipated that there
would be no adverse equality implications.
[22]
Although counsel did not submit that the assessment produced as 7/2 pre-dated the
decision, or that it was the assessment referred to in the report put to the committee, for
completeness I record that it also identifies possible negative impacts in relation to those
protected characteristics.
The Law
[23]
There was no material dispute as to the law that I should apply.
The public sector equality duty
[24]
Section 149 of the Equality Act 2010 imposes the public sector equality duty.
A public authority must in the exercise of its functions have due regard to the need to
8
eliminate discrimination, harassment, victimisation and any other conduct that is prohibited
by or under the Act; advance equality of opportunity between persons who share a relevant
protected characteristic and persons who do not share it; and foster good relations between
persons who share a relevant protected characteristic and persons who do not share it:
section 149(1).
[25]
Having due regard to the need to advance equality of opportunity between persons
who share a relevant protected characteristic and persons who do not share it involves
having due regard to the need to remove or minimise disadvantages suffered by persons
who share a relevant protected characteristic that are connected to that characteristic; take
steps to meet the needs of persons who share a relevant protected characteristic that are
different from the needs of persons who do not share it; and encourage persons who share
a relevant protected characteristic to participate in public life or in any other activity in
which participation by such persons is disproportionately low: section 149(3). The steps
involved in meeting the needs of disabled persons that are different from the needs of
persons who are not disabled include steps to take account of disabled persons' disabilities:
section 149(4).
[26]
Regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012
provides:
"5(1) A listed authority must, where and to the extent necessary to fulfil the
equality duty, assess the impact of applying a proposed new or revised policy
or practice against the needs mentioned in section 149(1) of the Act.
(2) In making the assessment, a listed authority must consider relevant evidence
relating to persons who share a relevant protected characteristic (including any
received from those persons).
(3) A listed authority must, in developing a policy or practice, take account of
the results of any assessment made by it under paragraph (1) in respect of that
policy or practice.
9
(4) A listed authority must publish, within a reasonable period, the results of
any assessment made by it under paragraph (1) in respect of a policy or practice
that it decides to apply.
(5) A listed authority must make such arrangements as it considers appropriate
to review and, where necessary, revise any policy or practice that it applies in the
exercise of its functions to ensure that, in exercising those functions, it complies
with the equality duty.
(6) For the purposes of this regulation, any consideration by a listed authority
as to whether or not it is necessary to assess the impact of applying a proposed
new or revised policy or practice under paragraph (1) is not to be treated as an
assessment of its impact."
[27]
What is necessary to fulfil the duty imposed by section 149 of the 2010 Act is
explained and summarised in R (Bracking) v Secretary of State for Work and Pensions
recently in this jurisdiction, by Lord Boyd of Duncansby in McHattie v South Ayrshire
"[24] ... (i) The public authority decision maker must be aware of the duty to have
`due regard' to the relevant matters;
(ii) The duty must be fulfilled before and at the time when a particular policy
is being considered;
(iii) The duty must be `exercised in substance, with rigour, and with an open
mind'. It is not a question of `ticking boxes'; while there is no duty to make
express reference to the regard paid to the relevant duty, reference to it and to
the relevant criteria reduces the scope for argument;
(iv) The duty is non-delegable; and
(v) Is a continuing one.
(vi) It is good practice for a decision maker to keep records demonstrating
consideration of the duty.
[25] For present purposes there are I consider three important aspects to that
summary. The first is that the duty has to be fulfilled before a policy that might
affect a particular class of protected persons is adopted. It is an essential preliminary
to lawful decision making: see also Monaghan on Equality Law (2nd edition), at 16.66.
10
The second point is that the duty must be exercised in substance with rigour and an
open mind. It is not a question of ticking boxes.
[26] The third aspect is the continuing nature of the duty. That means that as policy
evolves due regard has to be made to the duty under section 149 of the 2010 Act.
The duty does not end with the completion, for example, of an EIA. As the policy is
developed and executed the public authority must continue to have regard to the
duty."
Consultation
[28]
At common law a legitimate expectation to be consulted may arise from an interest
which is held to be sufficient to found such an expectation, or from some promise or practice
of consultation: R (Moseley) v Haringey LBC [2014] 1 WLR 3947, paragraph 35. Procedural
fairness is a rationale for consultation, and the common law regarding procedural fairness,
bearing in mind the purpose of consultation, informs how the consultation is to be carried
out: Moseley, paragraphs 23 and 24. The requirement that a consultation be fair is liable
to result in better decisions, by ensuring that the decision maker receives all relevant
information and that it is properly tested. It will avoid the sense of injustice which the
person who is the subject of the decision will otherwise feel: Moseley, paragraph 24, citing
[29]
Consultation is a process within which a decision maker at a formative stage in
the process invites representations on one or more possible courses of action. The decision
maker's obligation is to let those who have potential interest in the subject matter know in
clear terms what the proposal is. The decision maker must give sufficient reasons for any
proposal to permit intelligent consideration and response. Adequate time must be given for
consideration and response. The product of consultation must be conscientiously taken into
account in finalising the proposal: Moseley, paragraph 25, and authorities cited there; see
11
also R (LH) v Shropshire Council [2014] PTSR 1052 at paragraphs 21 to 26; R v Devon County
Decision
The public sector equality duty
[30]
The council did carry out an EIA. It is notable, however, that the EIA did not relate
specifically to the service with which this petition is concerned. It related to a proposal
that "some existing day centre provision" would be decommissioned. It contained a
recommendation for further assessment if the proposal - namely what is apparently a fairly
high level proposal to decommission some day centre provision - were to be accepted.
[31]
There was no assessment before 4 June 2019 of the impact of bringing to an end the
service provided at the Teviot Day Centre. The EIA produced contains no relevant evidence
relating to persons who share the characteristic either of disability or age who used th at
service. It contains very brief summaries of the bases on which there might be negative
impacts on persons sharing those characteristics, and records an aspirational assertion that
"alternatives [would] be developed and provided for individuals with the aim of providing
more interaction in the community." It does not contain any detail as to the needs of
individuals using the service, or any evidence-based assessment that there would be suitable
alternatives for the individuals in question.
[32]
The EIA contains no evidence from users of the service. For the reasons given later
in this opinion, I am satisfied that the council did not fulfil its duty to consult with the
users of the service. As Lord Boyd of Duncansby observed in McHattie at paragraph 35, it
is difficult to see how an EIA can be concluded properly without consulting the users of
the service. There is nothing of any substance in the EIA which might assist the council to
12
have due regard to the need to advance equality of opportunity, to remove or minimise
disadvantages suffered by persons who share a relevant protected characteristic, or to take
steps to meet the needs of persons who share a relevant protected characteristic. The EIA
itself is in the most general terms, and is the sort of "box-ticking" exercise deprecated in the
authorities to which I have already referred.
[33]
The council took its decision in a situation where there was not an EIA which
satisfied the requirements of the 2012 regulations. It was not provided with information
such as to permit it to exercise its duties under section 149 of the 2010 Act with rigour.
The reference to an equalities impact assessment, such as it is, in the report to the executive
committee, is difficult to reconcile with the terms of the EIA.
[34]
The council's contention came to be that it was aware of, and had regard to, the
needs of individuals by reference to the protected characteristics of age and disability. The
solution the council chose was the provision of alternative services for individuals, and the
decision was that the service would not close until a suitable alternative had been found for
every user. The council had taken into account what Mr Curran described as "kickback"
from the meeting on 14 March 2019. It had therefore had, in substance, due regard to its
duties under section 149.
[35]
I reject that contention. Evidence about the needs of existing users is plainly
important in relation to meeting the needs of those users. It is, however, important not
only in relation to existing users. Evidence of that sort is also capable of informing a local
authority about the needs of potential service users who share the protected characteristics
of the existing service users. The duty of the local authority is not confined to considering
the impact of a new policy on existing service users. The local authority must have due
regard to the needs identified in section 149, which relate to persons with protected
13
characteristics more generally. It must consider the steps to meet the needs of disabled
persons by taking account of the disabilities of disabled persons.
[36]
In providing a solution focused on existing service users for whom no alternative
service could be identified, the council failed to have due regard to the needs of disabled
persons more generally, and in particular persons with disabilities similar to those of CD.
There is no indication that the council considered with rigour the possibility that the service
might remain open, or that keeping it open might be necessary to meet the needs of persons
with disabilities similar to those of CD. I bear in mind that no alternative provision was in
fact found for her. It might be that the council would have determined to decommission
the service, even absent any alternative provision for persons who had disabilities similar
to those of CD, even if it had had due regard to the needs of persons with such disabilities.
I am satisfied that it did not have due regard to those matters, and that its decision is
unlawful.
Consultation
[37]
So far as consultation is concerned, the council did not submit that users of the
service had no legitimate expectation that they would be consulted. The council was correct
to take that approach. The interests of the users of the service, including CD, were of such a
nature as to give rise to such an expectation. Rather, the council's submission was that the
meeting on 14 March satisfied the requirements of consultation, and that it responded to the
consultation by moderating the proposal in the way already described.
[38]
The meeting was held at short notice. The notice of the meeting did not let those
with an interest know, in clear terms, that the proposal was to close the service. A statement
14
that at a meeting an individual will "describe the vision for transformation" is not clear
notice of a proposal to close a service.
[39]
The meeting was not held at a point when the proposals were still at a formative
stage. The language used by Mr Curran ("the approach was moderated") indicates that
there was a clear plan to decommission. It was moderated only to the extent of delaying
closure until the individual needs of service users had been met. His evidence indicates
that at the time of the meeting of 14 March, the mind of the council was not open to the
possibility that the service would not be decommissioned.
[40]
The meeting of 14 March therefore lacked a number of the essential features of
consultation which I have described in paragraph 29, and is unlawful.
Remedy
[41]
I have concluded for the reasons given above that the decision taken on 4 June 2019
was unlawful by reason of a failure to have due regard to the needs specified in section 149
of the 2010 Act, and at common law by reason of failure to consult. The council submitted
that I should restrict any remedy to one of declarator. I should take into account the delay
in raising the petition, notwithstanding the interlocutor granting permission. Matters had
moved on since June 2019. The pandemic had intervened. The service had closed and never
reopened. CD now lived in a care home, and would not be likely to need the service. It
would be disproportionate to require a fresh assessment or consultation process.
[42]
The principles relevant to whether or not to reduce the decision are those set out by
Lord Boyd of Duncansby at paragraphs 51 and 52 in McHattie. These proceedings do not
relate only to the individual interest of CD as a user of the service. They bring to light
unlawful decision-making, and in particular a failure to have due regard to the public sector
15
equality duty before determining that the service should be decommissioned. Although
the pandemic is a confounding factor, it is clear that there would normally be no new
referrals to a service that was in the course of being decommissioned. I accept that a fresh
decision-making process will inevitably be one taken in the context of circumstances that
differ from those which obtained in June 2019. I am not, however, prepared to speculate
as to what the outcome of it would be or to find that it is inevitable that the same decision
would be taken.
[43]
I therefore reduce the decision of 4 June 2019 so far as relating to the Teviot Day
Service. I am conscious that the decision affected other services, and that the focus of
these proceedings has been only on the lawfulness of the decision relating to the Teviot Day
Service. I also grant declarator that the decision so far as relating to the Teviot Day Service
was unlawful in respect that the council failed to perform its statutory duty under
section 149 of the Equality Act 2010, and in respect that it frustrated the legitimate
expectation of the petitioner to consultation.
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