McHattie v South Ayrshire Council, [2020] CSOH 4

This is in many ways a straightforward, open-and-shut case prompting the question of why on earth did the Council waste public money on defending itself. On the other hand, it’s a great wake-up call for public bodies in Scotland (see below)

The petitioner represented a 32-year old with learning and mobility issues who had spent 13 years attending the Kyle Adult Care Centre, which the Council now intended to close. The decision was shrouded in mystery and confusion, having, reportedly been taken by an Integrated Joint Board (IJB) under the guise of approving a budget that involved savings, achievable only by closing the Centre. A few months earlier, a Business Plan had envisaged a consultation process with staff, users and carers and also a timetable to produce an Equality Impact Assessment. In the event, neither was undertaken, and carers only found out about the decision two months after the IJB decision.

Lord Boyd is highly critical of the shambolic story told in this case. It found the Council in breach of S.149 of the 2010 Equality Act and rejected the failure of the Council to consult. South Ayrshire had claimed it was only a ‘procedural impropriety’, but the Judge countered that it went to the heart of the decision-making process. He added: –

“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.”

There was then an argument about implementing the decision. The Council had severed the employment of those in charge of the Centre and argued that it was now too late to reinstate the service. In short, it was a fait accompli. The Court was unwilling to reward its incompetence.

“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 2 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 case is in the line of unfortunate situations where Managers and Councillors have mismanaged service changes and failed to honour promises to engage with or consult those affected (for an NHS example from England, see R (ex parte Buckingham) v Corby Clinical Commissioning Group                                                                   [2018] EWHC 2080). 

For Scotland, however, it may have wider significance and important lessons.

It has placed much faith in attempts to secure more integration between health and social care, relying upon Integrated Joint Boards as decision-making machinery. Unfortunately, there is growing evidence that the mechanism is cumbersome and difficult to manage. Eleven months ago, the Ministerial Strategic Group produced a Report[1] that charted the many failures of the new arrangements. Its lengthy set of recommendations amounts to a need to re-state virtually every single aspect of the integration process and specifically mentions many of the failures demonstrated in the South Ayrshire case. Confusion about accountability and a lack of engagement with affected people are specifically mentioned in paragraphs 4(i), 6(ii) and 6(iii).

Other multi-agency initiatives in Scotland have been the Community Planning Partnerships, a Community Empowerment Act, co-production, and substantial investment in participatory budgeting. All are excellent moves to widen public engagement but require much effort, local commitment and adequate funding. In November 2018, a Report by What Works Scotland[2] similarly echoed concerns about the need to overcome cultural differences between councils and other public bodies. Like Integrated Joint Boards, community planning also face challenges in gathering stakeholders’ and public views about priorities and preferences and are still unsure when to rely on the traditional methods of public consultation and when to turn to other more innovative ways of gathering evidence.

What this case shows, is that the more traditional form of public consultation retains one major advantage – enforceability in the Courts. Scottish citizens have not in the past been over-eager to rush to the Courts, and the South Ayrshire case is something of a rarity. But if unhappy stakeholders struggle to hold the new multi-agency machinery to account and remain confused as to who really takes decisions, we may see rather more cases like this, and an increased need for local government officers, elected members and community leaders to become far more familiar with the law of consultation.

[1] Review of Progress with Integration of Health and Social Care Final Report – published by COSLA (Convention of Scottish Local Authorities) in Feb 2019.

[2] Community Planning after the Community Empowerment Act by Sarah Weakley and Oliver Escobar – Nov 2018

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