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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Chavda & Ors, R (on the application of) v London Borough of Harrow  EWHC 3064 (Admin) (20 December 2007)
Cite as:  EWHC 3064 (Admin)
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QUEEN'S BENCH DIVISION
B e f o r e :
(sitting as a Judge of the High Court)
|The Queen on the application of|
|Priti Hansraj Chavda|
|By her daughter and litigation friend Pamela Fitzpatrick|
|Milton George Maos|
|London Borough of Harrow|
Mr Roger McCarthy QC and Ms Deirdre Fottrell (instructed by Director of Law and Administration London Borough of Harrow) appeared for the Defendant.
Crown Copyright ©
Community care – legislation and guidance
"Where it appears to a Local Authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the Authority
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."
" where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely:-
(a) the provision of practical assistance for that person in his home;
(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities
(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;
(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;
(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;
(f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise;
(g) the provision of meals for that person whether in his home or elsewhere;
(h) the provision for that person of, or assistance to that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone,
then, … it shall be the duty of that authority to make those arrangements in exercise of their functions…."
" If Cabinet wish to proceed with the proposal to meet only needs that fall within the 'Critical' FACS band, the following actions could be put in place to address the concerns expressed in the consultation about increased risk:
Mr Cragg for the Claimant criticizes in his skeleton argument the omission from the report of a letter from the PCT formally responding to consultation and setting out in detail its opinion that the proposed change would have a detrimental effect on the well being of many Harrow residents. The letter suggests that the consultation has been presented as though the change to the eligibility criteria was the only available option. Mr Cragg emphasises the importance of the views of the PCT given its statutory partnership with the Defendant. Mr McCarthy QC points out that the views expressed by the PCT were similar to those put forward by a local hospital and that Councillor Silver who had been present at a public meeting of the PCT on 5 June was able to relay those concerns when the matter was considered on 25 July. Although the points made by the PCT may well have been made by others the fact that the PCT had made them was something which, at least in retrospect, should have been drawn to the meeting's attention. I recognise however that this is a question of judgement as one sees from the witness statement of Mr Gillett of the Defendant who describes the decision taken by his colleague Mr Singh.
Grounds for challenge
• The consultation process prior to the decision made was flawed and unlawful;
Was the consultation process prior to the decision flawed and unlawful?
Did the decision-making process fail to take the Human Rights Act 1998 into account?
Did the decision-making process comply with the Defendant's Disability Equality Duty under Section 49A Disability Discrimination Act 1995?
49A General duty
Every public authority shall in carrying out its functions have due regard to –
(a) the need to eliminate discrimination that is unlawful under this Act;
(b) the need to eliminate harassment of disabled persons that is related to their disabilities;
(c) the need to promote equality of opportunity between disabled persons and other persons;
(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;
(e) the need to promote positive attitudes towards disabled persons; and
(f) the need to encourage participation by disabled persons in public life.
Has the Defendant fettered its discretion to consider whether to provide community care services individually to each users?
Is the decision to exclude those with substantial needs in itself irrational, unreasonable and/or disproportionate in all the circumstances?