Care providers must demonstrate they have acted fairly when changing services to avoid costly legal action, says Robert Wassall
In the case of R (on the application of Tiller) v Secretary of State for the Home Department, Mr Tiller, who is disabled, was a tenant at a sheltered housing scheme with a 24-hour onsite warden service which, due to its cost, East Sussex Council wished to replace with an onsite weekday service during office hours. In the consultation process, keeping the existing 24-hour service was ruled out as an option.
As a result, Mr Tiller applied for a judicial review. He argued that the local authority had failed in its duty under the Disability Discrimination Act 1995 to pay due regard to the need to achieve certain goals in relation to disabled people. This was evidenced by the failure to mention that duty or the DDA in any documents relating to its decision. He also contended that by ruling out the option of a 24-hour service, the consultation was not sufficiently open.
The High Court decided the consultation process was not flawed by the ruling out of existing warden arrangements and that, despite the lack of reference to the DDA in the documents, East Sussex Council had discharged its legal obligations.
Changing care arrangements are nearly always difficult and increasingly result in a legal challenge. In this case, although the local authority acted in a way that was legally correct, it failed to demonstrate to those affected that it had acted fairly by failing to refer to the DDA in its consultation documentation, and by specifically ruling out the option of keeping a 24-hour warden (thus giving the impression the outcome was a forgone conclusion). This led to costly legal proceedings which could have been avoided.
Robert Wassall is head of social housing at Blake Lapthorn