Shame On You Campaign... Fighting For The Elderly Mentally Infirm In Staffordshire

· Letters to and from Councillors	· Letters to Newspapers
· Paul Farrelly MP Web Open Letters	· May Place Homage

I have included the Court of Appeal Judgement on our site as I feel that we are all entitled to review it ourselves and know the reasons why it failed.

Case No: C1/2007/0724

Neutral Citation Number: [2007] EWCA Civ 860
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE WILLIAMS)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 4th July 2007

 

 

Before:

LORD JUSTICE MOORE-BICK
and
LORD JUSTICE MOSES

- - - - - - - - - - - - - - - - - - - - -

Between:

HIDE
Appellant
- and -

STAFFORDSHIRE COUNTY COUNCIL

Respondent

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -
 

Ms Y Hossack (instructed by Messrs Hossack) appeared on behalf of the Appellant.

Mr S Knafler (instructed by Staffordshire County Council) appeared on behalf of the Respondent.
- - - - - - - - - - - - - - - - - - - - -
Judgment
(As Approved by the Court)
 

Lord Justice Moses:
1. This is an application for permission to appeal against a decision of Wyn Williams J refusing permission to move by way of judicial review to quash what was alleged to be a decision of 15 February 2007 “to re provide (close) 22 care home and ten day centres.” It is important, because so many people concerned with care homes within Staffordshire, have come all this way to this court, to explain the nature of these proceedings, although certainly counsel for Staffordshire will be well familiar with them and the solicitor advocate for the applicant ought to be. This is an application for permission to appeal. Under the statutory scheme for appeals, no one can appeal a decision without permission. There are two stages in relation to that permission. Firstly, a member of the Court of Appeal, in the instant case Sir Henry Brooke sitting as a judge at the Court of Appeal, considers all the papers in writing and reaches a decision. He did. He said there was no prospect of an appeal being successful. But it is open to an applicant to have a second go and in those circumstances these proceedings are brought in open court with the opportunity of adding to the written submissions orally. But it is not a full hearing. It is a hearing made after, as it now proves, three Court of Appeal judges, have had an opportunity, which they have taken, to read all the papers and consider them. It is a filtering process. There is no right of appeal unless there is a real prospect of success. There is no right to move by way of judicial review; in other words, seek to quash a decision by a decision maker such as Staffordshire County Council, unless there is arguable ground for doing so.

2. Wyn Williams J concluded there was no such arguable ground. However much the subject matter of this case arouses strong emotions and deep concern, it cannot alter the legal position: namely, whether there is a legal basis for challenging a decision made by a democratically elected body. The irony of this application is that the crucial question for consideration is whether it is arguable that any decision at all has been made by Staffordshire County Council in relation to the closure of care homes. The Staffordshire County Council says it has not and that it will not make any decision to close any individual care home or day centre without having completed lawful consultation with those who are recipients of such services and with their carers and their families.

3. To avoid any confusion, if there could be any doubt what is meant by consultation one has only to consider the relevant legal propositions any lawful consultation must be undertaken at a time when proposals are at a formative stage, there must be sufficient reasons advanced for any particular proposal to allow those consulted -- that is patients, those in receipt of the services, their families and their carers -- to give intelligent consideration and an intelligent response, adequate time must be given for that purpose and the results of that consultation must be conscientiously taken into account before any ultimate decision is taken. These are not my words. These are the words of the Court of Appeal on a number of occasions: for example, in R v Brent London Borough Council ex parte Gunning [1985] 84 Local Government Reports 168; Barnet ex parte B [1994] ELR 357 and R v North East Devon Health Authority ex parte: [2001] 1 QB 213.

4. These principles are not in dispute but, contends Ms Hossack on behalf of the applicant, a decision has already been made to close individual care homes. The reasons she suggests are that, once the council had set out what it described as its financial strategy for changing lives, it was a foregone conclusion that care homes would be closed. She supports that contention today by reference to the fact that the decision is not to be made by the full council but by those she say to whom it will purport to delegate the decision and they have already made their minds up. She has also seen fit in support of that submission to produce documents from which she quotes, in open court, designed to show that the interim director of performance, Mr Skerman, who has repeatedly stated that no final decision of any nature has been taken, and that there will be a full consultation, has inadequately discharged his responsibilities when working for other local authorities. She further supports it by pointing to a budget that has been set that is only consistent with a concluded decision to close residential care homes.

5. Faced with that attack, Wyn Williams J said that he could find no basis for saying that any concluded view had been reached. He reached that conclusion based on the assertions and promises of the council that there would be lawful consultation, which they supported by directing attention to meetings they proposed to hold, the time for such meetings, the agencies that would be used not only to represent the views of those concerned but to report back to the council. The judge took the view that it was not arguable but that there had been no decision which required consultation and that before any decision to close any particular care home was taken there would be consultation.

6. It was not surprising that he reached that view, since it was entirely consistent with a case that had been launched by another person concerned with closures within the Staffordshire County Council area which had been heard before Kenneth Parker QC, sitting as a deputy High Court Judge shortly before. Rather than appealing permission after Mr Parker QC had held that it was not arguable that there had been any decision, these proceedings were launched in the light of what was said to be comments by the county council following the decision of Mr Parker. But the application is identical to the earlier position and it is therefore significant to reiterate that no appeal was launched against Mr Parker’s refusal to permit a motion for judicial review.

7. Staffordshire County Council, having successfully given public assurances of the consultation that it will undertake both before Mr Parker and before Wynn Williams J, has persisted in giving those assurances to this court both to Sir Henry Brooke and to us. It has drawn attention to the fact that consultation has already started and that it will be properly and lawfully undertaken. Says Mr Knafler, with a forensic shrug of the shoulders: what more can the local authority do? I for my part agree. It has given these assurances over and over again, and it is incumbent upon those who I fully accept are deeply concerned that care homes will be closed to listen and, as we are bound to do, accept that those are assurances publicly given by which the local authority are bound, and it is incumbent not only on those concerned at the closures but all those who advise upon them and -- perhaps I may be forgiven for observing -- fuel those concerns.

8. But as yet they are wholly unjustified. Where a local authority gives public assurances that it will abide by the law and comply with the legal requirements of consultation, it is a hopeless task to seek to move by way of judicial review on the basis that those assurances will not be complied with. It is equally hopeless, in my judgment, to suggest that any final conclusion whether as an overall strategy described “as a decision in principle” or as a tactical decision as to what homes should be closed and how that closure is to be managed to suggest that those constitute a final decision. In those circumstances in my view, for the reasons he gave in a clear judgment, Wyn Williams J was wholly correct to refuse permission.


Lord Justice Moore-Bick:
9. I agree with everything my, Lord, Lord Justice Moses, has said. Therefore permission to appeal will be refused.

Order: Application refused.