Section 5 of Form N461: Detailed statement of grounds relied on, UKBC-BULLENL...

Section 5 of Form N461: Detailed statement of grounds relied on

Bullen & Leake & Jacob’s Precedents of Pleadings 19th Ed.
Mainwork
Volume 2
Part W - Judicial Review
Chapter 80 - Applications for Judicial Review
Section 5 of Form N461: Detailed statement of grounds relied on

5.
Section 21(1) of the National Assistance Act 1948, as amended, provides:
“(1)Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval
of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing—(a)
residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other
circumstances are in need of care and attention which is not otherwise available to them;”

6.
Section 47 of the National Health Service and Community Care Act 1990 (“the 1990 Act”) provides:
“(1)Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they
may provide or arrange for the provision of community care services may be in need of any such services, the
authority—
(a)shall carry out an assessment of his needs for those services; and
(b)having regard to the results of that assessment, shall then decide whether his needs call for the provision by
them of any such services.”

7.
Illegality: breach of s.47 of the 1990 Act: prior to taking the decision, the Defendant failed to meet its duty under s.47 to
assess the needs of the Claimants. It has unlawfully assumed that many of the residents will be able properly to be cared
for through non-residential care.

8.
Irrationality and proportionality: The only reason given to the residents for the closure is that Fairview requires works
of repair to its fabric, which the Council is unable to afford. In fact, there is another similar sized home nearby (“The
Oaks”) which the Claimants understand needs even more work, yet which the Council proposes to keep open. It is thus
Wednesbury irrational for the Council to have selected Fairview for closure.

9.
Further, given that the decision interferes with the fundamental rights of the Claimants as set out further below, the
Council was required to act proportionately so as to adopt the course that least interfered with those rights, for example
by carrying out some repairs (even if the Council could not afford all of them), rather than closing the home: R. (Daly) v
Secretary of State for the Home Department [2001] 2 A.C. 532.

10.
Procedural Unfairness: Inadequate Consultation: The first that the Claimants knew of the possibility of closure was on
1 May 2010, when the Council sent residents a letter informing them that closure was likely given the costs of repair,

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Section 5 of Form N461: Detailed statement of grounds relied on, UKBC-BULLENL...

and inviting their views on the closure. The Council’s approach:

(a)did not give any details as to the need for or cost of repair, nor what other options were being considered by the
Council, and so did not allow the residents to give intelligent consideration to the proposals nor a meaningful
response;
(b)did not allow sufficient time for the Claimants to provide a response—the deadline set was one month later, 1
June 2010; and
(c)was not undertaken with an open mind—the Claimants contend that the Council had in fact already made up its
mind as to the fate of Fairview.
In these circumstances the requirements of proper consultation were not met: R. v Devon CC Ex p. Baker [1995] 1 All
E.R. 73.

11.
Human Rights: the Claimants’ rights to a home and to a private and family life under Article 8(1) of the European
Convention on Human Rights would be interfered with by the decision. In particular:
(a)the Claimants, who have resided at Fairview for many years, regard it as their home;
(b)many of them, in particular those who have little or no other family with whom they are in contact, regard the
other residents and carers as their family; and
(c)for many Claimants—particularly those who suffer from senile dementia— a move out of the home will impact
upon their mental integrity to such as a degree as to affect their right to a private life.

End of Document © 2021 Sweet & Maxwell

© 2021 Thomson Reuters. 2