R (LH & CM) v Shropshire Council [2013] EWHC 4222 (Admin)

FACTS: In 2011 and 2012 the LA conducted a county-wide consultation exercise on the general future direction of its adult care services, including such matters as personalisation. There was no proposal set out at that stage for specific day centre services to be cut or significantly altered. In 2013 the LA made a decision on restructuring day centre services within the county, which included a schedule setting out the imminent changes to be made to many of the 17 day centre services in the LA area, including three services to be terminated altogether.

LH and CM were two adults with learning disabilities who attended different day centres run by the LA. Through family members as Litigation Friends they challenged the restructuring decision on grounds of inadequate or absent consultation, and breach of public sector equality duties.

As regards the latter challenge, there had been an EIA done a week before the decision was published. The EIA identified potential impacts to the protected groups of the elderly and the disabled. The EIA stated that such impacts were likely to only be moderate, as day centre services would continue to be provided at other venues. The LA’s EIA policy was that where the impact was only moderate, there was no need to go further and conduct any more intensive equalities impact analysis.

The LA contended that there had not been any decision to close the day centre service attended by CM, and so that challenge was premature.

JUDGMENT: The Court dismissed both challenges. There had been some mention of the possibility of closures in general. Decisions as to the scope of the consultation were for the LA, and the LA had not acted unreasonably in its decisions on those matters. The judge said that consultation does not extend to what is “not viable” and fairness must take into account “practical realities”. He also characterised this as a consultation on a reconfiguration of services rather than a “proposal to withdraw services entirely”. In relation to the PSED challenge, the judge held that equality impacts had been considered. CM’s challenge was dismissed as premature.

The Court of Appeal has granted LH (but not CM) permission to appeal, and the substantive appeal is listed to be heard in March 2014.

COMMENT: The decision if upheld may have a significant effect on consultation duties and the PSED in the field of decision-making by LAs on cuts to services.