3.27R (G) v North Somerset Council [2011] EWHC 2232 (Admin)
North Somerset had not acted unlawfully in deciding to cut the amount of direct payments and replacing direct payments with a managed care service
Facts: The claimants were two severely mentally disabled young persons, whose care had been managed by their parents, by way of direct payments. North Somerset cut the claimants’ funding by 33 per cent and replaced their direct payments with a managed care service. They claimants sought a judicial review.
Judgment: Laws J dismissed the application on the basis that, factually, whilst North Somerset had reduced the budget, it was providing the same level of service and that very serious concerns had arisen about the conduct of the claimants’ parents in relation to the direct payments. North Somerset had not been under a duty of consultation and any breach of the public sector equality duty (PSED) had been purely theoretical:
21. The burden of the evidence here is that in what plainly were difficult circumstances given the context and the background of the audit, the council have taken care to maintain the existing provision in being subject to any change yet to happen when the full further review has been completed. There is nothing in the material before me to show that a different picture emerges when one looks at the decision of May 2011. In these circumstances it does not seem to me there was a breach by the local authority of the procedural obligations relating to assessment or consultation either in February 2011 or in May 2011.
25. The same goes, it seems to me, for Mr Buttler’s third submission which was that section 4 of the Mental Capacity Act 2005 required the council to consult the claimants’ parents or carers as to whether the steps proposed to be taken in February or May 2011 were in their best interests. Such a duty however arises only if consultation is ‘practicable and appropriate’. It seems to me plain that it would not have been appropriate to consult the parents given the history. Mr Buttler however submits that the carers should have been consulted. The carers in fact have continued their task as before now under the new arrangements. Their input moreover will be part of a review in due course. Though they have not been expressly consulted or their advice distinctly sought as to the changes in February or May 2011, I cannot read this in the particular circumstances as a violation of the statute.
26. The last submission made by Mr Buttler goes only to the May 2011 decision. It is that a legitimate expectation that the carers would be consulted before direct payment ceased was generated by the letter of 7 February 2011. Mr Buttler points to the terms of the letter. He says that its import is that the new temporary direct payment arrangements would continue for six months until the comprehensive review was completed. It may be that that is what was hoped would happen or indeed what the council anticipated would happen. But it seems to me that there is nothing in that letter that generates an expectation that even in the face of evidence confirming the appropriateness of a change in the arrangements such as was made in May 2011 there would be an expectation of consultation before that occurrence, and not in truth a legitimate expectation case.