Karia, R (on the application of) v Leicester City Council  EWHC 3105 (Admin) (30 September 2014)
The UK High Court of Justice has dismissed an application seeking judicial review of a decision made by Leicester City Council to close a Council run aged care home. In reaching this decision, Sir Stephen Silber (sitting as a High Court Judge) confirmed that when determining an alleged infringement of a Convention right the enquiry must be whether rights have been violated rather than if they will or may be violated. His Honour also confirmed that the Public Sector Equality Duty (‘PSED’), contained in the Equality Act 2010 (UK) (‘EA’), 'is not a back door by which challenges to the factual merits of the decision may be made'.
The claim was brought by Ms Amrutben Karia, a 101 year old British Asian woman of Gujarati descent (‘Claimant’). The Claimant has lived in a Council run aged care home, Herrick Lodge, since 1999. Herrick Lodge is located in the Indian community in Leicester, its carers speak Gujarati and it is a provider of culturally appropriate care.
In response to budgetary concerns, in February 2011 the Council voted to consult on the closure of its directly run care homes, including Herrick Lodge. In October 2013, after widespread consultation and the submission of various reports, the Council decided to close four aged care homes, including Herrick Lodge, and sell four others (‘Council Decision’).
The Claimant challenged the decision to close Herrick Lodge on the following bases:
- the Council failed to take into account relevant considerations, including the Claimant's rights under article 8 of the European Convention on Human Rights, which guarantees the right to respect for private life, family life, home and correspondence (‘Article 8 Issue’);
- the Council failed to comply with the PSED set out in section 149 of the EA, which requires public authorities to have due regard when exercising their functions to: the need to eliminate discrimination, harassment and victimisation; the need to advance equality of opportunity between persons with a protected characteristic and those without; and the need to foster good relations between persons with a protected characteristic and those without (‘PSED Issue’); and
- the Council made the decision on the basis of fundamental errors of fact regarding the levels of demand for residential care home provision and failed to inform itself adequately regarding such demand (‘Tameside Duty Issue’).
The High Court dismissed all three bases on which the Council Decision was challenged.
In relation to the Article 8 Issue, his Honour was satisfied that although Councillor Patel's evidence did not explicitly refer to consideration of the Claimant's article 8 rights, it was clear that 'there was much consideration by her as to how to ensure that the Claimant could be moved to a place where many if not all of the aspects of her private life … would be safeguarded.' His Honour held that the issue of whether the Claimant's article 8 rights have been infringed can only be assessed if and when the Claimant has to move (noting that at the time of judgment the Claimant had not been moved or been told when or to which place she would have to move). Sir Silber left open the possibility of a challenge to the Council's decision, including on the basis of article 8 rights, if and when the Claimant is moved to unacceptable accommodation.
Sir Silber also held that the Court's approach to considering if Convention rights have been violated is necessarily different to its approach to considering whether a decision is a product of defective decision-making – the former attracting redress irrespective of whether an 'impeccable decision making process' is followed.
Regarding the PSED Issue, Sir Silber stressed that the duty set out in the PSED is not one which requires a decision maker to arrive at a particular result (such as the elimination of unlawful racial discrimination). Rather, it is a duty to consider the elements of section 149 of the EA. His Honour was satisfied that Councillor Patel was alive to the possibility of indirect discrimination and had shown a focussed awareness of her statutory duty. She focussed properly on the statutory criteria and put them in balance before making the decision to close Herrick Lodge.
In determining the Tameside Duty Issue, Sir Silber stated that no evidence had been adduced to show that the Council had acted irrationally or in a Wednesbury unreasonable manner (being a standard of reasonableness applied in judicial review matters). The Council Decision was not in breach of the Tameside duty which requires, among other things, that public bodies and not courts be responsible to 'decide the manner and intensity of the inquiry to be undertaken'. The Council was entitled to make conclusions that British Asians were not under-represented in residential care and that a substantial number of British Asians would prefer other forms of care rather than direct residential care.
The case has relevance for the consideration of section 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Section 38(1) of the Charter provides that it is unlawful for public authorities to act in a way that is incompatible with a human right, or in making a decision to fail to give proper consideration to a relevant human right. The relevant human rights are those set out in part 2 of the Charter, including the right to privacy and reputation at section 13 (which is similar to the article 8 Convention right considered by the case).
Section 38 therefore imposes two obligations: a procedural obligation (to give proper consideration) and a substantive obligation (not to act incompatibly).
In Castles v Secretary to the Department of Justice  VSC 310, the Supreme Court of Victoria held that section 38(1) requires a decision maker to turn their mind to the possible impact of the decision on a person's human rights and the implications for the affected person, and to identify the countervailing interests or obligations. However, the Court should not over-zealously scrutinise such processes.
Given the Supreme Court's findings in Castles, it may be that were facts similar to those in Karia to be considered by a Victorian Court, the Court would find that there had been no breach of the procedural obligation. As to whether the substantive obligation would be found to have been breached, this would depend on if and when the relevant public authority takes the action in question.
This decision is available online here.
Felicity O'Brien is an Associate at Allens.