Day centre closure was unlawful, rules judge

In particular, Lady Carmichael said the local authority did not contemplate the impact closing the Teviot Day Service would have on a woman with Alzheimer’s, identified only as CD in the judgement report.

Within her damning findings the judge also ruled the council failed to follow equality legislation when it made the “unlawful” move.

Now Scottish Borders Council, which has been approached for a comment, has been ordered to reconsider its decision.

Today a campaigner who has been calling for the centre to be reopened said the judgement “vindicates the struggle we have had for over three years”.

Sean Elliot also called on the council to act on the judgement from the “highest court in Scotland” and suggested an apology is made for the distress caused over more than three years.

The Court of Sessions had been asked to make a ruling in a judicial review brought by the woman’s son, identified as AB.

The case came to court after the council decided to “decommission” the service, based within the Katharine Elliot Day Centre at Howdenbank at a meeting in June 2019.

The service stopped operating in March 2020 at the onset of the Covid-19 pandemic and has not reopened since.

AB had argued that the council had failed to properly consult with service users over the closure plan, an assertion to which Lady Carmichael concurred.

In a written submission she said: “There is no consideration that the council considered with rigour the possibility that the service might remain open, or that keeping it open might be necessary to meet the needs of persons with disabilities similar to CD. I am satisfied that it did not have due regard to those matters, and that its decision is unlawful.

“The meeting was held at short notice. The notice of the meeting did not let those with an interest know, in clear terms, that the proposal was to close the service.”

The judgement reveals that CD had used the care service, which was accessed by 12 service users, three days a week and had a “good relationship” with staff there but that she now lives in a care home.

Lady Carmichael wrote that the Equality Act 2010 places an obligation on local authorities to properly assess the needs of people like CD and concluded that the the assessment carried out by the council did not meet those requirements. The judge ordered the council to reconsider its decision with a “fresh decision-making process”.

Yesterday, Mr Elliot, who led a campaign for the council to reconsider its closure decision, welcomed the judgement.

He said: “Obviously we are absolutely delighted with the judgement of Lady Carmichael and it vindicates the struggle we have had for over three years in trying to impress on Scottish Borders Council and its officials that they have not followed due process and adhered to statutory legal obligations in terms of consultation and equality impact assessments.

“We are now looking to Scottish Borders Council to see what they are going to do to redress the situation and adhere to the legal instruction given by the highest court in Scotland that the decision made on June 4, 2019 was unlawful. Secondly, are they actually going to formally apologise to AB and CD for the distress that has been caused over the three years.”

A council spokesperson said: “The Court of Session yesterday issued its decision with regards to a legal challenge to the decision to close Teviot Day Centre in Hawick.

“The judgement by Lady Carmichael determined that Scottish Borders Council’s decision to shut the centre was unlawful, on the basis that the equality impact assessment and consultation processes undertaken in reaching the decision were flawed. The impact of the judgement is that there is therefore now no legal decision in place to close the centre.

“The centre was closed prior to Covid-19 and has not subsequently reopened.

“The council fully accepts the judgement of the court and a report will now be brought forward to council setting out the recommended course of action.”