England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/09/2006

Mr Justice Hodge :

1. Thomas Lindley suffers from cerebral palsy. He is 69 years of age. His condition means he is doubly incontinent. He also has arthritis and dysarthia, a speech impediment. He was able to attend Court in a wheelchair but otherwise his movements are very limited. He is on any view seriously disabled and the latest assessment on him indicates he needs 24 hour care.
2. He has lived for the last 20 years at Katherine House, a care home run by Tameside Metropolitan Borough Council. The defendant Council proposes to close that facility.
3. Most of the residents of Katherine House have moved on to Lomas Court, a newly built facility. It has individual units which are let to residents by the landlord, a housing association, Hanover Housing. Any need for support or care is provided in the residents' own homes. Such personal care is provided by the services of Manchester Care, a domiciliary care agency which is independent of the landlord of the facility.

The Issues

4. The issue to be resolved is in the claimant's view a simple one. There is said to have been a promise to move the claimant to Lomas Court and provide him with care as identified in his Assessment of Need, whatever his level of need. The promise is said to have been made in letters sent by the Borough Solicitor on 22^nd November 2004, reiterated by the Assistant Director of Social Care at the Council on 14^th December 2004, and again by the Borough Solicitor in a letter dated 27^th April 2005. The question for the Court is did this create a legitimate expectation for the claimant that he would be moved to Lomas Court along with the other residents of Katherine House, have his assessed needs met there whatever the level of need, and, if so, whether to frustrate that expectation would be so unfair as to amount to an abuse of power. The claimant relies upon the Court of Appeal's decision in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213.
5. The claimant argues, on the basis that there has been an abuse of power, that this Court should order the defendant to move him to Lomas Court and meet his assessed needs there.
6. The defendant's case is that the three letters relied on by the claimant would have caused Mr Lindley (or a person in his position):

a) To expect that the defendant intended to allow him to transfer to Lomas Court if he so wished;

b) To understand that the defendant did not consider there to be any reason based on the nature of his care needs or of the Lomas Court arrangements why he should not be transferred;

c) To understand that the defendant did not anticipate that future care needs would prevent a transfer.

7. The defendant says that both propositions a) and b) were correct at the time of the letters. It further says it properly changed its conclusions about b) in the light of the developing evidence about the claimant's needs. It communicated that change of conclusions in a letter dated 27^th May 2005. In the light of the changed circumstances, the defendant's prediction about head b) changed. Its prediction as to c) therefore also changed. The defendant does not regard Lomas Court as in any way suitable to meet the claimant's assessed needs. This creates a sufficient overriding interest to justify a departure from the assurances. It has identified a number of homes in reasonable proximity to Katherine House where the claimant's needs can properly be met.
8. Further, it says, in so far as there may have been a legitimate expectation there is now an insuperable difficulty in implementing it for the claimant. It would it is said be unlawful. Finally it asserts that, from a letter before action in November 2004 until October 2005, it was the claimant's case that Lomas Court could not meet the claimant's needs, he did not want to go there and that from October 2005 until July 2006 he accepted Lomas Court could not meet his needs. Hence the letters did not create a legitimate expectation.

Statutory Background

9. The defendant is a local authority charged with a duty to provide accommodation under Section 21, National Assistance Act 1948 as follows:

"21(1) [Subject to and in accordance with the provisions of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall make arrangements for providing] –

(a) Residential accommodation for persons [aged 18 or over] who by reason of age (illness, disability) or any other circumstances are in need of care and attention which is not otherwise available to them …

(2) In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided."

10. Before making provision for a person in need of care and attention, an assessment must be made. Section 47, National Health Service and Community Care Act 1990 provides:

"47(1) … where it appears to a local authority that any person to whom they may provide, or arrange for the provision of community care services may be in need of any such services the authority –

(a) shall carry out an assessment of his needs for those services;

(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."

11. The claimant's current accommodation at Katherine House is a care home. Such homes are defined in the Care Standards Act 2000, Section 3.

"3. Care Homes

(1) For the purposes of this Act, an establishment is a care home if it provides accommodation, together with nursing personal care, for any of the following persons:

(2) They are -

(a) persons who have been ill;

(b) persons who have or have had a mental disorder;

(c) persons who are disabled or infirm;

(d) persons who are or have been dependent on alcohol or drugs.

(3) But an establishment is not a care home if it is -

(a) a hospital;

(b) an independent clinic; or

(c) a children's home."

12. Those who provide care homes or care services must be registered. Section 11(1) Care Standards Act 2000 provides:

"11(1) Any person who carries on or manages an establishment or agency of any description without being registered under this Part in respect of it (as an establishment or, as the case may be agency of that description) shall be guilty of an offence."

13. Care services are now provided at Lomas Court by a domiciliary care agency. Such agencies are defined by Section 4(3), Care Standards Act 2000:

"4(3) Domiciliary care agency means … an undertaking which consists of or includes arranging the provision of personal care in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance."

This Litigation

14. These judicial review proceedings were commenced jointly by some thirteen then residents of Katherine House on 14^th July 2005. The claim was that the defendant had failed to consult those claimants or assess their needs, or address its mind to the risks of the new premises. They had also it was said failed to follow the correct procedures for closing Katherine House and were splitting up the "family unit of the claimants". The remedy sought was that the decision to move the claimants to a new facility be quashed and the defendant be prohibited from taking any steps to move the claimants including the redeployment or redundancy of staff. The claim was therefore a comprehensive challenge to the local authority's plan to close Katherine House and move the residents to Lomas Court.
15. In relation to this claimant, it was said that he had been told on 21^st April 2005 that 24 hour care would not be provided on site and would only be available via a call centre.
16. There have been a number of amendments. The first version of the judicial review claim was abandoned on 31^st October 2005. A second version was provided at a permission hearing before Lloyd Jones J on that date. Permission was granted on the basis that it was arguable there had been unlawfulness in a nursing assessment made on the claimant in May 2005. Witness statements filed on behalf of the claimant for the first permission hearing emphasised his vulnerability and emphasised that he had very severe care needs and could not do anything for himself. His case made it clear that it was alleged on his behalf that Lomas Court could not safely or adequately meet his needs.
17. The permission granted was on the basis that the claimant's needs were arguably not for nursing care as had been suggested in the May 2005 assessment. The local Primary Care Trust subsequently concluded after permission had been granted that this was not a correct description of the claimant's needs. A new care plan for the claimant was issued on 23^rd November 2005. So the challenge to the lawfulness of the May 2005 assessment within this judicial review claim became academic.
18. Legitimate expectation was first mentioned in paragraph 9 of an amended claim filed on 1^st November 2005 but with few particulars given. It is now the sole ground relied on. That has been the position since August 2006 subsequent to a hearing before Walker J on 20^th July 2006. The parties were then ordered to exchange submissions and if no agreement was reached to file skeletons and amended grounds for the purposes of a full hearing.
19. In summary then this case started as a wholesale challenge by a number of individuals against the local authorities' proposals to close their care home and transfer them to another facility. All but this claimant have withdrawn from the proceedings, many having in fact transferred to the new facility. This claimant was granted permission to proceed on the basis that there had been unlawfulness in a nursing assessment made in relation to him in May 2005. That nursing assessment has subsequently been changed. The claim is now that the defendant is committed in correspondence to transfer the claimant so as to enable him to live at Lomas Court and have all his assessed needs met whatever the extent of those needs.
20. Hence this Court has to consider these questions: Is the defendant bound by the apparent assurances given in 2004 and 2005. Did they in fact create a legitimate expectation? If they did have circumstances subsequently changed in such a way as to no longer require the defendant to meet those expectations.

Legitimate Expectation

21. At paragraph 57 of Coughlan the Court of Appeal identified a number of possible outcomes in cases involving legitimate expectations. The parties agree that the issue here is the third of the outcomes referred to in Coughlan:

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

22. It is therefore necessary to decide whether the anticipated benefit is substantive, whether the expectation is legitimate and whether to depart from the expectation is an abuse of power weighing the requirements of fairness against overriding policy interests. In R (BIBI) v Newham LBC (CA) [2002] 1WLR 237 the Court said at paragraph 19:

"In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or by promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the Court should do."

23. The test in BIBI is clear and practical. But it needs also to be considered in the context of the position taken by the Court of Appeal in R v Secretary of State for Education and Employment exparte Begbie (CA) [2000] 1WLR 1115 where Peter Gibson LJ said at 1124:

"In my judgment it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the Court finds unfairness in the defeating of a legitimate expectation."

24. The claimant argues that the assurances given were clear. The legitimate expectation exists. The refusal to transfer claimant to Lomas Court is wrong. The Court must order the transfer. The defendant says that whether there has been reliance on this statement made is relevant to the question of whether there has been any detriment. If there has been no detriment then this is highly relevant to the question of whether there has been any abuse of power. To reach a conclusion on these issues it is necessary to consider the factual background in the case.

The Factual Background

25. The statements relied upon for the legitimate expectation claim in this case came in 3 separate letters. On 22 November 2004, the acting Borough Solicitor at Tameside wrote to Hossacks Solicitors. They were then acting for all the residents of Katherine House but no claimants were individually named at the time. The solicitor was responding to a letter before claim of 8^th November 2004. In a summary at page 5 it was said:

"The new provision will be purpose built for service users with physical disabilities.

The new provision will be available to all existing tenants of Katherine House, whatever the level of need.

Tenants will be accommodated in their own individual flats which will be adapted according to individual need.

Care will be available at all times depending on individual need. The new provision will promote social and financial independence.

With regard to the staffing of the newly built facility it is proposed that the Council will invite tenders for a care provider. Future residents of the facility will be involved in interviewing and choosing the staff to provide their care."

26. On 14^th December 2004 Ms Butterworth, Assistant Executive Director of Social Care, Tameside, wrote to the claimant individually and indeed to all the other potential claimants at Katherine House. She said:

"I am offering you all reassurance that you will be offered a place in the new scheme and we will work together to ensure that your care needs, as identified in your community care assessment and care plan, will be fully met."

On 27^th April 2005 the Borough Solicitor wrote to Hossacks Solicitors in relation to all that firm's clients and all other service users at Katherine House. He said:

"However, at the risk of repeating the Council's position, I can confirm that all current residents of Katherine House will be moving, provided this is in concert with their wishes, to the newly built facility."

27. In her witness statement prepared over the weekend of 2^nd / 3^rd September 2006, two days before this hearing, Ms Butterworth summarised her previous witness statements in relation to these letters. The two from the Borough Solicitor were written on her instructions and in relation to her own December 2004 letter, she said:

"There was a great deal of opposition to the principle of a move to Lomas Court and the possible closure of Katherine House. Residents of Katherine House were understandably concerned about their future if Katherine House was to close. My letter was intended to offer reassurance that should Katherine House close, each resident would be accommodated. At the time of writing the letter I did not have in mind the detailed individual care needs of every resident. There has, however, been a very detailed consultation process over an extended period in which the Council has formulated and discussed its plans. … The main purpose of the scheme was to improve the social, physical and material quality of lives of the residents at Katherine House. … At the time of my December 2004 letter the Council's expectation was that all residents at Katherine House would move. I should point out that at that time all occupants had already been identified as having residential care needs."

Ms Butterworth goes on to say that the concept of Lomas Court was based on a model of very sheltered housing. There would be independent living on the part of the residents within self contained individual flats. Care services would be provided by a domiciliary care agency supplemented by Assistive Technology. She said there was no intention on the part of the Council to plan for the accommodation of those with nursing needs at Lomas Court or to plan for a scheme which would provide intensive 24 hour care. But there had been extensive opposition, she said, to the scheme in 2004 although the Council had undertaken a thorough consultation and residents had been involved in the choice of provider and the design of the building.

28. It is clear that the letters before the claim showed that all residents were opposed to the move to Lomas Court. In the claim brought in July 2005, it was alleged that Lomas Court presented a health and safety risk because of inadequacy of care and the risk arising from fire within the building because of the range of disabilities of the residents and the number of wheelchair users within a 3 storey building.
29. In relation to this claimant, Ms Butterworth says that when she wrote the letter in December 2004 the Council had a previous care assessment. However it did not appear that his needs were of such a degree of complexity or gravity that he might need nursing care. At that stage she says that the Council was not aware that there were reasons to doubt that he could be accommodated in due course at Lomas Court.
30. At the same time as the letter was written in December 2004, a fresh care assessment of Mr Lindley had been undertaken although unknown to Ms Butterworth. The care plan that was proposed expressed reservations as to Mr Lindley's suitability for Lomas Court, although he had in fact expressed an interest in moving there. The assessment also confirms that Mr Lindley's condition was slowly deteriorating. The Council thought it appropriate in those circumstances to conduct a nursing assessment. This was undertaken by Sister BM Pyatt of the Local Primary Care Trust. It appears Sister Pyatt also reported on another resident at Lomas Court, Cyril Bowden. In a letter dated 31 May 2005 to Tameside Disability Team, Sister Pyatt says in relation to Mr Lindley and Mr Bowden, the other resident:

"I feel that these residents are at high risk of injury and possible deterioration of physical health unless they receive 24 hour care. Tasks undertaken by the carers in Katherine House for these residents exceed those normally undertaken by carers in a residential / community setting and the district nursing service would not be able to meet all their nursing needs."

31. On Ms Butterworth's instructions, the defendant's solicitor wrote to Hossacks on 27^th May 2005, saying in relation to the claimant:

"I am instructed that there has been a recent assessment of Mr Lindley's needs and that that assessment has recommended that he requires nursing care. You will appreciate that neither Katherine House nor the new facility at Lomas Court are intended to provide nursing care. However I understand that consultation is continuing with Mr Lindley and I am taking further instructions with regard to his future provision."

It is clear that at that time the Council had changed its view as to the suitability of Lomas Court for Mr Lindley.

32. Mr Lindley's cousin, Mrs Gaskell, had been assisting him at many stages of these concerns. The Council was told of a letter written by Mrs Gaskell which the Hossacks Solicitors on 13 May 2005 said:

"This letter clearly states that in our client's view, Thomas' care needs will not be met at the new establishment."

33. On 5^th August 2005, Sister Pyatt said in a fax that by 24 hour care for Mr Lindley she meant 24 hour nursing care. On this basis the Council concluded that the claimant needed more extensive care than could be provided at Lomas Court.
34. The claimant's solicitor provided an independent nursing assessment of the claimant on 21^st July 2005. It emphasises that the claimant needed 24 hour care and that he could not use a call system. Ms Butterworth considered that this report affirmed the conclusion that Lomas Court could not meet the claimant's care needs.
35. It appears that when the application for permission came before Lloyd Jones J, for the first time the intention not to transfer the claimant to Lomas Court was challenged. Indeed, permission was in fact granted in relation to the lawfulness of the assessment carried out by the Primary Care Trust which concluded that claimant needed nursing care. The legitimate expectation issue was referred to in the amended grounds filed on 1^st November 2005.
36. It appears that there was further consideration of the claimant's needs at a multi-disciplinary meeting shortly thereafter. On 18^th November 2005 it was concluded that the claimant's overall needs were not to be described as for nursing care. This was contrary to the previously expressed opinion of the Primary Care Trust. The meeting did appear to be of the view that the claimant's care needs were complex and extensive and there would be difficulties in using the Assistive Technology during the night that was to be provided at Lomas Court. The conclusion of the meeting was, it is said, that all present recommended that the claimant required the support of two workers, 24 hours a day in a residential setting. It has been the defendant's view that this could not and never could have been provided at Lomas Court, which is not a residential setting. These matters were discussed in detail with Mr and Mrs Gaskell, the relatives of the claimant.
37. On 17^th December 2005, Mrs Gaskell said in a letter to the Council that she and the claimant were "bitterly disappointed at the decision taken because of his care needs that he would not be able to move to Lomas Court". They requested assistance in finding an alternative home that would meet his care needs. Assistance was provided. On 3^rd February 2006, the claimant's solicitors said in correspondence with the Authority: "turning now to Thomas Lindley, Mr and Mrs Gaskell do accept that his needs cannot be met, as matters presently stand, at Lomas Court". There were however difficulties in finding a suitable placement for the claimant. The defendant provided a list of homes which had confirmed they could meet the claimant's needs, and assistance was offered in finding an alternative placement.
38. The defendant says therefore that from November 2004 until October 2005 it was the claimant's case that Lomas Court could not meet his needs. Further they say that between November 2005 and July 2006, everybody involved accepted that Lomas Court was not an appropriate option for the claimant, and nobody was pressing for placement at Lomas Court. It is the defendant's position that after further investigation, there are two homes which can provide the claimant's care needs and which fulfil the criteria identified as necessary viz.

i) Be registered for residential care,

ii) Be registered for nursing care,

iii) Have an element of younger adult residents.

39. At the hearing before Walker J on 20^th July 2006, the claimant was ordered to lodge a submission setting out the course of action which it was submitted should be taken by the defendant. This was done and a detailed response submitted. At paragraph 16 of that response, the defendant sets out why Lomas Court could not meet Mr Lindley's needs as follows:

"16. There are thought to be a number of reasons why Mr Lindley cannot therefore be appropriately accommodated at Lomas Court. In summary and given the limited time which is available to consider the issues these are:-

- Lomas Court is not a care home.

- Lomas Court is a very sheltered housing scheme.

- It is not registered under the Care Standards Act.

- The care which is provided is via a domiciliary care agency. There are limitations in the care which such an agency can provide which are relevant.

-Lomas Court is intended to promote the independence and autonomy of the residents living within their own flats with care supporting their individual care plans.

- The level of care identified by the multi disciplinary team as appropriate to Mr Lindley would not be available at Lomas Court.

- If as may well happen Mr Lindley's care needs increase over time there will be an increasing gap between his needs and Lomas Court's ability to deliver.

- The model of care is one that supports the notion of promoting independence and the staff levels there reflect this fact.

- A very sheltered housing arrangement at Lomas Court is not intended or organised to provide for the availability of two workers on a 24 hour basis as suggested as appropriate by the multi disciplinary team for Mr Lindley's care.

- Although daytime staff are available from 7.00 a.m. to 12.00 p.m., provision during the night time is based upon a member of the care team sleeping in on the premises.

- This is on the basis that the residents are able to summon assistance and further periodic visits by the Council's Community Response Team.

- The style of life and care arrangements are quite different at Lomas Court as compared with Katherine House or any care home.

- The residents are encouraged to develop their independence and therefore tend to spend more time in their own individual flats and in visiting each others' flats. Less time is spent in communal areas and on communal activities although certain group activities are being arranged at Lomas Court.

- Mr Lindley would not be an appropriate member of the resident group given his care needs and personal circumstances.

- Given the greater autonomy and independence which the scheme has developed, it is thought likely that Mr Lindley would be socially isolated at Lomas Court.

- In addition the arrangements at Lomas Court would not provide for his assessed needs.

- The Council considers that it needs also to consider Mr Lindley's long term interests (which include a prospect of deterioration)."

40. The claimant contends in response to these points that they were known or ought to have been known to the defendant when it made the promises to the claimant in 2004 and 2005. It is said not to be fair for the defendant to rely upon the fact that the claimant requires a different and greater level of care to other residents at Lomas Court to justify a departure from the clear and unambiguous promise made when that promise included that his assessed needs would be met at Lomas Court, whatever level of care was required.
41. A further part of the factual background is the claimant's contention that the former residents of Katherine House comprise the claimant's "family". He has lived with many of those former residents for a number of years. The fact that Lomas Court is not registered as a residential home and would have to be so registered to cater for the claimant's needs is said to be insufficient to justify departure from the promises made. It is said the claimant's level of care has not changed since those promises were made.

Conclusions

42. I accept the evidence of Ms Butterworth that when she wrote the letter on 14^th December 2004 she was not aware of the full extent of the claimant's needs. They were in fact identified in an assessment made on that same date but not available to her. I accept the evidence that the claimant's condition is slowly deteriorating. The claimant's own nursing expert said in July 2005 that he "needs 24 hours care … in a home like Katherine House". His requirements are for two workers, 24 hours a day in a residential setting. There appears to be no way for the claimant to alert a carer during the night if he requires assistance were he to be at Lomas Court. Indeed, there are as presently planned no provision for two workers to be available to support the claimant 24 hours a day at Lomas Court.
43. The assurances given in the three letters must be considered in the overall context. From when the assurances on which the legitimate expectation claim is based were made, until October 2005, a period of nearly a year, the evidence is clear that the client did not want the expectation of the move to Lomas Court to be implemented. It is also clear that from October 2005 until July 2006, it was accepted on behalf of the claimant that Lomas Court could not provide for his needs. So again in so far as there was any expectation, it was accepted that it could not legitimately be met. During this period it is hard to see how the claimant has been relying on the assurances in such a way as to be a detriment. The facts suggest that such commitment as was made by the defendants in the letters concerned has not, for the bulk of the period since they were written, been relied upon by the claimant. I accept the evidence that the defendant's knowledge of the claimant's needs developed over the time from when the letters were written. It was right for it to change its conclusions as to how those needs could be met. In those circumstances it would not be right, in my judgment, to require the defendant to move the claimant to Lomas Court. I do not accept that given the passage of time it would be right to revive the claim that reliance has been placed on the assurances and they must now be implemented.
44. It follows that I do not regard the assurances given as having created a legitimate expectation that must now be enforced. But even if there was an enforceable expectation, which I do not accept, I agree with the submission of the defendant that it would be contrary to the claimant's welfare needs for the defendant to be required to move him to Lomas Court.
45. I accept the evidence that there is a tendency for residents at Lomas Court to stay in their own flats more than going to the communal area. This points away from the claim that the family atmosphere of Katherine House can be recreated at Lomas Court. The points set out at paragraph 39 above show clearly that Lomas Court is not an appropriate facility for meeting the claimant's welfare needs. In the face of that evidence it would not in my judgment be right for the Court to order the defendant to accommodate the claimant at Lomas Court.
46. In formal terms, this matter has proceeded as a rolled up hearing of the application by the claimant for permission to apply for judicial review and the substantive hearing. The amended claim is clearly arguable and warrants the grant of permission but for the reasons given, the application for judicial review is dismissed.