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Care Home closure – not admissible to ECtHR

Louisa WATTS v the United Kingdom – 53586/09 [2010] ECHR 793

This was the admissibility hearing of a case brought by Yvonne Hossack on the closure of a care home by Wolverhampton BC and transfer of the residents to other care homes. Ms Watts was a resident in the home. She is 106 ears old and became a resident 5 years ago when she could no longer manage independent living. Ms Watts had sought judicial review of the decision to close the home on the basis of Articles 2, 8 and 14 of the convention and seeking an injunction preventing the closure without a prior report from an expert psychiatrist confirming that the move presented no risk to the resident’s health or life. The claim, in various and re-issued forms, repeatedly failed at judicial review and at appeal of refusal to grant permission in the Court of Appeal (Judgment here).

The ECtHR considered the application for permission at a point where Ms Watts had been transferred to another home, with 3 friends from the previous home. A full adult review noted:

As Underhill House was closing Mrs Watts moved to the Sycamores nursing home on 13/1/10 along with 3 other residents. Initially she settled well but has had a few nights where she hasn’t slept and has become agitated at times. She continues to need encouragement to eat but has maintained her weight … She is now able to walk short distances with assistance.
On 26/1/10 a safeguarding investigation was raised as bruises were noted on both of Louisa’s lower arms. The cause cannot be determined but it may be due to poor handling and the fact that Louisa bruises easily. As Louisa has reported that she is happy at the home it was felt appropriate to close the safeguarding. Louisa has stated ‘I like it here’. She said the food was good and the staff were kind. When asked if she wanted to consider moving Louisa stated ‘I don’t want to move again’.

The details of assessments carried out by the Local Authority were before the Court as were the details of research on the effects on elderly people of being moved from one care home to another and the extensive consideration of the issues, the state of research and the undertakings given by the Local Authorities in precedent national cases: R (Haggerty and others) v. St Helens Council [2003] EWHC 803 (Admin), R (Wilson and others) v. Coventry City Council [2008] EWHC 2300 (Admin), R (Rutter) v. Stockton on Tees Borough Council [2008] EWHC 2651 (Admin), and, decided after the Court of Appeal hearing in the present case, R (Turner and others) v. Southampton City Council [2009] EWCA Civ 1290. From the latter Sedley LJ in the Court of Appeal is quoted as follows:

    27. The test of a ‘real and immediate risk’ is ‘one that is not readily satisfied: in other words the threshold is high’ … The evidence before this Court falls far short of this threshold.

    28. This is not the first time that the courts have considered whether a decision to close a care home breaches a public authority’s positive obligations under Article 2. In R (on the application of Wilson) v. Coventry City Council [2008] EWHC 2300 HHJ Pelling QC reviewed the case law in this area and assessed its application to circumstances similar to those before this Court: § 31-36. His review and conclusions, which have not been directly challenged before us, ought to have put those advising the present claimants on clear notice that their case faced formidable difficulties of principle, and that to involve them in litigation might contribute to the stress of relocation.

    29. These are the principal reasons why permission to appeal was refused in both cases …

The specific complaint before the ECtHR was:

The applicant complained that her involuntary transfer to another care home resulted in a risk to her life, her health and her right to respect for her private and family life, in particular her right to respect for her physical and psychological integrity. She relied on Articles 2, 3 and 8 of the Convention, which provide in so far as relevant as follows:
Article 2 of the Convention
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
…”
Article 3 of the Convention
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”
Article 8 of the Convention
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

On Article 2, the issue was the positive obligation to safeguard life. “For the Court to find a violation of the positive obligation to protect life, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”. This must not be an impossible or disproportionate burden.

In the present case, it was not established on the available medical evidence that there was a quantified and particular risk to the applicant’s life as a result of the transfer. The Court was persuaded that a badly managed transfer could well have a negative impact on the life expectancy of those transferred, but “The extent of any obligation to take specific measures, however, and in particular the proportionality of any measures called for by the applicant, must be assessed in light of the equivocal medical evidence as to the extent of any risk to life.” The Court noted the practical challenges faced by the LA and that care facilities may well become outmoded and unsuitable for new standards, as well as the issues of the cost effective use of its budget in this regard.

The applicant had not sought to challenge the alleged failure of the LA to abide by its undertakings methods of assessment and transfer in the national courts, which was the proper place to do so. In the Court’s view, “having regard to the operational choices which must be made by local authorities in their provision of residential care to the elderly and the careful planning and the steps which have been undertaken to minimise any risk to the applicant’s life, the Court considers that the authorities have met their positive obligations under Article 2.”

On Article 3, “there is nothing in the material submitted to the Court to suggest that any stress or distress experienced by the applicant as a result of an involuntary transfer met the threshold required by Article 3 of the Convention.”

On Article 8, there was an Article 8.1 interference. However, as with Article 2 above, it was proportionate interference:

the Court has concluded that the positive obligations arising under Article 2 did not prohibit the transfer of the applicant in light of the alternative measures which were taken to minimise any risk to her life and the countervailing interests in closing the home (see paragraphs 89 to 92 above). Similar considerations apply in assessing proportionality under Article 8 § 2 of the Convention in the context of the applicant’s complaint about its impact on her health or private life.

The applicant’s difficulty in sleeping for a while in the new premises did not constitute grounds to conclude that the transfer was disproportionate. In addition, the LA had carried out extensive consultation on the move and the wishes of those involved and their family and carers.

Furthermore, there was a wide margin of appreciation in issues of general policy, including social and health care policies. Democratically validated local authorities were better placed than the court to assess local needs and conditions.

In view of all of this, the Art. 8 interference was proportionate and justified.

The application was therefore inadmissible on the complaint under Art 2, 3 and 8.

The applicant had further complained of violations of Article 6 and 14. On Article 6, the history of judicial review applications and consideration by the Court of Appeal made clear that the applicant had had access to a court in respect of the decision to close the Underhill care home. In respect of Article 14, alleged discrimination on grounds of disability,

“The applicant has not provided details of any alleged different treatment of people in a comparable situation. Accordingly, in the light of all the material in its possession and in so far as the matter complained of is within its competence, the Court finds no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from this complaint.”

Application declared inadmissible.

Yvonne Hossack apparently has another two similar cases on appeal to the ECtHR. Unless the details of the handling of the closures by the LAs differed in those cases, those would appear to be unlikely to be successful, because it is hard to see a case based on Article 2 which relies on the medical evidence getting a further hearing. However, it is worth noting that the Court did not rule out a potential Article 2 breach in such situations. The emphasis is on the Local Authority to take all reasonable steps to minimise risk to the transferees. The Court’s decision, though, recognises that the risk will not be eliminated and a decision to move cannot be challenged on the basis that there is some, albeit minimised, risk to life.

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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