QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
| THE QUEEN
on the application of
MISS FLORENCE CHATTING
|- and -
LONDON BOROUGH OF WANDSWORTH
Christopher Baker (instructed by Anthony Collins Solicitors LLP) for the 1st Defendant
Elisabeth Laing QC (instructed by Wandsworth Council Legal Services) for the 2nd Defendant
Hearing dates: 21 & 22 November 2012
Crown Copyright ©
Mr Nicholas Paines QC :
The earlier litigation
"… neither the relatives nor the applicants were given or could have expected an absolute assurance. The expression "home for life" is not accurate. There was no assurance or promise of a home for life, since no one could know whether the health of the applicants would permit continued residence at a residential home where specialist nursing care was not available. Thus, although it is true that the eventuality to which the promise referred, namely a deterioration in health requiring specialist nursing care, never in fact occurred, no relative could have had any unconditional confidence that their aged relative would be able to remain for the rest of her life at Mary Court."
"I cannot conclude this matter without expressing my sympathy for the applicants. This case represents more than tension between public law and private law rights, but a collision. If I am right in my reasoning, it demonstrates an inadequacy of response to the plight of these applicants now that Parliament has permitted public law obligations to be discharged by entering into private law arrangements. Whether the solution lies in imposing public law standards on private bodies whose powers stem from contract or in imposing greater control over public authorities at the time they first make contractual arrangements may be for others to determine."
"The parties have agreed the following terms of compromise:
(1) Subject to the Second respondent's continued compliance with paragraph 3 hereof the First Respondent agrees to continue to provide residential accommodation with board and care at Mary Court to the Appellants until the earlier of the respective Appellants' death or the event set out under paragraph 2 below;
(2) The First Respondent's obligation to provide residential accommodation with board and care at Mary Court to each of the Appellants will cease 28 days after receipt by the First Respondent of a lawful local authority community care assessment stating that the respective Appellant's assessed needs can no longer be met at Mary Court and/or that nursing care is required such that it would not be lawful for the respective Appellant to remain at Mary Court;
(3) The Second Respondent agrees to provide funding pursuant to its obligations under Part III of the National Assistance Act 1948 in respect of the First and Second Appellants respectively at such rates as may be agreed between the First and Second Respondents from time to time;
(4) The Respondents agree not to enforce the costs order made by Moses J dated 12 May 2000 against the Appellants."
The arrangements made to give effect to the consent order
The reorganisation of Servite Houses
Relations between the parties
The recent litigation
The application to the Court of Appeal
The independent social worker's report
Miss Chatting's possible need for nursing care
The present judicial review proceedings
The issues as they stand now
The statutory framework
21.- Duty of local authorities to provide accommodation.
(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 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, 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.
(4) Subject to the provisions of section 26 of this Act, accommodation provided by a local authority in the exercise of their functions under this section shall be provided in premises managed by the authority or, to such extent as may be determined in accordance with the arrangements under this section, in such premises managed by another local authority as may be agreed between the two authorities and on such terms, including terms as to the reimbursement of expenditure incurred by the said other authority, as may be so agreed.
(5) References in this Act to accommodation provided under this part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary.
26.- Provision of accommodation in premises maintained by voluntary organisations.
(1) Subject to subsections (1A) and (1C) below, arrangements under section 21 of this Act may include arrangements made with a voluntary organisation or with any other person who is not a local authority where-
(a) that organisation or person manages premises which provide for reward accommodation falling within subsection (1)(a) or (aa) of that section, and
(b) the arrangements are for the provision of such accommodation in those premises.
(1A) Arrangements must not be made by virtue of this section for the provision of accommodation together with nursing or personal care for persons such as are mentioned in section 3(2) of the care Standards Act 2000 (care homes) unless-
(a) the accommodation is to be provided, under the arrangements, in a care home (within the meaning of that Act) which is managed by the organisation or person in question; and
(b) that organisation or person
i) in the case of a home in England, is registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of a regulated activity (within the meaning of that Part) carried on in the home…
(4A) Section 21(5) of this Act shall have effect as represents accommodation provided under arrangements made by virtue of this section with the substitution for the reference to the authority managing the premises of a reference to the authority making the arrangements.
"8 Regulated activity
(1) In this Part "regulated activity" means an activity of a prescribed kind.
(2) An activity may be prescribed for the purposes of subsection (1) only if-
(a) the activity involves, or is connected with, the provision of health or social care in, or in relation to, England
9 Health or social care
(1) This section has effect for the interpretation of this Part.
(2) "Health care" includes all forms of health care provided for individuals, whether relating to physical or mental health, and also includes procedures that are similar to forms of medical or surgical care but are not provided in connection with a medical condition.
(3) "Social care" includes all forms of personal care and other practical assistance provided for individuals who by reason of age, illness, disability, pregnancy, childbirth, dependence on alcohol or drugs, or any other similar circumstances, are in need of such care or other assistance.
(4) "Health or social care" means health or social care.
10 Requirement to register as a service provider
(1) Any person who carries on a regulated activity without being registered under this Chapter in respect of the carrying on of that activity is guilty of an offence."
"6.- Acts of public authorities.
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(3) In this section "public authority" includes-
(b) any person certain of whose functions are functions of a public nature…
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private."
"145 Human Rights Act 1998: provision of certain social care to be public function
(1) A person ("P") who provides accommodation, together with nursing or personal care, in a care home for an individual under arrangements made with P under the relevant statutory provisions is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (c. 42) (acts of public authorities) to be exercising a function of a public nature in doing so.
(2) The "relevant statutory provisions" are- (a) in relation to England and Wales, sections 21(1)(a) and 26 of the National Assistance Act 1948 (c.29)…
Issues 1 and 4: The interpretation of the terms of compromise
Issue (2): was the transfer to Gold Care an unjustified interference with Miss Chatting's private life?
"1 Ill health can be dreadfully cruel. Some 30 years ago the appellant was the prima ballerina of Scottish Ballet. Alas, in September 1999 (then aged 56) she suffered an incapacitating stroke leaving her with severely limited mobility and other disabilities besides. In April 2006 she fell heavily and broke her hip in several places, remaining in hospital for four months. She then suffered two further falls each leading to further hospitalisation. The problem at the centre of these proceedings, however, is that the appellant suffers also from a small and neurogenic bladder which makes her have to urinate some two to three times a night. Up to now she has dealt with this by accessing a commode with the help of a carer provided by the respondent Royal Borough as part of a package of care services to ensure her safety. For some years past, however, the respondents have been proposing instead that the appellant should use incontinence pads or special sheeting (hereafter "pads) which would avoid the need for a night-time carer. The respondents say that this would provide the appellant with greater safety (avoiding the risk of injury whilst she is assisted to the commode), independence and privacy, besides reducing the cost of her care by some £22,000 per annum. The appellant, however, is appalled at the thought of being treated as incontinent (which she is not) and having to use pads. She considers this an intolerable affront to her dignity. Whether night-time care can be provided on this revised basis is the critical issue in these proceedings.
15 Article 8 is too well known to require citation again here. There is no dispute that in principle it can impose a positive obligation on a state to take measures to provide support and no dispute either that the provision of home-based community care falls within the scope of the article provided the applicant can establish both (i) "a direct and immediate link between the measures sought by an applicant and the latter's private life" (Botta v Italy (1998) 26 EHRR 241, paras 34 and 35) and (ii) "a special link between the situation complained of and the particular needs of [the applicant's] private life" (Sentges v The Netherlands (2003) 7 CCL Rep 400, 405).
16 Even assuming that these links do exist, however, the clear and consistent jurisprudence of the European Court of Human Rights establishes "the wide margin of appreciation enjoyed by the states" in striking "the fair balance…between the competing interests of the individual and of the community as a whole" and "in determining the steps to be taken to ensure compliance with the Convention", and indeed that "this margin of appreciation is even wider when…the issues involve an assessment of the priorities in the context of the allocation of limited state resources": Sentges, at p 405, Pentiacova v Moldova (2005) EHRR 209 and Molka v Poland (Application No 56550/00) (unreported) 11 April 2006, p 17. Really one only has to consider the basic facts of those three cases to recognise the hopelessness of the article 8 argument in the present case. Sentges (considered by Rix LJ at para 64 of his judgment concerned a sufferer from muscular dystrophy complaining of a refusal to supply him with a robotic arm. Without it he depended on others for every single act and so was unable to develop and establish relationships with others; with it, his "severely curtailed level of self-determination would be increased": 7 CCL Rep 400, 404. The applicants in Pentiacova suffered from renal failure and complained of insufficient funding for their haemodialysis treatment. The applicant in Molka was confined to a wheelchair and, for want of positive assistance, was unable to vote in local elections. The complaints in all three cases were unanimously held to be manifestly ill-founded and thus inadmissible.
17 This approach too is consistent with the domestic jurisprudence on the point. The appellant seeks to rely on R (Bernard) v Enfield London Borough Council  LGR 423 (considered by Rix LJ at para 63 of his judgment). But really what is striking about Bernard is the contrast between that case and this. The claimants were husband and wife. They had six children. The wife was severely disabled and confined to a wheelchair. In breach of their duty under section 21(1)(a) of the NAA 1948, the respondent council failed for some 20 months to provide the family with accommodation suited to her disability. The consequences were appalling. The wife was doubly incontinent, because there was no wheelchair access to the lavatory, was forced to defecate and urinate on the living room floor. And she was unable to play any part in looking after her six children. Small wonder that Sullivan J, at para 31, described the article 8 case as "not finely balanced" and awarded £10,000 damages.
18 The leading domestic case on the positive obligation to provide welfare support under article 8 is Anufrijeva v Southwark London Borough Council  QB 1124. It concerned three separate asylum-seekers, one complaining of a local authority's failure to provide accommodation to meet special needs, the other two of maladministration and delay in the handling of their asylum applications. All three failed in their claims. Giving the judgment of the court, Lord Woolf CJ observed, at para 33, that: "It is not possible to deduce from the Strasbourg jurisprudence any specific criteria for the imposition of such a positive duty [i.e. the duty 'to provide welfare support']". At para 43, however, the court concluded that Bernard was rightly decided- "family life [having been] seriously inhibited by the hideous conditions prevailing in the claimants' home"- but that:
'We find it hard to conceive…of such a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, article 8 may require the provision of welfare support in a manner which enables family life to continue.'
(Bernard was said to illustrate that.)
19 There is, of course, a positive obligation, under article 8 to respect a person's private life. But it cannot plausibly be argued that such respect was not afforded here. As already indicated, the respondents went to great lengths both to consult the appellant and Mr McLeish about the appellant's needs and the possible ways of meeting them and to try to reach agreement with her upon them. In doing so they sought to respect as far as possible her personal feelings and desires, at the same time taking account of her safety, her independence and their own responsibilities towards all their other clients. They respected the appellant's human dignity and autonomy, allowing her to choose the details of her care package within their overall assessment of her needs: for example, the particular hours of care attendance, whether to receive direct payments in order to employ her own care assistant, and the possibility of other options like extra care sheltered housing. These matters are all fully covered in paras 5, 42 and 66 of Rix LJ's judgment below. Like him, I too have the greatest sympathy for the appellant's misfortunes and a real understanding of her deep antipathy towards the notion of using incontinence pads. But I also share Rix LJ's view that the appellant cannot establish an interference here by the respondents with her article 8 rights. I add only that, even if such an interference were established, it would be clearly justified under article 8.2- save, of course, for the period prior to the 2009 review when the respondents' proposed care provision was not "in accordance with the law"- on the grounds that it is necessary for the economic well-being of the respondents and the interests of their other service-users and is a proportionate response to the appellant's needs because it affords her the maximum protection from injury, greater privacy and independence, and results in a substantial costs saving."
"Article 8 likewise has an important procedural component. Long established Strasbourg jurisprudence, articulated by the court as long ago as 1988 (see W v United Kingdom (1988) 10 EHRR 29, paras -), requires that, where Article 8 is engaged, the local authority's decision-making process must be such as to secure that the views and interests of those who will be adversely affected by its decision are made known to and duly taken into account by the local authority, and such as to enable them to exercise in due time any remedies available to them. The question, according to the court, is whether, having regard to the particular circumstances of the case and the serious nature of the decisions to be taken, those affected have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests."
Issue 3: have Wandsworth Borough Council acted unlawfully?
"The Mental Capacity Act
The Mental Capacity Act 2005 provides a statutory framework for acting and making decisions on behalf of people who lack capacity to make particular decisions for themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future. It sets out who can act and take decisions on behalf of a person who lacks capacity, in which situations, and how they should go about this.
The Act sets out five principles which must be adhered to when working with people who lack capacity to make certain decisions. Councils are expected to follow these principles carefully during assessment and supporting planning.
Councils should also consider where the use of Independent Mental Capacity Advocates (IMCAs) and other advocates – such as dementia advocates or learning disability advocates – might be appropriate to ensure that as far as possible people are supported to be involved in the decision-making process."
"1 The principles
1) The following principles apply for the purposes of this Act.
2) A person must be assumed to have capacity unless it is established that he lacks capacity.
3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made in his best interests.
6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action."