England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		4th September 2008

1. JUDGE PELLING QC: These are two rolled-up permission and substantive applications, which were rolled-up pursuant to an order made by Cranston J on 22nd August 2008. Each of the applications are brought by representative claimants in relation to decisions by the two local authorities concerned to close care homes operated by them.
2. The claim against Coventry City Council relates to two care homes, called respectively Jack Ball House and George Rowley House, and a care home and day centre called Hawthorn Lodge. All the residents at Jack Ball House and George Rowley House suffer from advanced dementia and are elderly. The decision to close the Coventry care homes was taken by Coventry City Council's cabinet on 15th July 2008 and was approved by the Scrutiny Committee on 13th August 2008. The claim against the London Borough of Havering relates to two care homes, being Elmhurst Lodge and Winifred Wittingham House. The residents at both are all elderly, and most are physically disabled. The decision to close the Havering homes was taken by the cabinet of the London Borough of Havering on 30th July 2008 and was confirmed by the Scrutiny Committee on 13th August 2008. In each case the relief sought is an order quashing the decisions to close, and an order requiring individual assessments to be carried out in relation to each resident in each home by an expert in psychiatric geriatrics before further consideration is given as to whether or not to close the homes.
3. Although a variety of different points appear in the written material submitted on behalf of the claimants, before me Ms Hossack, who appears for the claimants, took only one general point in relation to each claim, and one additional specific point in relation to the Havering decisions. In summary, her general point was that the published medical literature and two expert reports produced to the court on behalf of the claimants established that there was a statistically demonstrable increase in the rate of mortality of residents in care homes who are elderly and/or who suffer from dementia, when they are moved from care homes where they have lived for a number of years, unless they are moved as a group from one home to another with the staff that have always looked after them. Since Article 2 of the European Convention on Human Rights applied to the local authorities concerned, it follows, so it was submitted, that if a decision was taken to close a care home without the decision-maker being aware of the risks to which I have referred, the authorities had either acted in breach of Article 2 of the European Convention on Human Rights in taking the decision, or had failed to take into account a material factor or, alternatively, were Wednesbury unreasonable in proceeding. The claimants' case, at any rate in relation to the last two ways the case is put, depends on an assertion that the officers of each of the defendants, have failed properly and fairly to present the risks to which I have referred to the relevant decision-makers. Thus, it is said that the decision to close down was flawed and ought to be quashed. The claimants' further submission was that the level of risk which each resident was exposed to could only properly be assessed on an individual basis and that, accordingly, the court should direct such individual assessments before any such further consideration was given to closing the homes and either dispersing or transferring residents to other homes.
4. Each defendant opposed the application on the basis that, assuming Article 2 applied at all in the circumstances (which both defendants conceded before me, whilst reserving the right to argue this point before a higher court if appropriate or necessary) the expert evidence did not establish the risk alleged, at any rate to the level of certainty contended for by the claimants. In any event, Article 2 was not breached by the decisions to close, upon a proper analysis of the applicability of that Article, and that the issue was properly and fairly presented to the decision-makers and thus the decisions were not flawed. In any event, on proper analysis, the relevant risk could only be assessed on an individual basis, which, as a matter of law could, and would in each case, take place before any resident was actually moved. The applications were premature on that basis, because the defendant was entitled to decide on closure before undertaking individual assessments. In consequence, the applications for permission should be refused, so it was submitted or, alternatively, the applications for judicial review should be dismissed.
5. The additional point taken against Havering was that the financial implications of bringing the homes up to an acceptable standard, which was an alternative before cabinet when the decisions to close were taken, were inflated from about £2.6 million to slightly in excess of £3 million by the erroneous inclusion of VAT in the costs of bringing up to standard one of the homes. It was said that had the decision-makers known the true financial position, then it was possible that the decision-makers would have opted for the course of carrying out building works to the relevant homes rather than closing them. In answer to this point, Havering submitted that whilst the error was made in relation to the refurbishment of one property, it was not made in respect of the other, and that the decisions were taken by reference to projections of financial consequences over a 21-year period. Thus, the error was of no material consequence.
6. In addition to the points I have so far considered, two other subsidiary points were made on behalf of the claimant. In relation to Coventry, a complaint was made that the local authority intended to use a consultant in geriatric medicine in its subsequent individual assessments, when it was only appropriate to use an expert in psychiatric geriatric medicine. This was addressed by Coventry on a pragmatic basis by the giving of an indication that Coventry would, in the first instance, use a community mental health nurse to carry out the assessments. This apparently satisfied the claimants. I should make it clear, however, that in my judgment the point was manifestly premature and thus not something susceptible to review at this stage, but only if and when a relevant individual assessment was carried out in a way which could be alleged to be erroneous because of the use of an allegedly wrong expert.
7. The other subsidiary point made by the claimants in relation to Havering was that it did not intend to transfer residents to homes of an equivalent or appropriate standard. Since no decisions have been taken whether to transfer any residents yet, much less have the homes to which transfers are to take place been identified, again, in my judgment, this is not something susceptible to judicial review in this application, because it is manifestly premature.
8. I now turn to the statutory legal framework. By section 21 of the National Assistance Act 1948:

"(1) Subject to and in accordance with the provisions of this Part 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 eighteen 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; and

(aa)residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them..."

There is no duty to provide accommodation in any particular establishment, or even in care homes operated by the local authority concerned: see in this regard R v London Borough of Wandsworth, ex parte Beckwith [1996] 1 WLR 60, where it was held by the House of Lords that arrangements under section 21 might consist wholly of arrangements made with third parties and that there is no obligation on local authorities to make direct provision for residential care. By section 21(2) of the 1948 Act:

"(2) In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection."

9. It was Ms Hossack's case that in order to comply with this provision, individual reviews should have been undertaken before, not after, the decision to close the homes was taken. In my judgment, this point is wrong as a matter of law. It was precisely the point that was argued and which failed before Black J in R (Grabham) v Northamptonshire County Council [2006] EWHC 3292 (Admin), a case which concerned a decision to close two respite centres. The claimants there, as here, were represented by Ms Hossack. In rejecting this contention, Black J said at paragraphs 69-70 of her judgment:

"69. I turn now to the argument that there was a failure properly to assess risk. Dealing first with the submission that prior assessments of all service users were necessary before a decision could be made, I do not consider this to be arguable. There is no legal obligation to carry out individual assessments before respite care centres like Cranwell and Quarry Hill are actually closed, let alone before the decision to close them is taken (R (Bishop) v L B Bromley [2006]). There can be no legal obligation to carry out individual assessments before altering eligibility criteria either. The council did, undoubtedly, require a reliable basis for assessing the financial savings of its proposals and the resulting impact on users and for this purpose it had to form a view as to the way in which the changes would be likely to affect individuals. Given that it would have been quite impractical (and not cost effective) to do this by universal individual assessments, it was entitled to proceed, as it did, by taking samples of the population who were entitled to its services at present, assessing how these people would be affected and then extrapolating from the results to see what the impact would be overall.

70. Individual assessments will be carried out before any individual's service is changed. This ensures that the council will not precipitate the sort of risks that the claimants fear such as suicide, mental breakdown and breakdown of family placements and deals with the argument that huge costs of alternative placements had not been taken into account. Where such extreme risks exist, services will continue to be available as the service user will remain classified as at least in the Greater Substantial band."

This decision is consistent with the earlier decision in R (Cowl) v Plymouth District Council [2001] EWCA Civ 1935 ([2002] 1 WLR 803), a decision of the Court of Appeal. That case was concerned with a decision by the defendant authority to close a residential care home. The judgment of the Court of Appeal was given by Lord Woolf CJ. The point taken by the claimant was that it would be contrary to the residents' rights under Article 2 of the European Convention on Human Rights to have decided to close the care home before full individual assessments had been carried out. The first instance judge, Scott Baker J (as he then was), declined to deal with the issue in terms described by Lord Woolf at paragraph 18 of his judgment:

"The final issue with which the judge dealt relates to articles 2, 3 and 8 of [the Convention for the protection of Human Rights and Fundamental Freedoms (as schedule to the Human Rights Act 1998)]. He indicated that he did not propose to deal with article[s] 2 and 3 because the whole question of moving individuals was premature. The issue did not fall for consideration until each individual case was considered in the context of a full needs assessment and against whatever alternative accommodation may be available."

The Court of Appeal upheld that approach and decision. At paragraph 24 of his judgment, Lord Woolf, Chief Justice, said this:

"Nonetheless the decision which was taken did not have the technicality the claimants attached to it. There was nothing wrong with Plymouth adopting a two-stage process, with the detailed assessment being part of the second process. However, if this was what they were doing, it is regrettable that far from explaining it they obscured the fact that this was their intention. On the other hand, those who were acting on behalf of the claimants adopted a far too technical approach. Their treatment in their skeleton argument of the authorities on which they rely make this abundantly clear."

10. The apparently new point taken on behalf of the claimants in this case in summary is this: the medical evidence and published literature before me, it is said, shows that there is a statistically enhanced mortality rate amongst residents of care homes who are elderly and who suffer from dementia, when they are moved, otherwise than in a group, and with the staff that have hitherto cared for them. If individual assessments are carried out with a decision having been taken to close the homes concerned, and in circumstances where that decision is being implemented, then a situation could arise in which some staff and/or some residents have moved before an assessment can be carried out on a hypothetical resident who, it is then discovered, on assessment, is at an enhanced risk of mortality if separated from his or her friendship group and/or the staff who looked after him or her. This is said to give rise to an Article 2 reason why the decision to close should be quashed, the individual assessments carried out and then reviewed collectively, before the question of closure is further considered.
11. In my view, this point is premature, in the light of the indications that were given by counsel for each of the defendants in the course of the hearing before me. In my judgment the point is premature because both local authorities have elected, as they were entitled to do, to carry out the individual assessments after the decision to close had been taken. If the position is that the defendants had embarked upon a process of transfer of residents on the basis of individual assessments on a piecemeal basis, the point relied upon might have been arguable, but that is not what has occurred. If subsequently the authorities embarked on such a process, then they might in the future (I emphasise the word "might") be susceptible to judicial review. However, that is a decision for another court on another day. Here both local authorities, by their respective counsel, have indicated that is not what is going to happen in these cases. Each has submitted written statements of the practice that it is intending to adopt. In relation to Coventry, the practice is to be as follows:

"We clarify that Coventry will in practice implement these transfer procedures by, prior to implementing transfers or closure, obtaining and considering an initial professional view from an CMHN as to whether the risk of a move to any individual resident can be adequately managed. The CMHN will either already know sufficient about the individual concerned or he or she will acquire such information. If the initial professional view is considered by the appropriate officer to undermine the original cabinet decision, then he or she will refer it back for further consideration."

In relation to the Havering, the intended practice was described by counsel as follows:

"We clarify that Havering will in practice implement these transfer procedures by, prior to implementing transfers or closure, obtaining an initial professional view from a geriatrician as to whether the risk of a move to any individual resident can be adequately managed. The geriatrician will either already know sufficient about the individual concerned or he or she will acquire such information. The initial professional view will be referred to the steering group prior to implementing transfers or closure."

12. On this basis, it seems to me that this application for judicial review, based on the failure to undertake individual assessments before the decisions to close were taken, is bound to fail, whether it is advanced on an Article 2 basis or on the basis that it was Wednesbury unreasonable. That is not to say, however, that the point would not or might not be arguable in other cases, where the practice that is intended should be adopted in these cases was not adopted.
13. So far I have proceeded on the basis that the medical literature and opinions before me establish what it is alleged by the claimants the material establishes. That is strongly in issue between the parties and it will be necessary to consider the point as I now turn to what was the main point argued before me on behalf of the claimants, namely that what is contended to be a clearly established statistic, the increased risk of mortality, was not properly considered by either authority when taking the decisions to close. Thus, the decisions are impeachable on Article 2 grounds, or on the grounds that the decisions were made without taking into account a material consideration or were Wednesbury unreasonable.
14. It is first necessary to consider whether the two factual bases of this submission are made good on the material before me. Thus there are two factual questions that have to be answered:

(a) does the literature and do the opinions establish the risk alleged? and

(b) does the material establish that the risk established by the literature and opinions was fairly described in the papers placed before the decision-makers, on the basis of which they took the impugned decision?

15. I turn to the first of these questions. In support of the contention that the material does not establish what the claimant alleges, counsel for the defendant referred me to the judgment of Maurice Kay J (as he then was) in R (Dudley) v East Sussex County Council [2003] EWHC 1093 (Admin). That case was concerned with a decision by the defendant authority to close a care home. This case is relied on for other purposes, but for present purposes it is necessary to note only paragraph 20(1) of the judgment, which was to the following effect:

"However, the weakness of Mr Skilbeck's submission became apparent when Mr McCarthy took me through the research papers produced on behalf of the claimants. In a devastating critique he showed how the research evidence is not all one way and, in any event, some of it is concerned with different types of institution: for example, in one case, long stay psychiatric patients in mental hospitals. In two other cases, dementia placements in hospital. I have reviewed all this material in the course of preparing this judgment. In my judgment, it does not significantly add to the approach described by Mr Windebank and Mr Ryan. If anything, what it consistently demonstrates is the need for careful management of transfer, rather than the avoidance of closure. I do not accept that the Council erred by failing to consider it. It was aware, in general terms, of the risks and the evidence does not establish that it failed to have regard to them. I have to say that I find the claimants' reliance on this research material to be massively overstated."

That case was decided in April 2003. It was submitted on behalf of the defendants that it would not be appropriate for me to reach a different conclusion to that reached by Maurice Kay J unless either:

(a) material not before Maurice Kay J was placed before me, which led to a different conclusion; and/or

(b) if I was persuaded that Maurice Kay J was plainly wrong in the view he came to on the evidence before him.

I do not think these propositions are correct, because they relate to matters of fact and evidence, not to questions of law. Thus, I approach the question first by looking at the material that has been placed before me.

16. In preparing this judgment, I have read each of the papers relied upon by the claimant, which are set out at section 6 of the bundle, as well as the two reports relied upon by the claimants. In my judgment, having considered this material, it seems to me that at most the material establishes that in some studies a statistical increase of the sort alleged by the Claimant has been established, while in others it has not. Further, it seems to me that on proper analysis what the material shows is that different people may react to a move in different ways, and that moves which are sensitively and thoughtfully handled can be achieved without a significant increase in mortality, although there may be individuals who cannot be moved however carefully the moving process is handled, though such cases will be rare.
17. The report relied upon most heavily by the claimants is that of Professor Jolley, which is dated February 2003. This report was prepared in relation to another case but was released for general use by the judge hearing that case in the hope that costs would not be incurred on a repeated basis in order to establish the points that Professor Jolley addresses in his report. Professor Jolley considers the relevant literature at paragraphs 23 and following of his report. The whole of this section of his report requires to be read in full. Subject to that qualification, at paragraphs 29-30 of the report Professor Jolley says this:

"29. Turning again to the literature of the impact of relocation of older people from residential home to residential home or similar institution to similar institution: Dr Dalley has produced a helpful and scholarly review including detailed analysis of some of the papers made available to the Court, as well as reference to some of the work. It is important to put the published literature into context. Papers and special reports are put together and offered for publication with a view to conveying particular messages or making particular points. As Dr Dalley points out, there are no circumstances in which older people with or without evidence of frailty would be exposed by design in a controlled experimental way to the stresses associated with closure of homes, relocation to alternative environments, and perhaps relocation back to newly refurbished accommodation. There would be no justification for such an experiment; it would be deemed economically impracticable and ethnically unacceptable.

30. What we have is a selective reporting of experiences that occur when relocations are required as a consequence of unplanned tragedies such as a fire in a home, the discovery of safety problems, etc, or in response to alternative practical considerations such as the non-viability financially of a sponsoring organisation or a requirement such as that operative in the present case to improve standards, to reduce the overall beddage of a particular component of the care sector."

He then accepts that the statistical evidence is selective, incomplete and equivocal. At paragraph 32 Professor Jolley cites from a report by Dr Dalley in these terms:

"32. In summary Dr Dalley states:

Paragraph 5.2 - 'where research has been undertaken the evidence is unequivocal' and in paragraph 6.1 -

'broadly, the epidemiological evidence suggests that, under optimal conditions, relocation from one care setting to another does not significantly increase the risk of mortality or morbidity'."

Professor Jolley then says this:

"My own view is that from common experience, from my clinical experience, and from an informed review of the literature, it is an inescapable truism that relocation is a stressful event and can precipitate problems of mental health, physical health, and even bring forth death. There are published examples of good practice that when every care and consideration is taken into account in planning and conducting moves, and where matters are not confounded by unplanned or unforeseen complications, the impact of this stress can be minimised. Achieving 'optimal conditions' for individuals and groups of individuals is, in practice, very difficult to achieve and cannot reasonably be guaranteed."

This leads him, at paragraph 38 of his report, to say once it is decided that there must be a move it is necessary to:

"38... deal with each individual as an individual, investigating the situation carefully with them and with their families, their medical practitioner advisers and anyone else who is relevant, so that they can be made aware as far as they are able of the proposals and their implications and the alternatives. Some will choose to move to alternative accommodation of their choice rather than remain in a situation of uncertainty and potential conflict. In doing so, they will have to reflect on the loss of friendship and comfort in an environment that they have become used to, and anticipate the possibility of new friendships and perhaps an even better environment elsewhere. It is unlikely they would choose somewhere that is less conducive [than] their current accommodation. In conducting this exercise the particular needs and characteristics of individuals will determine the best approach. Certainly the presence of memory impairment and more severe cognitive impairment will make the whole exercise much more difficult, and maybe repeated discussion and reassurance supported often by written materials and explanations suitably couched and readable to be available for reflection at times when others are not available. There may be advantage in group discussions so that residents and their families and staff can share their thoughts, compare their reading of the situation, and learn from each other on what might be the best way forwards."

18. The next report referred to and relied upon by the claimant is that of Professor Burns, which, although undated, it is common ground came into existence in 2005, that is to say after the judgment of Maurice Kay J in Dudley. The report was prepared for HM Coroner for Cheshire following the deaths of seven residents who had been moved from a care home when it closed. The effect of the literature was summarised by Professor Burns in these terms:

"In the scientific literature, there have been a number of reports over recent years concerning the effects of the relocation of older people, either from National Health Service (NHS) continuing care wards to homes, or from one home to another. A review by Smith and Crome (2000), summarized the literature over the last 40 years. The mortality of elderly residents who are moved compared to those who are not, seems to be increased by about one third. It is clear from a number of studies that the people most at risk are those who are relatively immobile, need to be helped with dressing and washing, have significant physical illness and who have severe dementia. A combination of these risk factors puts a resident at greater risk. It has also been suggested by one Inquiry into such a transfer, where seven deaths occurred within three weeks of moving (Barnet Health Authority, 1997) that poor planning of the process was partly to blame - implementation and monitoring of the transfer was not carried out in sufficient detail and there was not enough time given to new staff to become familiar with the needs of transferred residents. In 1998, the NHS Executive produced guidance on the transfer of frail older people from the NHS (NHS Executive, 1998). Some studies (for example that of Smith and Crome, 1999) have found no increase in mortality but note that at the time of transfer a lot of attention had been paid to the organisation of the process and families, carers and staff were involved. Publications since 2000 have included: Meehan (2004) who concluded from his study that physical ill health and old age, rather than the trauma associated with relocation itself explained mortality; McDonald (2004) who confirmed how disruptive it is for older people with dementia to move and found a death rate of just under a third after one year and; Hodgson (2004) who measured the physical effects of moving on levels of stress hormones in the body of older people who had taken part in a relocation and found that the move was associated with much higher levels one week after the move.

Thus, it has been well documented that there is an increase in mortality in older people when they move from one setting to another. The risk factors are being frail and have dementia. Organising the transfer with proper care can mitigate against the negative effects of the move."

19. The only other expert report produced to me was that of Dr Jefferys. Ms Hossack objected to this evidence because there is a long-standing dispute between Dr Jefferys and her which, she submitted, means that his evidence is not reliable. Ms Hossack launched a sustained attack on Dr Jefferys which at times appeared to me to be as much about the dispute between her and him as about the merits of this application, which has been the subject of complaints by Dr Jefferys to the solicitors' regulatory body and by Ms Hossack to the GMC. Ms Hossack told me that this resulted in a finding against her of breach of the Solicitors' Code, but no findings against Dr Jefferys. At one point Ms Hossack alleged Dr Jefferys had prepared a report relating to clients of hers, for one party, which suggested her clients were at risk; and a report for her which suggested they were not. No evidence in support of the first part of this allegation was ever produced. In my judgment, an allegation of this sort should not have been made in proceedings of this sort, where Dr Jefferys has no opportunity to defend himself at any rate without evidence to support it.
20. Aside from that, Ms Hossack attacked the credibility of Dr Jefferys' evidence because, she submitted, he had in the past given reports to her when they were still on speaking terms, that were different in their effect to what he had said in the report relied upon by Coventry. I have not considered it appropriate in a case of this nature to exclude from my consideration Dr Jefferys' report. He is highly qualified in the field, he has a substantial amount of practical experience in managing transfers of the sort now under consideration and his report shows that he is independent and fair minded. Thus, he sets out at the outset of his report the dispute that he has had with Ms Hossack, and he criticises, at the end of his report, in two respects, the proposed methodology of Coventry. Much of the report expresses agreement with Professor Jolley and Professor Burns. Thus, whilst I have read it, and whilst I take it into account, I should also say that I have read it critically and with caution, bearing in mind the points made by Ms Hossack as I have read it. In relation to developments since 2005, Dr Jefferys says this:

"31 I have been unable, in the limited time available to me, to identify any significant new research published in peer-review journals (i.e. reaching a satisfactory minimum quality standard for research publication) specifically addressing the issue of the impact residential home closure... upon residents.

32 Many local authorities have revised and published policies and protocols on home closure since the Oct 2003 publication by PSSRU of 'Guidelines for the closure of care homes for older people: presence and content of local government procedures', J Williams & A Netten.

33 I have looked at a cross-section of these. Most local authority protocols and procedures now specifically address most of the issues identified in the Jolley, Burns and PSSRU reviews."

21. In relation to previous publications and research he says this:

"36 Professor Jolley refers to methodological limitations of devising effective research to measure the effects of home closure on older people which are reflected in the existing literature. Effective control studies have not been mounted, either because they would be unethical or impractical.

37 At least 50% of local authority care home residents suffer from some degree of dementia and an additional 25% from significant depressive illness [McDougall et al. 'Prevalence and symptomatology of depression in older people living in institutions in England and Wales.' Age and Aging 2007... & Matthews et al. 'Prevalence of dementia in institutional care'. Lancet 2002... Bowman et al. 'A national census of care home residents' Age and Ageing 2004...] Such individuals are unlikely to be capable of consent or agreement to be subjects for research or agreeable to publication of their case histories, even if successfully relocated.

36 Most case studies have only been published because there were significant adverse outcomes for the residents. This represents a 'publication bias' in favour of 'bad news' rather than 'good news' outcomes. In this context it is therefore highly significant that there are several published reports indicating 'successful' transfer of vulnerable older people where preparation was undertaken to a high standard."

22. In relation to Professor Jolley's and Professor Burns' reports, he says this at paragraphs 43 and 44:

"43 Professors Jolly and Burns have provided a fair summary of the existing evidence, albeit much of it lacks research vigour about the particular risks faced by older people moving from one care home to another. The additional references submitted by Hossacks were considered in Jolley's review and on re-reading do not add to his conclusions.

44 As a consultant trained in both geriatric medicine and psychiatry I have seen consequences of both hasty and well planned care home transfers of thousands of vulnerable older people over the past 32 years. In broad terms I fully endorse the conclusions of Professors Burns and Jolley, which is that older people in care homes are a vulnerable group who are at risk of deterioration with ill planned relocation. However, careful planning and preparation of individuals, following personalised care plans and maximising continuity of care, can minimise the risks such that the risk of an adverse outcome is very low."

23. At paragraph 53 of his report he sets out both the question that he was asked to answer, or one of them, and his answer to it in these terms:

"Question 1:

In your opinion, having regard to the reports of Professors Burns and Jolley, is it in principle possible to transfer care home residents, in particular individuals suffering from dementia, without an increased risk of mortality?

53 Yes, provided the vulnerability of individual residents is recognised and assessed to a high standard, with multi disciplinary and family/carer consultation and all steps (consistent with the experience and best practice as outlined by Burns, Jolley, PSSRU and in this report) are taken to avoid unnecessary risk and trauma to individuals facing transfer. It needs to be acknowledged that in any population of frail older people with an average age in their mid 80's there will be a small number of deaths to be expected in the few weeks / months prior and following transfer."

24. Both parties refer to a selection of research material appearing at section 6 of the applicants' bundle. In light of the commonality of view between the three experts I have referred to, I do not consider it necessary for me to refer to the material in any detail in this judgment. However, there is nothing in the papers that have been included in the Bundle that leads me to think that Professor Jolley and the other experts are wrong in what they say about the material. The nature of the problem is illustrated by Dr Robertson, Dr Warrington and Dr Eagles' paper entitled "Relocation mortality in dementia: The effects of a new hospital", which is published in the International Journal of Geriatric Psychiatry, volume 8, where in the second paragraph of the paper the authors say this:

"In reviewing some 28 studies of interinstitution relocation published over 20 years, Borup (1983) reported that the findings of four support an increase in mortality, whereas 21 support no such increase, the three remaining studies being inconclusive. Some studies, for example Schulz and Brenner (1977), have examined the effectiveness of preparatory programmes and reported a decrease in postrelocation mortality for certain groups of patients participating in preparatory programmes. Jasnau (1967) noted that for patients given the option to move, those prepared to advance and those moved on an individual rather than en masse basis had a better outcome postrelocation. These findings were supported by Schulz and Brenner (1977)."

25. The paper by Dr Lyons also reflects the nature of the problem. His paper, entitled "Partnership nursing home care for dementia: The Glasgow experience - the first 12 weeks" published in the International Journal of geriatric Psychiatry, volume 10, contains as a summary of its conclusions the following:

"The outcome of the transfer of 60 elderly patients suffering from dementia from hospital to nursing home care under a partnership contract was studied at 6 and 12 weeks following transfer. Compared with patients remaining in hospital, there was no significant difference in mortality but the nursing home patients exhibited a greater decline in functional ability and a significant excess of pressure sores. Careful planning is required to ensure that such patients do not suffer as a result of transference of care."

26. There is one further piece of material that was relied upon by the claimant. This is the report and findings of the Extraordinary Complaints Panel into the closure of Granby Way residential home. It was this closure that was considered by the Court of Appeal in Cowl. The report is concerned with what happened afterwards. Ms Hossack relied upon the analysis in the report in relation to various individual residents who had died following transfer. I have derived no assistance from this report, quite simply because the elements of the report I was taken to relate to persons who are not parties to or otherwise affected by these proceedings. I record also that the report does not attribute the deaths of these people who died to transfer. This is consistent with the conclusion in the report to HM Coroner for Cheshire, which I have referred to above. The conclusions reached were specific to one home and one authority. Nonetheless, it is worth noting the conclusion at paragraphs 9.11-9.12 of this report:

"9.11 All this suggests to us that the move, despite all the efforts of Plymouth City officials to minimise this, may well have accelerated deaths in some cases. We are especially concerned about the numbers who died after they knew they would have to move. This suggests to us that examining the numbers who die after such a move is only half the story. We also note that Mrs was one who was moved from Torybrook on the 20th May. Mr Waterfield her nephew describes this move as breaking 'her heart'. The fact is that at the age of 99 Mrs died on 20th May 2001, some six weeks after being moved. At her age it is not possible to be sure that the move killed her as her relations clearly believe but equally at that age such a move could hardly have been beneficial to her health and well being.

9.12 Thus we conclude that there is compelling evidence to suggest that the opinions of Dr Jefferys set out in his written reports are by no means to be categorised as 'scare-mongering' and have considerable force, sufficient to make those views highly relevant when considering whether, and if so how, to close a residential home for older people."

These conclusions are consistent with the material that I have reviewed earlier in this judgment because paragraph 9.11 emphasises the necessarily speculative nature of the question being examined, and paragraph 9.12 emphasises the ability to minimise the risk by means of proper management. In my judgment, these paragraphs emphasise the speculative nature of the inquiries into death from natural causes of very elderly people caught up in a care home move. Against that background, I now turn to the way in which officials brought to the attention of the respective decision-makers in this case the existence of the risk, as disclosed in the material to which I have so far referred.

27. I turn first to Coventry. A report was provided to cabinet prior to the relevant decision being taken. At paragraph 3.27 the report says this, at the fifth bullet point:

"The concerns expressed about reported links between mortality rates and involuntary moves has been an emotive issue throughout the consultation. Although there are reports that suggest a link, there are also reports that do not, with data that is inconclusive. The issue was covered in some detail in the 'Key Issues' document issued on 24th April 2008 from which it is important to note that the Councils own experiences of closure have not resulted in increased mortality rates."

28. The issue was returned to paragraphs 6.1 and 6.2 of the key issues document, which was attached to the briefing paper placed before cabinet, where the following appears:

"6.1. What is our response to reports showing that mortality rates increase as the result of a move?

There is a lot of information available about mortality rates when people have had to move home, with different conclusions. Whilst many studies conclude that mortality increases, equally a number suggest that well managed moves may reduce the risk of mortality.

Coventry City Council has evaluated its own experiences of mortality rates following the closure of our care homes and the death rates over 5 years were not significantly different when compared to over 3,500 people who were not moved.

We accept that this data is from the City Council's own records and has not been academically resea rched or externally verified, but it does show that in our experience there is no increased mortality following a move as a result of a home closure in the way that we have previously managed them."

A little later on the same page there appears this:

"The sheer extent of variability in quality and character of the studies make interpretation difficult, although the balance of studies do not support the hypothesis that relocation of people with dementia between institutions is dangerous. It is also clear that the balance of studies do not support the view that morbidity (distress, disorientation, low mood) is increased after the move. Further, the reports suggest, anecdotally, that adequate preparation, and the presence of some familiar staff in the new destination, are likely to minimize negative effects on vulnerable movers."

This was expanded upon at Appendix 2 to the report, where various studies were identified and summarised in this way. Under the heading "References" there appeared references to six separate papers. These were then summarised in the following way:

"Dehlin 1990 reported on the effect of relocation for a long term hospital facility of 36 people with dementia relocated to new nursing homes. A control group of 33 people with dementia remained in the same facility. Outcomes were psychiatric symptoms (orientation/self care worsened over 12 weeks) drug use (no change) and mortality (no change after 2.5 years).

Thomas & Davis 2000, reported the naturalistic outcomes of closure of a 'county home' in US States on 269 elderly residents. Unclear how many had dementia and no control group. Outcome were morbidity and mortality in year post move v year pre-move. Morbidity did not change, while mortality was lower... in the year after the move.

Aneshensel et al 2000, reported on effect of moving into a care home for the first time for 272 people with dementia v 273 people who did not move. A twofold increase in mortality was associated with the relocation, which seemed to persist after controlling for the health status of the movers, ie the move itself may have had an effect. This study did not include people relocating between homes.

Meehan et al 2004 report on the effect of a move for 60 older people with long-term mental illness from a long-stay unit to a newer extended care facility. 50% of the sample had schizophrenia, only 30% dementia. There was no control group. A total of 21% had died by 18 months, and no change in quality of life or behavioural function was found. Hallewell et al 1994 report on the effect on 59 residents of 2 care homes (UK) moved into newer (local authority) homes. A control group of 31 remained in their old home. Outcomes were mortality and behavioural problems. Only around 10% had definite dementia. There was no overall increase in mortality and dementia did not predict outcome."

29. Each of the documents to which I have referred were before cabinet when it took its decision to close the homes concerned. In my judgment, the summary placed before the decision-makers by the officials, was a fair summary of the position in the literature, in light of the material to which I have been referred, including the experts' opinions to which I have referred. I would add that it is consistent with the judicial summary of the material set out by Maurice Kay J in Dudley. In my judgment, therefore, the risk on which the claimants place reliance was properly drawn to the attention of cabinet. Thus, factually, the position in relation to Coventry is this:

(a) the mortality issue was placed before the decision-makers, prior to the decision being taken, in terms that in my judgment were fair;

(b) as a matter of law, the local authority is obliged to undertake individual assessments before deciding to move individual residents and is entitled as a matter of law to undertake such assessments after taking a decision in principle to close the residential care homes concerned;

(c) the local authority has said, as it was put in the written submissions on behalf of Coventry:

"9. As the Council has already indicated, on a number of occasions, and as it indicates again, it will not arrange for the transfer of any resident to alternative accommodation without first completing a lawful assessment of that resident's needs, which will include a lawful assessment as to whether the residents' needs will be met in whatever alternative accommodation has been identified as being suitable, whether there will be any risks to the health or welfare of the resident caused by the move and if so whether despite the availability of skilled transfer arrangements there remains any unacceptable level of risk. The assessment process will be transparent and written assessments will be supplied to residents and/or their families (as appropriate), a reasonable period of time before any transfer is arranged so that, if so advised, the assessment can be complained about or challenged in the usual ways. If an assessment were (very exceptionally) to result in a conclusion that transferring any individual to any new placement would result in an unacceptable level of risk to the individual's health, then that individual would not be transferred (and, therefore, consequently, the home in question will not be able to completely close)."

To that summary must of course be added the further elucidation referred to in Paragraph 18 this judgment.

30. The position in relation to the London Borough of Havering is as follows. The risk issue was first referred to in the cabinet briefing paper at paragraph 5.1 in these terms:

"In considering any action which involves moving residents, the Council must be mindful of their welfare. Moving frail and elderly people presents a risk to them. Key factors in minimising these risks include the: adequacy of assessment of residents' needs prior to transfer; the number of residents transferring at any one time; the ability to change any planned timetable at short notice and; the preparedness of the receiving care home staff and other staff to take over their care from the residents' current home.

The Council's Transfer Protocol is designed to minimise these risks. This has been used during the closures of Marks Lodge and Hampden Lodge."

The issue was referred to again at paragraph 9 under the subheading "Human rights", where the issue was addressed in these terms at paragraph 9.1.3:

"The Cabinet has sought to address concerns under Article 2 (right to life) and Article 3 (prohibition of inhuman and degrading treatment) by the adoption of a Transfer Protocol. In the light of that Protocol, amongst other reasons, the claimant residents in the judicial review abandoned their complaint that transfer of the homes to the private sector would breach Articles 2 and 3. It is reasonable to conclude that the application of the Transfer Protocol to a future transfer of the residents to the private sector, and to the temporary transfer of residents during refurbishment, will avoid any breach of residents' Articles 2 and 3 rights."

Various other documents were appended to the briefing paper. Thus, some answers to questions raised by a Miss Carol Sykes were appended and, at paragraph 3, there appears this:

"On the subject of risk, much has been made, in alarming ways, about the risk of moving older people, especially those who are frail and with dementia. We acknowledge the fact that risk exists, where such moves are poorly planned. Because of this, Havering council has developed its own risk protocol for moving residents based on the evidence and what has worked elsewhere and on current best practice.

I attach a copy of the risk protocol that would be followed in the event any move is required, and a review of the literature that informed the development of the protocol."

There was also included, attached to the cabinet's papers, a response of a concerned local organisation known as "LINk", the relevant part of which was to the following effect:

"3.8 The LINk is also concerned over the effect of any moves themselves on residents. The LINk accepts that Social Services has an effective protocol for moving people from homes but has also heard that research by Professor Jolly indicates that transferring residents from homes whether individually or in groups, is likely to double their mortality rates. It is not the role of the LINk to comment on the validity of such research but the LINk feels it essential that the Council evaluates the likely effect of any move on the health of each individual resident. Particular care should be taken to ascertain the likely effects of moving on those existing residents of the homes who have learning difficulties. The LINk further feels it essential that existing friendship groups should be kept together during and after any move process. Response

The Council's Risk Management Protocol makes a number of stringent requirements regarding the way moves involving the frail elderly are managed to minimise risks to the resident... This provides a review of the literature on which the protocol was developed and a copy of the protocol we would follow, in the event of moving any frail and elderly person. The Council has experience of using this protocol and there is no evidence of an increased mortality rate."

Appendix 4 was the protocol itself, again, as I emphasise, attached to the papers before the cabinet. At paragraph 3(i) within the protocol there appears this:

"(i) There is likely to be greater risk for people with severe dementia / confusion and in particular for those people who are extremely frail and have co-existing mental illnesses."

Then under the subheading "Action required" there appears this:

"Medical examination by a suitably qualified and experienced medical practitioner immediately prior to any proposed transfer will be important as part of the individual risk assessment and will indicate whether a resident is fit to transfer and any additional precautions which may need to be taken."

Perhaps most significant is the conclusion at paragraph 5, which says this:

"Literature review and research demonstrate that 'transfer is not necessarily associated with an increased mortality - in a variety of circumstances mortality can be avoided, whereas in other situations an increase in deaths and morbidity have been recorded'. Reviews of other incidents consider that there were several factors of great importance. These related to the patients' frailty, the adequacy of the assessment and examination of patients prior to transfer, the number of patients transferring at any one time, the decision to change any planned timetable at short notice and the preparedness of the receiving residential / nursing home staff and other staff to take over the care from the residents' current home.

With the understanding that some frail people will be particularly vulnerable to the stress of relocation, the protocol outlined above is proposed as a way of ensuring that these issues would be planned for and robustly addressed. It is intended for use to ensure great sensitivity and responsibility are employed in this difficult process and to try and give confidence to residents and relatives that this will be the case."

31. The origin of the quote at the outset of this part of the protocol is obscure. However, in my judgment the material to which I have referred, taken together, sufficiently alerted the decision-makers to the existence of the problem. Indeed Ms Hossack, in the course of her oral submissions, accepted that the Havering presentation was better than the Coventry one. Thus, I am satisfied that the position in relation to Havering is factually similar to the position in relation to Coventry, as I have summarised it above.
32. I now turn, albeit briefly, to the relevant law. Article 2 of the European Convention on Human Rights provides as follows:

"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."

As I have said, it was accepted before me that Article 2 is capable of applying to a council considering the closing of a care home. Article 2 imposes a positive obligation to take appropriate steps to safeguard the lives of relevant persons: see In re Officer L [2007] UKHL 36 [2007] 1 WLR 2135, at paragraphs 19-21. There the scope of the positive obligation imposed by Article 2 was described by Lord Carswell in these terms at paragraph 19:

"In the opinion of the court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk."

33. In relation to what constituted a real risk for these purposes, Lord Carswell said this at paragraph 20:

"... a real risk is one that is objectively verified and an immediate risk is one that is present and continuing'. It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high."

34. At paragraph 21 Lord Carswell emphasised that Article 2 is subject to the principle of proportionality, as he said at paragraph 21:

"Secondly, there is a reflection of the principle of proportionality, striking a fair balance between the general rights of the community and the personal rights of the individual, to be found in the degree of stringency imposed upon the state authorities in the level of precautions which they have to take to avoid being in breach of article 2. As the European Court of Human Rights stated in Osman v United Kingdom 29 EHRR 245, para 116, the applicant has to show that the authorities failed to do all that was reasonably to be expected of them to avoid the risk to life. The standard accordingly is based on reasonableness, which brings in consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available. In this way the state is not expected to undertake an unduly burdensome obligation: it is not obliged to satisfy an absolute standard requiring the risk to be averted, regardless of all other considerations... It has not been definitively settled in the Strasbourg jurisprudence whether countervailing factors relating to the public interest - such matters as the credibility of the inquiry and its role in restoring public confidence - as distinct from the practical difficulty of providing elaborate or far-reaching precautions, may be taken into account in deciding if there has been a breach of article 2."

35. I have already considered and rejected the suggestion that the decision breaches Article 2 because individual assessments were not carried out before the impugned decisions were taken. I reject the suggestion that in taking the decision to close, the authorities violated Article 2. As Maurice Kay J said in Dudley:

"28... the evidence does not point to a breach of Article 2 in this case. No particularised medical evidence has been filed showing that the life of any particular resident is seriously at risk. What the claimant needs to establish is that 'the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge' -- see Osman. The claimants have not established that in this case."

In my judgment that point applies equally here as it did in that case. With the additional statements of intent from both Defendants that I have recorded at Paragraph 18 of this judgment, there can be no doubt at all that all relevant Article 2 issues will be considered before any resident is required to move. In any event, as Silber J said in R (Haggerty) v St Helens Council [2003] EWHC 803 (6 CCLR 352) at paragraph 32 of his judgment:

"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... 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."

36. Having considered the evidence before him at length, Silber J then concluded that the Article 2 point before him was one which should be rejected for four distinct 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'... 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... 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."

37. The first of Silber J's reasons for rejecting the Article 2 point in that case was a reference back to the proportionality point to which I have referred earlier in this judgment. In relation to both cases before me, I consider Silber J's first point to apply with equal force here, for the three factual reasons I identified earlier in this judgment, and because of the prematurity point I also referred to above. I think Silber J's second reason also applies with equal force here, particularly in light of the additional assurances given in the course of the hearing to meet the point developed on behalf of the claimant in argument. The remaining points made by Silber J apply here, though on the basis of the factual points I have referred to above. In the circumstances, whilst I am prepared to grant permission in relation to the application to bring judicial review proceedings, I dismiss the applications for reasons that I have given.
38. The final point I need to consider briefly it is the VAT point taken against the London Borough of Havering. I reject that point as unarguable. I am satisfied that the error was made in relation to only one of the homes, not both: see the summary placed before the cabinet in the defendant's bundle at section 21, page 30. Perusal of those figures show that even if the VAT element is ignored, the point made in the consultation document that was copied to the decision-makers was correct: see section 21, page 22 of the bundle. This of itself demonstrates that the error is immaterial. This conclusion is emphasised when the summary of relative costs put before cabinet is considered. These were projections made over a 21-year period. The figures referred to emphasise the immateriality of the error. In those circumstances, and in relation to this point, I would have refused permission to bring judicial review proceedings.
COSTS RULING

JUDGE PELLING QC: I have before me an application by the successful Defendants for an order for costs to be made against the unsuccessful claimants. This has been opposed as a matter of principle by Ms Hossack, who appears for the claimants, on the basis that:

(a) I dealt with the rolled-up applications by granting permission but dismissing the application; and

(b) a major consideration, as she would have it, in the process was the further clarification and assurances given by each of the defendants in the course of the hearing, which went further than what had been offered or indicated previously.

39. In my judgment, there are two very clear answers to the points deployed on behalf of the claimants. First of all, giving permission is a wholly different point to the consideration of an application on its merits. Giving permission is triggered by a view that there is something respectively arguable. The dismissal is a consideration of the application on its overall merits. Merely because I was prepared to grant permission, but dismissed the application, ought to have no material effect on the order for costs to be made.
40. So far as the assurances were concerned, the assurances which were given were purely voluntary, as I indicated in the course of my judgment. The points which were being deployed to which the assurances were offered as an answer were points which, in the end, were premature for the reasons I have given. The application failed, the ordinary principle is that costs follow the event and I am entirely satisfied that that is the order which should apply in this case.
41. The next issue which arises, then, concerns legal aid. It is this: as originally formulated, paragraph 3 of the proposed order was in the usual form, where applicants were legally aided. In the course of the submissions made by Ms Hossack, it became clear that there is, to put it no higher, a question mark over the legal aid position of the claimants. Equally, and very fairly, in my judgment, both defendants indicated that if it should turn out that the claimants do not have legal aid, then they would not wish to pursue a costs claim against any of the individual claimants, but might, depending on the circumstances, wish to pursue a costs remedy against Ms Hossack personally. In those circumstances, it seems to me correct that paragraph 3 should reflect the fact that it is not the intention of the local authorities to recover the costs from the claimants personally in the event that they are not legally aided and, at the same time, preserve their rights to seek an order under section 11 of the Access to Justice Act 1999, in the event that legal aid is confirmed and the circumstances applicable to the triggering of section 11 arise. A form of words was advanced by the defendants in the course of their submissions which appear satisfactory and accordingly I propose to make an order in those terms.
DIRECTIONS CONCERNING WASTED COSTS APPLICATION
42. JUDGE PELLING qc: in relation to the application by Coventry District Council for a wasted costs order against the applicants' solicitors, there will be directions as follows:

1. Coventry District Council is to issue and serve its application together with all supporting evidence by no later than 4.00 pm on 11th September 2008 or no such application is to be made.

2. The claimants' solicitor is to file and serve evidence in response by no later than 4.00 pm on 18th September 2008,

3. Coventry Council is to file its evidence in reply, if so advised, by no later than 4.00 pm on 23rd September 2003.

4. The application for a wasted costs order is to be listed for hearing and/or further directions, first available date after 23rd September 2008 with an estimated length of hearing of 1.5 hours.

That enables the judge then to deal with the nisi application and to give any further directions, if he wants to, or, if all issues are before the court, to deal with the application on its merits, if that is what everyone has geared themselves up for doing.

PERMISSION TO APPEAL RULING
43. JUDGE PELLING: I have before me an application for permission to appeal. Various grounds are put forward. It is probably sufficient if I say that the test for whether or not permission to appeal is to be granted is whether I consider the points relied upon to be realistically arguable. I do not consider any of the points rely upon to be realistically arguable.
44. The first point which was deployed was a point along the lines that the assurances which I referred to in Paragraph 18 of my judgment were not assurances of any value because the solicitor acting for the claimant would not know when any review was completed and decision taken. In the course of the hearing, as the solicitor acting for the claimant well knows, she was told in open court by counsel for the defendants that if she wrote a letter to the relevant local authority, the local authority would ensure that she and those for whom she acts would be informed of the outcome following the activities, the subject of the further assurances. The point is not only not arguable, but wholly without substance. It is also wholly without substance, because, as I made clear in the course of my judgment, the assurances were given voluntarily and in circumstances where I took the view that the point raised was in any event premature for the reasons given in my substantive judgment.
45. The other point which appears to be relied upon is a suggestion that I relied upon the report of Dr Jefferys unfairly heavily. I would think that a perusal of the very lengthy judgment I gave would show that to be manifestly not the case, for not merely did I review at great length the other material relied upon by the claimant, but I also made it clear that in reviewing what Dr Jefferys had said, I read it with a critical eye precisely for the reasons identified by the claimants' solicitors.
46. The final basis upon which it is said there should be permission to appeal is because I have shown bias towards the claimants' and their solicitors Although perhaps I am not the most objective person to express a view about that, I think the point is manifestly without any merit whatsoever.
47. The application for permission to appeal is refused as wholly without merit.