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McHattie v South Ayrshire Council Judicial Review

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Mr McHattie’s son is a 32 year old man who suffered from severe learning and mobility issues. For 13 years, five days a week, he had attended an adult care centre. The centre was an integral part of his life, as it was for a great many of vulnerable people. The Centre provided a safe space for Mr McHattie’s son. It also provided an invaluable support to Mr McHattie and his wife who were the sole cares for their son.

The centre was operated by South Ayrshire Council, who in an obscure business plan recommended the centre be closed. This decision was taken without carrying out an Equality Impact Assessment, which they were bound to do under the Equality Act 2010, and without consulting those relied on the centre, such as Mr McHattie and his son. The centre was due to close on 31December 2019, the majority of the staff including the manager had accepted redundancy packages or had been reassigned. All of the users of the centre, apart son, had accepted alternative provisions of care. Albeit, many found the alternative unsuitable, they felt they had been presented with a fait accompli.

Closure seemed inevitable.

Mr McHattie, however, was not prepared to accept this. Mr McHattie contacted more than 10 firms of solicitors, before being put in contact with Livingstone Brown. Robbie Brodie, associate in our personal injury department, took on the case.

Together with Dorothy Bain QC and Martin Crawford, Advocate, Livingstone Brown were able to raise an action for Judicial Review of the decision at the Court of Session in Edinburgh. Within 3 weeks of being instructed Livingstone Brown had secure Mr McHattie a hearing in the Court of Session, before Lord Boyd of Duncansby. The hearing took place on 19 December 2019, just 12 days before the centre was due to close.

Following the hearing Lord Boyd, found that by failing to carry out the equlaity impact assessment, the council had failed in its duty under the Equality Act, and had acted unlawfully. He also found that Mr McHattie’s son had used the centre for many years, and thus had a legitimate expectation to have been consulted about the future of the centre. Lord Boyd found that the decision making process was “fundamentally flawed” (para 42). As a result Lord Boyd reduced the decision to close the centre, with the consequent effect that the council required to keep the centre open.

Lord Boyd held that South Ayrshire Council had brought the situation on itself. Decisions of this type could not be “taken by stealth; they must be open and transparent and comply with the duties which Parliament has imposed upon the respondent”.

Lord Boyd issued his decision to Mr McHattie on 23 December 2019, meaning that the McHattie’s could have a wonderful Christmas, safe in the knowledge that the centre was to remain open, and that the rule of law had been upheld.

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