Judges reject challenge over drop-in centre closures decision and ‘target’ duties in Care Act

Lord Justice Phillips said in his judgment that the Court had to decide whether the council failed to take into account mandatory relevant considerations - or acted irrationally in failing to take them into account - in not having regard to broad ‘target’ duties under sections 2, 3 and 5 of the Care Act 2014.

The claimants/appellants, two users of the servvice, sought judicial review of the closure decision on the basis that although the council was not exercising a function to which the Care Act provisions applied, and did not act in breach of the relevant duties, it was implicit that Devon should have regard to the sections, or that it was irrational for it not to.

Eyre J had dismissed the case in the High Court. This was despite his conclusion that it was conceivable that a statute might expressly or impliedly identify a broad target duty arising under a different statute as a mandatory relevant consideration when exercising powers under the first statute.

He also accepted that there was no reason of principle why the existence of a target duty could not be an obviously material consideration so that not to take it into account would be irrational.

But he held that when it decided to close the centres, Devon was not performing a duty under any statutory provision, and so there was no express or implied identification of the Care Act provisions as mandatory relevant considerations.

The two appellants challenged Eyre J’s decision and his refusal to take into account the evidence of service users on the centres’ role in preventing them from going into mental health crises.

Phillips LJ said Devon set up the service in 1992 to support adults with mental health difficulties but who did not require specialist NHS care.

It was not part of the council's mandatory social care provision and was not related to eligibility for care and support under the Care Act 2014.

Devon ran two consultations on the service’s future in 2023 because of both budgetary pressures and a belief that new services provided by voluntary organisations meant there would be duplication.

The appellants' first ground was that Eyre J erred in law in treating the dispute as a question of fact as to the role of the service. They contended the judge should not have proceeded on the basis that the council's understanding of the role and function of the service was correct.

Rather he should have accepted their opinion that the service’s existence helped to prevent users going into crisis.

Phillips LJ said: “In my judgment, the immediate and complete answer to the ground is that opinion evidence, in particular as to the effect of the service (and its closure) on the mental health of users, would only be admissible (and of any weight) if provided by an expert in the field, and no such expert evidence was adduced.

“Certainly the judge was right not to treat as relevant the subjective views of a relatively small number of users, with no qualifications or expertise in the field, no matter how deeply felt or vividly expressed.”

Devon had an overview of the three service centres, and mental health provision generally, and so was “best placed to determine the respective roles played in supporting mental health issues and crises, actual and potential”.

Phillips LJ said the appellants' contention that the Care Act provisions were mandatory relevant considerations in the closure decision “does not get off the ground”.

He said that to be mandatory, considerations must be clearly identified by the relevant statute as one to which regard must be had.

“In the present circumstances, that would involve the appellants demonstrating that the council was exercising a statutory function, then further identifying that the wording of that statute required that regard be had to the separate Care Act provisions,” he said.

“But the appellants have not identified the governing statutory provision, let alone set out its wording and explained how that wording expressly or impliedly required that regard be had to the Care Act provisions.”

Turning to the claim of irrationality, Phillips LJ said Eyre J had not found Wednesbury irrationality, and “in my judgment the challenges to that finding are without merit”.

Eyre J had also been entitled to consider the availability of equivalent services, since the Care Act provisions were expressed to apply to a local authority “in its area” and had been entitled to note that alternatives were available.

Phillips LJ dismissed the appeal and Lady Justice Falk and Lord Justice Bean both agreed.

Mark Smulian