Care home closure

The closure of a local authority care home often provokes a storm of protest, legal intervention and judicial review, explains Alec Samuels When the local authority decides to close a care home, it must set out the reasons, which are likely to include: financial austerity; better provision is available elsewhere in the public or private sector; the building is not up to standard; fall in demand has led to vacancies and staffing costs are uneconomic; the policy is to support elderly persons in their own homes, or to make direct payments, not to accommodate them in care homes; the proceeds from the sale will be applied to social care. In pursuance of the legal duty of care, the local authority must assess the needs of the elderly persons, and individually, medically, psychiatrically, psychologically, there may be problems of nutrition, continence, mobility and personal care generally (R (McDonald) v Kensington and Chelsea RLBC [2011] UKSC). The safety, dignity and feelings of the elderly people must be secured and respected. The guidance of the secretary of state should be followed.  There must be a full consultation, on proper notice. The local authority report should be prepared by experienced professional staff, with outside expert assistance if necessary. All possible risks of harm must be addressed, and overcome. The eligibility criteria must be set out. The new care home should be at least as good as the old, although inevitably it will be different. The transition from the old care home to the new one must be carefully managed. A trial visit may be appropriate. The process should be monitored during and after the move. A resident may claim that the local authority gave them a promise for life to stay in a particular care home; this is an unlikely promise, and would need to be proved, but a legitimate expectation might carry the day.  For judicial review to succeed, the local authority will need to be shown to have acted unlawfully, irrationally or unreasonably, in a disproportionate, impractical or unfair manner.  The application of human rights is very likely to be submitted in argument, including article 2 (right to life), article 8 (right to private, family and home life) and article 14 (protection from discrimination).  Ultimately, provided that proper procedures are followed, the responsibility for the decision rests with the political authority, not the judicial authority (R (Rutter) v Stockton on Tees BC [2008] EWHC). Those objecting to the closure can often obtain an injunction to stop it pending the outcome of the judicial review, though an undertaking by the local authority will often be seen as adequate. Private sector The local authority might indirectly cause the closure of an old person’s home in the private sector by terminating the contract to buy the places, such that the home ceases to be viable and has to close. There is a public element present, but the arrangement is essentially contractual, though the local authority must not abuse a dominant position. The local authority would do well to show serious breaches of contract, or continued breaches following warnings, or other justification. Did the local authority act responsibly, reasonably and prudently, and with due regard for the safety, welfare and dignity of the old persons involved (R (Broadway Care Centre Ltd) v Caerphilly CBC [2012] EWHC)? Many private homes are threatening to close voluntarily because they say that the fees paid by the local authority are uneconomic. Limited success Most of the applications for judicial review have been unsuccessful. The objectors must show illegality, irrationality or procedural impropriety. A local authority decision might be quashed if meetings about an elderly person were held and attendance at the meetings by the elderly person or his representative was refused; no record of the meeting was kept; reliance was placed on the inadequate opinion of one doctor, who had not seen the elderly person; and the decision affecting the elderly person had been taken before a proper assessment was available (R (Goldsmith) v Wandsworth LBC [2003] EWHC). Due regard must be paid to all relevant circumstances in a fair manner. Judicial review causes delay in the closure of the home, and expense, and the uncertainty and suspense of awaiting the outcome of the case may not be in the best interests of the elderly people. However, the case for the objectors usually generates a high profile and much publicity, and the local authority certainly has to tread carefully for fear of judicial admonition. SJ  Alec Samuels is a barrister and former reader at Southampton University

3 December 2014