Private Client Focus | Challenging care home closures

The local authority closes, or seeks to close, an old persons home. There may be a variety of reasons for motivation or intention or purpose. The building is old, in poor repair, outmoded, non-compliant with current standards, extremely expensive to run, uneconomic to refurbish, unfit for purpose. The private or independent sector is unwilling to take it over, and anyway can provide the individual beds required, at a lesser unit cost. There is a reduction in demand for the existing provision, the local authority home is far from full, yet must be fully staffed. The proceeds from the sale of the building and its site would be used to improve the services offered to old people by the local authority, perhaps by way of direct payments, the contemporary favoured option, enabling old people to buy the care of their choice.

?Duty to older generation?The legal duty of the local authority towards the old people, whether by way of money or services or accommodation, is as one would expect. The policy and practice must be lawful, rational, reasonable, proportionate, legitimate, practical, reasoned. Eligibility criteria must be proper and intelligible. Assessment and reassessment of needs and impacts must pay due regard to feelings, dignity and safety. Respect for private life under article 8 must be accorded, subject to the interests of other old people and the economic well-being of the local authority.
The guidance of the Secretary of State should be followed. The judge must recognise the discretion of the local authority in balancing competing claims, the specialist knowledge and expertise, the current financial restraints, and the democratic accountability (see R (McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33, R (W) v Birmingham City Council [2011] EWHC 1147, Admin, R (KM) v Cambridgeshire CC [2011] EWCA Civ 682, R (Condliff) v N Staffordshire PCT [2012] PTSR 460, CA, and West Sussex CC v Amberley (UK) Ltd [2011] EWCA Civ 11 - top-up claim by private home taking public clients).

?Lawfulness of closure ?The closure matter has come before the courts on several occasions (for instance, Watts v Wolverhampton City Council [2009] EWCA Civ 1168, R (Turner) v Southampton City Council [2009] EWCA Civ 1290, R (Haggerty) v St Helens Council [2003] EWHC 803 (Admin), R (Wilson) v Coventry City Council [2008] EWHC 2300 (Admin), R (Rutter) v Stockton on Tees BC [2008] EWHC 2651 (Admin)). Pembrokeshire County Council, Wirral District Council and Birmingham City Council have been involved in similar problems.

The provision and management of the care homes is the responsibility of the local authority, not the courts. The function of the courts is to ensure that the decision of the local authority to close the home is lawful but more particularly to ensure that the old people are not put at risk of unacceptable and unavoidable harm. The sensible local authority may hold a public consultation, though is not obliged to do so. The old people and their families must be consulted. Each and every old person must be individually assessed, medically, psychologically and psychiatrically, by suitably qualified experts.

There must be evidence that there is no risk to health and life. The wishes and feelings of the old people must be taken into account, such as the very common desire to remain with friends. A prior visit to the proposed new home should be arranged, so as to prepare for the move. The implementation and impact of the move must be considered. The new home must be at least as good as the old and hopefully superior. Particular support may be needed to smooth the transition. Individual old people may have particular problems, for example personal care, continence, nutrition or mobility. The local authority should, over the years, monitor the old people, especially the impact of moving, so as to build up a pool of experience and knowledge. The local authority owes a common duty of care towards all those old people in their care. The decision often involves a balance. Risks must be minimised. The decision is never easy.

In Watts v UK [2010] ECHR 793 the European Court of Human Rights considered the articles in the European Convention on Human Rights, as enacted in the Human Rights Act 1998 in the UK. The application was determined to be inadmissible.

According to article 2, right to life, the local authority carries a positive obligation, and must guard against real and immediate risk to life, to the risk of shortening life and hastening death. Did the local authority know of the risk, or should it have known, and did it take all steps reasonably to be expected of it to minimise any such risk? Medical evidence is manifestly crucial in such circumstances. The research evidence at present available in mortality, morbidity, psychological and social consequences does not establish a firm connection between relocation and death, though it may possibly do so in the future. Old persons at an advanced age are inevitably at risk of death, whatever happens, by reason of age, immobility, confusion, depression, or Alzheimer’s. Firm evidence is needed that relocation will shorten life, and this constitutes a formidable barrier in principle and practice for the objectors (see Rabone v Pennine Care NHS Trust [2012] UKSC 2).

With reference to article 3 (inhuman and degrading treatment), evidence of stress or distress does not begin to approach the threshold required.
In article 6 (access to a court), there can be no question of substantiating an allegation of no legal remedy in UK and in article 8 (right to private, family and home life), the relocation does constitute an interference, but interference is justified if proportionate. So if there are proper health and social policies in place, full consultation, especially with the family, and proper management, the local authority will almost certainly be justified. There is a margin of appreciation for member states at the national, and local, level.
Finally, with reference to article 14 (general discrimination), provided that the relocation is arranged for all the old persons, albeit taking their individual requirements into account, there is no question of discrimination.

The old persons will be vulnerable adults and entitled to be protected accordingly (see Safeguarding Vulnerable Groups Act 2006, section 59). Some may be persons lacking capacity under the Mental Capacity Act 2005. Bodies such as the Primary Care Trust, the GPs, the Care Quality Commission and the Independent Safeguarding Authority may be involved or may be able to advise and assist. Ultimately, provided that proper procedures are followed, the responsibility for the decision rests with the political authority, not the judicial authority.

Those objecting to the closure can often obtain an injunction pending the outcome of the judicial review, though an undertaking by the local authority will often be seen as adequate.

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 ceased to be viable and had to close. There is a public element present, but the arrangement is essentially contractual. The local authority would do well to show serious breaches of contract, or continued breaches following warnings. Did the local authority act responsibly and reasonably and prudently, and with due regard for the safety and ?welfare and dignity of the old persons involved? (R (Broadway Care Centre Ltd) v Caerphilly CBC [2012] EWHC 37 Admin). Many private homes are threatening to close because they say that the care 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 old person were held and attendance at the meetings by the old person or his representative were refused; no record of the meeting was kept; reliance was placed on the inadequate opinion of one doctor, who had not seen the old person; and the decision affecting the old person had been taken before a proper assessment was availablen (see R (Goldsmith) v Wandsworth LBC [2004] EWCA Civ 1170).
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 awaiting the outcome of the case may not be in the best interests of the old people. However, the case for the objectors receives a high profile and much publicity, and the local authority certainly has to tread carefully for fear of judicial admonition in some respect.

Caring for and paying for old persons, especially the ever-increasing number of older, frail and vulnerable old persons, is a huge national social and economic problem, which society is belatedly having to address. The noble virtues of compassion and care cannot be seen in isolation from economic realities.

Yvonne Hossacks, a prominent solicitor, has made a name for herself in these cases. The sensitivity of such cases is such that much emotion and controversy has surrounded them. Handling such cases is not easy for the lawyers, or the judges