Court of Appeal rejects challenge to closure of passenger transport unit

A city council has successfully defended in the Court of Appeal its decision to close its passenger transport unit (PTU) and make alternative arrangements for users.

The appellants in Robson & Anor, R (On the Application Of) v Salford City Council [2015] EWCA Civ 6 were severely disabled adults who used the PTU to travel between their homes and adult day centres.

The closure was part of a package of cost-cutting measures put forward by Salford and was budgeted to lead to a saving of £600,000 a year.

The claimants’ judicial review claim was rejected in October 2014 by His Honour Judge Stephen Davies, sitting as a High Court Judge in the Administrative Court at Manchester.

There were three issues in the appeal:

• whether Salford acted unlawfully in failing to undertake full individual community care assessments before making a decision to terminate the PTU service ("the assessment issue");
• whether the consultation carried out prior to the decision was lawful ("the consultation issue"); and
• whether the council complied with the public sector equality duty under section 149 of the Equality Act 2010 ("the PSED issue").

Giving the unanimous judgment of the Court, Lord Justice Richards rejected the appeal.

On the assessment issue, he said he agreed with HHJ Stephen Davies’ analysis, saying that the decision to close the PTU did not prevent Salford from making lawful transport arrangements for those currently using the PTU.

“As [Salford’s barrister] submitted on behalf of the council, the PTU is a particular business structure under which staff are employed and vehicles are leased; there is no evidence that a replica facility could not be provided if necessary through third parties, and there is no reason in principle why it could not be so provided,” Lord Justice Richards said.

“In any event the decision was linked with the search for alternative transport arrangements for current users of the PTU and was taken in the light of an assessment exercise which showed the feasibility of making alternative arrangements for at least a substantial majority of those users.”

The Court of Appeal judge added: “If the existing service had to be maintained for a minority, either through third parties or even through a residual PTU (as is happening at present for the claimants and a small number of others), the budgeted savings would not be realised in full but that would not make the closure decision irrational or otherwise unlawful.”

Lord Justice Richards said he acknowledged the potential significance of a change in the transport arrangements, both for users of the service and for their carers.

But he concluded that the closure of the PTU could not be equated with the withdrawal of a service and the principle in R v Gloucestershire County Council, ex parte Barry was not engaged.

“The submission that a full reassessment of community care needs was required before taking the decision to close the PTU is misconceived,” the judge said.

“It was necessary to make transport assessments before reaching decisions in individual cases, but such assessments were carried out and their adequacy to sustain the specific decisions made in those cases (having regard to the effect on carers as well as on the service users) is not in issue in these proceedings. If any assessments were needed for the purposes of the closure decision itself, the transport assessments were amply sufficient, and they threw up nothing to suggest that it would be unreasonable to close the PTU.”

He added that in terms of the Tameside principle, Salford had taken the steps reasonably required to acquaint itself with the relevant information to enable it to make a lawful decision.

Lord Justice Richards said he had not found it easy to reach a decision on the consultation issue.

A lack of clarity in the council’s internal documentation seemed to have carried over into the documentation prepared for the consultation, he suggested. “The consultation material presented an incomplete picture by concentrating on the proposed assessment of users of the PTU services to see if alternative transport options could be used, without a clear statement that it was proposed to close the PTU itself.”

The Court of Appeal judge added: “In consequence, [the appellants’ counsel]'s submission that the council failed to consult on the closure proposal and/or that the consultation material was misleading has considerable attraction to it.

“In the end, however, I have reached the conclusion that that is too formalistic an analysis and that the judge was right to concentrate on the proposed change of approach to transport arrangements for existing users and to find that the consultation process as a whole was not unfair.”

The High Court judge’s conclusion that Salford’s consultation had been fair was “a proper one for him to reach”, Lord Justice Richards said.

He added that if he had found the consultation was unfair, he would have favoured limiting relief to the grant of a declaration and refused the quashing order sought by the appellants. It would not have been appropriate to order the council to go back to square one and conduct a fresh consultation exercise.

On the PSED issue, the Court of Appeal judge concluded that Salford did have due regard to the matters identified in section 149 of the Equality Act 2010 in relation to the disabled adults potentially affected by the decision to close the PTU.

“Through the carrying out of individual transport assessments and a lawful consultation exercise, it [the council] had obtained sufficient information to discharge the duty of inquiry for the purposes of section 149,” he said.

Lord Justice Richards added that it seemed to him that everything Salford did to ensure the discharge of its duty towards those persons under section 2 of the the Chronically Sick and Disabled Persons Act 1970 also helped to ensure the discharge of its public sector equality duty towards them.

Cllr Peter Connor, Salford’s assistant mayor for adult services, said: “Once again the court has agreed that our consultation and work with families to agree suitable alternative transport was conducted properly. The judge found the council consultation was fair and our work to assess people’s care needs and comply with our duties under equality legislation was correct.

“I appreciate this will be a disappointment to the small number of families who want us to keep the Passenger Transport Unit service but with 43% of government  funding being taken from us, unfortunately, this is just not realistic. Over 170 families have already made alternative arrangements and attendance at day centres has not dropped as a result.

“We now need to reach agreement on alternative transport for the small number of people for whom we are still providing buses by the end of this financial year. I very much hope the families will work with us to achieve a solution.”