Case No: CO/924/2001 &
Neutral Citation Number:  EWHC Admin 789
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 26th April 2001
1. There are two applications before me. The applications are by two of the
three remaining elderly residents of the Fred Evans elderly persons home ("the
Home") provided by the respondent Walsall Metropolitan Borough Council ("the
Council") for permission to challenge the decision of the Council to close the
Home. The first applicant Mrs Phillips is 89 years old, frail and vulnerable.
The second Mrs Rowe is aged 74 years and has learning difficulties. Both have
lived at the Home for some time. The application in both cases is made by
litigation friends on behalf of the applicants. Their families, on whose
initiative these applications are made, are concerned about the possible effect
upon the health and well-being of the applicants of their removal from the
place they recognise as their home.
2. The Home has places for 30 residents. On the 4th September 2000, the
Council's Chief Social Services Officer made a report ("the September 2000
Report") to the Social Services Committee which stated that:
(1) there was a declining need for residential care in Walsall and 100-150 less places would be needed over 1-3 years time;
(2) at least one elderly persons' home should be considered for closure; and
(3) consultations should begin on closing the Home.
3. Consultations followed and on the 3rd January 2001 a report ("the January
2001 Report") was made to the Social Services Committee on the consultations.
The January 2001 Report stated as part of the background that the Home was the
oldest of the 10 Walsall Elderly Homes/Resource Centres. It was built in 1955
since when there had been no remodelling of the premises, and indeed
remodelling would reduce its bed spaces to an unviable number. The January
2001 Report went on to set out the consultations that had taken place. In
paragraph 3.5 the January 2001 Report provided an overview of the main issues
"a) Much emphasis has been made, to the credit of the Officer in Charge and staff, of the quality of Care provided at the home. The home is described as a Home from Home, having a very pleasant and friendly atmosphere, always being spotlessly clean. Consequently residents have both described themselves and been described as very happy and content at the home.
b) There has been confusion expressed regarding the exact details of the `standards' which make Fred Evans unsuitable as a home for the future, both in terms of their detail, implementation time and level of compulsion.
c) The issue of the `standards', which does cover many aspects of a homes' building, has provoked much discussion primarily in relation to the need for en-suite facilities. This has been widely interpreted as being every bedroom having its own fully equipped bathroom, including a bath. Many comments have also been made about the extent to which current residents would be able to use these bathing facilities unaided.
d) The land, which Fred Evans Home stands on, has been an issue of much debate and speculation during the consultation, many believing that the value of this is the underlying reason for wishing to close Fred Evans Home. Officers have explained the reasons for proposed closure as detailed in section 2 of this report, however, despite this and the assurances of Social Services Officers that their interest in the land starts and ends with the provision of quality residential care at Fred Evans, it would be reasonable to say that this has not been wholly accepted. Furthermore, throughout the consultation remarks have been made regarding the perceived poor management of the Council's finances leading to avoidable and unnecessary financial problems.
e) A very serious point raised is the effect of closure on current residents. Many residents originally entered Fred Evans home, often very reluctantly and sometimes after a lot of effort on the part of relatives, believing it to be their home for life. Whilst it has not been the case that any home can be guaranteed to be a home for life, it is understandable that residents and relatives have come to feel this should be the case. Officers have made assurances that every effort has and will continue to be taken in the closure process to avoid any health detriment to existing residents. This will include fully involving residents, relatives and staff in discussion about future options and also looking at the opportunities for small groups of residents who have developed friendships moving together, wherever possible. However, it must be acknowledged that irrespective of age one is, moving home is a stressful process and one that many will be able to empathise with.
f) Many of the residents, relatives and staff have made comment about the beautiful surroundings and environment of the Homes' grounds and what the loss would personally mean for them....
g) During the consultation a number of alternatives to closure have been suggested by residents, staff and relatives and the main ones are summarised thus:
* Could some of the land around the Fred Evans Home be sold, in order to have the money to invest in the home?
* If other homes where [sic] closed Fred Evans could then be expanded as a main centre for residential care in Walsall, given its ideal central location and beautiful surroundings.
* If Fred Evans were included in the Homes Transfer Policy with the other homes it would be possible to see if a provider was interested in the building.
3.6 The staff at the home shared many of the feelings expressed by residents
and relatives in respect of the potential closure of a home, which they have
taken great pride in for many years. They also understandably share concerns
regarding the future welfare of residents, wishing to ensure that the best
possible outcome can be achieved."
In paragraph 4 the January 2001 Report summarised the position as follows:
"There has been extensive consultation on the proposed closure with opportunities for users, staff, relatives and other interested parties to comment. Quite properly and understandably the major concern has been about the position of the existing residents and clearly were the home to close then meeting their future care needs would be a priority.
However these concerns apart there has not been any view put forward that undermines the central reason for proposing closure i.e. new provision, problems associated with upgrading the home and low occupancy. On that basis it is proposed that members should approve the closure of Fred Evans Home."
(During April, May and June there was an average occupancy rate of 86%; between June and September 2000 it was 66%. The rate prior to April was low, but unspecified). In paragraph 6 the January 2001 Report recommended members to approve closure of the Home and authorise officers to assist the transfer of residents to other homes of their choice.
4. On the 3rd January 2001 the Social Services Committee accepted the
recommendation and resolved to close the Home. Since that date all the
residents save three have been transferred elsewhere. The costs of looking
after each of them at the Home is some £3,000 a week. The Council is
accordingly most anxious to transfer the remaining three to vacant
accommodation available for them elsewhere. By these applications the
applicants seek to prevent such transfers taking place.
5. The grounds on which these applications are made should each be considered in turn.
6. The first ground is that the applicants were assured when they came to live
at the Home that it would be their home for life, and that the Council cannot
act so as to disturb their legitimate expectation not to be transferred
elsewhere. In the case of Mrs Phillips reliance is placed on three matters.
First her daughter and litigation friend Margaret Smith said this in her
"14. Amazingly from her first day in Fred Evans Home my mother liked it and wished to stay. Initially she stayed for four weeks while an assessment was carried out. At the end of this period she was told that, if she wanted to, she could stay for a further six weeks to enable a further assessment to be carried out. My mother was really pleased about this. She thought that the Council were doing her a big favour. She kept saying `they are going to allow me to stay'. The family were perplexed since the prospect of our mother going into residential care was upsetting and yet she seems to relish the prospect.
15. At the end of the second assessment period my mother was offered a permanent place at the home which she accepted.
16. On the question of whether she was offered a home for life I would say as
follows. The home made it clear that if my mother's health deteriorated to the
point where she needed nursing care then, as Fred Evans Home was not a nursing
home she would have to move, however, subject to that she was told that `as
long as you are happy here you can stop'"
Secondly she relies on the passage in paragraph 3.5(e) of the January 2001 Report which I have quoted. Thirdly she relies on a paragraph in the witness statement of Mr Bindi Nagra, the Elderly Services Manager of the Council which reads as follows:
"16. In the statement from Margaret Smith she states that after the second assessment Mrs Phillips was offered a permanent placement. Permanent placement in this context means merely that the placement changed from a short term or temporary placement, it does not imply a promise for life."
In the case of Mrs Rowe she relies on the witness statement of her sister and litigation friend Sandra Hayes who said:
"In view of Evelyn's age I understood that she would be able to stay in Fred Evans Home for the rest of her life."
7. On the other side, Mr Dan Phillips who has been employed by the Council since 1986 and been Director of Social Services since the 1st October 2000 says that he has not ever made nor is he aware of any staff making any promise to a resident of a home for life: it would be neither sensible nor possible to do so given that these are ordinary residential homes for elderly persons.
8. Undoubtedly it is legally and factually possible for a Council to give such an assurance. The assurance must however be clear and unequivocal. Such assurances have been found to have been given in certain cases, most particularly where such an assurance was deliberately given as it was required to persuade a person to leave one home and enter another, but not exclusively in such cases: see e.g. R v. LB of Camden Ex parte Bodimeade 11 April 2001. But such an assurance is not readily to be found in view of the very serious legal and practical implications, and careful consideration is required as to the authority of the person or persons identified as having given such an assurance. The evidence must be convincing. There is in this case no documentary or contemporaneous evidence of the assurances alleged or identification of the person or persons alleged to have given the assurances alleged. I say no documentary evidence, for the passages in the January 2001 Report and Mr Nagra's evidence in no way support the case made. It is significant that there is no special facility afforded to either applicant by living at the Home which will not be available if she moves elsewhere. I do not think the evidence relied on by the applicants goes further than indicate that the Council assumed a permanent responsibility to find a suitable placement for the applicants: there was no assurance that the placement might not be changed as it is intended to be changed in this case.
9. The second ground of challenge is that there was a breach of duty by the Council in failing to make psychological and risk assessments in respect of the effect on the applicants of the transfer to new homes. In my judgment the evidence before me establishes that there is no need for any such assessments. The general principle is that such assessments may be necessary or appropriate when making the placement of a resident elsewhere and deciding what home would be suitable for the resident, but are not necessary or appropriate when making a decision on closure: see Ex parte Coughlan  2 WLR 622. Special circumstances may exist which do require an assessment before a decision is made on closure. An example is to be found in the case of Ex parte Perry  3 CCLR 378 where the evidence established that the psychological effect of uprooting a profoundly disabled group of people from their homes where they had lived for 20-30 years and the consequent loss of the continuing care of a consultant were matters of importance. (It is clear to me that R v. LB of Camden Ex parte Bodimeade was decided on the ground that there was in that case a clear promise of a home for life, and not on the ground that there was the need in all cases for an assessment, a ground which would be run counter to Coghlan). The situation here is quite different. Mr Nagra in his witness statement makes clear that the needs of both applicants will be met equally well in other residential homes. So far as the Council had a duty to ensure that it possessed the relevant information to make a decision on closure and this included the impact on the applicants, I am satisfied that the Council possessed it, and I am not satisfied that there is any reason (let alone evidence) to suggest that it did not possess it.
10. The third and fourth challenges can be taken together. They are to the effect that the Council did not give due weight to the product of the consultation process and did not give reasons or adequate reasons for its decision. It is, I think, sufficient to say that it is quite apparent from the passages in the September 2000 and January 2001 Reports referred to in this judgment that due weight and adequate reasons were given. It is enough that the product of the consultation was taken into account: it is unnecessary for the decision-maker to respond to each view expressed in the consultation process. The financial reasons and the deficiencies in the physical condition of the Home plainly were tenable reasons for the decision reached, and the applicants accepted this, though they contended that they were not impelling reasons. Tenable reasons are sufficient to sustain the decision. If it were necessary I should add that the reasons are amplified in Mr Nagra's witness statement and they are convincing.
11. Finally the complaint is made that the Council have infringed Article 8 of
the European Convention on Human Rights. Article 8 reads as follows:
"RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and
freedoms of others."
Section 21 of the National Assistance Act 1948 requires local authorities to provide residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. It can constitute no breach of this duty for a local authority to change the residential accommodation provided. I am ready to assume that in the present context Article 8 requires the Council permanently to provide a home for the applicants, but this cannot mean that the Council cannot substitute one home for another. Such substitution cannot constitute an interference with the right protected by Article 8. Complaint was made that the three residents constitute (in effect) a family unit and Article 8 prevents the Council breaking up that family unit. But even if this is so, this does not assist the applicants, for the Council has made clear in its evidence, and has made even clearer to me at the hearing, that it intends to provide accommodation for all three residents together at the same home if that is what they wish. Nor can I think that (going beyond the effect on the three residents as a family unit) of closure on their social ties, their familiarity with the surroundings and proximity to friends and relatives can constitute an interference with rights protected by Article 8 (at any rate on the facts of this case). The Council is bound to provide a suitable alternative home: it cannot be bound (in the absence of an assurance of a home for life) to treat each resident of a home as entitled to remain at that home for life. I may add that if (contrary to my view) a move such as is presently contemplated could possibly constitute an interference with a fundamental right under Article 8, it would surely be justified as required for the economic well-being of the Council and of those in need of its services. Resources of public authorities are notoriously limited and it must be a matter for elected authorities such as the Council to have leeway in how they are husbanded and applied.
12. Having fully and carefully considered the persuasive submissions made on
behalf of the applicants by Mr Wise, I am satisfied that the applicants have no
real prospect of success on this proposed application for judicial review. (I
may add that indeed the Council have every financial reason to require the
uncertainty created by this application to be removed). Because the
application must fail, I refuse this application for permission.