Howe v Buckinghamshire Council - Judicial Review Application

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  Howe  v Buckinghamshire Council [2026] EWHC 706 (Admin) (25 March 2026)

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| | | Neutral Citation Number: [2026] EWHC 706 (Admin) |
| | | Case No: AC-2025-LON-004472 |
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 25 March 2026 |
B e f o r e :

ELEANOR GREY KC
Sitting as a Deputy Judge of the High Court

Between:
| | THOMAS HOWE
By his Mother and Next Friend Hazel Howe | Claimant |
| | - and ? | |
| | BUCKINGHAMSHIRE COUNCIL | Defendant |
| | - and ? | |
| | BUCKINGHAMSHIRE, OXFORDSHIRE, WEST BERKSHIRE INTEGRATED CARE BOARD | Interested Party |

**Mr P. Mant KC (instructed by Irwin Mitchell LLP) for the Claimant
Mr P. Oldham KC (instructed by Buckinghamshire Legal Services) for the Defendant

Hearing date: 17.3.26
Judgment: 25.3.26**

HTML VERSION OF JUDGMENT ____________________

Crown Copyright ©

2. Eleanor Grey KC:
4. This is a renewed application for permission to apply for judicial review. The application was heard before me on 17 March 2026, when I reserved judgment due to the need to consider the matters raised carefully, coupled with the existence of other applications in the list.
7. Mr Mant KC appeared for the Claimant. The Defendant is also present and represented by Mr Oldham KC. I am grateful to both for their Skeletons and helpful submissions.
10. The Claimant ("C") is a 33 year-old with significant care needs, requiring specialised care. He has been attending Burnham Day Centre ("Burnham"), operated by the Defendant ("D"), for over 13 years (where he attends together with some 14 other service users, i.e. 15 in total [B/854]). He challenges a decision made by D in its Cabinet on 9th September 2025, when it accepted recommendations:
13. a. To agree to operate a specialist support service for adults aged 18-64 with care and support needs from four sites: Aylesbury Opportunities Centre, Chesham Day Centre, Spring Valley Day Centre and Seeleys House ("Seeleys") ? alongside continuing to commission specialist care and support to meet need.
14. b. To agree to discontinue providing adult social care day services at three sites: Buckingham Day Centre, Hillcrest Day Centre, Burnham Day Centre, noting that all adults supported from those sites will continue to receive suitable alternative care and support.
16. C also applies for interim relief. Papers were received in the Administrative Court Office on 9th December 2025 and issued for service on 11th December 2025. D submits that the application was not made "promptly".
19. The application for permission was refused by HHJ Dunne, sitting as a Deputy High Court Judge, on 15 February 2026. He gave lengthy and detailed written reasons for his decision, both on the merits of the Grounds and also for accepting the submission that the application had not been made 'promptly' [B/102]. I adopt paragraphs 1 ? 7 of his reasons, which set out background facts and the issues in considerable detail. I note in particular that:
21. On 8 October 2024,? D's?Cabinet agreed to consult on proposed changes to the?adult?social?care day opportunities and overnight respite service. The options?identified?in the consultation were (a) making no changes, (b) closing all council day centres, and (c)?retaining ?three?day?centres (Aylesbury, Spring?Valley?and Chesham) and closing four (Buckingham, Hillcrest,?Burnham?and?Seeleys). The consultation did not?make any reference to the possibility of?moving Burnham residents to?Seeleys? [B/766-812].
22. >

On 9?September?2025, a report recommending?retention of four sites (including?Seeleys) and closure of three (including Burnham) was?presented?to Cabinet. The recommendation to close Burnham was predicated on?all current Burnham service users being able to access services at?Seeleys or the nearest alternative?(see [B/822] ? 5.15, "The needs of all current service users attending a day centre that is proposed for closure can be met in the retained Council-owned day centres"; see also [B/827], ? 7.2).??Seeleys is about 7 miles away, and the Defendant says there is capacity to expand to take all the Burnham attendees.
23. So, contrary to the preferred options, Seeleys was retained, but the decision was taken to close the day centre which C attended.
24.
25. The approach taken by D is in my view encapsulated in ?7.2 and ?7.3 of the paper placed before the Cabinet:
26.
27.
28. "Everyone who currently accesses specialist care and support from a Council-owned day centre that is proposed for closure can be accommodated in the centres that are planned to be kept open. There is enough space in the retained Council-run centres that will remain open to accommodate all 43 adults where moves are required. For example, Seeleys House is a large site that currently supports only six adults, with an average of four people attending per day. This means that by making better use of the available space and increasing staffing at the centres that will stay open, the same number of adults can be supported from fewer buildings.
29.
30. 7.3 All 43 adults supported at the day centres to be closed will receive an updated assessment of need and will continue to receive the care and support required and identified in their updated care plan, including meeting any transport needs arising from a change of venue. All transitions will be carefully managed to minimise any disruption and concern." [B/827]
31.
32. Today Mr Mant relies on all the Grounds originally set out but focusses on two main over-arching legal points, submitting that:
33.
34. a. D did not undertake any assessment of the needs of individual Burnham services users or any assessment of whether Burnham service users' individual needs could be met at?Seeleys; and
35.
36. b. D did not consult on the plan to move Burnham service users to?Seeleys.
37.
38. He says that both matters give rise to an arguable error of law. He also says that the judge was wrong to find that the claim had not been brought 'promptly'.
39.
40.
41. In response, D says that no arguable case has been shown; that there was delay in filing this application; that the Claimant should have pursued alternative remedies; and that the claim is now academic.
42.
43.
44. Ground 1: Adequate Understanding of Needs.
45. Mr Mant says it was not rational to base the decision?to close Burnham?on the assumption that its service users' needs could be met at Seeleys in?the absence of ?(a) any individual assessment of the service?users?needs' (whether directly or?through?enquiry with the ICB); or (b) any individualised analysis of whether?Seeleys?could meet the assessed needs of those service users.? He accepts that such individualised assessments are not always needed in decisions to close services, but he says in this case there was an assumption ? which had not been investigated in the consultation ? that all Burnham residents could attend Seeleys. The decision cannot be rationally supported, and in particular there was insufficient inquiry to enable such a judgement to be made.
46.
47.
48. It is submitted that D relies on a post-facto?analysis of C's needs and the provision available at?the retained?site (Seeleys), in the witness statement of Ms Turnbull filed in response to the application [B/309]. However, this analysis is not seen anywhere in the decision-making documents and cannot?be relied upon now to?cure the irrational lack of inquiry?at the relevant time. The only assessment undertaken?as part of the decision-making process?was "high level desktop modelling" which?did not involve any consideration of specific service users'?needs or how they could be met.?? The Tameside duty of inquiry was not ? arguably - satisfied.
49.
50.
51. In this regard, C relies on the analogy of R (B) v Worcestershire CC? [2009] EWHC 2915 (Admin) (" Worcestershire ") in which Stadlen J struck down a closure decision when "reasonable steps were not taken to provide the decision maker with the relevant information to enable the decision maker to make a rational decision"?(?95) and "the Council was not in a position at the time it took the decision to reach a rational conclusion that the staff availability and facilities under the new arrangement would be sufficient as reasonably to lead to the conclusion that they would meet the needs of the claimants"?(?98). That was a case in which the closure of a service was predicated on the adequacy of a named alternative; Stadlen J held that individualised assessments of the needs of the four users affected had been required. C accepts that cases are fact-sensitive, but says that there is at least an arguable case that the facts here are akin to those which led Stadlen J to quash that decision.
52.
53.
54. Mr Mant also reminds me fairly that the issue at the permission stage is one of arguability; i.e. that is arguable that one or more grounds have a realistic prospect of success. The parallel with Worcestershire demonstrates that this hurdle is passed.
55.
56.
57. In response D says that the process as a whole has to be looked at, and there was sufficient assessment or understanding of service users' needs to provide a rational and properly informed basis for the decision taken; C's approach fails to give sufficient credit to the iterative process followed. I have been shown, in the material leading up to the decision:
58.
59.
60. a. [B/530 ? 540] the initial analysis of demand for services and provision available ? I note that this addresses care needs on a high level only;
61. b. [B/586] a Table showing a breakdown of the range of care support needs (from 'low' to 'very high') and the numbers of each supported by D; this is not, however, broken down by Day Centre but represents the overall numbers of those needing care;
62.
63. and, in the decision-making papers -
64. c. [B/841] ? the Business Case for Better Lives; this is a lengthy document but I was specifically referred to p874 (the site assessment) and p881 (travel).
65.
66. In addition, D relies on the 'institutional competence" of its staff, i.e., the knowledge of needs built up by running the services. No real reason to discount that knowledge has been set out.
67.
68.
69. Mr Oldham also submits that there was no assumption that all Burham service users would go to Seeleys; they would be able to choose. Seeleys is the closest centre to Burnham, maps show. But the analysis at B/828 says "All adults [from Burnham] can attend Seeleys House. In addition, where required other options include Chesham Day Centre or other alternative local provision." (or see ?5.24 at B/825). D points out that it is now envisaged that (as the reorganisation plans currently stand) C will accept a place at Chesham; this shows the reality of these potential alternatives.
70.
71.
72. In relation to Worcestershire, he says that it is not analogous, but also that it cannot be the case that the nature or extent of duties to assess service users' individual needs depend directly on whether named alternatives have been identified. He points out that all service closure cases involve the consideration of potential alternatives and the risks of change may actually be higher if specific alternatives have not been identified and considered.
73.
74.
75. HHJ Dunne dismissed C's argument on Ground 1, first, by reference to the principle that individualised assessments are not needed in every closure case (which is accepted; these decisions are fact sensitive) and by dismissing the analogy of Worcestershire. The judge regarded that case as not being analogous as it involved moving 4 users to sites which had already been identified, rather than a large-scale reorganisation involving 7 sites, as this decision was, in his view. It would be unreasonable to require D to take decisions on the detail of C's individual placement before the decision to close Burnham could be made.
76.
77.
78. It seems to me that consideration of the other cases cited underlines that they are all fact-sensitive. The decision in Worcestershire did involve a narrower issue (4 service users to identified alternatives; see ?86, ?92 of that decision). This underscores that the essential question is whether it is arguable that in this case the evidence discloses that there was insufficient information for decision makers to rationally conclude that Seeleys or the "other options" could meet the needs of the Burnham service users (see ?94 of Worcestershire, citing Tameside).
79.
80.
81. I accept that the papers showing decision-making reveal that D's scrutiny was 'high-level' ? nothing in the material referred to by Mr Oldham and summarised above amounts to a granular assessment of individuals' needs. However, despite this I accept the submission that there is no realistic prospect of establishing that the analysis made by D, and information held, was insufficient and/or that the conclusions reached on the ability to meet needs were irrational.
82.
83.
84. I reach this conclusion because:
85.
86.
87. a. There was a commitment to maintaining or supporting a range of future provision, potentially including external providers as well as the Council's retained centres.
88.
89. b. For Burnham users specifically, it was not the case that there was direct reliance on Seeleys only, as the alternative to Burnham ? further options or choices were regarded as potentially available to its users (see ?16 above) and there were no fixed decisions on alternative placements.
90.
91. c. Some 43 service users are affected from all centres to be closed - C's case about the need for individualised assessment applies logically to all, in all probability, and (even that is wrong) it certainly applies to all the Burnham users (15 in total). Whether or not the overall scale of the reorganisation changes proposed can be called "large-scale" (HHJ Dunne) or not, what can reasonably be expected from D should take this context into account.
92.
93. d. The assessment that existing needs could be met was based on experience of running D's day centres, coupled with (i) the commitment to invest in upgrading facilities; (ii) modelling of staffing changes that was intended to retain expertise (and assistance from C's own Personal Assistant, which should continue to be available, being unaffected by these changes); (iii) modelling of transport times to the retained day centres (times to centres being an important issue and one potentially creating risk); (iv) carrying out updated assessments of need, as part of the process of arranging new provision; and (v) a commitment to manage all transitions carefully to minimise any disruption and concern ? I note the real risks and dangers posed by change, and this was obviously essential.
94.
95. The judge when refusing permission further placed reliance on the following points (amongst others):
96.
97.
98. "Third, I understand that C's family will be very concerned that the new provision for C will not be as good as it was before, and they want greater certainty on this issue before Burnham is closed. However, I have no reason to doubt the institutional competence of D's officers to reach the conclusion that the needs of all users including C can be met.
99. ?
100. Fifth, C submits that the factual underpinnings for D's assessment that the Burnham users' needs can be met are wrong. I disagree. The individual criticisms are of insufficient weight to satisfy me that D has not adequately taken into account C's (and the other Burnham users) needs."
101.
102. I accept these points, considered together. That is, it seems to me that it is legitimate to place reliance on D's existing knowledge/institutional competence, based as it was on running of the sites in question, and which underlay the analysis and statements in the Cabinet papers. The legitimacy of such reliance may be displaced by prima facie evidence of factual or other matters which suggest concerns about the accuracy or adequacy, etc, of the analysis for decision-makers (see the passages in Georgiou v London Borough of Enfield, set out in Worcestershire at ?93). However, I would agree with HHJ Dunne that in this case the factual evidence in support of the case that C's needs were either not sufficiently understood and/or could not be met is not, even arguably, sufficient.
103.
104.
105. Ground 2: Failure to consult on the option of moving to?Seeleys
106. C says that the decision to close Burham was also unlawful as the proposals ultimately adopted were never consulted on (i.e. Seeleys was retained instead of being closed). The law is clear that, where?a?proposal changes, it may be necessary to undertake a further consultation. The touchstone is one of "fairness".?This?is a legal standard to be?determined?by the court. A re-consultation is?required?where there is a ?"fundamental difference"?between the proposals?consulted?on and those which the consulting party?subsequently?wishes to adopt?(R (Smith) v East Kent Hospital Trust? [2002] EWHC 2640 (Admin) at [45]).?
107.
108.
109. HHJ Dunne determined that the fact that the consultation proposals involved the closure of Burnham and?Seeleys,?and that?Seeleys?was then retained, does not make the consultation unfair because: (a) the consultation was sufficiently open for respondents to suggest the option of closing?Seeleys?and keeping Burnham open; and (b) it is difficult to see how the loss of?Burnham and not?Seeleys?makes the position for C worse (?28(b)).
110.
111.
112. C says this misses the point that the new proposal ? following the consultation ? was that Burnham service users?would transfer to?Seeleys. This was not a proposal that?reasonably could?have been foreseen based on the consultation documents. It follows that, whilst?service users (and their families) were able to express general concerns about?the?closure of Burnham, they had no opportunity to comment on?whether?Seeleys?provided?an appropriate alternative ? that was not an option envisaged. It would not have been seen as necessary to comment on Seeleys when it was proposed it should close. This was a?critical factor?on which the recommendation to Cabinet was based and the lack of opportunity to comment on this?matter?led to conspicuous unfairness.?
113.
114.
115. D submits that?the Court will intervene only where the consultation was "clearly and radically wrong or unfair"; it was not. Mr Oldham draws attention to the fact that the consultation paper spoke of 'preferred options' and asked open questions. It would have been evident that service users needed somewhere to go, so comments on the alternatives were always to be expected. He says that this ground, too, is unarguable.
116.
117.
118. I note that in the response to the consultation, survey participants expressed the view that "Existing day centres are unsuitable for most adults who currently attend centres proposed for closure" [B/913]. There were varying opinions set out, with support expressed by some for Seeleys [B/917], as well as suggestions that Burnham should be retained, with Seeleys closed but a small respite unit added at Burnham [B/880 ? assessment, B/919 - suggestion]. So there was an awareness that alternatives to the preferred options might be put forward, and some did so. That seems to me to support the reasoning of HHJ Dunne: that is, the terms of the consultation were open enough to enable respondents to endorse the option of closing?Seeleys, but argue in favour of keeping Burnham open ? together with any comments on the merits of Burnham, compared to other units.
119.
120.
121. In addition:
122.
123.
124. a. This Ground is also directly based on the submission that Seeleys was identified as the substitute for Burnham ? this is why the option to comment on that alternative was required for the consultation to be fair, it is said. However, I have already noted that although D took the view that all Burnham services users "can" go to Seeleys, still it was always envisaged that the alternatives were wider (see, again ?16 above);
125.
126. b. I agree with the further reason expressed by HHJ Dunne, that it is difficult to see how the loss of?Burnham but not?Seeleys?makes the position for C worse (?28(b)).? D's response that the retention of Seeleys is "at its very lowest, another option to be at least considered for C and others, albeit that he may not wish or chose to attend there" (Summary Defence, ?56) is accepted.
127.
128.
129.
130. Conclusion
131. I have borne in mind throughout the test of whether it is arguable that either of the grounds raised on renewal has a realistic prospect of success ? the fact that both the decision on the papers and this contested renewal application have involved detailed consideration of the underlying material does not alter this. However, ultimately for the reasons explained above, I take the view that this hurdle has not been overcome.
132.
133.
134. Delay and other remaining issues: Had I accepted the grounds reargued by Mr Mant, I would have been reluctant to dismiss this application on grounds of delay. I should also record that I have not taken into account the fact that C is apparently looking at Chesham as his future venue for day care, as a reason to regard this application as academic. It is obvious that this choice is made in the context of the fact that Burnham is to close, on present plans, and C's opposition to that decision lies at the heart of the application.
135.
136.
137. However, for the reasons set out in relation to Grounds 1 and 2 above, I dismiss the renewed application.
138.
139.
140. For this reason, the application for interim relief falls.
141.
142.
143. Costs. HHJ Dunne awarded D the costs of the Acknowledgement of Service in the sum claimed, i.e ?24,849 (subject to the usual Legal Aid protections). The application was supported by a detailed Schedule of Costs [B/80 ? 82]. C's renewal Grounds and Skeleton challenge that sum as unreasonable and disproportionate at the permission stage [B/123, Skeleton para 40] but in general terms only. In response, D points out that (i) the claim was lengthy and detailed, requiring careful scrutiny and research; and (ii) C has not set out how any item of expenditure was unreasonably incurred [B/126]. Nothing more in the Skeleton before me for the hearing on 17 March 2026 addresses this point.
144.
145.
146. I note that D's response to the claim covered not only the response on its merits but also the evidence relating to application for interim relief. In the absence of a more detailed challenge to the costs claimed, I decline to amend the costs order made.
147.

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