Case No: CO/1300/2003
NEUTRAL CITATION NUMBER: [2003] EWHC 803 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 11th April 2003
Before :

THE HONOURABLE MR JUSTICE SILBER

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Between :

	THE QUEEN ON THE APPLICATION OF MARGARET HAGGERTY and Others
	Claimants	
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ST. HELENS COUNCIL	Defendant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Mr. Rupert Skilbeck (instructed by Hossacks of Kettering) for the claimants
Miss. Fenella Morris (instructed by The Solicitor, St. Helens Council) for the defendant

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Judgment
Mr Justice Silber:

Introduction

1.	The claimants are residents of Delamere House (“the home”), a private nursing home in St. Helens in Lancashire, which is operated by Southern Cross Healthcare Services Limited (“Southern Cross”), who have a contractual relationship with St. Helens Council (“the Council”) by which Southern Cross accommodates the claimants.  The claimants challenge the decision of the Council made on 9 December 2002 contained in a letter of that date not to enter into a revised and more onerous arrangement with Southern Cross at an increased weekly fee payable by the Council for placements of at the home together with a new obligation on the part of the Council to enter a block contract by which the Council would have to pay for a specific number of places at the home, irrespective of occupancy levels.  All the claimants are elderly and suffer from senile dementia.  Thus they all act by their next friends, who are obviously and commendably very anxious to do everything to help the claimants.  Anybody who reads, as I have, of the sad medical condition of the claimants will have great sympathy for them.  

2.	The challenge to the Council’s decision arises out of the claimants’ contention that the Council’s decision not to enter into the proposed contract with Southern Cross has led to Southern Cross deciding to close the home.  The claimants contend that this decision of the Council, which will lead to the claimants having to move is impugnable on public law grounds as it was irrational, as it failed to take into relevant considerations and as it infringes the claimants’ rights under Articles 2, 3 and 8 of the European Convention on Human Rights (“ECHR”).  It is not contended that the alternative accommodation proposed by the Council for the claimants is defective, or that it does not comply with the statutory obligation owed by the Council to the claimants.  Instead the focus of the claimants’ challenge is the effect on them of having to move to other homes in the vicinity.  I should stress that my task is not to determine if I agree with the Council’s decision but whether it can be impugned on established legal grounds.

3.	In response, the Council submits first that its decision not to enter into a revised and more onerous contract on the terms sought by Southern Cross is not as a matter of law amenable to judicial review by the claimants, whether on public law or on human rights grounds.  The Council also contends that it has complied with both its obligation not to infringe the claimants’ rights under the ECHR and under public law, as well as its statutory obligations to assess the claimants’ needs and to provide them with accommodation that meets their needs.  Southern Cross was joined as an Interested Party on this application but it has not been represented at the hearing.

4.	Sullivan J refused to give permission to a claimant on a written application on 7 March 2003 when he stated that:-

“The application and the application for interim relief are wholly misconceived.  Southern Cross has decided to close the home and evict the residents on 31 March, the Council has to respond to that situation.  I can see no error of law in the Council’s decision-making process as explained in the Council’s letter dated 17 February 2003.  Southern Cross has not challenged the Council’s decision.  This challenge appears to be an attempt to put indirect pressure on the Council to negotiate improved commercial terms with Southern Cross”.

5.	The claimants and Southern Cross were at pains to point out that they were not acting in collusion and I accept that.  On a renewed oral permission application on 19 March 2003, Sir Richard Tucker, sitting as a Deputy High Court Judge, granted the claimants permission to pursue their claim and he directed that the matter be heard on 27 March 2003.  Since the grant of permission, Southern Cross has further extended its deadline for closure of the home until mid-April 2003.  It now seems that the home will be closed at the end of April 2003.  In the limited time available for preparation for the present substantive hearing, the legal advisers of both parties have adduced much evidence and admirable skeleton arguments.  I reserved judgment at the conclusion of the hearing and have since received much further evidence, mainly from the claimants and this has inevitably delayed delivery of this judgment.  

6.	The claimants’ solicitor also sought to raise for the first time four days after the end of argument, a fresh issue concerning the ability of the Council to obtain financial assistance from the National Health Service for funding the claimants’ accommodation.  In all fairness to the claimants, I decided to consider that point which I do in paragraphs 79 to 82 below, even though it was raised so late.  I received commendably helpful written submissions from Miss. Morris on this issue but that has inevitably delayed the handing down of this judgment.

The background to the dispute

7.	Prior to September 2002, the Council had a written contract with Southern Homes to provide care and accommodation for a number of residents at the home for a weekly fee of between £348 and £365 per individual.  The contract provided that fees should be agreed annually (clause 8.5.1), that it might be terminated by either party on 12 weeks’ notice (clause 15.9.4) and that disputes arising out of the contract should be resolved by arbitration (clause 15.8.2).

8.	In September 2002, Southern Cross asked the Council for an increase in the fee payable to £450 per week per resident.  On 7 November 2002, the Council agreed a provisional increase of this fee to between £398.60 and £413.60 per week pending a review by independent consultants of all care home fees, in consultation with the home and with other private service providers.  By 9 December 2002, Southern Cross remained insistent that the fee payable should rise gradually to £450 per week per resident by September 2003 and that the obligation of Southern Cross should be to pay on a block contract basis, rather than on an individual basis.  Thus, the Council would then have to pay for a specific number of places even if it did not use them.  On 5 December 2002, Southern Cross notified the Council by email that they would not continue to provide the present service and unless agreement was reached in 7 days, “we will close the unit”.

9.	The Council rejected this proposal in its letter to Southern Cross dated 9 December 2002, which is the decision under challenge on this application.  In this letter, it explained that the proposed contract would pre-empt its review of care home fee levels, which would specifically consider the needs of residents such as those at the home.  The Council also stated that purchasing facilities from Southern Cross on a block contract and thereby accepting responsibility for the home’s occupancy levels would be improper for the Council as the risk relating to occupancy at a private home providing services to a Council should remain with the home and not be passed to the Council.  It was considered by the Council that to do otherwise would mean that the Council would give preferential treatment to the home over other local homes.  The Council considered that the offer of fee levels made by it of £413 per week per resident in occupation was fair and reasonable.  It is noteworthy that according to the Council’s skeleton argument, £404 per week per resident is the fee paid by the Council to Green Park Nursing Home, another local home to which it is proposed that twelve of the residents at the home should be moved.  I regard that as correct because the Council would know what fee is actually paid for that facility, even though this was at one time disputed by the claimants.  In any event, according to the Council, it did not have the resources to pay the rates sought by Southern Cross as it had overspent by that time on its relevant budget.

10.	On 9 December 2002, Southern Cross gave notice to the Council of its intention to close the home, with the result that the Council had 12 weeks in which to assess and to find accommodation for the claimants under the contract.  Southern Cross informed the residents and their relatives of its decision to close shortly afterwards, but as I have explained, that period has since been extended.  Normally, I would have considered adjourning a case such as this to see if it could be resolved by some form of alternative dispute resolution, but the decision to close the home had already been made by Southern Cross before the hearing to close the home in the very near future.  I decided that alternative dispute resolution had no prospect of success in this case in the time available, especially as if it was unsuccessful it would not have been possible to arrange another hearing before the home was due to close.

11.	It is apparent from the correspondence that the home had many vacant beds, and that Southern Cross intended the proposed fee increase to offset its “occupancy shortfall”, as well as to meet its “trading losses”.  In an email dated 18 December 2002, the Council explained to Southern Cross the need to adopt a long-term contractual framework that would sustain services over that period.  It stated that, since Southern Cross had decided to close the home, its residents would move out of the home to alternative accommodation in a “planned, thought out and risk minimised way”.

12.	The Council, although it contends that it was not obliged to do so, did, in fact, consider the effect that its decision not to increase fees to the levels sought by Southern Cross would have on its residents.  It was aware that a move would seriously disrupt the residents’ lives.  The Council concluded that the fees sought were disproportionate, that the residents’ needs could be met elsewhere and that to agree to the fees sought would place an improper burden on its social services budget.  At the time of the decision, the projected overspend on the budget for elderly and disabled persons’ residential and nursing care was £229,000, in the context of significant projected overspends in other sectors of social services amounting to more than £1,300,000.  Mr. Wakefield, the Assistant Director of Social Services at the Council has explained that the Council did not have the resources to pay the sums demanded by Southern Cross.  The Council reached this view following a multi-disciplinary needs assessment of each resident in consultation with a Community Psychiatric Nurse, the residents’ relatives and where necessary, a consultant psychiatrist, in November and December 2002.  The District Nursing Services had carried out separate assessments.  When confronted with Southern Cross’ decision to close, the Council sought to find suitable alternative accommodation and has done so.  I will explain later in paragraphs 33 to 41 of this judgment the steps that the Council took and those that it proposes to take to mitigate the effects of the move.

13.	Relying on the assessments arranged by it, the Council has identified suitable alternative accommodation for the residents, within easy travelling distance for visiting relatives. Arrangements have been made to move patients gradually in their “friendship groups” to this alternative accommodation.  In essence, the residents have been offered places at one of two neighbouring homes with the exception of one resident who is mentally handicapped and who requires special help so that he will go to a suitable home.  Thus, the Council has contended that it has preserved continuity as far as it is able to do so in the circumstances.  As I have explained, no complaint is made about the suitability of the alternative accommodation and so I need not describe it.  The objection of the claimants is taken to the fact that they will have to move and I must now explain the legal framework against which this claim has to be considered.

The Legal Framework

14.	A local authority is required to provide residential accommodation to persons who by reason of age, illness, disability or other circumstances are in need of care and attention, which is not otherwise available to them.  (Section 21 National Assistance Act 1948 as amended (“1948 Act”) and Directions LAC(93)10) The nature of the accommodation and service to be provided to an individual should be determined by the local authority following an assessment of such person’s needs.  (Section 47 National Health Service and Community Care Act 1990 (“1990 Act”)).  It is settled law and not disputed that a local authority is entitled to take resources into account when deciding how to meet the individual needs that have been identified (R v Gloucestershire CC ex p Barry [1996] 4 All ER 421 at 439d).

15.	A local authority is empowered and authorised to make arrangements with private sector providers to fulfil its obligation to provide residential accommodation.  (Section 26(1) 1948 Act).  It was pursuant to that provision that the council entered into its contract with Southern Cross, which is the subject matter of this claim.  However, these private sector providers do not become “public authorities” and so become liable under section 6 of the Human Rights Act 1998 (“1998 Act”) merely by reason of their role in fulfilling the local authority’s functions (R (Heather) and Others v Leonard Cheshire Foundation [2002] 2 All ER 936).  That presumably explains why no public law claim has been made by the claimant against Southern Cross.  

16.	A local authority is required by the National Assistance Act 1948 (Choice of Accommodation) Directions 1992 (“the Directions”) to fulfil its obligation to provide accommodation to an individual pursuant to section 21 of the 1948 Act at the place of that individual’s choice, subject to a number of provisos, including:-

(b)	the cost of making arrangements for him at his preferred accommodation would not require the authority to pay more than they would usually expect to pay having regard to his assessed needs;
(c)	the preferred accommodation is available;
(d)	the person in charge of the preferred accommodation provide it subject to the authority’s usual terms and conditions … (paragraph 3).

17.	Paragraph 7.4 of the Directions reiterates that the question for the authority is whether the cost of the preferred accommodation is more than it would “usually expect to pay” for someone with the same assessed needs as the individual.

The Issues

18.	As I have explained, the case for the claimants is that the Council’s decision not to enter into a “block contract” with Southern Cross at an increased weekly fee for placement at the home infringed the claimant’s rights under Articles 2, 3 and 8 of the ECHR as the Council’s decision meant that the claimants will have to move.  The Council disputes this submission and the alternative contention of the claimants which is that the Council’s decision was irrational as it failed to take into account relevant considerations.  One of those considerations is the point that the claimants’ solicitors raised after the end of the hearing and which is referred to in paragraph 6 above.  In any event, the Council contend that its decision not to enter into the contract on the terms demanded by Southern Cross is not amenable to judicial review by the claimants, either on public law or on human rights grounds.  

19.	The issues raised in this case can therefore conveniently be dealt with under the following headings:-

(a)	Was the decision of the Council not to enter into a contract on the terms sought by Southern Cross amenable to judicial review either on public law or human rights grounds? (“the judicial review amenability issue”) (paragraphs 20 – 26 below)
 (b)	Have the claimants’ rights under Articles 2, 3 and 8 of the ECHR been infringed? (“the human rights challenge issue”) (paragraphs 27 – 61 below)
 (c)	Was the Council’s decision irrational as it failed to take into account relevant considerations? (“the public law challenge issue”) (paragraphs 62 – 82 below)

A  The Judicial Review Amenability Issue

20.	Miss. Fenella Morris on behalf of the Council submits that the decision by the Council not to enter into a contract on the terms sought by Southern Cross is not as a matter of law amenable to judicial review on public law or human rights grounds by the claimants. In support of this proposition, she relies on the decision of Moses J in R v. Servite Houses ex parte Goldsmith (12 May 2000 – CO/3652/99) in which a private sector provider decided to close a home but the local authority’s statutory obligations were held to be limited to carrying out a reassessment of their needs and rearranging alternative accommodation for them, even though the decision to close and the subsequent move would “certainly adversely affect the quality of [the claimants’ life]” (page 8 of the judgment).  Significantly, the local authority was held not to be in breach of any public law obligations to the claimants, nor was it obliged to seek to persuade the private service provider to change its mind, for instance, by offering it more money (page 41 of judgment).  It is that aspect of the judgment on which the Council relies on this issue.

21.	Mr. Rupert Skilbeck for the claimants does not submit that the decision in Servite was incorrect but he contends that it should not be followed as it was decided before the 1998 Act came into force.  He points out that Moses J said “once the [1998] Act has come into force, it may be and I put it no higher that the courts will have to reconsider the obligations of a provider of a home by a private person under arrangements made with a public body” (page 42).  Mr. Skilbeck has said that I should consider whether the 1998 Act has had the effect of reversing the Servite decision which means that the Council’s decision not to yield to Southern Cross’ pressure is not amenable to judicial review on public law grounds.  It is appropriate to divide up this discussion into consideration first of the challenge on ECHR grounds and then on public law grounds.  This issue is academic because even if the claimants can pursue public law and ECHR challenges then, as I will explain, their claims fail on the facts in establishing breaches of Convention and public law rights.  Therefore, I will deal with the submissions on amenability of challenge briefly, not only for that reason but also because in the limited time available, the main focus of attention of the submissions before me has been on how the Council has actually performed its duties and whether the human rights and public law challenges could succeed on the actual facts of this case.

(i) The ECHR challenge 

22.	Servite deals with a public law challenge but the considerations in respect of an ECHR challenge are different.  As I have explained in paragraph 14 above, the Council owed statutory duties to the claimants under section 2 of the 1948 Act to provide accommodation.  In R (Heather and Others) v. Leonard Cheshire Foundation [2002] 2 All ER 936, the Court of Appeal had to consider whether the defendant was “a public authority” under section 6(3) of the 1998 Act so as to be liable under section 6(1) of the 1998 Act.  Apart from answering that question in the negative, Lord Woolf CJ giving the judgment of the Court of Appeal said that where a local authority contracts to a private supplier in reliance of section 26 it “remains under an obligation under section 21 of the 1948 Act and retains an obligation under Article 8 to [those to whom it had obligations under section 21 of the 1948 Act]  even though it has used its powers under section 26 [of the 1948 Act] to use [a private company] as a provider” [33].

23.	That conclusion was strictly speaking obiter dicta as being not necessary for the decision of the court but it obviously commands the greatest respect.  There are two ways on which the Council’s actions in relation to its contract with Southern Cross can be impugned on ECHR grounds.  The first is that section 3 of the 1998 Act states insofar as material to the present case that “so far as it is possible to do so, primary legislation .. must be read and given effect in a way which is compatible with the Convention rights”.  Thus, the Council’s obligations under section 26 of the 1948 Act should be read and be given effect to so that the claimant’s Convention rights are to be taken account of by the Council in performing its section 26 obligations.  

24.	The second and more likely way is that the Council is potentially liable under section 6 of the 1998 Act, which makes it unlawful for “public authorities to act in a way which is incompatible with a Convention right”.  The Council is a public authority but section 6(5) of the 1998 Act states that a body such as St. Helens “is not a public authority [for the purpose of the 1998 Act].. if the nature of the act is private”.  The Court of Appeal might have concluded that the Council’s actions in relation to a private accommodation supplier were “public” in nature as it affected their obligation as a local authority.

25.	I have not heard full arguments on whether commercial dealings by a local authority with a provider of residential care are “private” in nature under the 1998 Act and so as a result of section 6(5) fall outside the Act.  In the light of this and my conclusion that in any event, the claimants cannot establish infringement with its Convention rights, I will assume without deciding the issue that the Council was obliged to consider the Convention rights of the claimants in its dealing with Southern Cross and that this aspect of the decision is amenable to judicial review.

(ii) Public law challenges

26.	It is not necessary for me to determine if Servite is good law.  In Servite, Moses J finished his judgment by saying that if his reasoning was right “it demonstrates an inadequacy of response to the plight of these [residents] now that Parliament has permitted public law obligations to be discharged by entering into private law arrangements”.  I agree and to some it would be strange that a local authority which owes duties to people in the claimants’ position under section 21 of the 1948 Act was not amenable to judicial review in respect of decisions in relation to a section 26 agreement with a service provider, which might affect the residents in a very adverse way.  In any event, even if such a decision was amenable to a public law challenge, it would have to take into account the Council’s obligation to take financial matters into consideration.  This issue is academic in the light of my conclusions that even if a public law challenge could be made, it would fail.  Therefore I will assume, but not decide that the decision of the Council not to agree to Southern Cross’ demands is a decision which is amenable to a challenge as a matter of public law.

B)  The Human Rights Challenge Issue

27.	An initial difficulty for the claimants in this case is the break in the causal chain between the act of the Council complained of by the claimants (namely the decision not to agree with Southern Cross’ demands) and the consequences relied on, namely the interference with the claimant’s Convention rights.  The chain was broken by the decision of Southern Cross to close the home because of the substantial losses that it was suffering in running the home.  The significant fact is that Southern Cross could have decided to organise its business differently so it could continue to provide facilities at the home by increasing occupancy levels, but instead it chose to close down the home.  So the decision to shut down the home was a choice made by Southern Cross for which the Council cannot be held liable.  Thus I doubt if it can be shown that the consequences of the Council’s decision can be regarded as responsible for any interference with the claimants’ rights.  This is a further reason why this human rights challenge must fail.

28.	Assuming that the Council can be held responsible for the closure of the home, I consider the human rights issue.  It is contended by Mr. Skilbeck that the decision of the Council not to comply with Southern Cross’ demands created a real risk that the claimants as residents of the home would suffer increased mortality, mental and physical deterioration because they would have to move.  Mr. Skilbeck correctly in the light of the evidence agreed that the basis of the claimants’ complaint was, as I have explained, solely that as a result of the Council’s failure to negotiate they will have to move home.  No evidence has been adduced about the unsuitability of the new homes proposed by the Council for the claimants.  Thus, it is said the Council have acted in breach of the human rights of the residents and that their action is unlawful pursuant to section 6 of the 1998 Act.  He bases this claim against the Council under the ECHR on the right to life, the right against suffering degrading treatment, the right to physical integrity, the right to respect for home and family life.  I will deal with each of these in turn.

The right to life – Article 2
   
29.	Article 2 of the ECHR states that “Everyone’s right to life should be protected by law”.  Mr. Skilbeck says that Article 1 of the ECHR requires the state to secure the right to be protected under the Convention for its citizens while Article 13 of the ECHR requires there to be an effective remedy for the violations.  Thus, he submits that a positive obligation is imposed on the state to protect the right to life or put in another way, there has to be behaviour which actively protects the individual.  He relies on the statement of the Strasbourg court in Osman v. UK (1998) 29 EHRR 245 where it explained at paragraph 115:-

“The court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.  It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.  It is thus accepted by those appearing before the court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual”.

30.	I am prepared to assume that a positive obligation of the kind suggested by Mr. Skilbeck was imposed on the Council.  In this case, Articles 2 and 3 are being invoked to impose positive obligations on the Council as they themselves are not responsible for killing or torturing the claimants.  The result is that the limits of the obligations are defined by proportionality.  That means the obligation on the authority to take measures to protect the citizens from breaches of their Article 2 and 3 rights is limited in that the obligation must not impose an “impossible or disproportionate burden on the authorities” (Osman v. UK 29 EHRR 611 [116] and R (Pretty) v. DPP [90]).

31.	Miss. Morris submits that all that was required of the Council was, as was stated in the same part of the judgment, to do “all that could be reasonably expected of it to avoid a [real and immediate] risk” (Osman (supra) [116]).  That view was commented on by Lord Phillips of Worth Maltravers MR in R (A) v. Lord Saville [2002] 1 WLR 1248 as when he was giving the judgment of the Court of Appeal, during which he explained that:-

“The degree of risk described as “real and immediate” in Osman v. United Kingdom 29 EHRR 245, as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life.  It was “a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party” which was, or ought to have been, known to the authorities: p305 para 116.  Such a degree of risk is well above the threshold that will engage Article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself” [28].

32.	In determining what steps are reasonable, the court accords a broad area of discretionary judgment to the public authority in deciding what is a fair balance between the interests of the individual and the community (Pretty – pages 816 [15] and 843 [90]).  Miss. Morris contends that the Council have complied with any duty imposed on it and I now turn to consider the evidence of the Council, which is that there will be no risk to the claimant’s lives by moving them.  I will summarise it before examining the evidence on which the Council relies to show the steps that it took and the evidence.

33.	Mr. Julian Wakefield, the Assistant Director of Social Services at the Council explained that he appreciated from a meeting in October 2002 that Southern Cross wanted an increase in the price paid to it by the Council.  He knew that the Council did not have the money available as at that time as the Social Services Department of the Council had overspent its budget by a considerable amount.  Mr. Wakefield said that he knew that the home played a valuable role in the provision of services for elderly people and that if Southern Cross decided to close the home, its residents would have to be moved with consequent disruption of their lives.

34.	Mr. Wakefield agreed to an interim price increase to Southern Cross but he could not agree to meet all Southern Cross’ demands.  In November and December 2002, he arranged for individual assessments to be carried out by a multi-disciplinary team consisting of care managers and a Community Psychiatric Nurse from the Community Old Age Mental Health Team.  The aim of all assessments was to review the needs of each individual and these could be communicated to staff at other homes if the claimants had to be moved.  The District Nurse Service carried out separate assessments.

35.	When Southern Cross served notice terminating the contract with the Council, Mr. Wakefield said the Council identified suitable local alternative accommodation for the residents.  All this accommodation had been approved by the Care Standards Commission and in each case, it met the assessment needs of the claimants.  The cost of this alternative accommodation, unlike Southern Cross’ proposed charge was within the Council’s price ceiling and it did not entail entering into a block agreement.

36.	Mr. Mike Stoker, the Team Manager of the Elderly and Mentally Ill Care Management Team of the Council has explained the steps that have been and that will be taken by his team.  He said that his team was made aware that Southern Cross was threatening to close the home if the Council did not meet its demands.  Mr. Stoker said that there were “clearly huge concerns surrounding the residents” as the threatened closure was due in December 2002.  These steps included liaising with relatives of the individual residents at the home concerning the move and particularly on the most appropriate way to deal with the enforced move so to as ameliorate the known risks of such a move.  Not all the relatives have been consulted in this way as three claimants residing in the home have stated through their relatives that they would not cooperate with any assessment while the present application was outstanding.  Therefore their views have not yet been obtained.  The Council has been and continues to be keen to liaise with the relatives of these three individuals.  

37.	Mr. Stoker said that alternative placements were sought for the claimants, although he considered that it was preferable for them to remain.  Mr. Stoker has explained that the Council also had the benefit of guidance and advice from Ms. K. Gaskell, who had been the Council care manager and who had known almost all the claimants for many years.  She, together with the proposed receiving home which were identified as appropriate for each resident at the home, undertook a comprehensive review assessment of how any move could be achieved with the least impact possible caused to each of the residents by his or her transfer.  There was also substantial liaison with the relatives of the resident at the home considering what role the relatives could play in achieving as a safe a move as possible for the residents at the home.  These measures included preparing and accompanying the resident on the move, preserving the routine of the transferring resident, as well as ensuring all needs, personal characteristics, medication needs and familiar environmental factors of the residents were all in place at his or her new home.  It is significant in relation to the Article 2, 3 and 8 challenges that Mr. Stoker said that the Multi-Disciplinary Team asked itself in the case of each resident what were the risks should that resident have to move.  He said that when a risk was identified after the team had conducted that exercise, as in the case of Marcia Jones, the appropriate measures were taken by the Council to ensure the residents’ well-being.

38.	Mr. Stoker concluded the multi-disciplinary team was satisfied that there was no “significantly increased risk of death to any of the residents as a result of the move, nor is there a significant risk of serious mental or physical suffering given the planning and arrangements that have taken place”.  Although the claimants have subsequently served evidence on other issues, no evidence has been adduced by the claimants contradicting this conclusion of Mr. Stoker in the light of the steps taken or proposed by the Council.  The Council relies strongly on this finding of the multi-disciplinary team and it is necessary to set out more details on how the moves will be achieved. 

39.	Mr. Stoker explained that two local homes were proposed for different residents and the staff in each of them were familiar with some of the residents at the home as they had previously worked with them.  In addition, the receiving home carried out its own assessments.  The Council was, he said, anxious to preserve friendship groups and when the moves were made, the individuals leaving the home would be accompanied by staff from the home, from the team and from the family.  The belongings of the transferring residents would be moved in a suitcase with them in order that they were not moved impersonally.  It was also explained by Mr. Stoker that the members of his team had experience in dealing with the type of residents in the home and that they were extremely experienced in dealing with and addressing accurately the needs, risks and requirements of the transferring residents.  

40.	Mr. Stoker said that all practical matters would be taken care of; these matters included their medication, friendship groups and prior assignments to a General Practitioner.  Thus, in order that each claimant may be visited immediately if necessary by a General Practitioner, that doctor would be made aware of the needs of the individual resident from the home prior to any move.  Mr. Stoker said that all these steps were aimed at minimising the risk of shock and distress of the move suffered by the residents.  He then described the different friendship groups which were being moved and how they would be combined and dealt with.  It is unnecessary for me to describe which homes they were going to and the facilities available because there is no challenge to the facilities and features of the proposed homes but just to the fact that they have to move.

41.	As an example of the fact that each person’s needs was considered individually, Mr. Stoker explained that a former wife of one of the individuals and the individual concerned expressed a preference for him to go to another home as he had specific mental health problems which would be best met at that home.  Mr. Stoker explained that all precautions in terms of the move and associated risks had been taken with preparations of medical conditions being in place.  It is noteworthy that his view and that of his team was that they had taken “all steps as humanly possible to enable any move as may be endured by the residents to be as safe and dignified as at all possible and to minimise or ameliorate the risk as much as we possibly can”.

42.	The claimants did not adduce any evidence challenging what Mr. Stoker and Mr. Wakefield had stated about what the Council was doing or proposed to do to assist the claimants with their move.  Nevertheless, Mr. Skilbeck contends that the claimants’ Article 2 rights have been infringed and he relies on the medical evidence from the claimants’ doctors and also on a report of Professor David Jolley, which I must now consider.

The views of the claimants’ General Practitioners

43.	The only specific medical evidence on the risks of moving these particular claimants comes from some comments made by their general practitioners.  Thus, the general practitioner of Mr. Joseph Moore [44] says that a transfer would create “additional short-term risks in a man who is incapable of playing any significant part in controlling his own care”.  He adds that these risks are “the result of unfamiliarity with his care needs, idiosyncrasies and manner, including early signs of acute illness arising from the move”.  The precautions outlined by Mr. Stoker according to Miss. Morris answer these points.  Ms. Alice O’Brien’s general practitioner states that there is an increase in the level of confusion and this could be detrimental to her ongoing physical and social health and that a move “would only be contemplated in an acute emergency” [45].  The doctor of Mrs. Marion Shepherd writes that her interests would best be served by her remaining in the home while any move is likely to further disorientate Mrs. Shepherd and may lead to an increase in behavioural and psychological symptoms of her dementia”.  

44.	The general practitioner of Mr. Ernest James concludes that the move would produce “distress and agitation” [47].  The medical report on Mrs. Margaret Haggerty explains that the writer is not an expert but that this claimant “can become very disorientated from her surroundings” [48].  Sadly, Mrs. Haggerty has now died.  The report on Ms. Hilda Finch by her general practitioner says that moving her “to another home will almost certainly be detrimental of her physical and psychological well-being” [49].  Mr. Malcolm Nuttal’s general practitioner states that a move from his present environment would “undoubtedly arise to him (sic) having further destabilising conditions including increased confusion and behavioural problems” [207].  The report on Mr. George Wilson by his general practitioner contends that his mental health “could well deteriorate even being moved to another home, which would have to be appropriate to cope with his mental condition” [211].  It is significant that none of the doctors knew of or was able to make comments on the steps outlined by Mr. Wakefield and Mr. Stoker and that had been taken or were to be taken by the Council to reduce the risk of injury or death to the moving resident.  

Report of Professor David Jolley

45.	As I have already explained, Mr. Skilbeck relies heavily on a report of Professor David Jolley, who is a Consultant Psychiatrist specialising in Old Age at Penn Hospital, Wolverhampton as well as holding the Honorary Chair in Psychiatry of Old Age at Wolverhampton University.  He stated that he had examined the medical reports and the files of the claimants, as well as the relevant literature.  According to Mr. Skilbeck, Professor Jolley concluded that it was “an inescapable truism that relocation is a stressful event and can precipitate problems of mental health, physical health, and even bring forward death” (paragraph 21).  This statement, however, has to be read in the light of the immediately following sentence in his report, which stated that “there are published examples of good practice that when every care and consideration is to take into account in planning and conducting moves and where matters are not confounded by unplanned or unforeseen complications, the impact of the stress can be minimised” (my emphasis added).  The Council contend that this is what they have done for the reasons outlined in Mr. Stoker’s evidence and in Mr. Wakefield’s evidence to which I have already referred.

46.	Later, in a summary of his report, Professor Jolley states that moves of elderly and frail people are “stressful, they do produce physical and mental health morbidity and they can increase mortality” (paragraph 31).  He added that the impact is greatest on very old people and those who show previous vulnerability or have concurrent pathologies, including multiple pathologies.  He thought the stress was likely to be reduced for older people, particularly those suffering from dementia if they had staff caring for them and relatives visiting them, which is what Miss. Morris says will actually happen in the light of Mr. Stoker’s evidence.

47.	Miss. Morris attaches importance to the fact that Professor Jolley concluded in paragraph 31 of his report that it was “possible to adopt strategies designed to reduce the impact of relocation” (emphasis added).  Significantly, one of the reports that Professor Jolley appends to his report is one entitled “Design and Dementia” produced by Age Concern.  It comments on the actual transfer of elderly vulnerable people from one residential home to another.  The report stated that the transfer of groups of older people with dementia under carefully controlled conditions, was conducted “in a carefully orchestrated way” with the result that it “produced no discernable adverse effects” [127].  

48.	Miss. Morris contends that the Council has taken and will take all the necessary steps referred to by Professor Jolley in planning the move so that in his words “the impact of this stress can be minimised”.  None of this evidence shows that there will be a realistic risk to the claimants’ lives if the move is properly prepared for and organised.  On the basis of all the evidence, I conclude that as Professor Jolley, Age Concern and Mr. Stoker all agree if a move is properly organised, there will not be a sufficient danger to the life of any of the inhabitants so that Article 2 is not engaged.  It is noteworthy that the claimants do not adduce any evidence from Professor Jolley or any other medical experts commenting on the steps that the Council has taken and intends to take so as to mitigate the effects of the move.  No criticism is made of them.  The Council’s evidence on this was adduced just before the hearing but no application was made by Mr. Skilbeck to adjourn the hearing or to respond to Mr. Stoker’s evidence at or after the hearing.  Furthermore, Mr. Skilbeck did not put forward any arguments or certainly any cogent argument that the steps taken or to be taken by the Council would not mitigate the effects of the move.  Having considered it carefully, I find Mr. Stoker’s evidence thoughtful and impressive; the steps referred to in it and in Mr. Wakefield’s evidence are very likely to mitigate the effects of the move.

49.	The Article 2 claim fails for four reasons.  First, I do not consider that there is evidence that the risk to the claimants’ lives would reach the level needed to engage Article 2 as explained by Mr. Skilbeck in the light of both the precautions and steps to be taken by the Council.  The claimants have not adduced any evidence to criticise or to comment on the steps that the Council consider adequate.  Second, in any event, even if that is wrong I consider that the Council has met the requirements relied on by the claimant, which is, according to Mr. Skilbeck, to ensure that “the state did all that could reasonably been required of it to prevent the [claimant’s] life being avoidably put at risk” (LCB v. UK (1998) 27 EHRR [11]).  Mr. Stoker’s evidence enables me to reach that conclusion both by itself and when combined with the Council’s statutory obligation to take expense into account.  Third, as I will explain at the end of this judgment, the Council has agreed to liase with Professor Jolley or another consultant in the psychiatry of the old aged on the best ways of moving the claimants so as to reduce the risk to them.  It was agreed that the parties would have liberty to apply if problems arose.  This will ensure that the claimants’ lives will not be at risk.  Fourth, if I had been in any doubt about the Article 2 claim the factor to which I have just referred would have led me to the same conclusion that this Article 2 challenge fails because the courts accord a broad area of discretionary judgment to a public authority in deciding what is a fair balance between the interests of an individual and of the community (R (Pretty) v. DPP [2002] 1 AC 800 at 816 [15] and 843 [90]).  This would prevent the Council’s decision being impugned on Article 2 grounds.  Thus, I conclude that the claimants’ rights under Article 2 will not be infringed by the move.

Prohibition against degrading treatment and physical integrity – Article 3 

50.	Article 3 prohibits behaviour by a public authority which would amount to “inhuman or degrading treatment”.  There is a high threshold of ill-treatment that is to be reached before that right is engaged because:-  
(i)	the facts constituting violation must be proved beyond a reasonable doubt, but it may be proved by inferences or unrebutted presumptions of fact” (Ireland v. United Kingdom (1978) 2 EHRR 25 [161])
(ii)	deterioration in the mental health of a person is capable of constituting inhuman or degrading treatment if it reaches the appropriate level of severity.  In Aerts v. Belgium ((2000) 29 EHRR 50), the European Court did not uphold a finding by the Commission of an Article 3 breach because of the acute anxiety caused by the claimant’s conditions or detention expressly on the basis that “there is no proof of deterioration of [the claimant’s] mental health” [66]
(iii)	the test to be applied before finding a breach of Article 3 is becoming stricter and significantly the Strasbourg court has observed that:-
“having regard to the fact that the Convention is a “living instrument which must be interpreted in the light of present day conditions”, the Court considers that certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in future.  It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably, requires greater firmness in assessing breaches of the fundamental values of democratic societies” (Selmuni v. France (2000) 29 EHRR 403 [101]).
(iv)	the kinds of ill-treatment which fall within the scope of Article 3 are very serious as “the [Strasbourg] Court’s case law refers to ill-treatment that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering” (Pretty v. United Kingdom (2002) 35 EHRR 1 [52] with my emphasis added). 
 
51.	Miss. Morris submits that Article 3, requires both that the public authority inflicts the “treatment” complained of and that it must reach the high threshold of severity mentioned in the cases.  She contends first, that the decision not to pay a private home such as Southern Cross, the fees that it demanded cannot amount to “treatment” of the residents of that home and second, that in any event, there is insufficient evidence to demonstrate that the claimants will suffer so severely that Article 3 is engaged as a result of the move from one home to another, bearing in mind the arrangements made by the Council for them.  

52.	I have already set out the evidence concerning the likely effect of the move on the claimants.  The evidence of the medical practitioners does not show that the effect of the move would come anywhere near the high threshold for the engagement of Article 3, namely of constituting “intense mental and physical suffering”.  In any event, their evidence does not comment on or taken into account the precautions outlined by Mr. Stoker.  Professor Jolley’s evidence was that the effect on the claimants of the move to another home would depend on the precautionary steps taken by the Council to ensure that any suffering was ameliorated.  As the report of Age Concern produced by Professor Jolley shows, these precautions can entirely or at least very substantially obviate the adverse consequences to elderly residents of such a move.  This is particularly relevant because the evidence of Mr. Stoker shows that the substantial lengths to which the Council is going to ensure that the claimants do not have to suffer unnecessarily.  Thus, my first reason for rejecting the Article 3 challenge is that in absence of comments by anybody medically qualified on the effect on those claimants of moves to other homes in the light of Mr. Stoker’s precautions, the claimants’ evidence does not show suffering up to the requisite high threshold for Article 3 to be engaged.  My second reason is that the Council have as I have stated in paragraph 49 agreed to liase with the claimant’s expert on the psychiatry of the old aged on the best way of moving the claimants so as to reduce any risk to them.

53.	In any event, as I have explained in respect of Article 2 in paragraph 32 above, the courts accord a wide discretion to a public authority in deciding what is a fair balance between the interests of the individual and the community.  This would constitute an additional and second reason for rejecting the claim in the light of Mr. Stoker’s evidence and the statutory financial obligations on the Council.

54.	For the purpose of completeness, I should add that I have borne in mind as Mr. Skilbeck asked me to that the Strasbourg court has explained in the case of persons suffering from mental illness that “the question of whether treatment or punishment is incompatible with the standards of Article 3, as in the case of mentally ill persons to take into consideration their vulnerability and their inability, in some cases, to complain coherently at all about how they are being effected by any particular treatment” (Keenan v. UK 10 BHRC 319 at 352 [110]).  In this case, the claimants have acted by their relatives who are acting as next friends and who were and remain deeply concerned and interested in the treatment of the residents and in particular if and how they should be moved.  The claimants’ relatives are well able to and have complained clearly about matters which have caused them concern.  The Article 3 challenge fails.

Article 8 - Right to physical integrity and respect for home and family life

55.	Article 8 provides that:-

“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 in accordance with the law and necessary in a democratic society in the interests of national security, public safety for 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 rights and freedoms of others”.

56.	Mr. Skilbeck makes three separate submissions in respect of Article 8.  First, he says that even if in this case the threshold for Article 3 treatment is not reached by the claimants, then the lower threshold for the protection of right to physical integrity, which is inherent in the Article 8 right to respect for private life is engaged in this case (Ranninen v. Finland (1990) 26 EHRR 563).  Second, he notes that Article 8 contains a specific right to respect for home life and this applies to any premises used by an individual as his or her home (see Buckley v. UK (1996) 23 EHRR 101).  This right, he says, also applied to living quarters in an old people’s home (R (Coughlan) v. North East Devon HA [2001] QB 213 at 254 [90]).  This obligation on a public authority not to interfere with the home life of an individual would include the right of access, occupation and peaceful enjoyment of the home (G and E v. Norway (1983) 35 DR 30). 

57.	The third way in which Mr. Skilbeck puts the claimants’ case in respect of Article 8 is that it protects the right to family life.  The right would protect the ties within the home where the residents and users would have no other personal ties.  He points out that the Strasbourg court has said that “a question of the existence or non-existence of “family life” is essentially a question of fact depending on the existence in practice of close personal ties. 

58.	I consider that the claim in respect of Article 8 fails for three reasons.  First, there is no cogent evidence of disruption of home or family life or interference with the right to physical integrity.  Professor Jolley and the general practitioners of the claimants do not deal in their evidence with the proposed or actual arrangements as outlined by Mr. Stoker, which show that Article 8 rights are not engaged.  

59.	The way in which the moves are and have been planned, as described by Mr. Stoker in his evidence and which is not contradicted, indicate that a great deal is being done to ensure that the move is as undisruptive to the claimants as it could possibly be.  No cogent criticism has been made by Mr. Skilbeck of the proposed arrangements.  It is particularly noteworthy that the Council intends to do all that is necessary to preserve friendship groups and thus shows respect for what would be covered under Article 8(1) as “family life”.  The other measures that Mr. Stoker outlines, show the claimants’ rights to physical integrity and respect for home and family life have been safeguarded and are not infringed.  As I have explained, Mr. Stoker has said that the individual assessments of all residents have been carried out.  I have explained in paragraph 49 above the way in which the Council has agreed to liase with the claimants’ expert consultant psychiatrist on the best ways of moving the claimants so as to reduce any risk to them.

60.	Second, the financial resources of the Council is an important element to be considered to the balancing exercise required in the application of Article 8(2).  Thus, in R (F) v. Oxfordshire Mental Health Care NHS Trust [2001] EWHC 535 (Admin), Sullivan J held that it was highly relevant to the balancing exercise required by Article 8(2) that by making expensive provisions to one individual item in the Council budget, this would deprive others of services and this would thereby adversely effect their rights.  As I have explained, the Council considered that the fees sought by Southern Cross were disproportionate and that if it was to agree to pay them, an improper burden would be placed on the social services budget with the result that other patients in other homes would be adversely effected.  Similarly, in Birmingham Care Consortium v. Birmingham City Council [2002] EWHC 2112 (7377), Stanley Burnton J said “affordability is in general a highly relevant consideration to be taken into account by any local authority in making a decision on rates to be offered to service providers, subject to a local authority being able to meet its duties at their rates if offered” [32].  This would enable the Council to justify its decision.  Another way of reaching that conclusion is that, as I have explained in paragraphs 10 and 14 above, a local authority is obliged by statute and entitled to take into consideration resources when deciding how to meet individual needs.

61.	A third reason why this claim based on Article 8 must fail is that the Council is entitled to a substantial degree of deference relating to the way in which it allocates its resources and provides services.  This is relevant as Article 8(2) requires a balancing exercise.  These are matters very much within the expertise of a local authority and with which a court should only interfere where the evidence is very clear, but this is, as I have explained, not such a case.  For all those reasons, the Article 8 claim and all aspects of the ECHR challenge fail.
	
C   The public law issue challenge

62.	Mr. Skilbeck contends that the decision of the Council was irrational in that it failed to take into account relevant considerations.  He submits that the Council failed to take into account first, the risk of increased mortality following badly planned transfer or second, methods of reducing that risk, third the need for individual assessments to the effect of the transfer on each of the residents at the home and finally, general rules of best practice contained in a recent report into the closure of a home in Plymouth and in relevant Government guidance.  As I have already explained, the original basis of complaint was that the Council had failed to take into account the absence of suitable accommodation for the residents, but it is now correctly accepted that there is suitable accommodation available with the result that the focus of the challenge by the claimant is now solely on the effect of moving the claimants to another home.  

63.	It is also said by Mr. Skilbeck the Council failed to carry out any consultation prior to deciding to effectively close the home.  He submits that there has to be early consultation at an early stage and he relies on the comments of the Master of the Rolls in R v. Northern East Devon Health Authority ex parte Coughlan [2001] QB 213 at 258 [108] that:-

“To be proper, consultation must be taken at a time when proposals are still at a formative stage; it must include sufficient reasons for the particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the produce of consultation must be conscientiously taken into account”.

64.	In any event, as I have already explained Mr. Stoker’s evidence shows that there has been consultation on the transfer of the claimants and how it should be achieved.  Thus, there has been consultation but it is said that some relevant matters were not considered in the claimant’s case.  I am unable to accept Mr. Skilbeck’s complaint that there should have been adequate consultation but this did not take place.  Five reasons individually or cumulatively lead me to that conclusion.  

65.	First, the Council were given seven days by Southern Cross in which to respond to its demands and consultations of the kind referred to in Coughlan’s case would not have been possible as within this period the Council also had to consider its financial position.  Second, the decision to close the home was that of Southern Cross and not that of the Council with the result that consultation was not required.  The claimants’ case is based on the erroneous assumption that it was the Council who chose to terminate the agreement.  Third, consultation would not have led to a different decision in respect of Southern Cross’ demands because of the Council’s statutory duties to take account of costs which would have led to the decision it took.  Fourth, the Council was aware that the residents were keen to stay but it was obliged to take into account their statutory duties, which as I have explained in paragraph 16 above required them not to pay more than the Council “would usually expect to pay” for people having the assessment needs of the claimants.  Finally, as Mr. Wakefield explains that even if the Council had all the information now before it when it responded to Southern Cross’ demands in December 2002, it would have come to the same decision.  I accept that statement as being accurate.  This shows that even if proper consultation did not take place before the Council sent the letter under challenge, the Council would inevitably have reached the same decision even if proper consultation had been possible and had actually taken place. 

Matters which should have been, but were not, considered by the Council

66.	Mr. Skilbeck points to three particular sources of evidence, which show the dangers of involuntary transfers on the mortality rate and which he says should have been considered by the Council.  These are set out in Professor Jolley’s report, the guidelines issued by the Department of Health, which are The Transfer of Frail Older NHS Patients to other Long Stay Settings (1998-048) (“the Government Guidelines”) and the report and findings of the Extraordinary Complaints Panel entitled Closure of Granby Way Residential Care Home for Older Patients, Plymouth (“the Cowl Report”).  

Professor Jolley’s Report

67.	I have already explained that Professor Jolley’s report is not based on any analysis of the effects of the transfer on these particular claimants.  As I have explained in paragraphs 45 and 47 above, he accepts that if appropriate steps are taken, the damaging effects of a move for elderly frail patients can be mitigated.  There is no evidence from him commenting on the measures proposed by or carried out by the Council and which are set out by Mr. Stoker and Mr. Wakefield.  Those measures would appear to show consideration by the Council of the material relevant issues.  Thus, I do not consider that any great weight can be attached to anything that Professor Jolley states when I am appraising the actual way in which the Council actually proposes to carry out the move of the claimants.  

Government Guidelines

68.	Paragraph 2 of the Guidelines states that “although the guidance is about frail older persons, much of it will apply to other vulnerable groups and individuals”.  It is said by Mr. Skilbeck that it recommends the use of thorough planning and of checklists, full and frank consultation with individuals and their carers involving third party support agencies and charities (paragraphs 8-11), the identification of an individual key worker with authority to stop or postpone the planned transfer of an individual if to do so be harmful, even if this results in a risk to the planned closure (paragraph 18) and consideration as to when the transfer should be carried out with the avoidance of winter transfers and the transfer of friends together (paragraphs 14-17).  Mr. Skilbeck says that the Council failed to follow these Guidelines.

69.	I agree with Miss. Morris that these Guidelines are of very limited value.  Five reasons individually or cumulatively lead me to that conclusion.  First, they deal with transfers within the National Health Service and indeed they are expressed to refer to “the transfer of frail older NHS patients to other long stay settings”.  Different considerations apply in the present case which concerns the transfer of people in residential homes.  Second, the Guidelines are addressed to health authorities in exercise of those functions and so they do not apply to the social services functions of bodies such as the Council.  Third, the Guidelines are expressly stated to be for “guidance only” and “to share good practice”.  They are not intended to be a statutory or mandatory guidance.  Fourth, these guidelines are concerned with hospital ward closures, which raise different issues from those relevant to closing homes.  Fifth, in any event the Council has special knowledge of costs and the consequences of moving frail and elderly people.  It also has a wide discretion as to how to perform its duties and the court should be reluctant to intervene when it has exercised its powers.  Thus, I conclude that I cannot derive much to assist the claimants from those guidelines.

70.	In any event, even if the Guidelines apply to the transfer of the claimants, the report of Mr. Stoker shows not only that there will be an avoidance of winter transfers but that friendship groups are being transferred together.  In addition, there has been consultation with friends and families of the claimants and much care is being taken to minimise the effect of the move.  As I have explained in paragraph 37 above, Mr. Stoker says that the multi-disciplinary team asked in the case of each resident what were the risks to that person should they have to move and the Council in the light of the response to those inquiries took steps to obviate or reduce the risks.  So even if the Guidelines apply, I am not satisfied that the acts or omissions of the Council would contravene the guidelines.  

The Cowl Report

71.	This report was made by an Extraordinary Complaints Panel dealing with the closure of a particular nursing home in which the claimants had allegedly been told that they would be able to remain for the rest of their lives.  It was set up as a result of the judgment of the Court of Appeal in R (Cowl) v. Plymouth City Council [2002] 1 WLR 803.  The remit of the Panel was agreed by the parties in the light of the views of the Court of Appeal on how this particular dispute should be resolved (ibid 808 [28]), the remit to investigate this claim, as well as “the risk/care assessment issues” and “claims relating to the effect of the move on residents”.  The Panel also had to make various findings of fact.

72.	It is important to stress that it seems apparent that there was no public consultation by the Panel other than with the residents and with the local Council, while the evidence that was adduced before the Panel all related to the particular home which was the subject matter of the inquiry in question.  It does not appear that any expert evidence was given by any third parties.  In those circumstances, the report was for obvious reasons solely dealing with the particular problems of closing the specific home, which led to the Court of Appeal case and the subsequent setting up of the Panel.  In any event, it was not suggested that any general views on moving expressed by the Panel were the subject of a specific or dedicated study or were the subject of full consultation.  Thus, it would be wrong to attach much weight to any views expressed in the report other than those relating to matters specifically referred to and considered by them. 

73.	Nevertheless, Mr. Skilbeck relies on a number of comments in the Cowl report.  First, it states that when a particular home in Plymouth was closed, 16 of the 28 residents died in the 18 month period after the decision was taken to close the home (paragraph 9.9).  I am not sure whether all or any of them would have died if they had not moved.  Mr. Skilbeck also points out that the geriatrician instructed by the local authority acknowledged that “it is well recognised that the mortality rate increases during these plans”, namely during moves.  Significantly, the report adds that Dr. Peter Jefferys, a Consultant in Psychiatry of Old Age instructed by the Panel accepts that “plans to minimise risks can be put in place”.  Mr. Skilbeck also points out that the Director General of Age Concern gave evidence that closure of such homes can have a catastrophic effect on the lives of the residents (paragraph 9.16) but the report acknowledges that a local authority would in those circumstances have to consider how to overcome the risks to health (paragraph 9.15).  The view expressed in the report is that assessments are required of the “emotional, psychological, social and cultural needs and the impact of such significant life events on the well-being of the older person .. so that they must be able to make a sound based judgment about the level of risk involved in an unwished move of home” (paragraph 9.19).

74.	Miss. Morris says this is precisely what is being done in this case and she relies on the evidence of Mr. Stoker and Mr. Wakefield, which I have already summarised.  I agree with her that the steps that were actually taken by the Council to help the residents or what will be done would appear to comply with the points relied on by Mr. Skilbeck.

75.	Mr. Skilbeck also relied on some general guidelines included as an Appendix to the Cowl Report, which the Panel thought should be followed if the home was to close in the future.  Those guidelines deal with a case, unlike the one before the court in which the local authority actually runs the home and so it did not use a service provider like Southern Cross.  In that case, it envisages consultation with the residents and the relatives, assessments of individuals, consideration of possible groupings, the drawing up of a project plan including timescales and if possible, the residents themselves should be involved.  I have explained that these guidelines have to be considered in the context of the report and the lack of full public consultation on their recommendation.  Most importantly, it has not been suggested by Mr. Skilbeck that they have received approval or support from the Government or any official body.

76.	Nevertheless, in the circumstances of this case, it seems clear that proper assessments have taken place and relatives have been consulted.  It is intended that residents will be moved with their friends and in accordance with a timescale.  The residents and their relatives have been able to come to terms with the decision as more than three months have now elapsed since the time when the decision to close the home was known.  I am not satisfied that the steps taken by the Council fall short of the recommendations in the Cowl report, but in any event, they do not merit being regarded as binding guidelines.

77.	This is so because, as has been explained by Mr. Wakefield, the Council carried out an assessment of the needs of the claimants and took them into account to arrive at its decisions and to determine the needs of the claimants.  The vast majority of the claimants had been under the care of the Council for many years.  Thus it was familiar with the needs of the claimants, which also updated those ongoing assessments about which no criticism has been made.  In any event, there is no complaint about the quality and the suitability of the alternative accommodation that has been offered or that it does not meet the needs of the patients.  It is not said that any particular further steps should be taken or should have been taken before the patients are moved.

78.	The response of Mr. Skilbeck was that the Council ought to have yielded to the wishes of the claimants or their relatives that they should remain in the home.  It is settled law and not disputed by Mr. Skilbeck, that a local authority is entitled to take resources into account when deciding how to meet the individual needs of patients (R v. Gloucestershire CC ex parte Barry [1996] 4 All ER 421 at 439d).  There is evidence adduced by the Council which has not been disputed which shows their financial problems in December 2002.  Not surprisingly, it is not suggested that it had no grounds for not being so concerned about the financial costs.  In all those circumstances, there has been no breach by the Council of its obligations to consult or to take relevant issues into consideration.  Indeed, it is the financial considerations which enable the Council to defeat very many of the claimants’ points of challenge.

The claimants’ new point submitted after the oral hearing

79.	Ms. Hossack, the claimants’ solicitor contended for the first time in her witness statement made on 31 March 2002 four days after the conclusion of the legal argument, that “the claimants in this matter would be eligible for NHS funding of the extra nursing care they require over and above the general nursing care included in the standard nursing home price”.  She adds later that it does not appear from the evidence that the Council “took into account the possibility of seeking joint funding with the NHS further costs associated with the needs of the claimants”.  Mr. Skilbeck did not respond to a comment from me to explain or to justify this allegation.  In addition, no explanation has been given for why this point was raised for the first time four days after the end of the hearing.  Nevertheless, I decided to consider it as it might have been of critical importance.  

80.	Miss. Morris contends that the issue of whether an individual’s care is funded by the NHS or by social services is determined on a case-by-case basis in accordance with local agreements between the relevant health and the social services bodies, which are devised in accordance with national guidance.  These agreements first specify particular criteria or factors that will entitle the individual concerned to fund wholly or partly his care by the NHS and second they are designed to ensure the appropriate allocation of social services and health resources.  The decision whether an individual is entitled to NHS-funding is made as part of the needs assessment and of the care planning process, since that is when an assessment can be made of whether the relevant criteria for the provision of health care have been fulfilled.

81.	In this case, not one of the claimants has been found to be entitled to NHS funding by the assessment and care planning process, save for a handful of individuals who continue to be entitled to some part-funding.  It is common ground that the claimants’ needs were assessed in accordance with the statutory scheme by the multi-disciplinary team, namely in co-operation with health care providers.  However, that process did not reveal that any individual was entitled to any additional NHS funding.

82.	In such circumstances, Miss. Morris contends that the local NHS bodies would be acting outside their ordinary powers if they were to agree to fund for the claimant their social care namely the accommodation and care provided at the home, to persons who did not require health care.  Her argument is that in any event, even if the local NHS bodies had exceptionally found that they were entitled or prepared to fund all or any of the residents of the home, they would inevitably be concerned with the same issues of the cost of care as those that have troubled the Council and prompted its decision.  Miss. Morris correctly says that there is no evidence that the local NHS bodies would agree to pay a charge in excess of that necessary to meet the needs of the residents as identified by the needs assessment and care planning process.  Thus, Miss. Morris contends that Ms. Hossacks’ further statement raises an issue that does not effect the decision under challenge since the claimants were not entitled to any additional NHS funding.  Thus, her submission is that even if they were, the local NHS bodies would have been entitled to carry out the same balancing exercise that the Council did, in deciding not to pay the charges of home in meeting the needs of the claimants.  I find Miss. Morris’ submission convincing and I accept them in the absence of any supporting information, evidence or arguments from the claimants, especially as this aspect of NHS funding was well known to the Council.

A further possible obstacle to granting relief?

83.	I am concerned about a further point, which is whether if the claimants had been successful, they would have obtained a remedy of any value to them.  They are seeking to quash a decision made on 9 December 2002 not to comply with a request by Southern Cross to agree to their terms.  Since then, Southern Cross have said that it will close the home in mid-April.  The reason for that decision is that it is making substantial losses in running the home and it cannot afford to suffer further losses.  So while writing this judgment, it occurred to me that nothing might be gained by granting the claimants this relief because Southern Cross have resolved to close the home and nothing done in the present proceedings can change this.  I suspect that Southern Cross will by now have taken steps to lay off staff and to end their operation at the home.  So this suggests that success on this application would not assist the claimants.  That is only a provisional view as I have not heard any argument on this point.

Conclusion

84.	As I listened to Mr. Skilbeck’s submissions and read the evidence, I appreciate that major element in the claimants’ claim to be entitled to relief was the great affection of the claimants for their present home and their deep concern about a move.  I accept the sincerity of their views, but they are not enough to enable them to succeed as there are many other factors to be taken into consideration, as I have stated.  For the reasons that I have explained, I am unable to accept any of the claimants’ grounds of challenge.  

85.	I have no doubt that my decision will cause disappointment to the claimants and their relatives who do not want them to move.  Nevertheless, I stress that it is not the function of this court to reconsider the merits of decisions made by bodies such as the Council.  This court’s role is very limited as it is concerned only to ensure that bodies such as the Council act according to the law.  I have reached the conclusion that its decision cannot be impugned.  In those circumstances and notwithstanding the helpful and clear submissions of Mr. Skilbeck, who put forward every argument open to the claimants on the evidence, this application must be dismissed.

86.	When I handed down judgment, I felt obliged to make a suggestion to the parties.  Professor Jolley, the claimants’ expert had, as I have explained, said that the adverse effects of the move for people like the claimants could be mitigated if sufficient care was taken.  The Council is and remains keen to mitigate the effects of the move.  In their claim form, the claimants sensibly asked for the Council to obtain evidence from consultant geriatricians before making the transfer arrangements.  I wondered if the way forward now was to build on that idea of the claimants and for the Council to agree to liaise with Professor Jolley as soon as possible to work out in the case of each claimant the best and least damaging way in which he or she could be moved.  I discussed this suggestion when judgment was handed down.  The Council agreed that it would liase with Professor Jolley or a suitable consultant in psychiatry of the old aged selected by the claimants on the best ways of moving the claimants so as to reduce any risk to them.  It was also agreed that the parties would have liberty to apply to me if any problems arose.

87.	The appeal is dismissed.

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MR JUSTICE SILBER:  I am grateful to counsel for their helpful comments on the judgment.  I do not know if you have had an opportunity of considering what I say in the last paragraph of my judgment.  
MR SKILBECK:  My Lord, I spoke to my learned friend outside court and perhaps she can outline the steps that have been taken so far.  
MS MORRIS:  My Lord, just to clarify precisely what consultants there are currently.  There are two consultants in old age psychiatry who have so far been advising the team, a Dr Lindon(?) and a Dr Theopolis(?).  
MR JUSTICE SILBER:  They have been advising who?  
MS MORRIS:  They have been advising the multi‑disciplinary team which is concerned with the arrangements for the move.  However, further to that, what we have discussed with Mr Skilbeck is that Professor Jolley is invited to have some telephone contact with Julian Wakefield of Social Services to see if there are any additional contributions that Professor Jolley could make to the insights of the consultants who have already been instructed, and we could consider those and take them on board where appropriate.  As I understand it, Professor Jolley is retired from the end of March and therefore is not, perhaps, in as active practice as he has been.  
MR JUSTICE SILBER:  That probably means that he has more time available.  Perhaps he is taking a well‑earned holiday. 
MR SKILBECK:  Those instructing me attempted to contact him yesterday, and, in fact, were not able to get through on the usual number.  So it does appear that he has to some extent withdrawn in that respect.  We will contact him, certainly, the week after, but at the moment we cannot get in contact.
MR JUSTICE SILBER:  The way forward is to have a system by which you put forward somebody who can liaise, and whose views will be taken into account.  What I would have in mind would be if some agreement could be reached about some structure for dealing with this.  
MS MORRIS:  My Lord, we are quite happy to write a letter saying, "Please give us Professor Jolley's details and a date and a time when we could contact him".  If Professor Jolley is not happy to participate, we do know that there is another local professor of psychiatry, a geriatrician who specialises in dementia, a Professor Wilson, and we would be quite happy to consult with her or him, should that be of assistance or give an insight.  It seems to me that perhaps we should write a letter saying, "Please give us Professor Jolley's details so that he can have contact with Mr Wakefield".  Failing that, we will consult with Professor Wilson.   
MR JUSTICE SILBER:  Mr Skilbeck, you were taking instructions? 
MR SKILBECK:  Yes, I was listening with both ears.  I was just discovering whether we knew that individual.  We have no knowledge.
MR JUSTICE SILBER:  Shall we just think of a system by which St Helens will agree to liaise with Professor Jolley, or any other suitable ‑‑ how do you describe these people?  Are they psychiatric geriatricians?  
MS MORRIS:  I think the common term now is "consultant in old age psychiatry".  
MR JUSTICE SILBER:  So St Helens will liaise with Professor Jolley, or a suitable consultant in old age psychiatry, on the best ways of moving the claimants.  Shall I give you liberty to apply if there are difficulties in respect of that?  
MR SKILBECK:  Yes, that would be ‑‑ 
MR JUSTICE SILBER:  I am available next week.  As I regard this case as sufficiently important, I will come in during the vacation if there is a problem.  
MS MORRIS:  My Lord, if there was liberty to apply, I would be grateful if it would specify that it would be, for instance, on 48 hours' notice.  
MR JUSTICE SILBER:  On notice, and then we can see how it works out.  So liberty to apply on notice, to me if available.  Shall we put it that way?  Certainly, as I say, I am very, very conscious that the interests of the claimants should be looked at systematically.  In coming to this, I have actually built on what your solicitors put in the claim form, and I think also what happened in a case concerning Lancashire Council.  
MR SKILBECK:  I think Professor Jolley had been involved in that, which may be why he is otherwise engaged.  
MR JUSTICE SILBER:  But apart from that, I think the order is that the application is dismissed.  Thank you very much.  
MR SKILBECK:  My Lord, there is an application for permission to appeal with regard to the issue of the test applied for the engagement of Article 2 in circumstances such as these.  In particular, the aspect of the claim suggests that there should be expert evidence on behalf of the council prior to the decision being made.
MR JUSTICE SILBER:  There should be?  
MR SKILBECK:  Yes, which was an aspect of this claim.  It is really to do with the evidential basis. 
MR JUSTICE SILBER:  I think the difficulty for you is that the burden of proof on this is on you, so you need to put the evidence in to show the infringement of it.  I was very ‑‑ as I hope came over during the hearing ‑‑ sympathetic to their position, but the evidence from your side simply was not there.  
MR SKILBECK:  It is to do with the test as applied (inaudible) there be an immediate risk in cases such as that, and your Lordship has clearly interpreted it in the judgment in a certain way for these facts, and it would be on the basis of that level of engagement for Article 2 in a case such as this (inaudible) required to be subject to review in the Appeal Court.  That is accepted.  
MS MORRIS::  My Lord, I say that this is not an appropriate case for the court to grant permission to appeal.  There is a very clear judgment upon the facts of this case.  I do not discern there to be a point of law which either has the necessary prospect of success or the necessary public interest which might exceptionally make the grant of permission to appeal appropriate. 
MR JUSTICE SILBER:  Is there anything more you want to say?   
MR SKILBECK:  No, my Lord. 
MR JUSTICE SILBER:  I have very great sympathy for the claimants in this case, but I have no hesitation in refusing permission.  There was totally inadequate evidence on the issue of Article 2 to suggest that there was any infringement likely.  But in any event, even if there had been, the fact that the council is now agreeing to liaise with Professor Jolley, or a suitable consultant in old age psychiatry, on the best ways of achieving a move for the claimants would be a further reason as to why permission to appeal has to be refused in this case.  It is very much in the interests of the claimants for the views to be ‑‑ the way in which the claimants can be moved to be put forward by their consultant.  Indeed, if I had given liberty to apply, obviously, one of the reasons why you could apply again would be if your consultant was dissatisfied with the ways in which the council is suggesting that people ought to be moved.  So, the next step would be that the views of the claimants' consultant should be obtained and taken note of by the council.  I have no reason to believe that they will not.  
MS MORRIS:  My Lord, may I just clarify that we would not be bound by what that consultant says.  
MR JUSTICE SILBER:  No, you would not, but they could come back if there were difficulties, obviously. 
MS MORRIS:  Equally, my Lord, may I also clarify that the test for whether we were acting improperly would remain a Wednesbury test, or a super‑Wednesbury test, on the specific human rights that are engaged.  This court would be substituting its own view for how an individual should be moved.  
MR JUSTICE SILBER:  Would it not have to wait and see what transpires?  I have heard your position on that and, as I say, I very much hope, and would expect, that agreement could be reached between the experts about the least harmful way of moving the claimants, and taking advantage of what Professor Jolley said in his report, which was to the effect that it is always possible to mitigate these ‑‑ 
MS MORRIS:  Plainly, again just for the record, my Lord, you will recall that there is, in fact, evidence from the local authority about the very elaborate measures which are being taken to move these individuals. 
MR JUSTICE SILBER:  But I have also made it clear that the liaison which will hopefully allay the fears of the claimants' families ‑‑ 
MS MORRIS:  We appreciate that.  
MR JUSTICE SILBER:  I think we have ‑‑ can I thank you for your help in this.  
MS MORRIS:  My Lord, we do have an application for costs.  As I understand it, it is unopposed by Mr Skilbeck, namely that costs should follow the event, subject to the fact that the claimants are publicly funded.  
MR JUSTICE SILBER:  In other words, it is a football pool, in the sense that it is only if they receive huge sums of money.  
MR SKILBECK:  I slightly misled my learned friend in accepting that bluntly outside court, as it were.  My Lord, there are some concerns, as it were, with elderly claimants represented by, on many occasions, elderly sons and daughters that (inaudible) will be made against them at all.  
MR JUSTICE SILBER:  Does the council really want to go ahead with an order for costs?  
MS MORRIS:  The importance of it is this.  As we understand it, an appeal is contemplated.  If there is an appeal, then we would be able to recover our costs against the legal aid fund.  My Lord, you have heard the financial situation of the local authority.  In those circumstances we say it is appropriate for costs to follow the event.  My Lord, it is not possible for this court to take into account the fact that individuals are publicly funded in deciding not to make an order for costs, and there is a whole chain of authority.  We would say that there should be an order for costs, which is that we have our costs, but the usual public funding provisions apply.  
MR SKILBECK:  My Lord, apart from the point which I made about the nature of the claimants, in my submission it is also quite clearly an issue of great public and personal importance for the claimants and, in my submission, it is quite proper for it to be ‑‑ 
MR JUSTICE SILBER:  Normally the party who loses an action has to pay the costs.  
MR SKILBECK:  Yes, I would accept that that is the normal course of events.  My submission would be that in this case, given the nature of the application ‑‑ 
MR JUSTICE SILBER:  I appreciate that, but the almost invariable rule in these cases is that the losing party pays the costs.  As I have indicated in my judgment, although you have put forward every point that could be put forward on the evidence, the claim failed by a substantial margin on a large number of points.  
MR SKILBECK:  Those are my submissions.  
MR JUSTICE SILBER:  I will make an order for costs in the defendant's favour that the determination be postponed.  Perhaps I ought to make that clear: the consequence of that is, in fact, that if they had limited means, the order would never be enforced against them.  That is the almost invariable consequence for an order of that sort, that the claimants will not at the end of the day have to pay costs.  Thank you both very much.