QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF CLARA ANNIE DUDLEY, ALBERT WHITBREAD AND OTHERS||(CLAIMANT)|
|EAST SUSSEX COUNTY COUNCIL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR R MCCARTHY QC (instructed by East Sussex County Council) appeared on behalf of the DEFENDANT
Crown Copyright ©
"You may recall receiving a letter from David Archibold, Director of Social Services, in October of last year to inform you of the proposal to review each of the County Council residential homes for older people along with a timetable of when each of the homes is to be reviewed. My purpose in writing to you today is to remind you how the review of the Moreton Centre is to be conducted and how you make your views known.
"The formal period of consultation over the future of the Moreton Centre will take place during October and November with the outcome of the review being reported to the 4th February 2003 meeting of the County Council's Cabinet Committee. During this period, your care needs will be assessed. What this means is that an assessor from the reviewing team will meet with you to discuss the ongoing care that you need and to hear any views that you have about the future of Moreton.
"In addition to the review taking into account the points set out below, you should be aware that in consultation with the local NHS Primary Care Trust, an opportunity has arisen to apply to the Government for funds to extend and develop the Moreton Centre to provide a comprehensive range of rehabilitative services for older people. In the event of the bid being successful and a decision being made to pursue the scheme, it would be necessary to cease operating the home in its current form and for long stay residents and for the respite and day care services to be relocated to alternative accommodation.
"The review will take into account --
(i) the needs of the service users of Moreton and the views of their near relatives/friends;
(ii) the ongoing cost of maintaining the home;
(iii) the 'value for money' aspects in respect of the operational cost of running Moreton compared to similar establishments in the independent sector;
(iv) whether Moreton is providing a service or services to any service users which cannot be replicated in the independent sector; and
(v) the location, suitability and availability of alternative accommodation in the independent sector.
"On 30th October and the 6th, 8th and 11th of November you will have the opportunity, if you so wish, to meet with Corinne Lane, Operations Manager at the Moreton Centre, to discuss with her your views and wishes about your future and the future of the Moreton Centre. I have also written to your daughter . . . so that she is aware of what is happening. It may be that you wish her to represent your views or to accompany you. To take up the offer to meet with Corinne Lane please contact the home to arrange a suitable time.
"Should you or someone writing on your behalf wish to comment on the review of the future of the Moreton Centre, please write to me at the following address by Friday 29th November."
"My purpose in writing to you today is to let you know that we understand the Minister is to announce the details of the successful schemes within the next few weeks. As we do not know when the announcement would be made we thought that whatever the outcome, it was important we kept you informed rather than for you, or your relatives and friends, to hear about it through the media.
"It is important I stress to you that no decision will be made about the future of Moreton until the Council's Cabinet Committee receives a report on the outcome of the review. As you may remember, the formal period of consultation for the review is October and November, and it was planned that a report on the outcome would be presented to the February 2003 meeting of the Cabinet.
"Having consulted with colleagues, we believe that in the circumstances it would be better to bring forward the report of the review. Therefore it is proposed to report on the outcome of the review along with the results of the bid for money to develop Moreton to the 18 December meeting of the Cabinet."
"My purpose in writing to you today is to let you know that the bid to the government was successful and that £1 million has been allocated to the scheme. It is important that I once again stress to you that no decision will be made about the future of Moreton until the Council's Cabinet Committee receives a report on the outcome of the review at its 18 December meeting. As with my previous letter, I have also written to your daughter so that she is aware of what is happening. Unless I hear from you in the meantime, I will write to you again to ensure that you are aware of the outcome of the review and of the recommendations to be made to the 18th December meeting of the County Council's Cabinet Committee."
"Please find attached a copy of the letter to your mother which, as you will see, advises of the recommendations being made to the 18th December meeting of the Council's Cabinet Committee. Please be reassured that the staff at Moreton have made every effort to minimise any anxiety and that Mrs Dudley understands that there are suitable alternative local homes that she can move to. Therefore, should the Cabinet Committee uphold the recommendation to cease operating Moreton as a residential care home for long stay residents, Liz Coleman, Senior Practitioner, will be in contact with you to discuss similar alternative arrangements."
"The review concluded that there is no unique service operated at Moreton that cannot be replicated in the independent sector at a lower price than the current unit costs.
"If the recommendation for closure is accepted, there is also a proposal, subject to a business case being made to proceed, to initiate discussions with Health and the independent sector to provide a 30-place intermediate care scheme on the Moreton site. If the Cabinet agrees the recommendation it will mean that you and the other residents will need to move to another home. However you can be reassured that there are suitable alternative homes you can move to, and staff will talk with you about alternative arrangements after the meeting of Cabinet on 18 December."
"The majority of those who commented praised both the staff and the quality of care given at the home. A number of relatives and friends of residents expressed concern that an enforced move could threaten residents' welfare. Four relatives of respite and day care users believed that any relocation of services from the Moreton Centre could result in users becoming confused and losing confidence due to the change in their surroundings."
A later part of the report reads as follows:
"As with any review of the future of a residential care home, the major concern of relatives is the possible adverse effect any move would have on the welfare of the residents. Whilst not in any way wishing to minimise this view, care staff are doing all that they can to reduce any anxiety felt by residents and other service users. The assessments have also taken into account residents' anxieties about the future with, in the event of a move, the purpose of minimising any risk to their welfare. In the event of a decision being made to relocate the residents, Social Services staff will call upon experience gained over many years to ensure any move will be as least disruptive as possible.
"The assessments of the long stay residents and regular users of respite care indicate there is no unique service offered at the Moreton Centre that cannot be replaced in the independent sector at a lower price than the current unit cost. It is therefore recommended Moreton be closed and the residents move to suitable local homes, with every effort made to redeploy the staff. It is also believed that those who are eligible for a respite and/or a day care service could receive it from alternative provision in the Hastings and St Leonards area.
"In addition, if the business case for the acceptance of the £1 million grant is made, and appropriate agreements reached with Health, this could result in the expansion of the Moreton Centre to provide a 30-place comprehensive intermediate care centre for older people and would make a significant impact on delayed hospital discharges."
The recommendations were summarised in the document thus:
"The cabinet is recommended to:
(1) agree to cease operating the Moreton Centre as a residential care home for long stay residents by the end of March 2003;
(2) agree to the relocation of the long stay residents to alternative local provision, taking into account those residents who have formed special relations who would wish to be moved together to the same home;
(3) welcome the allocation from the Department of Health of £1 million to extend and develop the Moreton Centre to provide a 30-place intermediate care scheme and carry out a business case analysis including the conditions of the grant allocation."
"The Leader of the Cabinet identified at the commencement of the item that the matter would be dealt with in two separate and distinct parts, dealing firstly and only with whether the Moreton Centre should be closed with effect from the end of March 2003 and the residents relocated (recommendations 1 and 2). There was full debate on this and Cabinet was addressed by members of all parties on the issue. Cabinet was informed in detail of the contents of your letter to the Chief Executive dated 13 December. Cabinet was particularly informed of your numbered paragraphs on page 3 (1, 2 and 1 to 3). They considered the actions that had been taken by the authority in preparation for information to be considered by the Cabinet. They were informed of the duties under the Human Rights Act. They were assured that no action would be taken (without the agreement of any individual resident) to begin the process of relocation before mid January 2003. Having considered all the information before them, including the consultation process and the responses received, the individual assessments of the residents including the risk assessments, the Cabinet adopted recommendations 1 and 2."
Ground One: the consultation
"To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account."
"The assessments also took into account any special relationships between residents to ensure that if a decision is made to cease operating the Moreton Centre as a home for long stay residents, every effort is made to relocate them together."
This criticism is unsustainable.
Ground 2: The Wednesbury Challenge
"As part of the assessment process, discussions with service users, their family/representative, took place to explore other possible options such as returning to independent living with domiciliary support. However, taking their current level of functioning, physical abilities, cognitive abilities, their history, the circumstances under which they came into residential care and risk factors into account, the service users and others involved concluded that continued residential care was the most appropriate way of meeting their needs. I consulted with other professionals for an assessment and their professional opinion in cases where my assessment indicated that the service users needs may be more appropriately met in other than placement in a residential home registered for older people.
"The information to complete my assessments of Moreton residents was gathered through speaking to service users to ascertain their perspective of their abilities and needs and wishes for the future. I met with or spoke via the telephone with their families/representative and where this was not possible, I received information they had shared with the Moreton Centre Operations Manager during the consultation process. I got information on their past and current health status, likes/dislikes, daily routine, mood, ability to carry out personal care and daily living tasks and the level of practical and emotional support needed from their family/representative, key worker and other care staff at the Moreton Centre.
"Other information and previous assessment history was available from the East Sussex Social Services Department records. Assessment files and computer records are kept at the assessment team offices and residential records at the Moreton Centre.
"Before taking any future action I will undertake an assessment review involving the service user and other interested parties. I will also seek advice from other professionals, as required, to determine how to best meet the individual service user's needs, taking into consideration their wishes and choice."
Ground 3: Human Rights
"In his briefing to the Cabinet at the meeting on 18 December, Helmut Cartwright, Director of Legal and Community Services, made clear to the Cabinet that they must consider the implications of the Human Rights Act in reaching their decision. Mr Cartwright explained in detail the effects on the decision of Articles 2, 3 and 8."
"Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk."
"Article 3 of the ECHR addresses positive conduct by public officials of a high degree of seriousness and opprobrium. It has never been applied to merely policy decisions on the allocation of resources, such as the present case is concerned with. That is clear not only from the terms of Article 3 itself, and the lack of any suggestion in any of the authorities that it could apply in a case even remotely like the present, but also from the explanation of the breach of Article 3 that has been given by the Convention organs. Thus in Tyrer v United Kingdom  2 EHHR 1, a case concerned with corporal punishment, the Strasbourg Court held, at paragraphs 30 and 35 of its judgment that:
'in order for a punishment to be 'degrading' and in breach of Article 3, the humiliation or debasement involved must attain a particular level . . . the court finds that the applicant was subjected to a punishment in which the element of humiliation attained the level inherent in the notion of 'degrading punishment'.
"More generally, the Strasbourg Commission has on a number of occasions stressed the degree of seriousness of the conduct that Article 3 addresses. For instance, the Commission said in East African Asian v United Kingdom  3 EHRR 76, 81, paragraph 195:
'The Commission finally recalls its own statement in the first Greek case (1969) 12 YB Eur Conv HR 1 that treatment of an individual may be said to be degrading in the sense of Article 3 'if it grossly humiliates him before others or drives him to act against his will or conscience' . . . the word 'grossly' indicates that Article 3 is only concerned with 'degrading treatment' which reaches a certain level of severity.'
"These strong statements clearly demonstrate, if demonstration were needed, that to attempt to bring the present case under Article 3 not only strains language and common sense, but also, and even more seriously, trivialises that Article in relation to the very important values that it in truth protects."
"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."
"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."