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26.Apr.2012

The Court of Appeal has rejected a judicial review challenge brought by a law centre after a local authority decided to withdraw its funding.

Greenwich Community Law Centre (CLC) had appealed against a ruling by Mr Justice Cranston in the High Court in January this year in favour of Greenwich Council. The authority's decision-making process saw the allocation of funds to Plumstead Community Law Centre and Greenwich Housing Rights.

The CLC made a number of submissions to the judge in its challenge to the tender process, all of which were unsuccessful.

It then sought to appeal nearly all of Mr Justice Cranston’s conclusions, but the only ground on which it was given permission to appeal was over the question as to whether Greenwich Council complied properly with its public sector equality duty.

In Greenwich Community Law Centre, R (on the application of) v Greenwich London Borough Council [2012] EWCA Civ 496 the law centre submitted that the local authority’s Cabinet had made the final decisions on awarding contracts without complying with the s. 149 Equality Act duty. 

The claimant argued that the contract awards should therefore be unscrambled and the exercise begun again.

Giving the unanimous decision of the court, Lord Justice Elias said the court needed to ask whether as a matter of substance there had been compliance. At the same time it must ensure that it did not micro-manage the exercise, he said.

The Court of Appeal judge added that it was only if a characteristic or combination of characteristics were likely to arise in the exercise of the public function that they needed to be taken into consideration.

“I would only add the qualification that there may be cases where that possibility exists in which case there may be a need for further investigation before that characteristic can be ignored,” he said.

“Perhaps more accurately it may be said that whilst the council has to have due regard to all aspects of the duty, some of them may immediately be rejected as plainly irrelevant to the exercise of the function under consideration – no doubt often subliminally and without being consciously addressed….,” the judge added. “It is then a matter of semantics whether one says that the duty is not engaged or that it is engaged but the matter is ruled out as irrelevant or insignificant.”

Lord Justice Elias said he had no doubt that Greenwich Council’s own priority groups in practice dealt with all those groups with the protected characteristics identified in s. 149 which realistically might have been affected by the decision.

“Not only did the council have due regard to the implications of the decision on those groups, it actually structured its policy so as to ensure that they were principal beneficiaries of such funds as remained available,” the judge said. “As Cranston J aptly remarked, the logic of the tendering exercise meant that the performance of the duty was integral to the outcome.”

Lord Justice Elias also found that:

• An alteration between March and October 2011 effected by a re-commissioning exercise was not a significant change in policy. “It was a shift in the way in which the objectives of the policy were achieved which was designed to ensure greater savings for the good of the beneficiaries of the service”;
• A change from one provider to another without more would not usually engage equality considerations, nor should it matter that it changed from one provider to four;
• The only potential impact of the change was geographic – ensuring that advice was available across the borough so that certain groups, such as some elderly or disabled, were not disadvantaged by the problems of getting to an advice centre. This was fully recognised in the way the specification for the services was constructed;
• The equality implications were also specifically discussed by the council at a final meeting in October 2011. “It was the very reason that two councillors wanted the call-in. It is impossible to suggest that there was not due regard to this consideration”;
• The simple statement to councillors at a September 2011 meeting that they should have regard to their equality obligations would not on its own be enough to demonstrate that they had complied with their duties. “But that is to consider that statement out of context,” the Court of Appeal judge said. “Given the full EIA [equalities impact assessment] in March and the fact that the modifications thereafter were minor and fully in accordance with the commissioning principles which had been approved in March, it was unnecessary to require more”;
• It was true that the obligation lay on the council to comply with its duty, and it was not for the appellant to tell them how that should be done. However, if the appellant was going to allege a breach of that duty, it should “at least identify some characteristic which might realistically be said to have been engaged as a result of the change in policy and yet was not considered”.

Lord Justice Elias described as “misconceived” a contention that the fact that by October 2011 the final locations for the various services had still not been determined – with the final detail left in the hands of officers – demonstrated that the duty could not have been complied with.

The purpose of the duty was to require consideration of equality implications at the time policy was drafted, the judge said.

“The fact that it is a continuing duty does not mean that there has to be further detailed consideration when the general framework is made concrete, or whenever there are minor changes of detail,” he added. “It would make administration intolerable and grossly inefficient if every aspect of policy left to officers' discretion had automatically to be returned for further consideration of the equality implications.”

Lord Justice Elias therefore dismissed the appeal.

Philip Hoult

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25.Apr.2012

How should local authorities respond to FOI requests asking for access to the social work records of the deceased? Ibrahim Hasan examines their options.

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19.Apr.2012

Richard Mumford reviews a recent Court of Appeal ruling on the impact of the Mental Capacity Act 2005 on the High Court's inherent jurisdiction in relation to vulnerable if 'capacitous' adults.

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12.Apr.2012

The Care Quality Commission recently published its second monitoring report on the deprivation of liberty safeguards. Lucy Series examines what it had to say.

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11.Apr.2012

Llanelli Magistrates court has taken the unusual step of granting an emergency cancellation of a private care home's registration, following advice from Care and Social Services Inspectorate Wales (CSSIW) that its residents would be “at risk” if the home remained open.

The application to close the The Hafan Tywi in Ferryside, Carmarthernshire, was made by the Welsh Government on the recommendation of the CSSIW and granted on the 5th April.

"This is a very rare procedure, and is only the second time in the 10 year history of CSSIW that this action has been carried out,” a Welsh Government spokesperson told the BBC.

"It is only done when considered absolutely necessary to safeguard the health and well-being of vulnerable service users. The dedicated staff in Hafan Tywi have continued caring for residents through this difficult time and their commitment should be applauded."

Hafan Twyi had places for 22 residents, some of whom suffered with dementia. Carmarthenshire Council said that it had found alternative accommodation  for the home's residents.

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10.Apr.2012

The Local Government Ombudsman has sought to turn up the heat on a council over its refusal to pay the recommended £25,000 in compensation to a man made bankrupt without having proper regard to his mental health.

In May 2011 the Ombudsman, Dr Jane Martin, called on Torbay Council to pay the sum after finding it guilty of causing serious injustice.

But the local authority has only offered to pay £1,000.

Dr Martin has now issued a second report, saying that the £25,000 payment was recommended in order to put the complainant back in the position he would have been in had no maladministration occurred.

The sum also takes into account the financial costs incurred, the distress caused, and the time and trouble in pursuing the complaint.

In her original investigation the LGO agreed that Torbay had had difficulties communicating with the man, who did not open his post.

However, none of the council’s officers visited him at his home.

A bailiff noted warning signs that might reasonably have alerted Torbay that the man was unwell. The bailiff also later advised the council that the man was suicidal.

Torbay did not act on this concern. It did take proceedings against the man over a council tax debt of £2,248.

The LGO said the council could have reconsidered its actions at any time in the light of information on the debtor’s state of health but failed to do so and was guilty of maladministration.

The Ombudsman argued that if Torbay had reconsidered its approach, the complainant would not have incurred costs in the region of £24,000.

In its publication Focus report on the use of bankruptcy for council tax debts, the LGO highlighted measures a council should take to determine whether bankruptcy is a fair and proportionate action before proceeding.

These include:

• making reasonable efforts to contact the debtor in person by a home visit if necessary;
• a case review by a senior officer that includes gathering sufficient evidence about the debtor’s personal circumstances and considering whether those circumstances warrant them being protected from recovery action.

Philip Hoult