Home > Cases > R (on the application of B) v Cornwall Council [2010] EWCA Civ 55

The claimant, B, was a 48-year-old man who suffered from a moderate learning disability. Since 1993, he had lived in supported living accommodation (C) with three others with learning disabilities. The Cornwall Partnership NHS Trust was the provider of care for the residents of C until January 2008 at which point the defendant local authority took over, exercising its care responsibilities through the trust. B’s parents (Mr and Mrs B) were close to B and regularly visited C to check upon B’s welfare. B was also given assistance by a ‘senior support worker’.

In May 2008, the authority informed B that he would not have to make any contribution towards the costs of his care at C. B’s ‘disability-related expenditure’ was said to have been taken into account. The authority carried out a number of assessments in relation to B’s care needs and internal assessments. Following those assessments, the authority, in August, advised B that it had reassessed his liability to contribute and, after a transitional period during which he would have to pay nothing until October 2008 and only £30 thereafter until October 2009, he would be charged £68.50 per week by way of a contribution.

The letter containing the decision gave no explanation for there having been an alteration and came as a complete shock to Mr and Mrs B. Subsequently, the authority offered an apology for the way in which it had acted and offered a review, however, asked B to come up with evidence to establish that their assessment was wrong, and were not going to postpone the levying of the £30. B applied for judicial review of the August decision on the grounds that there had been a failure to assess his care needs and that the authority had failed to properly construe and follow the relevant guidance (see [4] and [8] of the judgment). The judicial review application was allowed and it was held that the August decision had been unlawful (see [2009] All ER (D) 244 (Jun). The authority appealed against that decision.

It was submitted that, as a matter of discretion, the judge should have refused to declare the decision unlawful. If the decision was declared unlawful, the authority would be required to take a further decision which the authority could not ‘as a matter of policy’ backdate to the August decision and, since the authority had made repeated offers to review that decision, it would not be proportionate or reasonable for the court to place the authority in a position of only being able to take decisions for the future by declaring the August decision unlawful. In addition, it contended that the offers made after the decision of August to review that decision cured any illegality.

Held: Cornwall’s appeal dismissed

It was established law that only in special circumstances (for example a highly technical and understandable error), would a court be persuaded to exercise its discretion in favour of leaving in place an unlawful decision on the basis that the decision-maker would only be able to take a lawful decision for the future and suffer financial consequences from not having taken a lawful decision at an earlier stage (see [6] of the judgment).

The decision to make a charge was fundamentally flawed. The authority had offered an apology for the way in which it had acted but had not offered to start again in order to put matters rights; they sought to maintain their assessment asking B to come up with evidence to establish that the authority’s assessment had been wrong. They had offered a review but maintained that they were not going to postpone the levying of the £30 as from October 2008. If the authority had accepted that the decision should be set aside and had offered to commence the process again that might have provided a basis for exercising a discretion in favour of the authority, particularly as a fresh decision could have been taken before or very close to October 2008, the date from which charging was intended to commence. But an offer which insisted on reliance on a decision which had been unlawful was not one which a party could be criticised for not accepting. That insistence and non-recognition of the unlawfulness would itself have provided strong grounds for refusing to exercise discretion in favour of the authority (see [21] of the judgment).

Accordingly, the judge had been bound to refuse to exercise his discretion in favour of the authority and had been bound to declare the decision unlawful.

Click here for the judgment

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