Crown Office Ref: CO/3491/97
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR. JUSTICE KEENE
Strand, London, WC2A 2LL
Wednesday 11th April 2001
B e f o r e :
LORD JUSTICE SEDLEY
LADY JUSTICE ARDEN
|Marie LLOYD (by her mother and litigation friend Bernadette Lloyd)
|- and -
|THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF BARKING & DAGENHAM
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. James GOUDIE Q.C. and Mr. Paul STAGG (instructed by Messrs Barlow Lyde & Gilbert for the Respondent)
Crown Copyright ©
LORD JUSTICE SCHIEMANN :
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.
The Judgment below
"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."
"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
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
The assessments and care plans
The statutory position.
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
"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."
Failure to abide by other promises