England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2
		Friday, 11th May 2001

Thursday, 21 March 2001

J U D G M E N T
1. MR. JUSTICE SULLIVAN: This is an application for permission to apply for judicial review of a decision by the Brent, Kensington & Chelsea and Westminster Mental Health NHS Trust ("the Trust") to close Harefield Lodge. The claimants live in Harefield Lodge and, as a result of the decision, they will have to move from there.
2. Proceedings were issued on 29th March of this year and on that day Stanley Burnton J. ordered a stay of the implementation of the Trust's decision to close Harefield Lodge, abridged the Trust's time to file its acknowledgement of service and directed an expedited oral hearing of the application for permission. The application for permission was listed for hearing yesterday.
3. On 8th May a substantial volume of evidence from the defendants was received by the claimants. There was insufficient time either to read that material or to deal with the matter yesterday, and so I adjourned the matter to today. Miss Richards did not request any further adjournment in order to enable her to deal with the material produced by the Trust.
4. The background can be very shortly stated. Each of the claimants suffers from serious mental illness. It is quite unnecessary for present purposes to set out the details. It is enough to say that all of the claimants were originally patients at Shenley Hospital. Shenley was one of the old-fashioned, asylum-type hospitals that used to provide mentally ill patients with long-term care.
5. In common with many such hospitals, the responsible authorities decided that it would be closed and so arrangements had to be made for the patients. Inevitably, closure took some time. In 1994 the health authority began a consultation programme on its future plans for the patients who were at Shenley. Eventually, by about 1997, there were only a handful of patients left who were housed in a particular part of the hospital. They had to be moved because the authority wanted to close the hospital. It had been planned that they would all move together as a group to a purpose-provided high care placement at a property called Norton Road. Sadly, due to various difficulties -- planning difficulties and problems with restrictive covenants -- Norton Road eventually fell through. But whilst the authorities were still trying to proceed with Norton Road, because of the difficulties it was plain that something had to be done. So a proposal was put forward that Harefield Lodge could be used to accommodate up to 11 patients on an interim basis to allow the health authority to develop more appropriate long-term provision for those 11 patients, and that was done.
6. Three of the claimants moved to Harefield Lodge from Shenley Hospital in February 1998. At that time, consideration was being given to whether or not Harefield Lodge might be used on a permanent basis. The second claimant moved from Shenley Hospital to other accommodation at a place called Fairlight Avenue, and then moved from Fairlight Avenue to Harefield Lodge in January 2000.
7. The claimants make the point that they regard Harefield Lodge, not as a hospital or any branch of a hospital, but as their home. Harefield Lodge is a house located in an ordinary residential street. It has a living room, a kitchen and a garden. So it is quite clear that, from the claimants' point of view, this is their home. Indeed, for some of the claimants it is the first real experience they have had for very many years of a home and of living outside a large institution.
8. On 20th January this year a letter was written to those living at Harefield Lodge saying, inter alia:

"This is to inform you that Harefield Lodge will close down by the end of March 2001."

9. It is not clear precisely how many of the claimants received, or at least remember receiving, a copy of that letter; but there is no doubt that it was written.
10. In due course, after various attempts, the claimants instructed their present solicitors. Inevitably in the circumstances the material available to the claimants' solicitors was somewhat limited. At first sight, on the somewhat sparse information available at the time the claimants' bundle was put in, there certainly did appear to be credible arguments that the "closure" process had proceeded without there having been any consultation, without there having been any assessment or consideration of the individual needs of the residents and, moreover, that closure would be in breach of an assurance that at least some of the claimants had received that Harefield Lodge would be their home for life. So it was said that there would be a breach of a legitimate expectation in that respect. Article 8 of the European Convention on Human Rights was also raised.
11. As I say, that was the position on the documentation available at that time, but in my judgment the position was radically altered and any prospects for a successful judicial review were fatally undermined by the defendant's very detailed evidence. That, as I say, was only received a matter of a few days ago. That evidence is contained principally in a witness statement of Mr. Hamilton-Clark, who is the service manager for Brent South Mental Health Services and who is employed by the defendant Trust. He sets out the history of the matter in some considerable detail. What emerges from his evidence is that Harefield Lodge was always intended by the authorities to be an interim provision, pending resolution of the problem of finding a long-term solution. As he says, and it can be seen from an exhibit to which he refers: Harefield Lodge was never intended to be anything other than an interim facility for the patients who were having to move from the Shenley Hospital site into new accommodation, and as a stop-gap measure until new provision became available. He continues:

"It is apparent that everyone involved was aware that this was an interim solution and indeed the operational policy for Harefield Lodge confirmed this..."

12. and he refers to the operational policy document for Harefield lodge.
13. I have had the opportunity to go through the very extensive contemporaneous documents. It is perfectly clear that, at least from the authority's point of view, what was being provided for the 11 patients who were moved out of Shenley Hospital was accommodation on an interim basis and no more. The question then arises as to the extent to which that intention was kept, as it were, simply within the bosom of the authority or whether it was an intention which was made clear to all who were involved, including, for example, relatives of patients who would be moved.
14. Mr. Hamilton-Clark produces a statement from a Miss Morley, who was a member of a multi-disciplinary team of doctors, nurses, occupational therapists and a psychologist which worked with the patients and their families to identify to the most appropriate kind of placement following their move from Shenley Hospital. She sets out how this was dealt with in some considerable detail. She says, inter alia:

"I am confident therefore that staff, relatives and patients were aware of the plans to develop the High Care House as a medium term rehabilitation unit at 75 Norton Road, Wembley. There was active participation in the preparation of the scheme and this was only suspended in July 1997 when some of the local residents threatened legal action against the development."

15. She goes on to say that she informed staff and clients of the delay and explained that she was working with the health authority to look for an interim placement until Norton Road was ready. She refers to various meetings and correspondence, which again make it clear beyond peradventure that Harefield Lodge was being put forward to patients, to staff and to the relatives of patients as an interim solution. She produces the relevant correspondence going back to 1997. She says that she attended numerous meetings where these points were discussed. She makes the point, inter alia, that Harefield Lodge was an inappropriate environment, save on an interim basis, for the care of a number of the patients. She says that she kept patients' relative up-to-date with how things progressed. When the High Care House proposal finally collapsed in October 1999, she wrote to the patients' relatives, saying, inter alia, that it had been decided not to proceed with Norton Road and that the group of patients who had moved from Shenley Hospital and settled comfortably into Harefield Lodge would remain there whilst other plans were considered.
16. Thus it is quite plain from the defendant's evidence that this case is very far from cases (such as, for example, Coughlin) where an authority has decided to close a relatively long-established institution. This was a case where all along the accommodation at Harefield Lodge had been proposed on an interim basis. I am quite satisfied that that information was made available, so far as it was possible to do so, outside the authority and not merely retained within the authority.
17. I quite accept that it may well be (and certainly it seems to be the case on the contemporaneous documents) that at least some of the claimants believed that Harefield Lodge would be available to them on a permanent basis as a home for life. But nevertheless, all of the objective evidence makes it quite clear that it was proposed from the outset as an interim facility and, moreover, one which was acknowledged as being unsuitable for a number of the patients who were transferred there on a permanent basis.
18. It seems to me that the claimants' submissions have to be considered against that background and, in my judgment, are fatally undermined by it.
19. To go back to matters of history, in August of last year the Trust told patients' relatives that the function of Harefield Lodge was going to change. It was going to be devoted to intensive rehabilitation and that was going to require very substantial refurbishment which would require its closure for the existing residents. Patients would have to move out to enable the very substantial works to be carried out. It matters not whether the works are classified as rebuilding or refurbishment; plainly, they are very extensive and indeed expensive. A letter of 14th August described what was proposed and said that the patients' needs would be kept under review but would no longer be met in Harefield Lodge. The letter continued:

"At the moment, the Multi-Disciplinary Team is working with each individual client and his or her relatives to identify the most appropriate service for that individual."

20. At that stage funding was not confirmed. Final funding approval came through in January; hence the letter of 20th January which was followed by a meeting on 22nd January when residents were told that Harefield Lodge would be closing by the end of March.
21. Against that background, Miss Richards raises four grounds of challenge. She submits firstly that it is incumbent on the Trust to undertake a comprehensive assessment of the claimants' individual needs prior to taking the decision to close (as she would put it) Harefield Lodge. She submits that the decision to close should be informed by such an assessment and that it is not sufficient to take a decision to close and then say, "We will now carry out an assessment of the needs of those who are affected by the closure". She referred me to the decision of Jackson J. in the R. v. Merton, Sutton and Wandsworth Health Authority ex parte Perry & Ors. [2000] 3 CCLR 378. She also referred me to an unreported decision of Turner J. in R. v. London Borough of Camden, ex parte Bodimeade (unreported, 16th February 2001).
22. In my judgment those cases and others that have been referred to either in submissions or in skeleton arguments dealing with the need for assessment are clearly distinguishable on the facts of the present case. This is not a case where an established permanent home is proposed to be closed -- i.e., where there is a change of policy. In deciding whether there should be a change of policy, the council plainly should have regard to all relevant circumstances, which would include an assessment of the needs of those resident within the home. There is no change of policy here. The policy has always been that Harefield Lodge shall be provided on an interim basis. The only question before the authority was one of timing: for how long should that interim provision last?
23. Although there are no details, it is evident from Mr. Hamilton-Clark's witness statement that the move from Shenley Hospital was considered with great care. There was a significant amount of consultation. Therefore, in my judgment, it is perfectly reasonable to infer that, prior to the move to Harefield Lodge, there was an assessment of the claimants' needs, and whether or not they could properly be moved to accommodation which was being provided on an interim basis. Thus that position would have been settled prior to their move to Harefield Lodge and it is not as though they were moved there on the basis that it would be permanently available to them. In authority's eyes, it was always going to be available for a temporary period. Clearly it was important to keep the claimants' condition under review and continuous assessment whilst they were there. It is plain beyond peradventure from the considerable amount of documentation exhibited by Mr. Hamilton-Clark that that is precisely what has been done. There have been very careful assessments on a continuing basis of what care is required.
24. Indeed, Miss Richards handed me some helpful notes for the purpose of demonstrating that the accommodation offered did not match up to the assessed needs. What the notes certainly do show is that the claimants' individual needs have been the subject of the most careful, continuous assessment, and it is plain that the Trust took that assessment into consideration in deciding when and how to bring an end to accommodation that was always to be provided on an interim basis.
25. I should say this about the criticisms made in submissions of the proposals to address the assessed needs of the claimants. Mr. Hamilton-Clark produces a series of reports from Dr. Paternoster, the consultant psychiatrist responsible for these claimants. This is not a case where the property arm of an authority is wanting to close a property and those responsible on the medical front are concerned and object on the grounds of the patients' clinical needs. It is plain from her reports that she considers that in each case a move from Harefield Lodge will be in the patient's best interests. Various reasons are given; they include, for example, the reason that a move to less supportive accommodation would be appropriate. Thus on the facts it cannot be suggested that there was not an assessment of the individual patient's needs which was not fully taken into account. It is precisely because of the responsible psychiatrist's assessment of their needs that it is proposed that they should be moved.
26. I would add that, as part of that process between August of last year and the beginning of this year, in discussion with the claimants, they were shown a number of alternative suggestions as to where they might go. Their reactions to that are set out in Mr. Hamilton-Clark's statement. In some cases they were positive, in others not. Sometimes there has been a change of mind. But it is absolutely clear that the needs of each individual claimant have been very carefully looked at and addressed by the authority.
27. Secondly, as regards consultation, Miss Richards made it clear she was not suggesting a full-blown consultation exercise of the kind that might be appropriate where a large hospital (such as Shenley, for example) was proposed to be closed. However, she submitted that consultation was required, that the council was obliged to act fairly in deciding whether or not to close Harefield Lodge and fairness required meaningful consultation with the residents before that was done. She referred me to R. v. Devon County Council, ex parte Baker [1995] 1 All ER 73.
28. I unreservedly accept that in taking decisions of this kind an administrative body such as the Trust is under an obligation to act fairly. But in my judgment there is no prospect of establishing any degree of unfairness on the facts of this case. As I say, it is quite plain that from the outset Harefield Lodge had been provided on an interim basis. The Trust has been reviewing its options again on a continuous basis and, rather than taking an entirely fresh decision to close something, the decision in the present case is the implementation of a decision which was implicit from the outset because Harefield Lodge was simply being provided on an interim basis. Thus, in my judgment fairness did not require any further degree of consultation than actually took place.
29. In fairness to the Trust (and because I am not going through the evidence in any considerable detail) I should make it quite clear that it is not as though a decision is taken and then the first thing the patients hear about it is the letter of 1st January. There is a series of meetings where matters are discussed, and indeed there are minutes of the meeting in August which make it clear that there was continuous discussion of these proposals. True it is that there was not consultation before the Trust decided to engage in building works to turn the property into a centre for intensive rehabilitation. But that, as I say, was part of a continuous process of reviewing how best to use a property that was simply being used on interim basis for accommodation for those who had been moved from the Shenley Hospital. In those circumstances, the Trust was not obliged to consult any more than it did.
30. Thirdly, there is the question of legitimate expectation. Three of the claimants contend that they were told by certain members of staff that they would have a home for life. They are Mr. C., Mr. M. and Mr. P.. M.M. does not suggest that she was given such information. Mr. C. and Mr. P. say that they were told that they would have a home for life at Harefield Lodge by Miss Beeken who at that time was the manager of Harefield Lodge, and by other unidentified staff. Mr. M. says that he was given this information by Dr. Paternoster, and that was why he agreed to move there. It is fair to say that Miss Beeken and Dr. Paternoster deny giving any such assurance; it is said, though, that Dr. Paternoster's assurance was given in the hearing of a nurse, and the nurse confirms that the assurance was given. Thus there is a dispute as to whether any such promise was given.
31. I quite accept Miss Richards' submission that the mere fact that there is a dispute would not necessarily mean that permission for judicial review should not be granted. In a proper case it would be perfectly possible for the court to resolve such a disputed issue of fact, either on the affidavits or, in exceptional cases perhaps, after hearing witnesses cross-examined. The court could then proceed to decide whether or not any sort of legitimate expectation had been created.
32. The problem for the claimants in the present case is this. It is not simply a straightforward conflict of evidence or recollection as to whether a particular statement was made. There can be absolutely no doubt from the contemporaneous documents that the authority's proposal was to use Harefield Lodge on an interim basis. In so far as any member of staff may have given a contrary impression to the residents, the ultimate question for the court would be, even if the issue was resolved in the favour of the patient having been given such an understanding, would it be fair to hold the authority to such an assurance? There is, unlike some of the other cases on this topic, nothing in writing. There is no suggestion that those who are said to have given the assurance were instructed by the authority to give any such assurance. In essence, if such assurances were given then those giving them would have been very much out on a limb. Moreover, simply on the documents as they stand at the moment, it would be very surprising if any such assurance had been given since both of those who have been identified and who are said to have given an assurance would have been well aware of the interim nature of the proposals for Harefield Lodge. Thus in my judgment this case is very far from those cases, for example, such as Coughlin, where a clear assurance was given.
33. But one has to stand back in any event and consider questions of fairness overall, and I find it quite impossible, against the factual background here, to conceive how it would be fair to require the Trust to retain Harefield Lodge for these claimants on a permanent basis when it has been the authority's intention all along to make it available simply on an interim basis. As I say, this not a case where both the authority and the claimants originally intended that something permanent would be provided and then the authority has changed its mind. The authority, on the documents, has never intended to make permanent provision here, and I cannot see how it could possibly be fair to hold the authority to an assurance, even if one was given contrary to instructions and without any authority, by a member of staff simply.
34. It is not as though this is a case where a property is proposed to be sold off on the open market for profit. The intention is that it is going to be refurbished to provide a number of single rooms for the rehabilitation of other patients who have very considerable needs. In my judgment, in considering the question of fairness that must be a relevant consideration. This is a property that the Trust has always regarded as being used by the present claimants on an interim basis. It is not therefore surprising that it has made proposals that it should be put to a different use for other patients who are also in need. Against that background, it could not conceivably be thought fair to hold the authority to an assurance, even if one was made as alleged by the claimants.
35. I move to the last point, the human rights point. It is said that the proposals are an unwarranted interference with claimants' rights to home and family life under article 8. It is said that the Trust simply failed to consider the claimants' rights in that regard. First of all, it is to be observed that rights under article 8.1 are not unqualified. A balancing exercise has to be performed under article 8.2. Against the factual background that I have described, and which only emerged when the defendant's evidence was put in, it is quite plain that the balance has been struck. Even though the claimants (or some of them) believe that they are entitled to a home for life at Harefield Lodge and even though all of them clearly regard it at the moment as their home, the fact of the matter is that it has never been made available on anything other than on interim basis. It has always been envisaged that in due course it would be put to some other hospital use, and that is precisely what is happening.
36. There might have been a disproportionate interference if, for example, the letter of 1st January had simply come out of the blue; and that was rather the impression that was created by the claimants' bundle of documents. Understandably, as I say, because full information was not available. But the proposal to "close" Harefield Lodge did not come out of the blue. It had been discussed in the summer. The patients there had been shown alternative accommodation and it had been discussed with them and mentioned in meetings. The January letter was simply confirmation of what had been known about for a long time. So this is not a case where a decision has been sprung on people without any regard for their interests under article 8.
37. As I say, the position in the present case is that although a "home" to the claimants, this home has only been available on an interim basis from the outset. In my judgment it could not sensibly be said that there is any disproportionate conduct on the part of the Trust under article 8 on the basis of these facts.
38. So for those reasons I am quite satisfied that permission should not be granted to apply for judicial review. There is no realistic prospect of success now that the full background facts are known.
39. MISS RICHARDS: My Lord, there are two ancillary matters. The first is that there is currently a stay in force pursuant to the order of Mr. Justice Stanley Burnton. This is not an issue I have explored with my learned friend, but the claimants will wish to consider whether to renew their application to the Court of Appeal. That is not something on which I can give a yes or no answer at this stage, and we will obviously have to do so within seven days. I would ask that the stay remain in force until such time as the claimants either make the application within the next seven days or confirm to the defendant that they will not make it.
40. MR. JUSTICE SULLIVAN: Again within seven days.
41. MISS RICHARDS: My Lord, yes. Yes, certainly, and I am happy to undertake that the claimants will either make the application for renewal within seven days or will notice the defendant Trust that they do not intend so to do. Clearly, given that there is not in fact any finalised care plan for these individuals, and given as I understand it that the refurbishment ----
42. MR. JUSTICE SULLIVAN: Shall we see if Mr. Clark actually objects to holding the fort for seven days?
43. MR. CLARKE: My Lord, I certainly do not. I have just taken instructions and we would be happy to undertake in those terms. It can be expressed as a stay or an undertaking from us. We do not have a difficulty with that, subject to what my learned friend says about making her decision and informing us as soon as possible within the time period.
44. MR. JUSTICE SULLIVAN: Yes. I am quite happy on the Trust's undertaking to continue the stay ordered by Mr. Justice Stanley Burnton until today, and I do not think a formal order for a stay is required. There is no reason it cannot be an undertaking given to the court.
45. MISS RICHARDS: I am grateful. My Lord, the second matter -- in terms of costs I ask for a detailed assessment of community legal service funding.
46. MR. JUSTICE SULLIVAN: Certainly.
47. MISS RICHARDS: The third matter is that there was some debate, and I know it is the view of Mrs. Knapman in the Administrative Court Office that it is necessary forme to ask for permission to appeal in order to go to the Court of Appeal, even though that seems a rather nonsensical approach in the light of the fact that permission to apply has been refused, but I formally ask for permission to appeal.
48. MR. JUSTICE SULLIVAN: I think one ought to now. I rather share your views about the common sense of it, but thank you for asking, but ----
49. MISS RICHARDS: I know the answer, my Lord.
50. MR. JUSTICE SULLIVAN: Yes, I refuse you permission to appeal for the same reasons that I have refused permission to apply. it would be slightly surprising if I changed my mind.