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
		6th September 2001

1. MR DAVID PANNICK: The claimant in this judicial application is K.C., a 35 year old woman with severe learning disabilities caused by cerebral palsy. She brings these proceedings through her mother and litigation friend. She lives at Long Leys Court in Lincoln, a purpose build complex of five bungalows and communal facilities for severely disabled adults. She has her own bedroom there. Long Leys is a separate unit within the grounds of St George's Hospital. The bungalows are staffed jointly by the Health Authority and by Lincolnshire Social Services. K. has lived at Long Leys since it was established in 1990. Prior to that she was a patient at Harmston Hall Hospital, an old style hospital for those with learning difficulties. She had been there since 1986. When that hospital was closed some of its patients, including K., were accommodated at Long Leys after living for a short interim period at another hospital. K. now spends weekends with her parents who collect her from and return her to Long Leys.
2. In these proceedings she challenges the decision of the Lincolnshire Health Authority that it will cease to provide long stay care for her at Long Leys, a decision which was made on 30th November 2000. That decision is due to come into effect at the end of this month or as soon after that date as practicable. The authority proposes that K. and 14 other long-term patients living in Long Leys should live in the community. The plan is to use Long Leys as an assessment and treatment centre.
3. The authority's plans for K.'s future are explained in the witness statement of Timothy Wright, the Joint Development Manager (Learning Disabilities) for Lincolnshire. He says, at paragraph 26 of his witness statement (Bundle 3, page 12):

"It is hoped that, subject to these proceedings, [Long Leys] will cease to be a facility for long term patients in October 2001. The identification of suitable properties is now taking place taking into account not only the abilities of patients but also friendships [some patients get on very well and will be accommodated together or close together - others get on badly]. The care plans set the health and social care needs of each patient including K.. In practical terms this will include, in K.'s case, 24 hour social care support and access to her GP and other community health care services. I am authorised to state that should the Court refuse relief to the applicant then the funding is in place to rent a suitable property for K. and to provide the social care support indicated above."

4. I should mention the relevant events which led up to the decision of 30th November 2000. In June 2000 the authority published a joint investment plan for learning disability services in Lincolnshire. In August 2000, the authority published a consultation paper about the future use of Long Leys and the resettlement of the residents. On 2nd October, Mr and Mrs C., K.'s parents, wrote to the authority, pointing out that K. and other residents of Long Leys had been promised a home for life at Long Leys.
5. On 26th October the authority deferred a decision on the future of Long Leys so it could consider the issue raised by Mr and Mrs C.. The authority received legal advice from their solicitors (Beachcroft Wansbroughs) on the homes for life point. The advice was dated 17th November 2000. As I have mentioned, the decision under challenge was then taken by the authority on 30th November 2000.
6. There is a witness statement from Dr Kamil Mohamed Sidahmed, a consultant psychiatrist to the Lincolnshire Health Care NHS Trust, explaining the assessment of K.'s suitability to be moved into the community from Long Leys. His witness statement at (Bundle 3, page 67) says at paragraph 5 the following:

"Although in my opinion, a number of the residents of Long Leys Court were able to live in the community and did not require NHS inpatient care (and in fact, some of them, including K., have been receiving a much reduced level of care for several years in readiness for such a move) initially, I was not sure as to whether all of the long-term residents in Long Leys Court could be discharged from NHS impatient care. I was aware of problems experienced elsewhere in the country where residents had been discharged into social care, and there had been difficulties, for example, in ensuring the safety in administering certain medication. In addition, I had seen the discharge of certain residents fail in circumstances where adequate supervision and support had not been provided. However, over time, I had formed the view that in fact, it is appropriate not only for some, but for all of the long-term residents of Long Leys Court to be discharged from NHS impatient care. This happened not only having regard to the needs of the residents but also following my coming across some of the patients I had known from Harmston Hall hospital who had been discharged to the community to live in homes catering for three to four people. On seeing some of these patients ten to twelve years later, I was very impressed by the change to the better in their general health, behaviour, social skills and communication. This has obviously been their response to the open normal way of living which care in the community brought to them. To me it was so pleasing to see these people live in ordinary homes, have neighbours and make friends who do not have a learning disability, access local amenities and lead a life as normal as their disabilities could allow. I have also continued to be impressed by the positive impact on those long-term residents who, after having been assessed as suitable for discharge, have been discharged from Long Leys into community care with appropriate support."

7. He adds at paragraph 6 that he is aware that carers, whether professional or family, do often prefer their relatives to remain in the setting they and carers are familiar with and may resist change to the more unfamiliar. He says:

"This is understandable but I believe that we should work to allay any anxieties that those caring people may have and one important way of doing this is ensuring the appropriate level of support and a good match of the individual to the proposed new setting."

8. Dr Sidahmed then states, at paragraphs 13:

"In addition to providing input into the Continuing Care Assessment and Care Plan, we also undertake an annual review within the Trust of each individual long-term resident at Long Leys. During the last 2 years, annual (multi-disciplinary team) review meetings have been held in respect of K. on 26 May 2000 and 21 May 2001. K.'s parents are invited to attend these meetings and both parents were present at the meeting on 26 May 2000 and her father was in attendance at the meeting this year."

9. At paragraph 14 Dr Sidahmed adds that at the review meeting in 2000:

"...I advised Mr and Mrs C. that in my opinion, it was not in K.'s best interests to remain residing at Long Leys Court and that she did not require impatient care. This was the view of all of the multi professional team. We discussed K. moving into the community."

10. There is also a witness statement from Richard Jeavons, the Chief Executive Officer of the authority (bundle 3 page 66B, paragraph 10). He explains some of the advantages for the residents of moving them out of NHS care and into the community. In particular, more freedom in and control over their lives in matters such as choice of meals and whether to smoke as well as more important matters.
11. The chairman of the authority, Brenda Sills, explains at paragraph 20 of her witness statement (bundle 3, page 28) the decision taken at the meeting on the 30th November 2000:

"At that meeting, it was resolved to approve the cessation of the provision of long term care beds currently operated by the Trust after 30 September 2001 or as soon as practicable after that date and to approve the commissioning of future care for the individuals by the Social Service Directorate. Of course, we considered the residents' position and although the Authority did not itself go through each resident's individual assessment, we were told by officers that such assessments indicated that all residents were well able to live in the community and did not require NHS impatient care, understanding the potential psychological impact the move could have on the residents and that as a result, for some people, the move would require careful planning. Taking everything into account, the Health Authority was of the view that the proposal was in the residents' best interests. It was further resolved to approve a request for officers to work closely with users of services at Long Leys Court, their relatives and carers, in the shape and design of new services to replace the long term care beds within the strategic policy framework and a Carer/Liaison Officer should be appointed to help to facilitate further discussion and dialogue between the Authority and the Long Leys Court carers in relation to further concerns, for example, in respect of the discharge of residents."

12. That then is the relevant background to the challenge now before the court.
13. The first point taken on behalf of K. by Mr Wise is that the authority are said to have misunderstood and misapplied government policy. Mr Wise uncontroversially relies on the judgment of Dyson J in the R v North Derbyshire Health Authority ex parte Fisher [1997] 1 CCLR 150, for the proposition that a health authority acts unlawfully if it bases its decision on a misunderstanding of government policy. Mr Wise contends that the authority wrongly proceeded on the basis that government policy is that all persons with learning disabilities in long-term institutional care should be moved to social care provision in the community. Mr Wise says that the authority failed to recognise that, whilst such a transfer might be required in the case of old style mental hospitals, such a transfer was not required in relation to a modern place of residence such as Long Leys.
14. There are then two aspects to this first ground of challenge. First, what is government policy? And second, what approach was adopted by this authority? Government policy is set out in a number of documents. The 1990 White Paper Caring For People (bundle 5, tab 8) states, at paragraph 2.5:

"The government recognises that some people will continue to need residential or nursing home care. For such people, this form of care should be a positive choice. And there will be others, in particular elderly and seriously mentally ill people and some people with serious mental handicaps together with other illnesses or disabilities, whose combination of health and social care needs is best met by care in a hospital setting. There will be a continuing need for this form of care."

15. In 1992 the NHS Executive issued guidelines in document HSG (92) 42 (bundle 4 of the court documents at tab 5, at page 233). The guidance states at page 235:

"The large majority of people with learning disabilities not living with their families can be cared for in residential accommodation arranged through the relevant social services authority. There are, however, likely to be a small number of people with severe or profound learning disabilities and physical, sensory or psychiatric conditions who need long term residential care in a health setting. Where this seems to be the case a multi- professional assessment and consultation with parents or carers are necessary to determine whether the services they need can only be provided by the NHS or whether other alternatives would be more appropriate and cost effective. Similarly, where such people are ordinarily cared for by their families, there may be a need for some short term respite care arrangements to be provided by the NHS."

16. Then there is a document entitled "Signposts for Success" produced by the NHS Executive in January 1998, (Bundle 4, page 138). The purpose of this document as it states at the beginning is "to promote good practice by clarifying the role of the NHS in providing services to people with learning disabilities within the community."
17. My attention has been drawn, in particular, to paragraphs 6.1 to 6.4. Those paragraphs state as follows:

"6.1. In the late 1960's there were 60,000 people with learning disabilities living in mental handicap hospitals although many more people lived in the community, usually with their families. The 1971 White Paper 'Better Services for the Mentally Handicapped' was based on the shift from care in hospital to care in community. This policy was developed because there was an increasing concern about the adverse effects of institutionalisation and segregation and recognition that most people with a learning disability did not need to live in a hospital in order to have their health needs met. Hence there were two reasons for the hospital closure programs that have successfully taken place for long-stay hospital residents. As a result there has been deinstitutionalisation with the development of a wide range of community facilities. There has also been demedicalisation with a move from a medical/treatment model to that of a social model of care for disabled people, with emphasise on their right to an ordinary life. However there has been concern that the emphasise on the social model has led to the neglect of health needs which, even if extensive, can usually be met within a domestic-scale care environment if the right skills are available.

6.2 This good practice guidance re-affirms the commitment in HSG(92)43 regarding health authorities continuing to work with matching social services departments in planning the transfer of the remaining residents, and resources to support them to the community by a mutually agreed date, with a view to closing the old mental handicap hospitals as quickly as practicable. In 1997 there were less than 3000 people waiting to move out of NHS care.

6.3 It is expected that over the next two to three year the people still living in these hospitals will either transfer to specialist NHS provided care (reprovision) or to live in community settings often with NHS specialist input (resettlement).

6.4 It is strongly recommended that any work relating to reprovision of hospital services or the development of new community services is carried out jointly with partners from the local authority, the independent sector, health service providers and with a strong impute from users, relatives and carers."

18. In March 2001 the Department of Health published a White Paper, Valuing People (bundle 4, page 243). Although this postdates the decision in the present case, it does throw light on the relevant policies at the time of the decision. My attention was drawn in particular to paragraphs 6.32 and 6.33. They state as follows:

"6.32 A proportion of people with learning disabilities will require intensive health care support through specialist community services, including learning disabilities teams and/or challenging behaviour teams, over a prolonged period of time - because of their complex disability or the challenges they place on services. Such people have the same entitlement to independence, choice, inclusion and civil rights as all others. The aim should be to provide them with ordinary housing an support services, in the least restrictive environment possible, with opportunity to leave full and purposeful lives.

6.33 Many people with such complex needs are currently living in community services as NHS in-patients. This is only appropriate where people require continuous medical supervision. A need for nursing supervision is not a sufficient reason for NHS in-patient care. Localities with large numbers of people living in such NHS accommodation should use person-centred planning and pooled budget to design more appropriate locally based housing and support and so reduce the number of long-term NHS in-patient beds to more appropriate levels. Forthcoming guidance on continuing care from the Department of Health will support this approach."

19. In my judgment, these documents show that government policy is to encourage the removal of persons with learning disabilities away from long-term care in institutions, especially where there is no need for the use of NHS resources in their case, since the view taken is that this will benefit the individual by promoting their independence, their choice and their civil rights. But, this is a general aim, it is not an absolute rule. The application of the principle depends on consideration of the individual circumstances of the persons concerned and the provision being made for them.
20. So, in my judgment, there is a bias in favour of moving persons with learning disabilities away from long-term institutional care, in particular where there is no medical need for such institutional care. But there is no absolute rule since all cases must be assessed on their individual merits.
21. The question then arises: did this authority wrongly understand and wrongly apply government policy? Mr Wise relies on four documents. The first two of these documents are in very similar terms. Mr Wise refers to the joint investment plan of June 2000 (bundle 1 page 89) at page 114, which includes strategic aim No 5, which is stated as follows:

"Complete the discharge of all people with learning disabilities who are currently NHS in-patients to a model of social care support ensuring that appropriate monitoring and evaluation techniques are in place to ensure agreed quality standards."

22. The second linked document to which Mr Wise refers is the report to the authority, dated 26th October 2000, bundle 1 page 77, at paragraph 3.2, which refers to the same strategic aim.
23. In my judgment the authority was not proceeding on the basis that it was appropriate to discharge into the community all such patients, rather it was proceeding on the basis that individual needs should be met with the aim of moving such individuals into the community, if there was no health reason to keep them in National Health Service accommodation. In my judgment, that is made plain by paragraph 2.1 of 26th October report bundle 1, at page 76, which states:

"Guidance received from the Department of Health from 1992 onwards advise that people with learning disabilities need not remain as NHS in-patients by virtue of having a learning disability. This is underscored by the successful transfer of the individuals in the south of the county earlier this year. Nevertheless, what is crucial in ensuring quality care for people with a learning disability is to ensure that people's individual health needs are also met."

24. There is then a reference to "Signposts For Success".
25. The joint investment plan itself recognises at bundle 1, page 105, that:

"The care planning in process ensures that services will be tailored to meet individual need and outcomes are clearly specified."

26. The third document on which Mr Wise relies is a letter dated 15th May 2000, from Dr Sidahmed, the consultant psychiatrist advising the authority to Mr and Mrs C.. In the third and fifth paragraphs of that letter (bundle 3, page 178), Dr Sidahmed said as follows:

"K. has not been discharged but the National Policy and the New Strategy for Learning Disability Services makes it clear that Long Leys is to change to becoming an acute assessment and treatment unit, with part of it converting to a low secure unit for offenders who need to be in a secure Hospital setting.

...

The decision to discharge Long Leys Court residents is based on the New Strategy and need. Most of the inpatients in long term Hospital beds do not need to be in Hospital, and their needs could equally be met in the community."

27. Dr Sidahmed then explained in the next paragraph that in his opinion:

"...K. would be much better off, with opportunities to help her develop her potential, in an ordinary home. She, like us all, will go into a Hospital bed, get treated and leave to go home."

28. Dr Sidahmed is, as I say, the consultant psychiatrist. His task is to assess whether K. would be better off at Long Leys or elsewhere and to advise the authority accordingly. He is not responsible for the formulation of the authority's policy.
29. The fourth document is a letter dated 23rd January 2001 from the chief executive of the authority Mr Richard Jeavons. At the end of that letter (bundle 1 page 52) Mr Jeavons stated as follows:

"The proposals are part of the Joint Learning Disability Strategy as encapsulated within our Joint Investment Plan dated June 2000. This will bring services in Lincolnshire for people with learning disabilities in line with government policy to integrate people into the wider community rather than segregate them in inappropriate institutional settings."

30. I do not understand this to involve any misunderstanding of government policy. Mr Jeavons is simply stating correctly, in my judgment, that it is indeed government policy to encourage a move away from NHS care where there are no health needs that require the person to live in special NHS accommodation.
31. In my judgment, the evidence shows that the decision made by this authority was based on its belief that moving the residents of Long Leys into the community would be in their interests based on assessment of their circumstances, in particular that the residence and, in particular, K. did not require NHS care and they would enjoy greater autonomy and have greater potential in the community. That decision was not based on an erroneous view that government policy required all persons in institutional care whether at Long Leys or elsewhere to be moved into the community. I therefore reject the first ground of challenge.
32. Mr Wise's second point is that the authority did not consider the cost of moving K. and the other residents, in particular the authority did not consider the cost of other possible plans. The authority has made it very clear that the decision to move the residents out of Long Leys is not based on cost considerations. It is based on what the authority perceives to be the interests of the residents, and the absence of any medical need for them to remain in NHS care. The report to the 26th October 2000 meeting, stated, at paragraph 5.3.1 (bundle 3, page 38) that:

"...the agreed financial planning context for this proposal is that it should be resource neutral."

33. I can see no basis for criticising the decision by reference to costs considerations. The authority is taking a decision which it considers to be in the best interests of the residence and which is consistent with relevant government policy.
34. Mr Wise's third ground of challenge is that the authority failed to give proper weight to the preference of the residence of Long Leys and their families that they, or at least many of them, wished to continue to live there. There is no dispute that those wishes are of considerable importance and should be followed unless there is a strong reason to the contrary. That is made clear by circular 162 of 1999 (bundle 4, page 12) which states as follows, at paragraph 6:

"Authorities should respect the right of individuals to make informed choices about where they live (including for placements in village communities), wherever that preferred choice can meet their assessed needs, and is affordable. Guidance issued on the National Assistance Act 1948 (Choice of Accommodation) Directions 1992... states clearly that a placement should not be regarded as unsuitable simply because it fails to conform with the authority's preferred model of provision, or meet a standard service specification in every detail."

35. The same point about following preferences is made in a new circular issued last week on 31st August 2001, that is circular 016 of 2001 (page 11 at paragraph 43). That states:

"People with learning disabilities should be given a genuine opportunity to choose between housing care and support options, local councils in considering the future housing care and support needs of people with learning disabilities, and their families should therefore ensure that all options are considered. These options should include small scale ordinary housing, supportive living and village and intentional communities as well as residential care. Councils should respect the preferences of individuals and their families wherever the preferred options will meet individuals assessed needs and are affordable. Where there is limited demand for a particular option councils and housing authorities may need to consider with joining neighbouring authorities to encourage the development of a greater range of provision."

36. I am satisfied that the authority did properly take into account the strong preference of K. and her family that she should continue living in Long Leys. Indeed the evidence of Dr Sidahmed, to which I have already referred, and the evidence to which I am coming on the related issue of the promise of a home for life, shows that the authority gave specific consideration to whether there was a strong reason to move the residents of Long Leys, despite their wish to remain there.
37. The authority concluded that there was such a strong factor; that is that it would be very much in the interests of K. and others to be moved out of Long Leys and into the community, since they had no health needs which required them to continue to live in an NHS setting, and their autonomy and progress would be enhanced by moving out of that setting.
38. The fourth point advanced on behalf of K. is that the authority has breached a promise that she and other residents of Long Leys would have a home there for life. As I have mentioned, the consultation paper led to a letter from Mr and Mrs C., bundle 1, page 74, dated 2nd October 2000, complaining that the authority was breaching a commitment to provide a home for K., at Long Leys, for life. Mrs J.C., K.'s mother, describes the background in her witness statement at paragraphs 8 to 10 (bundle 1, page 46). She says:

"On the closure of Harmston Hall there were consultations and I remember attending a meeting at Harmston Hall and in the reception area there were large presentation boards showing artist's impressions of the new Long Leys Court and group homes advocating the scheme. The words 'homes for life' were on the huge presentation boards and the whole idea was to persuade us to agree to the proposals on the basis that Long Leys Court and the group homes would be homes for life.

9. The dramatic and distressing effect on the residents who were having to move was worsened by having to move into St John's for a short time as Long Leys Court was built but it was said 'At least you know that they will never have to move again'.

10. This promise was given to all the residents of Harmston Hall who transferred to Long Leys Court. That is at least 15 of the present residents of Long Leys Court including my daughter."

39. There are also statements from the families of other Long Leys residents to similar effect. As I have mentioned the authority received legal advice about the implications of the promise (bundle 3, pages 64 to 65). The approach then adopted by the authority is described in the witness statement of Brenda Sills, the chairman of the authority (bundle 3, page 24). She says at paragraph 10:

"At the Health Authority meeting on 26 October 2000, the proposals for transfer of residential accommodation to social care provision were discussed. Dr Atkins, a non-Executive member who is a General Practitioner and had previous knowledge of Harmston Hall Hospital, raised a concern in relation to the issue of a 'home for life' and whether such a promise had been given to residents when they were housed at Long Leys Court and if so, the moral of perhaps legal commitment owed. It was acknowledged that it was a possibility that such a promise had been given to some of the original residents. The wording of the promise was uncertain but it was thought to be that Long Leys Court would not close against the wishes of residents or carers. The Health Authority recognised that this was a significant issue and had to be taken into account. We were unsure as to the definition of 'home for life' and whether this meant the physical environment or the concept of the Health Authority providing an appropriate home. Because of its importance, it was agreed that a decision as to whether to discharge the long-term residents of Long Leys Court from NHS in patient care be deferred to enable more in-depth enquiries into the 'home for life' issue to be made."

40. That, as I have said, led to the obtaining of the legal advice. Brenda Sills explains at paragraph 14 that, prior to the next health authority meeting on 30th November, she read the advice. At paragraph 15, she explains what happened at the meeting on 30th November:

"Although the Authority was not certain that a promise of a 'home for life' had been made to any of the residents at Long Leys Court, for the purposes of arriving at a decision, we proceeded on the assumption that such promises were made to the remaining original residence. Having read the advice from the Authority's solicitors dated 17 November 2000, the view was taken that any such promise meant a home at Long Leys Court, subject always to the needs and wishes of the residents, not merely that the recipient of the promise would be looked after by the NHS. Although the promise was not made to all residence, in practical terms, it enured for the benefit of all although some residents positively wished to move. The promise was regarded as significant and it was given considerable weight as was the fact that Long Leys Court was the settled home of all its residents."

41. She adds at paragraph 16:

"The promise of a 'home for life' to some residents was carefully considered therefore and considerable weight was given to it. In addition, weight was given to the fact that Long Leys Court was the settled home of all its residents."

42. She states the conclusion at paragraph 17:

"The Health Authority formed the view that it was in the best interest of the residents of Long Leys Court that, if they were able to, they should live in the community rather than as NHS inpatients and that it should depart from any promises of a 'home for life' at Long Leys Court. There was general consensus that if we could offer a better home and living conditions than had previously been the case (as we believe that we did at Long Lees Court after Harmston Hall) then we were under an obligation to ensure that we acted in the residents' best interest and to provide the best accommodation, living conditions and care possible."

43. The legal position in relation to a promise of this nature is set out in the Court of Appeal decision in R v North and East's Devon Health Authority ex parte C. [2000] 2 WLR 622. Giving the judgment of the Court of Appeal, Lord Woolf MR, stated at page 645, paragraph 57:

"Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy."

44. The Court then stated, at page 646, paragraph 60, that the principle of fairness applied in relation to the promise made to Miss C. because of the importance of what she was promised, a matter underlined by the Human Rights Act, that is a promise in relation to where she could expect to live for the rest of her life and also the fact that the promise was limited to a few individuals and the fact that the consequences to the health authority of requiring it to honour its promise were only financial. The Court then stated the relevant test at page 654, paragraph 83:

"The property of such an exercise of power should be tested by asking whether the need which the health authority judge to exist to move Miss C. to a local authority facility was such as to outweigh its promise that Mardon House would be her home for life."

45. The Court added at page 655, paragraph 86:

"This was an express promise or representation made on a number of occasions in precise terms. It was made to a small group of severely disabled individuals who had been housed and cared for over a substantial period in the health authority's predecessor's premises at Newcourt. It specifically related to identified premises which it was represented would be their homes for as long as they chose. It was in unqualified terms. It was repeated and confirmed to reassure the residents. It was made by the health authority's predecessor for its own purposes, namely to encourage Miss C. and her fellow residents to move out of Newcourt and into Mardon House, a specially built substitute home in which they would continue to receive nursing care. The promise was relied upon by Miss C.. Strong reasons are required to justify resiling from a promise given in those circumstances."

46. At page 657, paragraph 89, the Court concluded:

"We have no hesitation in concluding that the decision to move Miss C. against her will and in breach of the health authority's own promise was in the circumstances unfair. It was unfair because it frustrated her legitimate expectation of having a home for life in Mardon House. There was no overriding public interest which justified it. In drawing the balance of conflicting interests the court will not only accept the policy change without demur but will pay the closest attention to the assessment made by the public body itself. Here, however, as we have already indicated, the health authority failed to weigh the conflicting interest correctly. Furthermore, we do not know (for reasons we will explain later) the quality of the alternative accommodation about services which will be offered to Miss C.. We cannot prejudge what would be the result if there was on offer accommodation which could be said to be reasonably equivalent to Mardon house and the health authority made a properly considered decision, in favour of closure in the light of that offer. However, absent such an offer, here there was unfairness amounting to an abuse of power by the health authority."

47. The Court then noted at paragraphs 90 - 93 that its conclusion was supported by Article 8 of the European Convention on Human Rights, concerning the right to respect for one's home.
48. Mr Wise contends that, similarly, in the present case there was no overriding public interest which could justify interfering with K.'s right to respect for her home and the right to respect for the promise which was given. The decision to resile from the promise of a home for life at Long Leys was, says Mr Wise, an unfair abuse of power and a breach of K.'s human rights.
49. Sympathising as I obviously do with K.'s wish, and that of her parents, that she should continue to live in Long Leys, I do not accept that, in the circumstances of this case, the authority's decision to the contrary is an unfair abuse of power or a breach of K.'s right to respect for her home.
50. There is, in my judgment, a fundamental difference between this case and Miss C.'s case. Here the authority is not acting for financial reasons in relation to someone who continues to require health care. Here the authority is acting in what it properly regards as the best interests of K., supported by the general thrust of the policy guidance to which I have referred, that it is desirable to move persons with learning disabilities out of care and into the community where there are no health reasons for them to live in NHS accommodation. I have already set out the considered views of Dr Sidahmed and his team, accepted by the authority, on why K. will benefit substantially from the move. That has been the view of the team, communicated to K.'s family since March 2000.
51. On the evidence of Mrs Sills, Mr Jeavons and Dr Sidahmed the authority has asked itself whether, in the light of the promise and in the light of the wishes of K. and her parents, it is right and proper to move K. in her own interests and the authority has concluded that she should be moved because there are positive benefits for her. As is stated in Valuing People the March 2001 White Paper at paragraph 6.32, in the passage to which I have already referred:

"Such people have the same entitlements to independence, choice, inclusion and civil rights as all others."

52. Those values, says the authority, with justification will be promoted by moving K. out of NHS accommodation and into the community. In these circumstances, I do not accept that the authority's decision amounts to an unfair abuse of power. I also take into account, as a secondary but relevant factor, that the promise on which K. relies, in this case, has a degree of uncertainty and a lack of clarity which distinguishes it from the C. case.
53. For similar reasons, I am satisfied that the assessment by Dr Sidahmed of the benefits to K. of moving her out of NHS care, and the authority's decision to act on those views, mean that the interference with K.'s right to respect for her home is justified under Article 8(2) of the European Convention on Human Rights. The authority are entitled to a degree of deference in relation to such a decision and I cannot say that their decision is a breach of Article 8, in the particular circumstances of K.'s case, having regard, again, as I have mentioned, to the fact that moving K. will promote other aspects of her rights as a citizen in the community.
54. Mr Wise relied on the judgment of Jackson J in R v Merton, Sutton and Wandsworth Health Authority ex parte Perry [2001] Lloyds Law Reports Medical, page 73, in which C. was applied. But in that case the authority had failed to have regard to the promise which it had made not to close the relevant home. By contrast, in the present case, the authority did take the promise very much into account as I have explained.
55. The fifth point taken on behalf of K. is that the assessment carried out by the authority is said to have been inadequate. Mr Wise refers to the 1990 White Paper "Caring For People" (bundle 5, tab 8) at paragraph 3.2.12, which states:

"The aim of assessment should be to arrive at a decision on whether services should be provided, and in what form. Assessments will therefore have to be made against a background of stated objectives and priorities determined by the local authority. Decisions on service provision will have to take account of what is available and affordable. Priority must be given to those whose needs are greatest. As part of its planning machinery, every local authority should monitor the outcomes of its assessment process, and the implications of these outcomes for future development of services."

56. Mr Wise also drew my attention to paragraph 3.2.6 of the same document:

"Decisions on service provision should include clear agreement about what is going go done, by whom and by when, with clearly identified points of access to each of the relevant agencies that a service users carers and for the care manager. No agency's resources should be committed without its prior agreement..."

57. There are three complaints under this head. The first is that the assessments carried out on K. are said to be deficient. There are two community care plans in relation to K.. The first was completed on 22nd February 2000 (bundle 3, page 99). The second was completed after the impugned decision in April 2001, Volume III page 137. I am told by Mr Hamlin, on behalf of the authority, that the provider of support is a specialist company, Northern Life Care, which was chosen after discussion with K.'s parents.
58. Paragraph 13 of Dr Sidahmed's witness statement (bundle 3, page 71) says this:

"In addition to providing input into the Continuing Care Assessment and Care Plan, we also undertake an annual review within the Trust of each individual long-term resident at Long Leys Court. During the last 2 years, annual (multi-disciplinary team) review meetings have been held in respect of K. on 26 May 2000 and 21 May 2001. K.'s parents are invited to attend these meetings and both parents were present at the meeting on 26 May 2000 and her father was in attendance at the meeting this year."

59. I should also refer to paragraph 18 of the witness statement of Mr Wright, the Joint Development Manager (Learning Disabilities) (bundle 3, at page 9):

"I was aware that all of the long-term residents had been medically assessed as not requiring NHS inpatient care and that, with the appropriate support and/or supervision, they would be able to live in the community and I received copies of the assessment documentation and care plans in relation to all of the long-term residents of Long Leys Court. It was acknowledged that the proposed move was likely to have a psychological impact on some, if not all, of the residents and that this would be implicit in all of the discharge plans but certain residents would require specific additional planning to support them in their move."

60. I do not accept that there is anything unlawful about the care plans. In my judgment they adequately addressed K.'s needs. In any event they would have of course be supplemented by the expertise of Dr Sidahmed and his team, in the light of the detailed knowledge that they have in relation to K..
61. The second part of this challenge is that Mr Wise says that there has been no joint assessment of K.'s needs, so as to enable a decision to be taken of whether those needs should be addressed within the context of health or within the context of social services. A joint assessment is required as Mr Wise points out, by paragraph 6.6 of Sign Posts for Success the 98 NHS executive document (bundle 4 at page 216). Paragraph 6.6 states:

"When facing the challenge or moving people out of hospital into different forms of accommodation, health authorities need to be clear about their own responsibilities and accountabilities and also those of their partners, particularly social services. No one should move out of hospital without a joint assessment involving social services."

62. Mr Wise also referred me to the 1992 guidelines from the NHS executive in document HSG (92) 42 (bundle 4, at page 235). I have already read the relevant passage.
63. The answer to this point from Mr Hamlin, on behalf of the authority, which I accept, is that the two care plans I mention involved reliance on the expertise of social services and the expertise of the health authority.
64. The third aspect to this complaint is that Mr Wise says that there has been no assessment of the psychological impact of K. of moving her out of Long Leys. That matter is addressed by Dr Sidahmed in paragraph 18 of his witness statement at (bundle 3, page 73). Dr Sidahmed says as follows:

"K. does not need nor receive any input from a psychologist and a report was not obtained from a psychologist in respect of her potential discharge. In my view, this is not necessary nor required. Implicit in the assessment process as to whether it is appropriate and in the best interests of any resident for him or her to be discharged from Long Leys Court is an assessment of the likely psychological impact. All of the team recognises that the psychological effect of uprooting the long-term residents from Long Leys Court is a matter of importance. It is the home of all of these residents and has been the home for a number of them (including K.) for more than 11 years. It is impossible to predict with accuracy the psychological impact a move will have on all of the residents but we are able to form a view having regard to the individual strengths and how they have coped with change in the past and adjusted to it and their level of social functioning. Those who enjoy outdoor pursuits (activities or trips away from Long Leys Court) would probably welcome such a move. In K.'s case, she is a person who would meet this sort of criteria. In addition, we have learned about such impact from the discharge of other residents in the past. When assessing any resident for discharge and if appropriate, subsequently planning that discharge, the psychological impact is a fundamental part of that progress. Accordingly, it is a necessary part of the assessment of whether a resident should be discharged from NHS inpatient care but it is also extremely important in the discharge itself and is implicit in the discharge plan of every resident. If there is a clear indication of the additional vulnerability, for example, autism, unstable moods or unassertiveness, this will be specifically referred to in the assessment and discharge process. This will aim to ensure that the placement is tailored to needs of the individual taking account of their developmental levels, their temperament likes and dislikes etc. As regards to K., no specific vulnerabilities have been identified that would make her more prone to an adverse psychological impact following the discharge. K. has happily visited her parents her parents every weekend and has spent the weekend with them and returned to the bungalow. She has always coped well with this minor change. K. would adjust well with any change provided there is a degree of support. This will become more likely if she continues to live with residents and staff with whom she is familiar and the plan we have is for some of the staff to move with the residents for a short while until they are established in the community. It is inevitable that some tranquillising medication and behavioural therapy may be needed in the initial stage but this is something that we have had to use at times when K. returned from weekend visits to her parents, possibly as an exhibition on her part of her unhappiness on leaving her parents and coming to the unit."

65. I can see no error of law in Dr Sidahmed and his team basing their assessment of the psychological impact of the move on their experience of K. and others.
66. In relation to all these complaints about assessments, Mr Wise relies again on the decision of Jackson J in the case of ex parte Perry, in particular, paragraphs 85 - 87, and 91 - 92. In the circumstances of that case, Jackson J found that the decision of the authority to close accommodation for people with learning difficulties was unlawful because of the absence of any assessment of their needs (see paragraphs 57 to 58 and 85 to 93 of the judgment).
67. As the judge noted at paragraph 85, it was common ground in that case that there had been no specific assessment of the condition and needs of the individual residents before the closure decision was taken. In my judgment, the circumstances of this case are materially different. In relation to K., in particular, there has been a proper assessment of her condition and needs and the conclusion has properly been reached that she does not need to be in NHS accommodation and would positively benefit from living in the community.
68. Dr Sidahmed points out, at paragraph 14 of his witness statement, that he had advised Mr and Mrs C. in March 2000 that it was not in K.'s interests to remain residing at Long Leys and that she did not require inpatient care. This was, he pointed out, the view of all the multi professional team.
69. The witness statement of the chairman of the authority, Brenda Sills, to which I have already referred, explains that it was because of this assessment in the case of K., and indeed, in the cases of the other residents that the decision was taken to close Long Leys. I therefore reject the fifth point concerning assessments.
70. The sixth and final point taken on behalf of K. is it is said that the authority failed to provide her and her family with a rational and reasoned explanation for the decision. Mr Wise accepted that this was inextricably linked with the earlier points. In my judgment, in the light of my earlier findings, the reasons point cannot assist K.. The authority has made it clear why it decided to close Long Leys. Even if, which I do not accept, the reasoning was inadequate at an earlier stage, I would not be prepared to grant any remedy on this ground, given that the reasons have been fully set out in the witness statements.
71. For all these reasons, and despite the very high quality of the submissions made by Mr Wise, this application must be dismissed.

MR HAMLIN: Then we ask your Lordship to dismiss as your Lordship has. There is no application for costs.

MR WISE: My Lord, may I thank your Lordship for the long and considered judgment that you have just given. There are important and sensitive issues that arise in this case. In particular, there are two issues which do merits further consideration and those points I ask your Lordship to grant leave to appeal.

The first point is whether best interests and that is the perceived best interest as your Lordship identified as by the professionals, whether those perceived best interests can constitute an overriding public interest such as to allow a health authority to resile from the promise for a home for life. That is a novel point that has not, as far as I am aware, been considered by the Court before.

Secondly, and clearly related to that, concerning the alleged breach of Article 8. Whether that is right, under Article 8 of the European Convention can lawfully be breached whereas here the only justification is that the claimant will be qualitative and better off in alternative accommodation. That again, we say, is an important point and one that, so far as I am aware, has not been considered before by these courts. We would say that both points would properly be matters for the Court of Appeal to give further consideration for and I ask your Lordship to grant leave accordingly.

MR PANNICK: Mr Hamlin, do you want to say anything?

MR HAMLIN: Nothing on the proposition that has been put forward. I am sure they have not been considered by the Court of Appeal although, with respect, it seems self-evident what the answer must be.

There is also a need for finality in this case as your Lordship will appreciate. This is a sensitive issue where there are a number of residents who have different views as to the future would best hold for them. Your Lordship may recall Dr Sidahmed's evidence at the end of his statement, which you will find of course at bundle 3 and if I could direct your attention to the final paragraph, which appears at the foot of page 74.

MR PANNICK: Yes.

MR HAMLIN: Bundle 3, tab 4.

MR PANNICK: Yes thank you.

MR HAMLIN: Your Lordship may recall it, referring to the concern about the delays. The effect upon residence of the delays causing them to experience anxiety and promoting an increase in behaviour problems.

MR PANNICK: Mr Wise do you want to say anything else?

MR WISE: One short point on the question of delay. Your Lordship will be aware of course, there have not been any alternative placements identified as yet. When placements are identified, there will clearly be considerable work to be carried out prior to any actual move. In our submission, time is not as pressing as my learned friend suggests. In those circumstances not an impediment to prosecuting an appeal.

MR PANNICK: I am not going to grant permission to appeal. It seems to me there are insufficient prospects of success to justify the granting of permission.

MR WISE: May I have an order for CLV funding.

MR PANNICK: I thank both of you for your very considerable assistance in this matter.