Scottish council acted ‘unlawfully’ by failing to consult over closure of day centre for disabled adults

The Court of Session quashed the decision to close the Kyle Adult Day Centre after ruling that South Ayrshire Council breached its “public sector equality duty” in terms of section 149 of the Equality Act 2010 and failed to consult Roy McHattie, whose 32-year-old son was a regular user of the centre, before making the decision.

‘Kept in the dark’ 

Lord Boyd of Duncansby heard that the petitioner’s son Craig, who suffers from a number of significant health problems including severe learning and mobility issues, had attended Kyle Adult Care Centre five days a week for the last 13 years, during which time he had developed important relationships with the carers. 

However, in June 2019 the respondent council’s integrated joint board (IJB) decided to close the centre after a review found that the centre’s services were “not fit for modern day service provision”.

In 2018 an options appraisal exercise had concluded that the best option for the Kyle Centre was to transfer users to externally provided services, benefitting both users and the South Ayrshire Health and Social Care Partnership through “improved service, achievement of strategy and cost savings,” which were estimated at £56,000 for 2020.

The centre’s fate was decided on 26 June 2019 at a meeting of the IJB, when it approved the recommendation to close the centre, but service users and guardians were “kept in the dark”.

On 10 July 2019 the council’s learning disability manager wrote the petitioner’s son to advise that the health and social care partnership was “reviewing” its future provision and that this may lead to changes to the support provided, but added that the centre would continue to operate normally in the meantime and that care managers would discuss any changes with him “fully” and “make suitable arrangements” to ensure his needs were met going forward. 

However, it was not until 10 September 2019 at a meeting with the council that the petitioner was told for the first time that the Kyle Centre was to be closed by Christmas, although a closure date of 31 December was later proposed.

‘Public Sector Equality Duty’

Mr McHattie, as guardian of his son, lodged a petition for judicial review seeking reduction of the purported decision, as well as suspension and interim interdict.

His position was that the respondent, by reaching the decision dated 26 June 2019 without consultation, had “frustrated the legitimate expectations” of the petitioner.

The petitioner also sought declarator that in reaching the decision the respondent failed to perform its statutory duties under section 149 of the Equality Act 2010, and separately that the decision was “irrational” et separatim “lacking in reasons” et separatim “unreasonable”.

Reducing the decision, the judge observed that there appeared to be some “confusion” on the part of the council as to whether a decision had been taken to close the centre as there was no properly minuted record, but the IJB took a decision on 26 June 2019 to make “budget savings” which effectively meant the closure of the Kyle Centre. 

The court held that the council breached its Public Sector Equality Duty under section 149 of the 2010 Act by failing to carry out a formal equality impact assessment (EIA) to assess the effect of the policy on those persons with disabilities who relied on the service, adding that a scoping exercise which was later carried out had “all the hallmarks of a tick-box exercise” completed after the decision had been taken. 

‘Fundamentally flawed decision’

In a written opinion, Lord Boyd said: “The effective decision to close the Kyle Centre was taken on 26 June. There was no EIA presented to the IJB on the effects of closing Kyle Centre. 

“Accordingly it cannot be said that the respondent paid due regard to the effect of the policy on its duties under section 149. For these reasons I am satisfied that the respondent failed in its duty under section 149 of the Equality Act and I shall grant a declarator to that effect.”

He added: “I am satisfied that the petitioner had a legitimate expectation of consultation on the proposal to close the Kyle Centre. His son had attended the centre every day for 13 years. It was an integral part of his life. He and his parents relied on it. 

“I do not consider the failure to consult as ‘at best a procedural impropriety’ but one which went to the heart of the decision making process. 

“That process was fundamentally flawed by the failure to consult persons who had a legitimate expectation of such consultation. It resulted in a feeling of grievance and injustice in the making of a decision which had profound implications for a group of vulnerable people.”

The judge continued: “Whether consciously or not it appears that the decision to close the Kyle Centre has been attended by mismanagement and obfuscation so that those who were most affected by the decision were kept in the dark until two months after the decision to close. 

“Such decisions cannot be taken by stealth; they must be open and transparent and comply with the duties which Parliament has imposed upon the respondent.”

The centre was due to close in a few days’ time and the local authority had agreed severance packages with all but three of the staff, including the centre’s manager, but the ruling means it will have to re-hire the staff in order to remain open.

The court noted that it may be that after appropriate consultation and EIA a decision would be taken to close the centre, but “any decision as to the future of the Kyle Centre has to be one which is not seen as pre-ordained but is justified on all the facts including those which emerge from the consultation and EIA”.

Lord Boyd concluded: “I shall (a) reduce the respondent’s decision to close the Kyle Adult Day Centre; (b) grant a declarator that in reaching the decision to close the Kyle Adult Day Centre the respondent acted unlawfully in respect that (i) it failed in its duty to have regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic, namely a disability and persons who do not share that characteristic in terms of section 149 of the Equality Act 2010, and (ii) failed to consult with the petitioner and other users, carers and guardians of users of the Kyle Adult Day Centre who had a legitimate expectation of such a consultation…”