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Care home closure no breach of human rights

2 June 2010

Yvonne Hossack, the solicitor campaigning for the rights of the elderly, has lost a key appeal in her battle against the closure of care homes.

The ruling, in Strasbourg, is a further setback for the Kettering practitioner, who has acted for more than 80 elderly home care residents, and was hit by a wasted costs order for the first time on 23 March.

The sole practitioner had taken the case of one of her clients to the European Court of Human Rights, claiming that her transfer to a new home would greatly reduce her life expectancy.

The Strasbourg court has now ruled that the transfer represented a risk for the pensioners involved but that the local authority’s decision was not unlawful.

Hossack told Solicitors Journal she was disappointed but that she will continue to progress the cases of two other clients about to reach Europe.

“They can’t speak for themselves so we have to speak for them,” she said.

Louisa Watts, who at 106 is one of Britain’s oldest women, was moved to the home against her will. Her application against the move was rejected at first instance by the High Court.

On appeal, Lord Justice Sedley said there was nothing unlawful in the decision by the local authority, Wolverhampton City Council, to close Mrs Watts’ old home and move her to the new one.

Having been refusing leave to appeal further Hossack took the case to Strasbourg, arguing that the council’s decision to transfer the resident presented an inherent risk that her life expectancy would decrease by 25 per cent incompatible with her right to life in article 2 of the European Convention on Human Rights.

She also argued the move breached her right to privacy and family life in article 3.

In a decision last month, which has only just been made public, the Strasbourg judges found that the case of Louisa Watts v United Kingdom was not admissible.

The judges held that, on the basis of the evidence considered by Sedley LJ, his conclusions had not been unreasonable.

They acknowledged, however, that “a badly managed transfer of elderly residents of a care home could well have a negative impact on their life expectancy as a result of the general frailty and resistance to change of older people” and that article 2 was applicable in the present case.

It appeared, however, that the procedure for the closure of Underhill House had been “carefully managed in order to allow full consideration of residents’ views and, in respect of the transfer, their health and well-being”.

The court added there was “no reason to doubt” that the council had sought to minimise any risk to Mrs Watts’ life.

Further, it was within the local authority’s powers to set out a general policy to rationalise care for the elderly in its area.

“Closure would allow the council’s budget to be distributed in a more cost-effective manner. A requirement to keep the home open indefinitely would have a significant impact on the local authority's ability to provide care to other users in the area and to manage its resources effectively,” the judges said.

Similar considerations applied to the alleged breach of article 8, which the ECtHR found was engaged but not infringed.

The transfer was an interference that gave rise to “stress and distress which could have had an impact on the applicant's health” but alternative measures had been taken to minimise any risk to her life and there were legitimate countervailing interests justifying the closure of her old home.

In particular, the court pointed out that the council “consistently made it clear that it was ready to take the necessary steps to ensure that friendship groups were placed in accommodation together and, when the transfer eventually took place, the applicant was placed together with three of her friends”.

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Procedures Vulnerable Clients Local government