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08/10/2008

Care home closures and right to life

Verna Wilson & Ors, R (on the application of) v Coventry City Council [2008] EWHC 2300 (Admin) was a judicial review of the decisions by Coventry and Havering councils to close care homes with elderly residents suffering from dementia or physical disability. The cases were joined and rolled up into a permission and substantive hearing. Ms Hossack acted as solicitor-advocate for the Claimants.

The Claimants pleaded both Article 2 – right to life and Wednesbury unreasonableness.

In relation to art 2, the applicants submitted that

the published medical literature and two expert reports produced to the court on behalf of the claimants established that there was a statistically demonstrable increase in the rate of mortality of residents in care homes who are elderly and/or who suffer from dementia, when they are moved from care homes where they have lived for a number of years, unless they are moved as a group from one home to another with the staff that have always looked after them.

The decisions to close the care homes were made without the decision-makers being aware of the risks. They were a breach of Art 2, or alternatively the decision-makers had failed to take into account a material factor, or alternatively, for the same reasons, the decision was unreasonable.

There were also two specific challenges, one to Coventry, one to Havering, which were dismissed as premature, being to decisions that effectively hadn’t been made yet.

The claim failed overall. The Court found that…

s.21(1) National Assistance Act does not require accommodation to be provided at any particular establishment.
s.21(b) requires the local authority to have regard to the welfare of the persons for whom accommodation is provided.

However, this does not require individual reviews to be made prior to the decision to close the homes. R(Grabham) v Northamptonshire CC EWHC 3292 (Admin) followed (a previous case in which Ms Hossack acted). R (Cowl) v Plymouth District Council [2001] EWCA Civ 1935 ([2002] 1 WLR 803)said that Art 2 considerations came into play when each individual case was considered in the context of a full needs assessment as against proposed alternative accommodation. Thus Art 2 considerations were engaged not by the decision to close the home but in the context of a later assessment of individual need.

The claimants’ argued new point – the medical evidence referred to above – was claimed to show the need for assessment prior to a group being dispersed and so individual assessment to be carried out prior to the closure decision and assessed in the light of collective need to inform the closure decision. Thus the decision should be quashed.

In this case, however, on the assurance of the Defendants, the individual assessments were not  to be carried out piecemeal but at the same time, albeit after the closure decision. So the argued point did not arise. This was not to rule out the possible success of the argument (or indeed to support it) in another situation.

In addition, the medical evidence was at issue. The question of the factuality of the statistically increased risk of death was challenged by the Defendants. The Court declined to take R(Dudley) v East Sussex CC [2003] EWHC 1093 Admin as a precedent on the validity of the evidence, as these were factual issues, not questions of law.

Having considered the material, at most it established that some studies showed the statistical increase, while others did not. The conclusion drawn was that different people reacted to a move in different ways, and so sensitivity and care should be take with each individual. There may be some who cannot be moved ever.

In considering the individual reports, the Court was not impressed by Ms Hossack’s extensive criticism of a Dr Jefferys including allegations against him that should not have been made in these proceedings.

The Court found that a fair summary of available material was before the decision-makers in Coventry and that decision-makers in Havering were alerted to the issue.

In view of this, there was no infringment of Art 2 and the claim dismissed.

In regard to costs, it was a question whether the claimants were legally aided, although the application made it appear that they were. The Defendants would not pursue costs against the Claimants individually if they were not legally aided, but sought permission for application for a wasted costs order against Ms Hossack, the solicitor and advocate. Permission granted.

Application for permission to appeal refused as being wholly without merit.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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