16 September 2009
by Ashok JAIN and Aisha JAIN
against the United Kingdom
lodged on 10 July 2009
STATEMENT OF FACTS
The applicants, Mr Ashok Jain and Mrs Aisha Jain, are British nationals who were born in 1957 and 1963 respectively and live in Amersham. They are represented before the Court by Mr Q. Khanzada of Barker Gillette LLP Solicitors, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 1989 the applicants bought a substantial house in Nottingham where the business of a Registered Nursing Home was being carried on. They renamed the property Ash Lea Court and continued to run it as a nursing home.
Ash Lea Court specialised in caring for residents who were mentally ill and infirm. Most were elderly and the average age was over eighty.
In accordance with domestic law, Ash Lea Court was required to be registered under section 1 of the Registered Homes Act 1984 (“the 1984 Act”). At all material times the registration authority was Nottingham Health Authority (“NHA”).
Accordingly, Ash Lea Court was subject to regular visits by inspectors employed by the NHA.
In 1996 the applicants decided to upgrade Ash Lea Court. Substantial works were planned including the remodelling of all four floors and the installation of a new lift. As the building was not originally designed as a nursing home, the planned works were necessary to bring it up to modern standards.
The applicants could not afford to close the home while the work was carried out. It was therefore planned that the work would be carried out on a floor by floor basis with the residents being moved about the house as required. While NHA officers were concerned about the effect of the works on the elderly residents, it did not seek closure of the home or reduction of the numbers of residents during the period of the works. Under section 29 of the 1984 Act the NHA could have sought to have the conditions of registration of the home varied. Instead, it advised the applicants that it was essential that the works progressed with minimal disruption to the residents and in a way that did not compromise their well-being.
The building work was delayed beyond the original two year estimate. Some of these delays were unavoidable but it is accepted that on occasion the applicants provided the NHA with overly optimistic time frames.
In October 1997, when the number of residents was thirty-seven, the NHA advised the applicants that no further admissions should take place until all of the building work had been completed.
In November 1997 the fire service received an anonymous complaint. They visited Ash Lea Court and found a number of faults, including a failure to comply with regulations dealing with fire precautions and fire drill practices. They informed the NHA, which issued an enforcement notice pursuant to Regulation 15(4) of the Nursing Homes and Mental Nursing Homes Regulations 1984 (“the 1984 Regulations”). The notice, which called for immediate action, was complied with.
An NHA inspector, Mrs Holmes, visited Ash Lea Court on 13 July 1998. She was concerned that the building works were affecting fire safety. In particular, she was concerned that builders had blocked one of the two staircases with rubbish and a dust sheet had been nailed across a passageway. The Assistant Divisional Fire Officer was called to the scene. He had the power to issue a prohibition notice which would have brought about the immediate evacuation of the nursing home. On consulting with the builders, however, he was informed that remedial work would take three to four hours. He therefore decided to defer a decision to allow the emergency work to be undertaken. Upon re-inspection, an acceptable standard of safety had been achieved and no prohibition notice was issued.
The fire service informed the NHA, however, that it continued to have serious concerns regarding the maintenance of fire safety standards within the premises. On 13 July 1998 a further enforcement notice was issued requiring the applicants to ensure that fire safety arrangements were adequate at all times. The notice indicated that the applicants had been in breach of Regulation 12(1)(g), which required them to keep all parts of the home used or occupied by patients in good structural repair, clean and reasonably decorated, and it required them to ensure that the building works did not affect resident areas. The notice also identified a breach of Regulation 12(1)(s) and required the applicants to take adequate precautions against the risk of accidents.
Five further visits to the home raised adverse comments. A visit on 4 August 1998 raised concerns that staff at Ash Lea Court did not appear to understand the fire alarm system. During a visit on 10 August 1998 it was noted that the environment for the residents remained poor while the building work was in progress. It was recommended that all staff should receive regular fire safety updates while the building work was in progress and that the applicants should ensure that the building work “progresses at a satisfactory rate of time”. During a visit on 22 September 1998 relatively minor matters were dealt with and it was noted that the ground floor still looked very much like a building site.
On 24 September 1998 a Mrs Robertson, who was the head of the NHA Nursing Homes’ Inspectorate, was contacted by the police, who notified her of a complaint over the circumstances of the death of a resident. In particular, there were concerns that a member of staff panicked and failed to manage the death appropriately. Mrs Robertson visited Ash Lea Court the following day to discuss the incident.
On 28 September 1998 the NHA were informed that an eighty-eight year old patient with dementia had fallen and her injuries were treated in hospital. The nursing staff suspected that she had fallen while trying to use a commode. The patient’s daughter, however, was not satisfied with the explanation and made a formal complaint involving the police. On 29 September 1998 Mrs Robertson visited Ash Lea Court with two police officers. In a memorandum of the same date she noted that:
“In my view the home and staff are not fit to care for the residents and although we may not be able to identify any allegations of abuse, the complaints we are receiving do raise serious concerns.”
On 1 October 1998 the NHA made an urgent ex parte application pursuant to sections 28 and 30 of the 1984 Act to cancel the registration of Ash Lea Court. The application was made to a Stipendiary Magistrate, who had before him copies of the Regulation 15.4 notices, copies of Mrs Robertson’s two file notes dated 29 September 1998, and a statutory statement of reasons drafted by a solicitor on the basis of information provided by Mrs Robertson. The Magistrate granted the order following a twenty-five minute hearing. Mrs Robertson intended to be present at the hearing but, upon arriving at 10 a.m., the case had already been heard.
The consequence of the order was that the applicants’ registration was cancelled with immediate effect. The applicants appealed to the Registered Homes Tribunal (“the Tribunal”). Pursuant to the Registered Homes Tribunal Rules 1984, however, a minimum time of six weeks had to elapse before an appeal could be heard.
Registered Homes Tribunal
The Tribunal heard the case in February 1999. By the time the appeal was heard irrevocable damage had been done to the applicants’ nursing home business. They were unable to keep up their payments to the bank as they had no income and as a result the bank foreclosed on the mortgage on Ash Lea Court and on the applicants’ matrimonial home. Both properties were sold at forced sale value.
The Tribunal allowed the appeal and directed that the order of 1 October 1998 should cease to have effect. The Tribunal found that the statement of reasons provided to the Magistrate was misleading and overstated. While the Tribunal accepted that the NHA had concerns about the running of Ash Lea Court, it did not accept that an application for an order cancelling registration was an appropriate way of meeting those concerns. Moreover, it found that the ex parte nature of the application was an aggravating feature of the case as there was no justification whatsoever for the failure to warn the applicants of the application about to be made.
The High Court
The applicants claimed damages for negligence from the NHA. The NHA, however, argued that they did not owe the applicants a duty of care and the imposition of such a duty would interfere with the performance of their statutory duties.
In a judgment of 4 December 2006, the Trial Judge held that the NHA did owe the applicants a duty of care as there was a sufficient degree of proximity between the parties; it was plainly foreseeable that if the registration was cancelled and the home closed there would be immediate loss of income and a diminution in the value of the premises; and that it would be fair, just and reasonable to impose a duty of care.
The Court of Appeal
The NHA appealed to the Court of Appeal. On 22 November 2007, by a majority of two to one, the Court of Appeal held that the NHA did not owe a duty of care to the applicants as it would not be fair, just and reasonable to impose such a duty. In particular, the court found that the present case fell within the broad category of cases in which public authorities have powers and duties to protect a class of persons and, in the course of exercising those powers, cause loss to third parties. The purpose of the registration provisions in the 1984 Act was to protect the infirm residents of a nursing home and not the economic interests of the proprietors. The appeal was therefore allowed.
The House of Lords
The applicants appealed to the House of Lords. On 21 January 2009, the House of Lords unanimously held that the NHA did not owe a duty of care when applying for an ex parte order in a case such as the present first, because the purpose of the statutory power was to protect the residents of a nursing home, which were potentially in conflict with the interests of the proprietors; secondly, because no duty of care is generally owed to an opposing party in litigation and the particular circumstances of the present case were not sufficient to make it fair, just and reasonable to impose a duty of care.
In the principal opinion, Lord Scott of Foscote noted that if the order complained about had post-dated 2 October 2000, the applicants would likely have been entitled to compensation under the Human Rights Act 1998.
B. Relevant domestic law and practice
I. The Registered Homes Act 1984
Ash Lea Court was registered as a nursing home pursuant to section 23(4) of the 1984 Act, which provides:
“Subject to section 25 below, the Secretary of State shall, on receiving an application under sub-section (3) above, register the applicant in respect of the home named in the application and shall issue to the applicant a Certificate of Registration”.
Once a Certificate of Registration has been issued, it remains in force unless and until it is surrendered by the applicant or the registration is cancelled. Cancellation of registration is dealt with in sections 28 – 31 of the 1984 Act, which provide:
“The Secretary of State may at any time cancel the registration of a person in respect of a nursing home or mental nursing home: -
on any ground which would entitle him to refuse an application for the registration of that person in respect of that home;
on the ground that that person has been convicted of an offence against the provisions of this part of the Act relating to nursing homes or mental nursing homes, or on the ground that any other person has been convicted of such an offence in respect of that home;
on the ground that any condition for the time being in force in respect of the home by virtue of this part of the Act has not been complied with;
on the ground that that person has been convicted of an offence against regulations made under section 26 or 27 above;
on the ground that the annual fee in respect of the home has not been paid on or before the due date.”
The ordinary procedure for cancellation of registration is prescribed by section 31(3) of the 1984 and requires the Secretary of State to give the registered owner notice of any proposal to cancel registration. Section 32 gives the registered owner the right to make representations in writing and/or orally and the Secretary of State can not determine any matter in dispute until those representations have been made. Finally, pursuant to section 33 of the 1984 Act, the decision to cancel the registration does not take effect for twenty-eight days or, if an appeal is lodged, until that appeal is determined or abandoned.
The urgent procedure for cancellation of registration is set out in section 30 of the 1984 Act, which provides:
“(i) If: -
the Secretary of State applies to a Justice of the Peace for an Order: -
cancelling the registration of a person in respect of a nursing home or mental nursing home;
varying any condition for the time being in force of a home by virtue of this part of the Act; or
imposing an additional condition; and
it appears to the Justice of the Peace that there will be a serious risk to the life, health or wellbeing of the patients in the home unless the Order is made, he may make the Order, and the cancellation, variation or imposition shall have effect from the date on which the Order is made.
An application under sub-section (i) above may be made ex parte and shall be supported by a written statement of the Secretary of State’s reasons for making the application.”
II. D v East Berkshire Community NHS Trust  2 AC 373
This was the lead case in three claims brought by the parents of children taken into care by a local authority, which wrongly believed that the children were being abused by the parents. The applicants brought claims against the local authorities, claiming that they were liable directly or vicariously for psychiatric harm suffered as a result of the allegations of abuse. The House of Lords held by a majority that while a common law duty of care may be owed to a child in relation to an investigation into suspected child abuse, because of the conflict of interest between parent and child, there were cogent reasons of public policy for concluding that where childcare decisions were being taken no common law duty of care was owed to the parents.
The applicants complain under Article 1 of Protocol No. 1 to the Convention that the Certificate of Registration amounted to a possession and the cancellation of the certificate under section 30 of the 1984 Act interfered with their peaceful enjoyment of that possession. Moreover, they complain that as a consequence of the section 30 Order they were permanently deprived of other possessions, namely Ash Lea Court and the matrimonial home. The applicants further submit under Article 13 of the Convention that no effective remedy was available from the domestic courts for the breach of Article 1 of Protocol No. 1 as the English courts have declined to give the Human Rights Act 1998 retrospective effect. Finally, the applicants complain under Article 6 of the Convention that the section 30 Order was made by the Magistrate without any opportunity being given to the applicants to present their case.
QUESTIONS TO THE PARTIES
Did the cancellation of the applicants’ Certificate of Registration violate their right to respect for their property under Article 1 of Protocol No. 1 of the Convention?
Did the applicants have at their disposal an effective domestic remedy for their Convention complaint under Article 1 of Protocol No. 1 as required by Article 13 of the Convention?
Did either the ex parte nature of the proceedings or the delay before the hearing of the appeal violate the applicants’ rights under Article 6 of the Convention?