England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR. JUSTICE KEENE

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 11th April 2001

LORD JUSTICE SCHIEMANN :

Overview

1. Before the Court is an appeal from the judgment delivered by Mr. Justice Keene in July of last year. He rightly described the case as a long drawn out and unfortunate dispute. The applicant is a severely disabled woman aged 43. She has for many years suffered from cerebral palsy as well as having learning difficulties, limited oral communication and other problems. She requires care to be available on a 24 hour basis and is dependant on a wheelchair for personal mobility. At the date when these proceedings started in 1997 she had lived for some 24 years at Sweetland Court, a residential care home owned and managed by the respondent Authority in performance of its duties under Part 3 of the National Assistance Act 1948. That home in October 1997 had 12 people living there, all of them disabled. Many of those apart from the applicant had lived in the home for a number of years.
2. By about 1996/1997 the Council was conscious of a number of deficiencies in the accommodation provided at Sweetland Court. It formed the view that the site needed to be redeveloped to achieve proper standards of accommodation and that the best way of achieving this was by selling the property to a Housing Association which would then grant tenancies to the former residents. This method of proceeding had the advantage that Central Government finance was available to Housing Associations for such building work and therefore the work could proceed at much earlier date than would have been possible had the Council had to rely on its own resources.
3. Various meetings with the residents were held in 1997 in an endeavour to secure their co-operation with the Council's proposals. The judicial review proceedings with which Keene J. was concerned were begun in October of that year but in February 1998 a consent order was made adjourning the proceedings to the first open date after 1 May 1998 upon the giving by the Council of certain undertakings to the Court.
4. The relevant undertakings scheduled to the order read as follows :-

1. The respondent will now carry out a lawful multi-disciplinary assessment of Marie Lloyd's needs for community care services in accordance with its statutory obligations and Governmental guidance, and thereafter reach a lawful service provision decision in the form of a Care Plan. The assessment of need shall include an assessment of her capacity, including her capacity to sign a tenancy agreement, as well as a risk assessment, and all the elements of a lawful assessment necessary to comply with the respondent's obligations.

2. The respondent will ensure that appropriate health professionals are involved in and contribute to the assessment, including an occupational therapist, physiotherapist, appropriate consultant, and Miss Lloyd's general practitioner and any other relevant professionals.

3. The first Care Plan shall identify which, if any needs are being met at Ms Lloyd's current accommodation at Sweetland Court. Following the identification of suitable "temporary" accommodation, the respondent will produce a second Care Plan identifying which services are required at that accommodation to meet the assessed needs, as well as a third plan identifying those services required to meet the assessed needs at the re-modelled Sweetland Court site.

4. The respondent will expedite the assessment of needs referred to, and the applicant's solicitors will endeavour to provide the respondent by 13 March 1998 with the name of a suitable independent health professional to approve the final plans for the external structure of any temporary accommodation and the re-modelled Sweetland Court and the health professional shall provide written reasons in the event he/she is unable to approve such plans. In this regard, the health professional shall meet with Marie Lloyd and those involved in her care, including her mother and sister in order to consider the plans as aforesaid in order to provide a written opinion by 13 April 1998 (subject to paragraph 6 below) as to the general feasibility of Ms Lloyd's needs being met within such environments, subject to further work being carried out as may be necessary by the respondent and/or a Housing Association (whether at the temporary accommodation or at the re-modelled Sweetland Court site).

6. In the event that the proposed plans shall alter subsequently for any reason, at the temporary accommodation or otherwise, the respondent shall ensure that the health professional and the applicant's solicitors provides [sic] prior approval to the same within 10 working days of the plans being submitted, and the health professional shall provide written reasons as to why he/she may consider the plans cannot be approved.

7. The respondent will ensure that the final conditional contract for the transfer of the Sweetland Court site to the Warden Housing Association contains a term that Ms. Lloyd's living space, including all internal walls, layout of her flat, access and associated communal facilities will be built/adapted in accordance with her assessed needs, whether by the respondent or by Warden.

8. The respondent will forward a copy of the final conditional contract for transfer of the Sweetland Court site to Warden to the applicant's solicitors prior to exchange, and will not exchange conditional contract prior to such contract being approved by the applicant's solicitors provided that the applicant's solicitors shall produce written reasons in the event that the contract is not approved within 10 working days of receipt.

9. The respondent will ensure that, whether by its own actions or otherwise, the nature of any temporary accommodation and services to be provided to Ms Lloyd will be in accordance with her assessed needs.

10. The respondent will ensure that, whether by its own actions or otherwise, the nature of the re-modelled Sweetland Court accommodation and services to be provided to Ms Lloyd will be in accordance with her assessed needs.

13. The respondent will consult with Ms Lloyd's mother and sister, or Ms Lloyd's solicitors as may be agreed throughout the process set out above.

5. For a while thereafter neither party thought it expedient to restore the proceedings. In July 1998 the residents of Sweetland Court moved into temporary accommodation provided by the Council so that the work on Sweetland Court would be able to proceed in due course. However an impasse then ensued between the Council and the applicant and the judicial review application was restored before Keene J. for hearing and determination.
6. The applicant's unhappiness, (which in the nature of things is that of her advisers), now centres on what is conceived to be a danger that she will be less appropriately treated in the new Sweetland Court than she was under the old regime. It is feared that she will be deprived of the regularity of the old regime, in particular in relation to communal dining, and that this will diminish her social contacts. The Council has embraced a philosophy of empowering the disadvantaged by increasing the choices available to them, in particular by enabling them to choose whether or not to dine together. The applicant's advisers contend that, whatever merits there may be in that philosophy in the abstract, without proper guarantee it is capable of resulting in the applicant's regularly eating on her own and so losing the social interaction which is important to her wellbeing.
7. In order to express this unhappiness as involving an illegality on the part of the Council the applicant, putting it broadly, contended that the Council's decisions to sell Sweetland Court to the Warden Housing Association in accordance with certain plans and on certain terms amounted to an abuse of power and a breach of the February 1998 undertaking. Further, it was her case that the Council had failed to produce a lawful assessment of her needs under section 47 of the National Health Service and Community Care Act of 1990 or a lawful Care Plan.
8. The Council denied that it had done anything which was unlawful in public law or which amounted to a breach of the undertakings given to the Court. It filed an application with the Court seeking, amongst other things, a declaration that it had complied with the undertakings of February 1998 or, alternatively, an order that it be released from them.

The Judgment below

9. There were a number of issues which were argued before Keene J. Not all of them have been argued before us. The following paragraphs of his judgment are germane to this appeal. We have italicised findings of present relevance.

"45. I can see that the proposed physical arrangements at the new Sweetland Court are likely to mean that fewer residents eat communally than was the case in the existing home, if only because under the old regime there was no choice but to eat communally, whereas under the new one there would be individual kitchens in the flats, with the result that some residents will be likely to chose to eat all or some of their meals in their own flat. How easy it would be for residents to arrange to eat together in the new Sweetland Court would depend on how far care assistants facilitated that by seeking and passing on their views to other residents.

46. But so far as the physical structure is concerned, it is impossible to conclude that any legitimate expectation has been broken. From early on in the process of discussions and meetings it was clear that many (and, before long, all) of the flats proposed would have individual kitchens. The communal room labelled "Conservatory" would be larger than the existing dining room and, despite that label, it would be capable of use for communally eating. Indeed, that can be the only purpose of the communal kitchen adjacent to it.

66. It is clear that the respondent's proposals will not require all the residents of the new Sweetland Court to eat communally or to live their lives communally if they do not wish to do so. There is nothing unreasonable in that aspect of the scheme. The evidence is that a degree of independence is to be encouraged, where an individual is capable of achieving it, and that this accords with Central Government policy.... The main communal area as proposed marked "Conservatory", would be larger than the dining room in the old Sweetland Court and would enable those who wish to eat together to do so. The adjacent kitchen could be used to facilitate this. The amount of communal space in total including the sitting room on the first floor, works out at a larger figure per resident than at the old home. Of course, the mere quantum of such communal space is not the end of the story, but there is nothing in the location or arrangement of the space which renders it unsuitable in physical terms to meet the applicant's needs.

68. The purpose of paragraphs 4 and 6 of the undertakings is to ensure that the physical structure of the new building will be such that Miss Lloyd's needs can in practice be met there, given the provision of suitable services. Hence the reference to "general feasibility". It cannot have been intended that approval of the plans could be withheld until all the details of those future services had also been finalised. It does not seem to be in dispute that once building work has started it will be a further 18 months before the new Sweetland Court can be occupied. The evidence before this Court indicates that the physical proposals do have the potential to meet Miss Lloyd's needs so long as suitable provision by way of care services is made. The objections raised by Miss Banks and the applicant's solicitors fail to acknowledge that what could be achieved in the new building by way of communal eating and other activities, if thought appropriate. I conclude that their refusal to approve the latest drawings, embodying the increase to the size of the "Conservatory", is unreasonable.

69. Paragraph 8 of the Schedule of undertakings requires the approval of the applicant's solicitors before the exchange of contracts for the sale of the site to Warden. As already indicated, that approval has been refused on the basis that the plans themselves involve a complete withdrawal of the communal areas and that the draft contract did not provide Miss Lloyd with a home for life. It follows from the earlier parts of this judgment that neither of these grounds provides a proper basis for a refusal.

70. Paragraph 8 is also to be seen as being subject to an implied term the approval is not to be unreasonably withheld. I find that the approval of the draft contract has been unreasonably withheld. It follows that the proposed building drawings and the draft contract of the transfer would not provide any breach by the respondent of the undertakings given to this Court. In those circumstances it becomes unnecessary to consider the parties' further submissions about the circumstances in which it would be proper to release the respondent from those undertakings.

83. It is important not to confuse a need with the way or ways in which that need could be met. It is for the care plan to cover the latter. No doubt Miss Lloyd's needs for social contact could be met in future, as they have been in the past, in an institutionalised setting with a very large part of her living activities taking place on a communal basis. But that may not be the only way of meeting her needs for social contact and there may be gradations of accommodation arrangements between a communal institution on the one hand and a collection of independent units with no communal provision whatsoever on the other, some of which intermediate stages may be capable of meeting those needs. That is something with which the care plan should deal.

84. It is evident that Miss Banks and those representing the applicant believe that the latest assessment still has a number of deficiencies. That does not make it unlawful. There may be more than one view which can properly be held among social workers as to the adequacy of a particular assessment of needs. Such disagreements do not render it unlawful."

10. In paragraph 85 the Judge accepted that the plan which was in front of him was open to the criticism that it could be more specific in relation to the details of what was proposed for Miss Lloyd. He continued:

"86. On the other hand the extent to which this care plan complies with the official guidance must be seen in the light of its provisional nature. It is expressly described as a provisional plan Mr. Goudie emphasises that it is a plan not intended to become operational for at least 18 months from now, since that is the contemplated building programme. He argues that it is impossible at this stage to identify precisely which staff will be involved in certain activities, because, as yet, the respondent has not even gone out to tender for the supply of care workers. It is submitted that the activity programmes drawn up separately by the respondent should be taken into account in judging what the respondent envisages.

87. There seems to me to be force in these points. The only care plan under attack is that which is to operate when the new Sweetland Court has been built and is available, which realistically must be some 2 years from the date of the latest care plan now before the Court. There must be limits on how much precision can be achieved by such a plan being prepared so far in advance of the date when it is to be become operative. No doubt greater specificity can be obtained as one gets closer to the time when the services are to be provided. The Council is apparently alive to the need for Miss Lloyd to achieve human contact and to keep and maintain friends. The ultimate care plan will need to spell out more precisely how, for example, communal eating, when desired by the applicant is to be achieved. The present plan would seem on the evidence to be going to be reviewed a number of times before one gets to the time when Miss Lloyd will be moving into the new Sweetland Court. But the current version of the care plan, given its provisional nature, cannot be held to be unlawful.

88. I would only add that during the course of argument on a number of topics some reference has been made to Article 8 of the European Convention on Human Rights. That article, in my judgment, adds nothing to the case and does not call for separate treatment within this judgment.

89. The applications by the applicant will therefore be dismissed. It will be clear from the terms of this judgment that the respondent can proceed with the sale of the site to Warden and with the proposed building development without being in breach of the undertakings in the order of 25th February 1998.... I do not believe that it would be appropriate to release the respondent from its undertakings as such, because that is unnecessary in the case of the undertakings 4, 6 and 8. In the case of undertakings such as number 3, which requires, without specifying a time scale, the production of a care plan for Miss Lloyd in the new Sweetland Court, that may still have some value to the applicant during the period before the new building opens.

90. I conclude by expressing the hope that both parties will be able to proceed henceforth in a reasonably co-operative spirit, with Miss Lloyd's interests at heart, and that the period during which the residents have to remain in their temporary accommodation at Brocklebank Lodge will not be unduly prolonged. They have been there long enough already.

The present position

11. A number of issues arose before Keene J. which are not pursued before us. The Council regularly conduct reviews of assessments and care plans. A series of assessments and care plans have consequently been produced. The ones in respect of which Keene J. gave judgment have now been overtaken by others. It is common ground that we should concern ourselves with the most recent ones.
12. The appellant appeals with leave of this court. On giving leave the court recommended alternative dispute resolution. Further assessments and care plans were produced as were documents which revealed that the Council was concerned not to arrive at a dining regime which would result in a situation which would entitle Warden, under the draft conditional contract between it and the Council, to refuse to continue to operate the scheme as proposed; that in turn would have adverse financial consequences for the Council. This revelation gave rise to yet further suspicion on the part of the appellant's advisers that the Council did not have her best interests at heart. The parties remained locked in conflict – the moment progress was made in one direction difficulties arose in relation to another matter. We read lengthy and detailed submissions before the opening of the appeal and then heard oral submissions for two days. In the course of submissions some matters were resolved and some perceived problems turned out to be theoretical rather than practical. But the impasse over proceeding with reconstruction without fuller facilities for collective eating, although reduced in ambit, has continued.
13. The reason for the impasse is this. There are major advantages for everybody in Warden Housing Association being the provider of the new Sweetland Court, both in terms of capital funding and in terms of assistance with residents' rents through housing benefit. But Warden do not run care homes, and the exit strategy which has been in their contract throughout would have to be used if the premises qualified for registration under Part 1 of the Registered Homes Act 1984. By s.1 that Act makes registrable "any establishment which provides or is intended to provide ... residential accommodation with both board and personal care..." It has become clear in these proceedings that a major concern of the Council has been that communal purchase and cooking of food may amount to the provision of board. This is in our view a legitimate concern, and it is one on which Mr. Goudie has relied before us. But instead of putting it explicitly to Ms Lloyd's advisers at a stage when it was supposed to be consulting them, the Council revealed it only in a letter of 9 March 2001, shortly before the hearing in this Court, to the independent expert Ms Banks. The result has been, among other things, that the undertaking to consult has been rendered largely nugatory, since consultation axiomatically requires the candid disclosure of the reasons for what is proposed. The consequent resort to mediation, under pressure from the Court, was no substitute: mediation here began from just those entrenched positions which consultation is designed to avoid. As a result, it is only in this Court that the real issue has been isolated and the argument narrowed to something quite manageable. Nobody wants to jeopardise the arrangements with Warden Housing Association; everyone agrees that individual lettings with private cooking facilities are appropriate, so long as they do not stand in the way of those, like Ms Lloyd, who want to sit together to eat their meals.
14. We are now concerned, in these circumstances, to achieve a resolution of what everyone agrees is a wholly unsatisfactory situation. Ms Lloyd and her companions are living in unsatisfactory circumstances; the Council proposes something which on any basis seems manifestly more satisfactory but is inhibited from doing so by the threat of legal action. It is a classic case where the genuine desire on the part of Ms Lloyd's advisers to achieve what they deem to be the best for her is the enemy of the achievement of the good. So far events have proved not to be in her best interests or those of her companions.
15. At the end of the hearing the significant substantive matters which remained outstanding were

1. Can the Council get on with exchanging contracts for the rebuilding of Sweetland Court in accordance with its plans or must it await further approvals from the health professional and the solicitor

2. What if anything should the court do about the applicant's current assessment of need or care plan in relation to Sweetland Court.

The exchange of contracts

16. So far as the first of these questions is concerned, Mr Gordon concentrated on a submission to the effect that what had been promised to Ms Lloyd was the continuance of the possibility of communal dining. He submitted, as we understood him, that this would not be possible if the new Sweetland Court were built as proposed. The basis of that submission, so far as the physical arrangements are concerned, was that the kitchen intended to serve the communal dining room proposed in the "conservatory" is separated from the "conservatory" by a wall and this would inhibit communal dining and that in any event the kitchen is not large enough to serve the likely numbers with proper meals. He did not of course submit that the provision of private kitchens in each flat should be prevented so as to force the inhabitants to engage in communal dining; but in the course of his submissions he recognised that each resident must have the choice of eating alone or in company. The first problem therefore came down to the question whether the structure was going to compel the one or the other.
17. The evidence does not lead us to the conclusion that the kitchen is too small to fulfil its function as the kitchen serving the "conservatory" particularly when one bears in mind the possibility of using the private kitchens in the flats to supplement the communal kitchen's capacity. Nor are we persuaded that it is essential to communal dining or the welfare of some or all of the proposed residents that the kitchen should not be separated from the eating area by a wall; or therefore that the building proposed will necessarily involve a breach of any promise given to Ms Lloyd or her family. It may well be that the relevant wall will be so constructed as to make its removal a comparatively simple matter.
18. At one stage it was submitted that Ms Lloyd's advisers were entitled by reason of the undertakings to refuse their consent so long as that refusal was reasonable even though it might be that the Council's proposals were equally reasonable. We heard lengthy submissions as to the proper construction of the undertakings. In our judgment, as was eventually accepted, it is now for the court to decide whether the refusal to approve the conditional contract for the transfer of the Sweetland Court site to Warden is reasonable. Like the Judge, we conclude that it is not: the proposed construction does not inhibit the fulfilment of any of the Council's obligations to Ms Lloyd.
19. We consider that the purpose of involving the solicitor and the health professional was not to give either a veto on the Council's proposed transfer but rather to give the solicitor the opportunity to ask if necessary for the intervention of the Court. That purpose has now been achieved and undertaking 8 has no continued relevance in the light of our conclusion that the transfer is proper.
20. Like the Judge, we see no sufficient reason for inhibiting the exchange of contracts or otherwise interfering with the building plans.

The assessments and care plans

21. What the Council has done and failed to do is criticised as a breach of statute, as a failure to abide by the undertakings given to the court and as a failure to abide by various other alleged promises to Ms Lloyd and her relatives.
22. We repeat that so far as the assessment and care plan in relation to Ms Lloyd's stay at Sweetland Court is concerned the main underlying complaint has been in relation to the proposed dining regime. The Council's basic position is that they wish to encourage these disabled persons to exercise as much choice in their lives as possible and that this can be achieved by giving each them a twice daily choice as between dining in her flat and dining communally. It is submitted on behalf of Ms Lloyd that for someone with her disabilities the making of meaningful choices requires much time and care on the part of the carers; that it could be that carers will succumb to a temptation not to devote adequate time to the process of enabling her to chose; and that it would be better to have a routine of communal dining established for her which she would follow save on the rare occasions when she wished to opt out of that routine.
23. Similarly, there are complaints as to the amount of detail in the assessment and care plans. It is said that they are too vague and do not sufficiently spell out precisely what Ms Lloyd's needs are and what the Council proposes should be done about them. For instance, complaint is made that the care plan does not address in sufficient detail what will be done in relation to holidays or transport or should the applicant vomit during the night. Although the plan envisages that persons will be awake and available at night to deal with such matters, it does not spell out how Ms Lloyd is to contact such persons. It is said that Ms Lloyd needs to have various activities arranged for her and that, although the plan lists such activities as being intended to be provided, it does not identify on which day of the week they will be provided, how often they will be provided and so on. It is said that the amount of consultation with Ms Lloyd and her family and advisers was inadequate. In legal terms this is said to amount to a failure by the Council to abide by guidance given by the Secretary of State.

The statutory position.

24. Local Authority Social Services Act 1970

Section 7 (1):

"Local Authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State".

Section 7 D

"(i) If the Secretary of State is satisfied that any local authority have failed, without reasonable excuse, to comply with any of their duties which are social services functions... he may make an order declaring that Authority to be in default with respect to the duty in question.

(ii) An order under subsection (i) may contain such directions for the purposes of ensuring that the duty is complied with within such period as may be specified in the order as appear to the Secretary of State to be necessary.

(iii) Any such direction shall, on the application of the Secretary of State, be enforceable by mandamus.

National Health Service and Community Care Act 1990

25. Section 47 (1)

"Where it appears to a Local Authority that any person for whom they may provide... community care services maybe in need of any such services, the Authority -

(a) shall carry out an assessment of his needs for those services; and

(b) having regard to the result of that assessment, shall then decide whether his needs call for the provision by them of any such services.

(iv) The Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take but, subject to any such directions .... it shall be carried out in such manner and take such form as the Local Authority consider appropriate."

26. The concerns of the applicant's advisers are not in our view intrinsically unreasonable. We understand their concern that Ms Lloyd may not find the dining arrangements as satisfactory as she found them at the old Sweetland Court, although we are not persuaded that this will necessarily be the case. As always much will depend on the care and devotion of those who care for Ms Lloyd. It is right to record that the lady who in the past looked after her seems to have done so very well. The Council envisages a system of supervision over the carers designed to ensure that the carers carry out their responsibilities properly.
27. It seems to us however that, leaving aside for the moment any undertakings to the Court, the Court is not the appropriate organ to be prescriptive as to the degree of detail which should go into a care plan or as to the amount of consultation to be carried out with Ms Lloyd's advisers. In practice these are matters for the Council, and if necessary its complaints procedure. If the Council has failed to follow the Secretary of State's guidance and is arguably in breach of its statutory duties in relation to the way it carries out its assessment and what it puts into its care plans then aggrieved persons should in an appropriate case turn first to the Secretary of State. Where there is room for differences of judgment the Secretary of State and his advisers may have a useful input. The Court is here as a last resort where there is illegality. Here there is not – It is right to say these matters have not been fully canvassed in argument.
28. Further, we agree with Keene J that at the present time it is not appropriate time for anyone to do more in relation to the new Sweetland Court than make sure that the physical building will not inhibit any appropriate regime. The rest can be decided later and can be altered from time to time if it turns out that a particular system is not working well. In this connection, this judgment must not be taken as saying that the care plan for Ms Lloyd in its present form will necessarily be adequate when the move to the new home is ready to be made.
29. The assessment and care plan in relation to Brocklebank Court did not occupy much of our time. That was because it is accepted on all sides that the position is not satisfactory and that the current care plan has only 3 months to run. We are not persuaded that the intervention of the Court is called for.

The undertakings

30. We see no advantage in the continuance of these undertakings now that the matter has been restored and we have heard all the arguments. In part they merely state that the Council will comply with its obligations under statute; that the Council is obliged to do whether it so undertakes or not. The undertakings are not well framed, imposing as they do positive obligations which are outwith the power of the Council to achieve and requiring the implication of terms as to reasonableness. Unlike Keene J we take the view that there is no reason for continuing possible sanctions for contempt for breach of undertakings to the court. That merely complicates an already difficult situation. The Council remain under their public law duties. Releasing them from their undertakings to the court does not affect these at all.

Failure to abide by other promises

31. Mr Gordon drew our attention to the evidence relating to various things said at various times on behalf of the Council. He submitted that the effect of this and of the undertakings to the Court was that Ms Lloyd had a legitimate expectation that the new regime at Sweetland Court would be substantially the same as the old regime. We accept that plans in relation to how the new Sweetland Court would be laid out and run have indeed changed since they were first put before the residents of the old Sweetland Court and that she (meaning in practice those looking after her interests) would have expected something different from what is now proposed. However there were perfectly good and understandable reasons for the changes, some of which were prompted by the wishes of other residents. If she has a legitimate expectation it is that she will have the opportunity of eating her meals communally, and for the reasons we have given neither the physical structure of the new building nor the present outline care plan obstructs this.

Conclusions

32. We have produced this judgment at some speed because it is clear that progress needs to be made and made soon. We are conscious that we have not addressed every detail of Mr Gordon's exhaustive legal argument but we are satisfied that no illegality requiring the intervention of the Court has been demonstrated. In those circumstances, this appeal is dismissed.
ORDER: Appeal dismissed; costs awarded to Respondents, subject to a detailed assessment. (Order does not form part of approved Judgment)