care, consultation and human rights
On 29/6/2011, in the case of R (on the application of
Tiller) v Secretary of State for the Home Department, the
claimant (T) applied for judicial review of the defendant local
authority's decision to alter the 24-hour care provided to tenants
of a sheltered housing scheme. T was a disabled and was a tenant at
the sheltered housing scheme, which was funded by the local
authority. A 24-hour on-site warden service was provided. Due to
the cost of the service the local authority wished to replace it
with an alternative service and began a consultation process with
the tenants, carers and managers. A project group was set up to
consider options, but keeping the existing service was not
permitted as an option. Meetings were held with tenants, and their
views were obtained by a questionnaire and survey.
Local authority officers prepared a report containing
recommendations, and a senior officer decided that the service
should be replaced with an on-site service during week-day office
hours and an on-call remote service at other times. The most
vulnerable tenants were offered accommodation at nearby facilities
that offered greater levels of care. T argued that the local
authority had failed to give any conscious thought to its duty
under the Disability Discrimination Act 1995 (DDA) to have due
regard to the need to achieve certain goals in relation to disabled
people in carrying out its functions, which was evidenced by the
failure to mention the duty or the Act in any documents relating to
its decision. T also contended that the ruling out of the status
quo demonstrated that the consultation was not as open as it should
have been.
The court decided that:
- the consultation process had not been flawed by the ruling out
of the status quo; one of the options considered was a more
generous provision
- the decision had been taken after full consultation and had
been properly taken after a proper assessment of need. Although
some tenants had continuing concerns about the level of care at the
time the decision was made, it was not right to say that those
concerns had not been considered
- notwithstanding the lack of mention of the DDA in the
documents, the local authority had discharged its legal
obligations.
what this means for social landlords
Changing care arrangements are nearly always difficult and
increasingly result in a legal challenge. Such challenges usually
allege a failure to properly consult and that the human rights of
those being cared for have been breached. Often, this results in an
unfavourable outcome for the social landlord.
Even if, as in this case, the landlord was successful, the fact
is that it became embroiled in costly legal proceedings. This is
because although the landlord acted in a way that was legally
correct, it failed to demonstrate to those affected that it had
acted fairly, by (a) failing to specifically refer, in its
consultation documentation, to the DDA (now the Equality Act), and
(b) specifically ruling out the keeping the existing arrangements
(thus giving the impression that the outcome was a forgone
conclusion).
