Factual and Procedural Background
The court considered two appeals against orders made by Judge Popplewell on 9th July 1992, which dismissed two substantive applications for judicial review heard over 6th to 8th July. Both applications concerned the closure by local authorities of residential homes for elderly people. The local authorities involved were County Council A and County Council B. The applicants in each case were elderly female permanent residents of the homes proposed for closure. The appeals raised two principal questions: whether the councils owed a duty to consult the permanent residents before deciding to close the homes, and whether the existence of an alternative statutory remedy precluded relief by way of judicial review.
County Council A's homes had a long history of review and consultation, including letters from the Chair of the Social Services Committee promising consultation, meetings with residents and supporters, and public demonstrations against closure. The final resolution to close the homes was passed on 24th October 1991 after extensive debate and petitions.
County Council B's closure decision was more abrupt, with the closure approved on 15th January 1992 and only brief notice given to residents shortly before the decision. The council had prepared a community care plan and held statutory consultations with relevant bodies, but did not consult residents prior to the closure decision. Petitions were presented at the committee meeting, but a motion for further consultation was rejected.
Legal Issues Presented
- Whether the local authorities owed a duty to consult permanent residents before resolving to close residential homes for elderly people, and the scope and nature of such consultation.
- Whether the availability of an alternative statutory remedy under section 7(D) of the Local Authority Social Services Act 1970 precluded relief by way of judicial review for the applicants.
Arguments of the Parties
Appellants' Arguments
- Each county council owed a legal duty to consult permanent residents about the closure of their homes, not merely about relocation after closure.
- The duty to consult was an aspect of the councils' duty to act fairly, grounded in principles of natural justice and procedural fairness.
- In the case of County Council A, the appellants relied on specific promises of consultation made in letters from the Chair of the Social Services Committee, asserting a legitimate expectation of consultation.
- They argued that the alternative remedy under section 7(D) did not clearly apply to the relief sought by way of judicial review, and thus should not bar the court's intervention.
- In the case of County Council B, the appellants contended that the failure to consult prior to the closure decision constituted procedural unfairness warranting judicial review.
Respondents' Arguments
- The councils accepted a duty to act fairly but contended that consultation did not require individual or early consultation prior to closure decisions.
- They argued that the alternative statutory remedy under section 7(D) provided an adequate means to challenge decisions and should preclude judicial review.
- In County Council B's case, it was submitted that consultation with residents was not mandatory due to statutory provisions requiring consultation with other bodies and the impracticability of consulting all residents individually.
- Regarding County Council A, it was contended that the letters promising consultation referred only to consultation after a decision to close had been made.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Lloyd v. McMahon [1987] A.C. 635 |
Duty to act fairly and consult as aspect of procedural fairness. |
Referenced to support the applicants' submission that consultation is part of the duty to act fairly. |
| Leech v. Deputy Governor of Parkhurst Prison [1988] A.C. 533 |
Existence of alternative statutory remedy does not oust court's jurisdiction to grant judicial review. |
Accepted by the councils but considered in light of alternative remedy under section 7(D). |
| R. v. Inner London Education Authority, ex parte Ali [1990] 2 Admin L.R. 822 |
Alternative remedy and its impact on judicial review. |
Used to discuss the availability and effect of alternative remedies. |
| Southwark London Borough Council v. Williams [1971] Ch. 734 |
Exclusive remedy for complaints about local authority statutory functions was application to Minister, not courts. |
Discussed in relation to section 36 of 1948 Act and its replacement by section 7(D). |
| R. v. Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 Q.B. 299 |
Legitimate expectation based on express promises requiring procedural fairness. |
Considered in relation to letters promising consultation; good faith did not negate application. |
| Haoucher v. Minister of State for Immigration and Ethnic Affairs [1990] 93 A.L.R. 51 (Australia) |
Legitimate expectation and procedural fairness principles. |
Used to illustrate the developing law on legitimate expectation and procedural fairness. |
| R. v. Chief Constable of The Merseyside Police, Ex parte Calveley [1986] Q.B. 424 |
Judicial review and alternative remedies. |
Helpful authority on whether judicial review should be granted where alternative remedies exist. |
| R. v. Secretary of State for The Home Department, Ex parte Swati [1986] 1 W.L.R. 477 |
Judicial review and alternative remedies. |
Considered in relation to alternative statutory remedies. |
| Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 |
Grounds for judicial review: illegality, irrationality, procedural impropriety; concept of legitimate expectation. |
Framework for assessing duty to act fairly and legitimate expectations. |
| R. v. Secretary of State for the Home Department, Ex parte Asif Mahmood Khan [1984] 1 W.L.R. 1337 |
Legitimate expectation as substantive right based on clear representation. |
Illustrative of category 1 legitimate expectation. |
| R. v. Secretary of State for the Home Department, Ex parte Ruddock [1987] 1 W.L.R. 1482 |
Legitimate expectation as substantive right. |
Illustrative of category 1 legitimate expectation. |
| R. v. Board of Inland Revenue, ex parte MFK Underwriting Agencies Ltd [1990] 1 All E.R. 91 |
Legitimate expectation unsuccessful claim for substantive right. |
Illustrative of limits on category 1 legitimate expectation. |
| R. v. Jockey Club, ex parte R.A.M. Racecourses Limited [1991] 3 Admin L.R. 265 |
Legitimate expectation as substantive right. |
Illustrative of category 1 legitimate expectation. |
| Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch 149 |
Legitimate expectation as protected interest requiring procedural fairness. |
Example of category 2 legitimate expectation. |
| O'Reilly v. Mackman [1983] 2 AC 237 |
Legitimate expectation and procedural fairness. |
Example of category 2 legitimate expectation. |
| R. v. Rochdale Metropolitan Borough Council, Ex parte Schemet (unreported 1992) |
Legitimate expectation and procedural fairness. |
Recent example of category 2 legitimate expectation. |
| Attorney General for The State of New South Wales v. Quinn (1990) 170 C.L.R. 1 |
Critique of legitimate expectation as a concept distinct from procedural fairness. |
Used to clarify conceptual confusion regarding legitimate expectation. |
| Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 A.C. 629 |
Legitimate expectation based on express promises. |
Illustration of category 4 legitimate expectation. |
| R. v. Brent London Borough Council, ex parte Gunning (1986) 84 L.G.R. 168 |
Requirements for adequate consultation. |
Adopted as a standard for consultation requirements. |
| R. v. London Borough of Sutton, Ex parte Hamlet (1986) |
Requirements for consultation and legitimate expectation. |
Referenced for the essentials of consultation. |
| R. v. Northamptonshire County Council, Ex parte Tebbutt (1986) |
Requirements for consultation. |
Approved the consultation requirements applied in this case. |
| McInnes v. Onslow-Fane [1978] 1 W.L.R. 1520 |
Earlier exposition of legitimate expectation doctrine. |
Superseded by Lord Diplock's analysis in Council of Civil Service Unions. |
Court's Reasoning and Analysis
The court analysed the duty of local authorities to consult permanent residents before deciding to close residential homes in light of principles of procedural fairness and legitimate expectation. It identified three essential elements of consultation in this context: (1) residents must know that closure is under consideration well before the final decision; (2) residents must have reasonable time to make representations; and (3) the council must conscientiously consider residents' objections.
In County Council A's case, the court found that residents were well aware of the threat of closure for a considerable period, had ample opportunity to make representations, and that the council fairly considered those objections. The letters from the Chair promising consultation were interpreted as referring only to consultation after a final decision, and the court held that no detriment arose from reliance on those letters. Therefore, no procedural unfairness was found, and judicial review was refused.
In County Council B's case, the court found that the residents received only very short notice of the closure decision, insufficient time to make representations, and no prior consultation occurred. The letter sent shortly before the decision did not amount to effective consultation. The court held that this failure constituted procedural unfairness warranting judicial review.
Regarding the alternative statutory remedy under section 7(D) of the 1970 Act, the court acknowledged that while such a remedy exists, it was unclear whether the duty to consult was itself a social services function subject to that remedy. The court held that the issue was appropriate for judicial determination and that the availability of the alternative remedy did not preclude judicial review in this case.
The court also discussed the concept of legitimate expectation, categorising its different uses and clarifying that the relevant category here was the expectation of procedural fairness in the decision-making process. It emphasised that fairness demands vary according to context and that the court must assess what procedural fairness requires in each case.
The court adopted established principles from authorities on consultation, including the requirement that consultation occur when proposals are at a formative stage, with sufficient reasons given, adequate time allowed, and that consultation outcomes be conscientiously considered.
Holding and Implications
The court made the following rulings:
- County Council A case: The appeal was dismissed with costs. The court concluded that the council had acted fairly and that the consultation provided was sufficient. The decision to close the homes was upheld, and no new precedent was established beyond applying established principles of procedural fairness.
- County Council B case: The appeal was allowed with costs. The court found procedural unfairness due to inadequate consultation and granted relief subject to further argument on the form of relief. The council was ordered to consult with the appellants and their advisers regarding their future and the future of the home. The court refused leave to appeal to the highest appellate court.
The implications are that local authorities must ensure adequate consultation with permanent residents before deciding to close residential homes, in accordance with procedural fairness principles. The availability of alternative statutory remedies does not automatically preclude judicial review where legal questions of fairness arise. The case clarifies the application of legitimate expectation doctrine in the context of social services and residential care closures.