Broadway Care Centre Ltd, R (on the application of) v Caerphilly County Borough Council [2012] EWHC 37 (Admin)

Case No CO/12238/2011

[2012] EWHC 37 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

Sitting at:

Venue Cardiff Civil Justice Centre

2 Park Street

Venue Cardiff

Date 19 th January 2012

CF10 1ET

Before

HIS HONOUR JUDGE SEYS LLEWELLYN Q.C.

(sitting as a Judge of the High Court)

Between

THE QUEEN ON THE APPLICATION OFClaimant

BROADWAY CARE CENTRE LIMITEDClaimant

CAERPHILLY COUNTY BOROUGH COUNCILDefendant

(DAR Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7404 1424

Official Shorthand Writers to the Court)

Patricia Robinson Q.C. and Madeline Heal (instructed by Alison Castrey Ltd) for Claimant

Stephen Knafler Q.C.(instructed by Caerphilly County Borough Council) for Defendants

Hearing Hearing Date: 9 th Janaury 2011

Judgment

HIS HONOUR JUDGE SEYS LLEWELLYN Q.C:

[1]The Claimant (“BCC”) seeks permission to challenge the decision of the Defendant local authority dated 12th December 2011 to terminate its contract to provide care for elderly dementia sufferers at Hillside Care Centre, School Street, Brithdir, New Tredegar.

[2]Hillside Care Centre is a home specialising in the care of dementia sufferers. The Claimant owns and operates the home and has done so since 2006. There are, or were at the commencement of these proceedings, 23 residents 19 of whom are funded by the Defendant local authority. The evidence indicates that they are of an average age of 85 years. Each resident who is funded by this Local Authority has an individual care plan contract, which makes provision for the period of care and for the social care fees to be paid per week by the Local Authority to BCC (see the example at Bundle D/51a). That individual care plan contract also reserves to the Local Authority the right to terminate the agreement immediately, where the Local Authority has persistent or serious concerns for the well-being of the resident or other residents. However the care for each resident is provided, and each individual care plan contract is entered into, pursuant to the provisions of and subject to the terms and conditions in a written framework contract entered into by the Claimant and the Defendant with effect from 6th November 2006. It is in respect of the termination of that contract, by letter dated 12th December 2011, that the Claimant issued its application for permission for Judicial Review lodged on 14th December 2011.

[3]An Order was made by Staden, J. on 13th December 2011 on pre-action application whereby BCC were to lodge the Application for Judicial Review, interim relief was to be considered at a hearing on 21st December 2011, BCC undertook to allow social workers to visit Hillside, and the Local Authority undertook not to remove any residents until after 21st December 2011. By Order of Simon, J. dated 15th December 2011, the claim was transferred to Cardiff from London and a directions hearing was listed for 21/12/2011.

[4]On 21st December 2011 I made Order that a rolled up hearing be listed in this matter, to be heard on 09/01/2012 in the light of the urgency of the matter. Thus there was a rolled up hearing as to permission and the substantive claim before me on 9th January 2012. Issues raised at that hearing led to order for further skeleton arguments being served, as I set out below.

[5]The issues to be determined on the application of 14th December 2011 are:(i) Is the decision of the Defendant to terminate the contract amenable to Judicial Review?

(ii) Does the Claimant have standing to seek Judicial Review in order to protect, or relying upon, the residents’ Article 8 rights? In particular is it entitled to assert that the Defendant owes to the residents duties in public law that restrict the entitlement of the Defendant to terminate the contract between it and the Claimant?

(iii) If so what duties are owed and is it arguable, or the case, the Defendant is in breach of any duties owed to residents, in such a way as to entitle the Claimant to the relief which it seeks?

(iv) Did the Defendant fail to give the Claimant prior notice of its intentions and/or an adequate account of its reasons, such that the decision was procedurally unfair (and, the Claimant would add, and/or such that the Claimant was deprived of an opportunity to remedy the situation)?

[6]In support, the Claimant argues an implied duty to consult with(a) the residents (or their representatives) and

(b) the Claimant, prior to taking the decision to terminate. It argues that the Defendant was required to have adequate regard for the risk to residents of a move generally, and specifically at this time of year; their welfare; the scarcity of places elsewhere;, their Article 8 rights and their relatives’ wishes; and balance all this against risks of moving them to another care setting. It questions whether the conclusion of the risks of not terminating the contract outweighed those factors was based upon the available relevant evidence, without taking into account irrelevant evidence. And it asserts that the decision to terminate was disproportionate.

[7]The commercial concern of the Claimant is that if all or even a substantial number of residents funded by the Local Authority are moved from Hillside, the home will be unviable. It argues that the decision to terminate the contract is in effect a decision on the part of the Local Authority to close the home. In oral argument at the hearing before me, Counsel for the Claimant developed argument that there is a statutory framework for regulation for homes such as this, that there was a statutory framework and binding guidance as to closure of such a home, that such guidance bound the Local Authority and/or the Local Authority was under an obligation to take it into account, and that the decision to terminate the contract was flawed by failure to follow that framework and guidance. The Claimant referred to and relied upon guidance given pursuant to statute, namely the “Escalating Concerns Guidance”, and the structured escalating steps therein required.

[8]In addition, in answer to the submissions made by leading counsel for the Defendant that whatever the Article 8 rights of residents might be, the Claimant was not itself a “victim” of the breach of any rights under the ECHR and therefore debarred by Statute from pursuing a claim, counsel for the Claimant indicated that she wished to rely upon the right or rights of the Claimant under Article 1 of the First Protocol for protection of property, namely entitlement “to the peaceful enjoyment of its possessions”.

[9]At the hearing I gave permission to the Claimant to add these as additional grounds. I required the Claimant within 24 hours to amend the Grounds of Application so that its formulated case should be clearly defined, and equally to serve skeleton argument in respect of the Article 1 point within 24 hours. I gave permission to the Defendant to reply as to the Article 1 point by skeleton argument within a further 24 hours. Each has done so. Thus in any event two further issues arise (v) was the decision to terminate the contract flawed by failure to implement, or to take account of, the regulatory framework for “closure” of a home such as this? (vi) does termination of that contract engage the rights of the Claimant under Article 1 and if so do the acts and omissions of the Defendant in terminating the contract in circumstances amount to a breach of that right? Authority to terminate.

[10]In addition to these issues, the Claimant raised query in the days immediately preceding the hearing query as to the authority of Mr David Street, the individual who took the decision to terminate the contract, to do so; and at the hearing on 9th January contested his authority to do so. Mr Street is and was Assistant Director of Social Services for the Defendant Local Authority.

[11]In his witness statement at paragraph 18 Mr Street stated that he was entitled to make this decision as Assistant Director of Social Services. By letter of 3rd January 2012 the Solicitor for the Claimant asked to be directed to the relevant Clauses to Counsel’s Constitution which it was said authorised him to make this decision and the Claimant contests that he was entitled to do so.

[12]The Local Authority replied to the Claimant’s enquiry by letter from the Head of Legal Services that “I can confirm that David Street is a Head of Service employed by Caerphilly County Borough Council”. The Claimant does not accept that reply as sufficient.

[13]I was shown extracts from the Constitution of the Local Authority. This expressly provides for delegation of executive functions to the Cabinet, or the Chief Executive or any Director “or any Head of Service” of, insofar as the Social Services function was concerned, “commissioning for Social Services” and “or client care services in residential settings (including accommodation services).

[14]I was provided with a copy of the job description of Mr Street as Assistant Director of Social Services, Adult Services. This expressly identifies him as Head of Service for the Social Services Adult Division. As such by the constitution he had delegated authority in respect of any decision to terminate the Contract. There is no evidence before me which makes it arguable that he lacked authority to take the decision to terminate the contract as he did]. The scope of the grounds of Claim.

[15]The Grounds of Application lodged on 14th December 2011 were that “the Claimants challenge the Defendant’s decision… purporting to terminate without notice…. the contract between the Claimant’s dementia…. home for the elderly Hillside Care Centre…. (the Home) and the Defendant dated 6th November 2006 (the Contract)”.

[16]When received after the hearing, the Amended Grounds of Application amended or elucidated these original grounds in minor respects, namely to plead the decision as being the 30th November 2011, (the date of an internal meeting of the Defendant Local Authority and others), to delete an earlier reference to “nursing” home, and to plead that the termination without notice was for serious breach pursuant to Clause 18(d) of the contract “and/or for minor and persistent breach pursuant to Clause 18(f) of the contract”.

[17]However the Amended Grounds of Application also purported to widen the Application as follows, “the Claimants challenge the Defendant’s decision ….. purporting to terminate without notice….. the contract ….dated 6th November 2006 including the Defendant’s decision to terminate the individual Care Plan service specification for each resident pursuant to Clause 5(c) of the contract. This is not an amendment for which permission was given at the hearing. As will appear later, it is a significant widening of the Claimant’s case. I deal with it towards the end of this Judgment. The Contractual and Statutory Framework. The Contract.

[18]The Contract of November 2006 provides, first, that the Defendant must comply with the current legislation, regulations and codes of practice in relation to the registration of the home, including that it must comply with the regulations and National Minimum Standards under the Care Standards Act 2000. I need not set out further detail as to this: it is perhaps of common knowledge amongst those who practice and those who adjudicate in this field, that those care standards set out very detailed requirements in respect of homes such as this, and in respect of vulnerable adults such as are resident in Hillside the home in the present case. If such should be wanted, further illustrative detail is given at clause 2 and in particular at clause 2(e) of the Contract, at Bundle B/225-226.

[19]At Clause 15 the Contract deals with “default” “(a) if either party considers the other party is in default of their obligations under this Contract they shall write to the other party stating the nature of the default. A review meeting will be held between the Provider and the purchaser’s appropriate officer to identify a joint plan of action to remedy the situation. (b) where a dispute can not be resolved at such a review, the Provider may request the Director of Social Services to undertake a further review. (c) it is the responsibility of the party deemed at fault to remedy the situation at no extra cost to the other party and to meet any resulting costs arising directly from the default”.

[20]At Clause 18 the Contract provides for termination as follows “(a) either party to this Contract has the right to terminate this contract on giving 6 months notice in writing to the other party….. (d) if the Provider (i) commits a serious breach of its obligations under the Contract….. then in such circumstances the Purchaser may, without prejudice to any accrued rights or remedies under the Contract terminate the Contract by notice in writing having immediate effect and take action to enforce any rights arising to the Purchaser under the Contract…… (f) if the Provider commits a minor and persistent breach of its obligations under the contract the right to terminate only arises if the Council has complied with the provisions under Clause 15 hereof. Statutory provisions and guidance.. (i) commits a serious breach of its obligations under the Contract….. then in such circumstances the Purchaser may, without prejudice to any accrued rights or remedies under the Contract terminate the Contract by notice in writing having immediate effect and take action to enforce any rights arising to the Purchaser under the Contract……

[21]The Local Authority has statutory powers and duties in relation to vulnerable adults such as are resident at this home.

[22]There is a statutory duty to make assessment of those who may need care and assistance (Section 47 NHS and Community Care Act 1990 – ‘where it appears that any person for whom they may provide or arrange provision of community care services may be in need of such services, the Authority shall carry out an assessment of his needs for those services and having regard to the results of the assessment shall decide whether his needs call for the provision of such services’). The Local Authority further has a duty to make arrangements for providing residential accommodation. Such care and accommodation may be provided by the Local Authority itself, or by a commercial organisation such as the Claimant who manages premises such as this home.

[23]I do not wish to clutter or prolong this Judgment by extensive citation of the statutory passages. A sufficient resume is this. Where a person is by reason of age, illness or disability in need of care and attention which would not otherwise be available to him/her, the Local Authority in whose area he/she is ordinarily resident becomes liable under s21 National Assistance Act 1948 as amended to “make arrangement for providing residential accommodation” for him/her. By virtue of s21(5), “accommodation” in this context extends to such board and other services, amenities and requisites” as he/she needs. Such care and accommodation can be provided by the local authority itself (s 21(4), s22 and s23) or by “a voluntary organisation or …. any other person who manages premises which provide for award such accommodation” (s26(1). I gratefully take this resume from the speech of Lord Neuberger in YL –v- Birmingham City Council 2008 1AC95 at paragraph 124.

[24]Statutory guidance has been issued under Section 7(1) of the Local Authority Services Act 1970. The Claimant draws attention to the following: National Assistance Act 1948 (Choice of Accommodation) Directions 1993 “ Permanent placement in a care home needs careful consideration by the patient and carers as well as advice from health and social care professionals….. 2.2 If the individual concerned expresses a preference for particular accommodation (“preferred accommodation”) within the UK the Local Authority must arrange for care in that accommodation provided that: The accommodation is suitable in relation to the individual’s assessed needs…..The accommodation is available;….. 3.7 accommodation will not necessarily be unsuitable simply because it fails to conform to the Authority’s preferred model of provision or to meet to the letter a standard specification laid down by the Authority…… and, in particular says the Claimant, 5.1 “individuals already placed by an Authority in a care home…. have the same rights as those yet to be placed by the Authority. Their needs should be assessed using the Unified Assessment Process….. The individual should not be….. expected to move from the care home if the assessment process has identified that a move to alternative accommodation poses a risk to the individual’s care and wellbeing”.

[25]Prior to 2002 a Local Authority itself had the duty and responsibility to regulate care homes, under the Registered Homes Act 1984. Pursuant to the provisions of the Care Standards Act 2000, it is now instead an independent body which is the regulator. In Wales that body is the CSSIW. It is with this body that a home must register. A home such as this must have a licence. It is the regulatory Authority which may terminate that licence. Each home must have a manager registered with that Authority. (That is not currently the case with Hillside, although the manager was appointed on 20 July 2011).

[26]The Claimant relies upon, and in oral argument placed central importance on, the “Escalating Concerns with and Closure of Care Homes Providing Services for Adults May 2009”, (“the Escalating Concerns Guidance”). The Claimant relies on the following passages: Purpose of guidance 1. This statutory guidance addresses the management of escalating concerns with, and closures of, care homes that are registered with the Care and Social Services Inspectorate Wales (CSSIW) to provide services to adults, including those providing nursing care….. Background 2. Escalating Concerns arise where there are accumulating issues relating to the operation of, or quality of care provided in, a registered care home providing services to adults…… 4. The safety and wellbeing of service users is paramount. In circumstances where a failure in provision of care which causes suffering is indentified this is adult abuse which is a breach of the duty of care and could amount to a criminal offence being committed by the home. 5. Escalating concerns will warrant proactive or reactive intervention from those commissioning such services, possibly from one or more commissioning agencies, designed to improve the quality of services and, where possible, prevent what might be avoidable home closure. 6. Where abuse is suspected the policy and procedures to protect vulnerable adults must take precedence. The overriding objective should be to ensure the safety of vulnerable service users. In many situations it will be in the best interests of service users to use the escalating concerns procedure alongside the adult protection procedures in an effort to keep the home open. In such situations, clear communication between staff and agencies involved in both processes is essential….. Legal duties in relation to closures 11. When home closures occur, working with service users and their families or other representatives to identify, prepare for and make the transition to a new home requires the key information is provided and constantly updated…… Mental Capacity 13. Enshrined in the Mental Capacity Act 2005 is the principle that people have capacity unless otherwise proven. Even when their capacity may be limited, they may still be able to make some clear choices or decisions. The Act emphasises the importance of supporting incapacitated service users to make decisions and has created a statutory entitlement to advocacy through specialist Independent Mental Capacity Advocates (IMCA’s)….. the legislation requires Local Authority’s to refer individuals to the IMCA’s service where decisions about a change of residence is required…… Choice of accommodation 14. Local Authority’s are reminded that the National Assistance Act (Choice of Accommodation) Directions 1993 will apply where individuals are moving location as a result of a home closure……. 15. In circumstances where a service user is currently accommodated in a home whilst waiting for a placement in their home of choice, local agencies must: When undertaking a needs and risk assessment, determine the potential impact a further temporary move may have upon the individual’s health and wellbeing…… Accountability Roles and Responsibilites

[17]It is important that managers and their agencies understand that this Guidance does not replace or interfere with existing statutory duties, functions or obligations. Additionally this guidance does not require local agencies to undertake any responsibility or functions which are currently managed by CSSIW. Local Authority and Health Services working reactively and proactively with service providers 31. Health and Social Services need to ensure they work towards preventing escalating concerns developing, and potentially home closures occurring whenever possible….. 35. Local agencies will need to ….. work with registered providers to ensure that they understand why a [Development Action Plan or Corrective Action Plan] has been initiated and to establish the reasons for this, what improvements are required and by when, how the plans will be monitored and by whom and what criterion will be used to suspend or remove the need or requirement for an action plan continuing to be maintained. …….. 44. The use of CAP’s and DAP’s do not replace compliance notifications instituted by CSSIW. It is critical that agencies understand their distinctive roles and responsibilities in respect of poor performance and/or breaches in regulations or standards. Local Authorities and Health Services must act within the sphere of their own roles and responsibilities. For example they can take specific action in terms of breach of contract or poor performance where necessary….. 47. There must be a clearly evidenced rationale for usage of embargos. Application of an embargo would be open to challenge through Judicial Review. The use and removal of embargos, or indeed cancellation of a contract, must be linked to a thorough risk assessment which has been considered as part of the multi agency framework”. The emphasis in bold above is supplied by the Claimant; to this I have added emphasis in italics.

[27]It is convenient to note here that I was told at the hearing that the regulator is required to give a registered home 28 days of contemplated withdrawal of its licence, in order that the home may make representations. My attention was not drawn to any part of the Guidance which expresses a requirement that the local authority give a period of notice, if it is contemplating termination of a contract with a home, in order for representations to be made.

[28]The Claimant draws attention to Section 7(1) Local Authority Social Services Act 1970, which provides that local authorities shall, “in the exercise of their Social Services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State”. That which is set out above is Ministerial Guidance.

[29]The Claimant argues that the Defendant Local Authority is obliged to act under this general guidance, and that it is well established that this is not merely an obligation to have regard but requires the Local Authority to follow the guidance, unless it can demonstrate that it has occasion to clearly articulated reason for departing from it.

[30]‘The Local Authority is not “free, having considered it, to take it or leave it” but rather is “required to follow the path charged it by the Secretary of State’s guidance with liberty to deviate from it where the Local Authority judges on admissible grounds that there is reason to do so, but without freedom to take a substantially different course”. “If this statutory guidance is to be departed from it must be with good reason, articulated in the course of some identifiable decision making process….. in the absence of any such considered decision, the deviation from the statutory guidance is in my Judgment a breach of the law’. The Claimant thus cites, illustratively, R –v- Islington RVC ex-parte Rixon 1997 ELR 66 at 71. That case is in a somewhat different context to the present. Possibly closer to the present, the Claimant relies on R (Munjaz) for the Ashworth Hospital 2006 1AC148 dealing with the status of a code issued under the Mental Health Act, “it is what it purports to be, guidance and not instruction. But… the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which [the relevant decision maker] should consider with great care, and from which it should depart only if it has cogent reason for doing so” (Lord Bingham). “They must give cogent reason if in any respect they decide not to follow it. These reasons must be spelled out clearly, logically and convincingly….” (Lord Hope) at paragraphs 21 and 69 respectively).

[31]The Defendant accepts that it must act in substantial compliance with the Escalating Concerns Guidance in the exercise of its public, social services, functions, (but not its private law functions) only deviating from it for good reason. Its submission is that insofar as that guidance is directed at home closures, that is urgent and non-urgent cancellations of registration by CSSIW it is not of direct relevance in this case. Issue (i) Is the Defendant’s decision to terminate the contract amenable to Judicial Review?

[32]The Defendant contends that its decision to terminate the contract involved the exercise of a private law power, namely the power to terminate the contract under Clause 18, and it was not the exercise of a statutory, or any, public function at all. The Defendant contends that the question has been put beyond any doubt by two decisions of the House of Lords YL –v- Birmingham CC 2008 1AC95 and Quinn –v- Chief Adjudication Office at

1996 1WLR1184

. Leading counsel cites in particular Lord Scott at paragraph 27, “If an outside contractor is engaged on ordinary commercial terms to provide cleaning services, or the catering and cooking services, or any other essential services at a Local Authority owned care home, it seems to me absurd to suggest that the private contractor, in earning its fee for its business services, is publicly funded or is carrying on a function of a public nature. It is simply carrying on its private business with a customer who happens to be a public authority. The owner of a private care home taking Local Authority funded residents is in no different position. It is simply providing a service for which it charges a commercial fee”.

[33]YL was a majority decision. The core of the opinion of Lord Mance, with which other members of the majority agreed, was that he did not regard the actual provision, as opposed to the arrangement, of care and accommodation for those unable to arrange it themselves as an inherently governmental function (paragraph 115) and that whilst the only contract covering the publicly funded resident’s placement may be between the Local Authority and the care home, “even if a publicly funded resident is not party to any contract with the care home he or she will (unlike privately funded residents) have public law rights, including the right to invoke the protection of the Human Rights Convention, as against the Local Authority. These will enable him or her effectively to place on the Local Authority the onus to take any steps open to it as against the care home to protect the resident’s human rights” (paragraph 118).

[34]The Claimant relies on s145 Health and Social Care Act 2008. I will cite it in terms:

“s145(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 [as here] is to be taken for the purposes of sub section (3)(b) of Section 6 of the Human Rights Act 1998 to be exercising a function of a public nature in doing so”

. Section 6 of the Human Rights Act 1998 provided (and provides) as follows: “s6(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 function are functions of a public nature”. ….. (b) any person certain of whose function are functions of a public nature”.

[35]Counsel for the Claimant submitted that s145 in general terms made plain the public nature of the functions carried out by the Claimant. Leading Counsel for the Defendant in his skeleton dealt with the matter concisely: whilst s145 now means that the provision of care home accommodation together with personal care must be taken to be the exercise of a function of a public nature, for the purposes of s6(3)(b) of the HRA 1998, that does not affect Lord Scott’s analysis of the commercial nature of the relationship between the Local Authority and the care home provider, under s26 of the National Assistance Act 1948.

[36]I do not think I can be immune to notice of the fact that s145 of the 2008 Act was introduced after the handing down of judgment in the majority decision in YL, and in response to it. In YL the Claimant was an 84 year old suffering from Alzheimer’s Disease in respect of whom the local authority had a duty under s21 and who sought declarations not against the local authority, but against Southern Cross when the company sought to terminate the contract for her care and thus to remove her from the home. Whatever the merits might be of her complaint, the majority decision was that such a Claimant had no right to bring a public law claim against the care home. The provisions of s145 were introduced in the 2008 Act in order to reverse this decision, and to deal with accountability of the care home to public law claim by a resident.

[37]If it were wrong for me to take notice of this, then simple analysis of s145 is in my judgment revealing, and to the same effect. Section 145 is not a provision that all arrangements, contractual or otherwise, between a care home provider and the Local Authority are to be treated as arrangements of a public nature. It is a provision which makes it unlawful for a care home to act in a way which is incompatible with a Convention right since it is now defined as a person certain of whose functions are functions of a public nature under s6(3)(b).

[38]I will give an illustration which tests the argument of both sides, both on the true meaning and effect of s145 of the 2008 Act, and more generally in this case. This contract provides that either party has a right to terminate it on 6 months notice. Suppose that the Local Authority serves five and a half months notice to terminate the contact; the care home provider contends that such is unlawful and/or in breach of contract, in that it is not notice of the full 6 months. Absent other circumstances, it is inconceivable the Court would regard this as other than a matter of private law, or that it would accept that the provider has a public law claim by reason that the functions which it discharges for its residents are of a public nature.

[39]Secondly, to approach matters otherwise is in my judgment to risk confusion as to the identity of the person to whom a duty in public law is owed. The Local Authority owes a statutory duty under Sections 21 and 26 (and Section 47) to the vulnerable adult who is resident in a care home. So may a care home provider, if it contracts to, and does, provide the care for which the Local Authority makes arrangements under s 26. It does not follow that the Local Authority owes a statutory duty to the care home provider, or a duty of a public nature. The fact that the care home provider is the commercial beneficiary of such arrangements being made is a different matter.

[40]The Claimant raises in its skeleton argument other matters in support of argument that the decision to terminate the contract is amenable itself to Judicial Review.

[41]First, it seeks to rely on the statement by the Defendant in its Grounds of Defence that “the balance of convenience lies in favour of allowing the Defendant to discharge its statutory responsibility to protect the residents’ welfare…..”. (emphasis supplied by Claimant), as inconsistent with the Defendant’s case. Insofar as relevant, the submission so advanced fails to recognise the distinction drawn above.

[42]Second, the Claimant says that the Defendant has terminated the contract for alleged “serious breach” pursuant to Clause 18(d) and not pursuant to Clause 18(a), (b), (c) or (f). I fail to see why election by a party to the contract to terminate for alleged serious breach, rather than on notice or by mutual agreement or the like, should translate private law obligations into public law obligations, or to translate the remedy for breach from private law remedy to public law remedy.

[43]Third, the Claimant refers to the Contract’s definition of aims and objectives of care homes, in terms of a statement of ensuring that needs of residents’ are met, (as set out at Bundle B/218–219). I do not consider that this, any more than the first or second points, eliminates the distinction which I have drawn immediately above.

[44]Lastly, the Claimant says (skeleton argument paragraph 24) that “the short answer to this point is that it is inconceivable that a resident or prospective resident would be unable to challenge the Local Authority’s decision to terminate the contract whether under Clause 18(d) or any other termination provision”. However what is in question here is whether the Claimant may bring public law proceedings to restrain or remedy termination of the contract. It is argued that “any person with a sufficient interest can complain, if the decision making process in terminating the contract is flawed in any of the ways recognised as giving grounds for Judicial Review”. However in my judgment the starting point is that in its own right the Claimant has private law rights and obligations under the Contract.

[45]Thus far, I conclude that neither s145 of the 2008 Act nor the provisions of the Contract itself, notwithstanding its context, give a right to pursue proceedings in public law. (ii) Does the Claimant have standing to seek judicial review in order to protect, or relying on, residents’ Article 8 rights?

[46]The Defendant concedes that action taken by a Public Authority in relation to a contract may be amenable to Judicial Review when it also involves(i) fraud corruption or bad faith (not alleged in this case) or

(ii) a sufficient nexus between the contractual action and the unlawful exercise of a public function: see Neuberger, LJ, as he then was in Hampshire CC –v- Supportways CSL

2006 EWCA Civ 1035

and Mummery, LJ.

[47]The Claimant argues that the Claimant does have such standing. First it relies on s145 Health and Social Care Act 2008. For the reasons set out above I do not accept that submission. Second, and independently of its s145 duty, the Claimant argues that it has standing to protect its elderly residents’ Article 8 rights regarding an individual resident’s right to respect for his or her private and family life.

[48]The Claimant points to cases where the Court has recognised that institutions such as care homes can be the proper Claimant in respect of the rights of those entrusted to their care – see Greencorns –v- Claverley Group Limited 2005 EMLR 31 and Forest Care Homes Limited –v- Pembrokeshire CC

2010 EWHC 3514

(Admin).

[49]I go first to Forest Care Homes Limited which is directly in point. In that case Hickinbottom, J said this “So far as the Council is concerned it is a public body and as such, where it makes a decision which may result in the removal of a vulnerable person from their home, with the potential associated stress, distress and adverse impact on his or her health, then that engages

Article 8 of the European Convention on Human Rights

; and removal may constitute an interference with those rights such that it would be allowed only if the removal is proportionate and justified in pursuit of a legitimate public aim (Watts –v- UK

2010 51EHRR SE5

Application No. 53586/09) at paragraph 97; and Manchester City Council –v- Pinnock 2010 UKSC45 at paragraphs 45 and 51-52). In making its decisions in relation to Section 21, the Council is required to bear that in mind and make the appropriate proportionality balancing exercise where necessary. The Claimants, as the owners of care homes in which the residents reside, have an interest in seeking to protect those Article 8 rights (Greencorns Limited –v- Claverley Group Limited

2005 EWHC 958

(QB).”

[50]The Defendant says that this decision was per incuriam, in that Section 7 Human Rights Act 1998 was not drawn to the attention of the judge. I deal with that point later, but I consider it desirable first to consider matters of principle as to standing to bring public law proceedings, subject later to consideration of whether there is statutory exclusion of proceedings by reason of s7 HRA 1998..

[51]In Supportways, Neuberger LJ, as he then was stated, “However it cannot be right that a Claimant suing a public body for breach of contract, who is dissatisfied with the remedy awarded him by private law, should be able to invoke public law simply because of his dissatisfaction, understandable though it may be. If he could do so it would place a party who contracts with a public body in an unjustifiably more privileged position than a party who contracts with anyone else, and a public body in an unjustifiably less favourable position than any other contracting party. Equally importantly, it appears to me that it would be wrong in principle for a person who would otherwise be limited to a private law claim to be entitled to base his claim in public law merely because private law does not afford him a sufficiently attractive remedy.” He had also said, “35. The fact that a contractual obligation is framed by reference to a statutory duty does not, in my view, render that obligation a public law duty.” Equally importantly, it appears to me that it would be wrong in principle for a person who would otherwise be limited to a private law claim to be entitled to base his claim in public law merely because private law does not afford him a sufficiently attractive remedy.”

[52]I will consider later in this judgment whether the Claimant can show that the obligation to act under statutory guidance, in particular the Escalating Concerns Guidance, engages any duty to the Claimant itself by the Local Authority.

[53]That apart, the observations cited from Supportways above are valuable but they are not unqualified, “38. Thus the mere fact that the party alleged to have been in breach of contract is a public body plainly cannot on its own transform what would otherwise be a private law claim into a public law claim. There are, of course, circumstances where in a contractual context a public body is susceptible to public law remedies. However where the claim is fundamentally contractual in nature, and involves no allegation of fraud or improper motive or the like against the public body, it would at least in the absence of very unusual circumstances, be right, as a matter of principle, to limit a Claimant to private law remedies”. (Neuberger, LJ at paragraph 38, emphasis supplied). Moreover whether a litigant has a sufficient interest in an alleged breach of public law duty is not a discretionary question but “a mixed question of fact and law; a question of fact and degree and the relationship between the (Claimant) and the matter to which the application relates, having regard to all the circumstances of the case” (RVIRC 1982 AC617 at 659A).

[54]There are considerations either way.

[55]In favour of the Defendant’s stance,(i) this is not a case where if the Claimant did not have standing, no one else would :namely the residents or their representatives, and in the ordinary course, the existence of directly affected persons able to litigate is a strong indication that the Claimant should not be treated as having standing;

(ii) provisions of the Mental Capacity Act 2005 particularly Sections 35, 36 and 39 in effect require the Local Authority to appoint an Independent Mental Capacity Advocate (“IMCA”) when it proposes to make arrangements for change in the residential accommodation of an incapacitated adult if satisfied that there is no person other than [the care provider] whom it would be appropriate for them to consult in determining what would be in [his] best interests;

(iii) the Claimant company clearly would not be appointed as a Litigation Friend for any of the residents, as would be necessary for proceedings on their behalf, for such can be appointed only if the litigation friend can conduct proceedings fairly and has no interest adverse to the protected party. (The Defendant also draws attention to Regulation 20(3) of the Care Homes (Wales) Regulations 2002, “the registered person shall ensure so far as practicable that persons working in the care home do not act as the agent of the service user”. However, that may be directed to protecting the possessions and or assets of vulnerable adults as against the individuals with whom they come into contact who are working in the care home, as opposed to steps taken by the care home itself).

[56]Conversely, the Claimant argues that it is unrealistic to expect that residents in this case would be able to assert their legal rights because of the number of practical hurdles that would need to be overcome:(i) they lack sufficient mental capacity and would be protected parties subject to the CPR 21 Procedure;

(ii) in the absence of a deputy or attorney under a registered Lasting Power of Attorney, a suitable Litigation Friend would have to be identified, whether an IMCA or a relative, who would have to take the necessary steps under CPR 21;

(iii) it is unlikely that any resident/family would be able to fund litigation privately and/or it would be necessary to rely on Legal Aid; but in particular

(iv) the speed with which action was required and the intervention of the Christmas and New Year break meant that taking these steps and time was unrealistic.

[57]Suppose a case where self evidently the Local Authority was acting capriciously in terminating the contract, and proposed immediately to start moving individual residents, such that imminently the home must become unviable and therefore close irrespective of the needs or interests and Article 8 rights of the remaining residents. It would seem to me surprising if as a matter of general principle the court were obliged as a threshold matter to decline to entertain judicial review proceedings. Those would be ‘very unusual circumstances’, to use the phrase from Supportways. That is of course an enhanced version of the Claimant’s factual case here. If the factual case, or the claim to represent interests of the individual residents, be flimsy or insufficient, the Court has power in any event to refuse permission.

[58]In my view, subject to any statutory bar to action by the care home under s 7(1) Human Rights Act 1998 (see below), the court should be willing to entertain application for interim relief in a very unusual case, during such period as might be necessary to preserve the status quo until individual residents or their representatives can themselves pursue application, if at all they choose to do so. Once there is time and opportunity for them to do so, there is plain risk of conflict of interest between the care home and the residents and insufficient reason why the care home should purportedly act on their behalf.

[59]Here it is advanced that the care home will have to close if removal of residents takes place pursuant to termination of the Contract, thereby eliminating the prospect of a resident remaining resident even if it is gravely contrary to his/her health and interests to do so, and thereby a breach of his/her Article 8 rights. However the Defendant “accepts that if – confounding its rational expectations – a “rare” case arose where one or more residents could not be safely transferred it would have to address that situation compliantly with its Convention obligations”. Leading counsel accepted in oral argument that this might have commercial implications. It did not appear to me that there was material to show lack of good faith in these assurances. Section 7(1) Human Rights Act 1998

[60]Leading Counsel for the Defendant argues that this is a complete bar to the Claimant proceeding in respect of Article 8 rights of the residents. By Section 7(1) HRA 1998 “a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by such Section 6(1) may –a. bring proceedings against the Authority under this Act in the appropriate Court or Tribunal or

b. rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.

[61]If I step back from cited Authorities, and ask myself whether in respect of the residents’ Article 8 rights the Claimant care home itself is a “victim” of the asserted breach of those rights the answer is, subject to consideration of further statutory provisions, No.

[62]I therefore turn to ask whether it is arguable that responsibilities in respect of closure of care homes gives rise to a duty by Local Authority or responsibility towards the Claimant company such that the Claimant company would itself be a “victim” of any breach.

[63]The argument developed by Counsel for the Claimant is that this was, in effect, closure by the Local Authority of the Claimant’s care home. Either the Defendant was therefore usurping the function of the regulator, CSSIW, as it was not entitled to do. Alternatively, the Escalating Concerns Guidance expressly contemplated a stepped approach with first, support being given to the care home to attain relevant standards; second, review by a JIMP (Joint Inter-agency Meeting) of which the care home would be given notice and 28 days to make representations; third, that the Guidance (as emphasised in bold in the citations) above commended maintenance rather than closure of the home if this were possible in the interests of the residents; fourth, a structured risk assessment before final decision to terminate. Since the Defendant was taking steps in effect to close the home, it was under an obligation to follow, or join in, such steps prior to any termination of the Contract, otherwise purported termination was in public law unlawful.

[64]In my judgment this conflates different responsibilities.

[65]First, a decision to terminate the licence of a registered home proprietor is that of the CSSIW, not that of the local authority, which has no power to do so. Second, the whole tapestry of the Guidance is framed in terms of protecting the interests of the resident or residents. I am unable to derive an intention, express or implied, that the considerations or procedures should be applied with a view to protecting the interests of the registered home proprietor. Third, the registered home proprietor may have remedies in private law in contract, for which the law properly provides in defence of his commercial interests, but it is difficult to see why statutory duties and responsibilities framed by reference to the interests of residents should be exercised with a view to protecting the commercial interests of the registered home proprietor.

[66]The Claimant claims to identify other material which supports its case, in the skeleton argument received after the hearing, arguing that “the Claimant is deemed to be the representative of the interests of residents pursuant to Part 3 12(2) of the Care Homes (Wales) Regulations 2002 and sub paragraphs11.1 and

11.2 of the National Minimum Standards (Old Persons – Wales 2003)”.

[67]Counsel cites Regulation 12(2) which provides, “the Registered Person [the Care Home] shall so far as practicable enable service users to make decisions with respects to the care they are to receive and their health and welfare”.

[68]Counsel further cites The National Minimum Standards for Care Homes for Older People, which provide, “11.1 the Registered Person ensures that service users have their legal and civic rights protected, are able to exercise their legal rights directly and participate in civic process if they wish. a. Where service users lack capacity, the registered person facilitates access to advocacy services”.

[69]In my respectful Judgment it is demonstrable that neither provision deems the Claimant to be the representative of the interests of residents. Indeed to the contrary each contemplates that the service users themselves should make decisions and/or should be enabled to exercise their legal rights directly, if necessary by access being facilitated to advocacy services. These provisions point, if at all, directly contrary to the representations of the Claimant.

[70]Leading Counsel for the Defendant in his submissions throughout recognised the responsibility of the Defendant to take account of the provisions in the Escalating Concerns Guidance, but declined to accept that this was a duty owed in favour of the Claimant. In my judgment he was right in both respects.

[71]I next consider whether European authority points to a different result.

[72]In my judgment leading counsel for the Defendant demonstrates that it is established that to acquire “victim” status one must be “directly affected” by the act or omission (e.g. Klass –v- Germany Application 5029/71 6 September 1978). Those “indirectly affected” can only bring proceedings where, exceptionally, it is “impossible” for those directly affected to do so. The European Court of Human Rights has recognised only very narrow exceptions.

[73]In support he cites Agrotexim –v- Greece (No. 15/1994/462/543 26 September 1995). In that case the Applicants sought decision as to whether the facts disclosed a breach by the Respondent’s state of its obligations under Article 6 and 13 of the Convention and Article 1 of Protocol No. 1 (peaceful enjoyment of possessions). The Government contended that the Application was inadmissible. A preliminary study of the case led the Court to conclude that it may be possible to regard the successive actions of Athens Municipal Council as a series of steps amounting to a continuing violation of relevant rights. However the “victim” was in each case the company. The liquidators of the company, if any, could bring an action. A dissenting opinion considered it anomalous that the defence of human rights in the field of property, or otherwise, should yield to the impenetrability of the corporate veil but the Court held by a majority of 9-1 to the contrary.

[74]It follows that in my judgment the submissions of the Defendant are well founded that insofar as the Claimant seeks to pursue these proceedings in defence of the Article 8 rights of the residents, it is precluded from doing so because it is not the victim of a breach of those rights. I will need later to consider the claim in respect of its own Article 1 property rights. (iii) If there were standing , what duties are owed and is it arguable, or the case, that the Defendant is in breach of duties owed to residents, in such a way as to entitle the Claimant to the relief which it seeks?

[75]In case I be wrong as to this, I turn to the intrinsic merits of any Application in respect of breach of the Article 8 rights of the residents.

[76]The letter of termination dated 12th December 2011 is addressed to Mr Bamrah, in practical terms the owner of the Claimant and the Hillside Care Home. It reads, “We have been instructed to write to you again in relation to the contract between you and Caerphilly CBC in relation to Hillside Care Home. We have been made aware of a serious breach of your contract with Caerphilly CBC, which has involved neglect of residents. This includes but is not limited to, two recent POVA (Protection Of Vulnerable Adults) referrals for neglect that have shown that despite severe weight loss and concerns about medication and nutrition, no referrals to appropriate health service were made. In light of the serious breach we are entitled to terminate the contract with immediate effect under Clause 18. Our Social Services Department will be in contact with you in respect of interim arrangements with the respect for the homes. This breach is in addition to ongoing minor and persistent breaches, which you have been made aware of as a result of the contract for meeting you attended on 15th July 2011, and the action plan that was provided to you. Neither the action plan nor the 4 outstanding Compliance Notices from the Care and Social Services Inspectorate for Wales (CCSIW) have been complied with: this is also a clear breach of the contract. This would also entitle us to terminate the contract under Clause 18. As you will be aware the individual care plans form part of the contract (under Clause 5(c)) please therefore also accept this as their termination. Clause 6(e) of the care plan contracts also entitles us to terminate the agreement on the grounds that there are serious concerns of the wellbeing of the residents”. The letter proposed a continuity period of 2 to 3 months depending on the residents that remained at the home, to allow a smooth transition for residents.

[77]The Claimant contends that termination was disproportionate and/or outside the reasonable discretion of the Defendant, for a number of reasons.(i) At the meeting of 15th July 2011 between the Claimant and the Defendant, referred to in the letter of confirmation, there was no notice of contemplated termination of the Contract, and on the contrary the Claimant was given to understand that it was the Defendant’s intention to maintain it.

(ii) There was not adequate investigation or sufficient evidence to justify termination of the contract without notice (or at all).

(iii) There was an implied duty to consult with (a) the residents or their representatives and (b) the Claimant prior to taking the decision to terminate

(iv) The Defendant cannot reasonably have had concerns such as warranted termination without notice, where beyond July 2011 it continued to refer residents to the home, and/or following the meeting of July 2011 the Defendant did not send to the Claimant an Action Plan specifying matters for development or correction until 21.10.2011; and it was contended by Counsel for the Claimant in oral argument that the Defendant needed to tell the Claimant in the Action Plan what was the order of priority for dealing with that which ought to be brought up to standard.

(v) There may have been system failures, but those went to matters of incomplete or inadequate written records, or reporting to the Local Authority, and the Claimant does not accept in these proceedings that systems failures led to serious harm to residents.

(vi) In respect of the two recent POVA’s for neglect to which reference is made in the letter of termination, close examination of the records and evidence will show that whether or not the Claimant’s records were complete in respect of those residents, no harm came to them; paperwork not being up to standard is not a rationale for closure of a home.

(vii) The Claimant was able to show that several residents, or their relatives, were disappointed by the prospect of a move from this home in consequence of the Defendant’s termination of the contract, and/or approving of the care which the resident had received at the home, and/or that there was perceived pressure on the part of Social Workers in discussions to regard a move as desirable or imminent. In addition, as reflected in the Amended Grounds of Claim, the Claimant contended that in reality the decision to terminate the contract was taken on 30th November 2011. This arose from a minute of an internal meeting held on that date within the Local Authority “Meeting held between Dave Street and the Service Managers where the serious concerns were discussed and weighed against the risk to residents of moving them. The disruption to relatives/residents of moving them before Christmas or the risks of them being in the home over Christmas with the concerns was considered. These risks were weighed up and considered to be serious. It was considered that the two POVA referrals highlighted a serious breach and in light of the competency issues that there are with the manager and the potential serious consequences of medical referrals not being made. The alternative provisions for the residents at the home and practical considerations was discussed in detail. It was agreed that a full assessment would be needed in relation to each individual residents capacity and following on from that a meeting with each relative. It was decided that the decision to terminate should not result in the immediate removal of residents, as this would not allow for the best way to manage process for relatives instead a planned procedure of a period of three months was suggested whereby the needs and wishes of each resident could be ascertained before they were moved. It was acknowledged that this would require the co-operation of the Home, as once the contract was terminated they would not be required under the contract to care, other than the requirements of the Care Standards.”

[78]I note that Mr Bamrah, the owner, deposed to frustration that during the period from July 2011 to purported termination of the Contract, the home was subject to inspections respectively by the Local Authority and CSSIW without proper liaison between them, and with each making demands for improvements and without indicating priorities or sufficiently time-scaled. The meeting of 15 July 2011.

[79]The Claimant places great emphasis upon the meeting of 15th July 2011. The minutes of that date include this, “AP [Solicitor for the Local Authority] confirmed that with regard to recommendations made by us, the Authority would assist SB [Mr Bamrah, the owner] to complete these, however with regard to any requirements not completed, this would result in a breach of the contract. AP further stressed that the default clearly states both parties must work together and this clearly has not been done. AC [Solicitor for the Claimant] requested clarification from AP whether the Authority felt SB was in breach of the Contract. AP explained that SB was potentially in breach of the Contract due to the default therefore an Action Plan was required. AP observed that the monitoring reports provide evidence of potential breaches, which necessitates both parties working together hence the reason for this meeting being called today. AC noted that SB had advised her that a number of issues had been corrected since the last monitoring visit. VD [Vivienne Daye Commissioning Service Manager for the Local Authority] suggested that a further monitoring visit was required and highlighted progress to date as follows: December 2010 – outstanding issues remaining. April 2011 – further issues raised. June and July 2011 – Compliance Notices issued by CSSIW”.

[80]Witness statements, from Miss Castrey the Solicitor for the Claimant and Mr Bamrah, state that in this meeting Miss Price confirmed that Hillside was not in breach of contract. Thus the evidence of the Claimant is that the meeting of July 2011 gave positive reassurance by the Defendant that the Claimant was not in relevant breach of contract and/or that there was no intention to terminate the contract. Heavy reliance is placed on this in support of argument that the later decision to terminate, and to do so without notice of default, was ill-founded and irrational.

[81]In argument, emphasis was placed on the absence of witness statement for the Defendant from either Viv Daye or Angharad Price the Solicitor for the Local Authority, who were in attendance, to contradict these statements.

[82]However the minutes of the meeting of 15th July 2011 do not stand alone.

[83]The meeting of 15th July 2011 was preceded by a letter from Miss Price Solicitor for the Local Authority to Mr Bamrah dated 6th July 2011. This letter included the following, “As you will be aware, the Contract Monitoring Officer assessed your compliance and provided you with a report dated 16th December 2010. This report highlighted a number of quality issues and asked you to take action in respect of them within 2 months; these issues remain outstanding to date. A meeting was held between yourself and relevant service managers on 23rd March 2011 to discuss the ongoing concerns in relation to the quality of service at home. A further contract monitoring report dated 6th April 2011 (also enclosed) identified that the issues remained outstanding. You were sent this report and you were asked to provide a written response by 20th April 2011. To date you have not provided this response…… On 18th May 2011 the Service Manager wrote to you confirming that the response with regards to the safeguarding issues were satisfactory, but that the quality issues remained outstanding. A new date for the Contract Default meeting was arranged [Mr Bamrah did not attend, but this appears to have been because of a mis-addressed letter]…… As you will be aware, this is not the first time quality issued have been raised, as the home went through out Provider Performance Procedure in both 2007 and 2009. This shows our commitment to improvement and the number of opportunities you have been given to improve. Clause 15(d)(c) of the Contract states “It is the responsibility of the party dealing with that fault to remedy the situation at no extra costs to the other party and to meet any resulting costs arising directly from the default”. If you do not co-operate with us in relation to the default, we will have no option but to enforce this Clause and to seek that you pay the costs of any action. We are also very concerned about the management arrangements you have in place at the home, as we understand that there is still no registered manager”. “It is the responsibility of the party dealing with that fault to remedy the situation at no extra costs to the other party and to meet any resulting costs arising directly from the default”.

[84]By letter dated 14th July 2011 Miss Castrey wrote to Miss Price the Solicitor for the Local Authority contesting the sequence of events related, and stating this, “The tone of Ms Powell’s report [the Monitoring Officer for the Local Authority in respect of this home] contrasts markedly with the tone of the letters of 4th and 21st April 2011, and your letter of 6th July 2011. It is not clear to me, reading these documents as would a court, whether the Council is alleging ‘serious breach’ or ‘minor and persistent breach, or both, and precisely in relation to which contractual requirements. It also seems to me that neither the letter of 21st April 2011 nor your letter of 6th July 2011 are sufficiently clear as to the “nature of the default” required by Clause 15(a) of the Contract”.

[85]On the one hand, it is clear that the focus of the meeting of 15 July 2011 was not, on the part of the Local Authority, then to propose termination of the contract.

[86]However, there appears to me to be a deep sense of unreality in the submissions and stance of the Claimant, both upon considering the minutes of the meeting itself, and those minutes in context. This is so even if I confine myself to the evidence presented prior to the date of hearing on 9th January 2012, One cannot focus on the phrase “AP explained that SB was potentially in breach of the contract” to the exclusion of all other material.(i) The minutes of the meeting themselves are headed, in bold, “MINUTES OF CONTRACT DEFAULT MEETINGS”.

(ii) The letter dated 6th July 2011 from the Local Authority had stated, and clearly given warning, as to defaults which had been identified and yet remained outstanding, and those which needed current corrections.

(iii) The context of the meeting was that this care home had been in the ownership and control of the Claimant since 2006. It was the responsibility of the Claimant to identify and remedy any defaults, and bring the home if necessary up to the required standard. The letter dated 6th July 2011, from the solicitor for the Defendant, had identified defaults and the fact that they remained despite two periods of prior support for the home.

(iv) Nothing in the minutes suggests that the local authority considered that the defaults it alleged in its letter of 6th July 2011 had disappeared or been corrected. In my judgment, the minutes of 15th July 2011as a whole, and read fairly, demonstrate concern on the part of the Local Authority as to continuing defaults. In context, it is irresistible that it considered that there were continuing defaults.

[87]The context of those minutes includes the concern expressed in Miss Castrey’s letter of 14th July 2011 as to the tone of the monitoring officer’s report. That report, (by Geraldine Powell) dated 27th April 2011 is included in the evidence placed before the Court by the Defendant at the hearing of 9th January 2012 (Bundle D/677). That report records 18 areas for corrective actions (in other words for correcting default) and 4 items for developmental actions.

[88]Illustratively again, the minutes of the meeting of 15 July 2011 include that “SB [Mr Bamrah] requested that a further monitoring visit not be undertaken until September – VD[Vivienne Daye] agreed to this on the basis that SB will need to respond to the compliance notices for CSSIW in the meantime and GP[Geraldine Powell]will liaise with CSSIW where necessary”.

[89]Mr Street stated in his first witness statement that it was obvious that the clause 15 procedure was being followed and that could result in termination. It was objected at the hearing that he had not been present at the meeting, and that it was telling that no statement had been lodged from Miss Price or Ms Daye. In reply the Defendant served a statement from Ms Daye stating that it had been thought convenient to have one overarching witness statement from Mr Street, that Miss Price had been present a court on 22 December 2011 and confirmed her understanding of what she said on 15 July, and that “I am no lawyer but can confirm unequivocally that my understanding of the meeting was that it was convened to deal with long-standing failures by the Claimant to abide by its contractual commitments”. As to the heading of the minutes, “Contract Default Meeting”, she states that the “contract default” process is the next level (beyond support provided to failing homes) that applies where the Defendant wishes to take action on account of breaches of contract by a home. This is consistent with my own reading of the minutes as a whole, in themselves, and in context.

[90]Willingness on the part of the Local Authority to assist the home does not and did not remove or minimise the obligation of the home to comply with the required standards, or convert a default into a non-default. Illustratively, it is and was a requirement of the licence of the home that there be a manager registered with CSSIW, yet on 15th July no manager was then in post, (as recorded n the minutes of meeting). It is pertinent to observe that even to date, January 2012, Miss Price the manager appointed on 20th July 2011 has still not been registered with CSSIW. General approach of the court in its supervisory jurisdiction.

[91]Before turning to the remaining matters of factual complaint by the Claimant, I remind myself of the general principles of this Court. Judicial review is “not intended to take away from….. authorities the powers and discretions properly vested in them by law and to substitute the Courts as the bodies making the decisions” (Chief Constable North Wales Police –v- Evans

1982 1WLR 1155

at 1160 E-H).

[92]It is well established that “where the existence or non existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debateable to the just conceivable, i It is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely (Puhlofer R –v- Hillingdon LBC 1986 AC484 518 D-E). (I note that more recently, in a community care case Hallett, LJ said “those remarks may have been directed at a different statutory function in a different era, but to my mind, they are as pertinent today as they were in 1980” (R (Ireneschild) –v- Lambeth LBC

2007 EWCA Civ 234

at paragraph 44).

[93]“It has been said time without number that in exercising supervisory jurisdiction this Court is not concerned with the substantive merits of an administrative decision and will not entertain an appeal on the facts” (R –v- SOS for Education etc. 1996 ELR 162, 205 C-E). “These grounds…. are fact dressed up as law. Time and again, despite repeated protests in this Court and in the Administrative Court, points are taken in Judicial Review cases which are not points of law at all. This is a waste of scarce resources and an impediment to the clear and transparent development of public law principles” (R (Abbey Mine) –v- Coal Authority

2008 EWCA Civ 353

at paragraph 25). In those case where a public Authority is under a duty to ascertain and take into account relevant information, it is a matter for the Local Authority to decide what is relevant, and on the manner and intensity of its enquiries, subject only to Wednesbury (and the provisions of legislation): R. (Khatun –v- Newham LBC 2005 1QB37 at paragraphs 33-35).

[94]An illustration can be given immediately. The Claimant exhibits a report from Professor Jolley dated February 2003 reviewing the research literature as to the degree of risk to old people given that in his opinion “the realities of transfer experiences are often extremely traumatic, despite the best intentions of everyone concerned”. The research includes a summary by Dr Dalley that “where research has been undertaken, the evidence is equivocal” and “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”.

[95]Professor Jolley’s expressed view is that from common experience and his own clinical experience and 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 bringing forth death”.

[96]In part, the Claimant’s case is advanced (at least in the witness statements) in high tones as to the prospective risk to the residents of Hill Side in the event of removal. However as can be seen above the research literature here cited shows equivocality, and it is difficult to envisage this Court substituting its impression for the conclusion formed by the Local Authority by reference to the report observations and assessments carried out by those who have Social Work responsibility for the individual residents, or are charged with assessments now in relation to possible risk of remaining in the home and possible risk by removing the resident from it.

[97]Similarly, the Claimant submits witness statements from a Mr Terry Beecham, a former Inspector for CSSIW who in October 2011 was asked “to provide continuity of professional advisory support to Hill Side” (witness statement paragraph 5 Bundle A/51) (If there was prior professional advisory support to Hill Side, which he continued, it is not identified). He says that in his view Mr Bamrah and Mrs Price the Manager have been diligent and determined to address the regulatory compliance issues identified by CSSIW together with other issues identified by the Local Authority. “Progress has been measurable and, given the short time this manager has been in post, quite significant”. He then sets out areas where progress has been made. “They acknowledge and take seriously the issues raised by visiting Authorities and there is much evidence to demonstrate they’re responding effectively and responsibly to the issues raised. It has been a difficult year for Hill Side, exacerbated by the previous manager leaving in March. The receipt of 9 regulatory compliance notices at a time when no manager was in post and the difficult time frames set to rectify the issues have proven to be very stressful for all concerned at the Home (witness statement paragraph 23 Bundle A/55)

[98]He then offers his professional opinion that the standard of care at Hill Side is compatible with other residential homes of similar size providing care to elderly people. I leave aside that the Claimant has owned and operated this home since 2006 with opportunity to properly organise its systems and deal with any deficiencies. Even if this is were admissible as expert opinion evidence, which is open to doubt,(i) it would be inappropriate to enter into elaborate analysis of the evidence to resolve the differences between himself and Mr Street and

(ii) the statutory duties and responsibilities were those of the Local Authority, not Mr Beecham, and the general principles of a review jurisdiction which I identify above show that it would be inappropriate to enter into such analysis.

[99]At this point I do not find it necessary to embark on a minute examination of whether the test here is irrationality/Wednesbury reasonableness or “proportionality” since even a “proportionality” test would accord very considerable respect to the approach of the Local Authority.

[100]The Claimant argues that the Defendant confuses assessment for the purposes of s47 NHSCC Act 1990 (see paragraph 22 above) with the required comparative assessment of risk to residents from remaining, or being removed. As to whether an assessment was made of the risks to residents of moving, or of remaining, the note of the meeting held internally in the Local Authority on 30th November 2011 cited above expressly does considers them. In addition, there seems to me force in the response made by the Defendant, namely that it has appointed a care manager for each resident (Bundle D/614), has enlisted assistance from community psychiatric nurses (D/627) has a best interests assessment in place for each resident (D/627) and alert to providing independent advocates where required (D/627).

[101]As to the individual POVA referrals in respect of residents MM and JW, where the Claimant seeks to examine minutely whether either resident came to harm, the materials exhibited demonstrate that the Local Authority was much concerned by the absence of documentation which would show that the proper steps were taken. Such documentation is part of the mechanism by which the Local Authority monitors whether the care home is giving proper care or placing residents at risk.

[102]Running through their witness statements, Mr Bamrah and Mrs Price consistently down-play the importance of documentation, or system, as opposed to the physical and hands on care. In my judgment it is reasonably open to the Local Authority to take a more serious view of failings of documentation or system.

[103]As to the number or extent of concerns, the Action Plans of 21st October 2011, as further updated and shown in the materials before the Court, demonstrate a very considerable number of items which the Local Authority considers require addressing, some of which as updated and subject to a risk matrix are shown in colour as of particular concern. Inference is invited that proper concern on the part of the Defendant cannot have been very great, in that the document was not sent to the Claimant until late October 2011. This seems to me insufficiently to recognise the fact that the Contract Default Meeting of 15 July 2011 followed the report of April 2011 for the Defendant by Ms Powell the tone of which alarmed Miss Castrey, or the fact that the deferral until September 2011 of a further monitoring visit by the local authority as asked for by Mr Bamrah was agreed on the basis that he would respond to compliance notices by CSSIW (see paragraph 88 above). It is common ground that from October 2011 the frequency of monitoring was increased to weekly visits. It would be surprising if this were a badge of satisfaction with the progress by the Claimant and without descening into detail the exhibited evidence is to the contrary.

[104]In relation to each individual and his or her care plan, I observe that a “Hill Side sub group meeting” of 22nd December 2011 of those within the Local Authority attended by Local Authority service managers commissioning team members Social Workers, and nurses or district nurses, exhibits a record as to the current situation or progress in respect of each of the Local Authority funded residents including consultation as to the wishes of them and/or their relatives.

[105]Mr Street in a second witness statement, states the following, “Social Workers have been allocated to work with each resident whose needs will be reassessed including any specialist assessments that are required, e.g. mental health, moving and handling, behaviour, medication etc. These are being undertaken by other professionals such as community nurses, community psychiatric nurses, occupational therapists, etc. It is important to note that there are existing assessments, risks assessments and care plans in place. The assessment includes the views of the resident, family, care home staff, other specialist assessors, and any other relevant person in compliance with Unified Assessment Guidance……. Known or anticipated issues in relation to the actual move of an individual is included in the care plan and discussed with the new care home staff……… It is important to note that individuals moving from one care home to another is a frequent occurrence in a Social Workers case load. Individuals can move from one home to another for a variety of reasons e.g. choice, existing care home unable to manage their needs, people needing alternative categories of care due to a deterioration in their health etc. (Paragraphs 40 to 43).”

[106]In his first witness statement he stated that following 24 November 2011, and the sending of minutes to the care home in relation to residents MA and MM , who had been the subject of PoVA referral, “The risk to the residents remaining at the Home had to be carefully weighed against the risks and disruption caused in moving them”.

[107]There is no suggestion of malice or bad faith here, and the previous history is one of the Defendant local authority seeking to support this care home. Further as to the assessment of comparative risk by termination of the Contract and removal (referred to in the record of internal meeting on 30 November 2011) I do not see evidence on which I should conclude that these assessments were other than conscientiously and honestly made.

[108]I bear in mind that in relation to the incident involving MA, (a member of staff speaking inappropriately to the resident), the Claimant can point to the following minuted comments, “ WA [PoVA co-ordinator for the local authority] advised he has held strategy discussion with CSSIW who did not feel there had been a breach of the Care Standards Act 2000. …WA advised that he has held strategy discussions with Geraldine Powell who advised that although she has no particular current concerns in regard to Hill side, she does question why this issue was not raised at the point of first disclosure”. I further bear in mind that the member of staff was moved form contact and supervised (Bundle C/450), although this is a level of micro-analysis of the evidence which one does not expect of a court of supervisory jurisdiction. But if this entry is proposed as a general vindication of the Claimant, or the insignificance of reasonable concern on the part of the Defendant, it seems wide of the mark. This is a minute of the ongoing investigation of the PoVA referral of the resident MA.

[109]Otherwise, I remind myself that it is for the public authority in question in exercise of discretion under statutory duties to decide what is relevant, and the manner and intensity of its enquiries. I have considered all of the materials put before the court. I am un-persuaded that the material before the court can support a finding that the Defendant failed to assess risks of moving against risks of remaining, or that in doing so the Defendant was guilty of Wednesbury unreasonableness, or reached a decision which is shown to be disproportionate to the concerns which it genuinely had.

[110]In relation to the Escalating Concerns Guidance, such includes that it will warrant proactive or reactive intervention from those commissioning services, designed to improve the quality of services and, where possible, prevent what might be avoidable home closure; and that “The overriding objective should be to ensure the safety of vulnerable service users. In many situations it will be in the best interests of service users to use the escalating concerns procedure alongside the adult protection procedures in an effort to keep the home open” (see above). First, such includes as its “overriding objective” the safety of vulnerable service users. I do not see why this should be restricted to a case where actual harm is shown, rather than also the absence or insufficiency of documentation or system such as will enable the local authority to ensure that no harm has been or is suffered. Second, the guidance is not framed in terms requiring what may lead to closure be rare or exceptional. Unsurprisingly, it is in general terms. Third, this is a home where there had been periods of support in 2007 and 2009 and here again the number of concerns was considerable. The intensity of those concerns is, first and foremost, within the sphere of what the Defendant has itself to assess.

[111]The Escalating Concerns Guidance refers to involvement of Joint Interagency Monitoring Panel, (JIMP). A witness statement from Vivien Daye the Local Authority’s Service Manager for Commissioning, states that the Council does not have and never has had a group called a JIMP (Joint Inter Agency Monitoring Panel) but that instead of a JIMP, the Counsel has a Provider Performance Monitoring Group, which is convened when required.

[112]“If necessary and convened, this group discharges all the functions of a JIMP under Escalating Concerns it also has a wider monitoring function, over provider support and contract default.” The evidence and materials before me are consistent with this and with the Local Authority having taken account of the Escalating Concerns Guidance.

[113]For completeness I need to deal with two authorities on which the Claimant sought to rely.

[114]Mavalon Care Limited was a case decided by Mr Justice Beatson in respect of the commissioning of care from operating care and nursing homes in Pembrokeshire. Counsel for the Claimant placed particular reliance on his observation that since the Council has said that it would apply a particular tool it had modelled for determining the rate of return on capital, in a given sum, “that factor and the terms of the Welsh Assembly Governments Commissioning Guidance mean that, as accepted by the Council, the starting point was not a clean sheet” (paragraph 41 2011 EWHC 3371).

[115]It is said that likewise here, because of the statutory guidance as to Escalating Concerns, there was not a clean sheet, and the Court should look with particularity at what the Local Authority has done. The observation of Beatson, J was of importance in that case in its own context, but I do not find it of assistance to me in the present case. In that case there was a particular measure, the tool kit model as to rate of return, which the Council accepted was the proper measure upon which to proceed. There is nothing to indicate that some different measure, or different approach was adopted by the Local Authority in other cases or in its prior experience, but failed to adopt it in the present case. Beyond that, I have I any event considered, and the Defendant concedes that as against service users it had a duty to take it into account. Did the Defendant fail to give the Claimant prior notice of its intentions and/or an adequate account of its reasons, such that the decision was procedurally unfair (and, the Claimant would add, and/or such that the Claimant was deprived of an opportunity to remedy the situation)?

[116]It is asserted that the Defendant local authority was under a public law duty to consult with relatives before terminating the contract. The Claimant asserts this, but the extent to which the right to be consulted can be implied into the exercise of statutory power or duty is ultimately a matter of construction (as Patten, LJ observed in Buckinghamshire CC –v- Kingston Upon Thames RLBC

2011 EWCA Civ 457

at paragraph 51). It is interesting that the Escalating Concerns Guidance expressly enjoins,“when home closures occur”, working with service users and their families. It might be beneficial desirable for a local authority to consult residents before terminating the Contract, but what the practical mechanism would be, beyond assessing residents so as to assess the comparative risks of remaining and removal, is not clear to me. I have been unable to identify a statutory power or duty in this case from which a public law duty to consult with relatives before terminating the main contract is derived.

[117]Lastly, reference was made to the case of Unwin where the Court of Appeal considered s17 Local Government Act 1988, which excludes non commercial considerations in the award of a contract. The Court there was willing to intervene. However that was not a matter of a contract being entered into, and consideration of whether it should be terminated. It was considering inclusion of a company on a list in the exercise of a public law power.

[118]In this case, there are private law remedies available to the Claimant, if it can prove its case, in contract. In Unwin, precisely because no contract had been given to the Claimant, there was no remedy available to the Claimant unless it was a public law remedy.

[119]In the further skeleton argument, the Claimant argues that the Local Authority has here removed the Claimant from its authorised registered provider list. This is because a Dr Lewis refers to a list of homes given by a Social Worker from the Local Authority just before Christmas, on which the Claimants home does not appear.(i) As clearly appears from the face of the document, it is a list of registered homes that the Defendant is indicating are available to members of the public, where members of the public may choose to go, or place their relatives; it is obvious why in respect of an individual resident concerned here the Defendant would not itself suggest that members of the public should choose Hill Side.

(ii) It had already been stated in evidence on behalf of the Defendant Local Authority that it does not maintain an approved care home providers list in other words a list of care home providers who are the only care home providers with which it will contract.

(iii) I accept the contention that as a matter of law it would be prohibited from maintaining any such list, because of the choice of accommodation directions, which require the Defendant to enter into arrangements with any care home chosen by a prospective resident, providing the relevant conditions are met at the time. I respectfully consider that there is nothing in this point.

[120]I am careful not to comply out of context, or with undue weight, observations from individual cases. However, in the context of asserted risk of death by removal of residents from a home, I note with interest the observations of Sedley, LJ as to the volume of litigation which there has been, and that “It may be the litigation at least in its early phase concentrated the minds of Local Authorities on the nature and extent of their duties towards care home residents who had to be relocated; but there has been no evidence before the Courts in recent Applications of which we have knowledge that these duties are being either ignored or violated. Nothing is wholly without risk, but so long as Councils do the best that can professionally be done to minimise the risks to frail and elderly people in their care, the law has no immediate role to play” (R (Turner) –v- Southampton CC

2009 EWCA Civ 1290

at paragraph 32).

[121]It would be contrary to the principles which govern this Review jurisdiction for me to enter into a detailed findings upon the evidence of the respective assertions made by each side in relation to considerations (i) to (v) at paragraph 9 above. Individually and cumulatively, although (or because) I have considered all materials placed before me with care, I do not consider that it is arguable that the Claimants show breach of the Article 8 Rights of Residence such that the Court should consider public law remedy against the termination of the contract. The Claimant’s asserted rights under Article 1 of the First Protocol of the Convention.

[122]Article 1 provides a right to peaceful enjoyment of ones possessions. The further skeleton argument is certainly concise in its submission, namely that ‘the Claimant’s rights under Article 1 have been infringed by the decision, and that it relies on its Convention Rights in these proceedings as a victim of the unlawful act, pursuant to Section 7 Human Rights Act 1998. – Jain –v- Trent Strategic Health Authority 2009 1AC853’.

[123]I readily see that the Hill Side care home itself is a possession of the Claimant for the purposes of Article 1. There may be engagement of Article 1 if there is interference of the peaceful enjoyment of possessions, or deprivation of possessions, or control of the use of property. Deprivation of possessions is, so far as I discern from the Authority, a reference to the deprivation of ownership. (See 18.104 The Law of Human Rights Clayton and Tomlinson 2nd Edition).

[124]I respectfully discern some confusion in the approach of the Claimant by way of asserting that the Defendant has affected “closure” of the Centre. It has not deprived the Claimant of ownership of Hill Side Care Centre. It remains open to the Claimant to make use of Hill Side Care Centre, if it be commercially viable. It is open to the Claimant to invite and to receive other residents for the services provided there.

[125]Jain was a case where the owners of a home had a valuable right, namely the licence to operate as a registered home. The registration Authority made Ex-parte Application to the Court for the cancellation of registration of a nursing home using evidence which was gravely flawed. The Magistrate granted the Application which had the effect of requiring the immediate removal from the nursing home of the 33 elderly and infirm patients who were living there, even though Mr and Mrs Jain had been given no prior notice of the Application or of the grounds on which it was made.

[126]But in the present case, unlike Jain the Defendant is not the regulatory authority and it has not made a regulatory decision prohibiting the use of the Centre as a Care Home or, consequently, interfering as a State body with the use which the Claimant was making of the property. It would certainly be novel if simple termination of a contract, or indeed individual care plan contracts, was regarded as a matter which engaged Article 1.

[127]If the contract has been terminated wrongfully, the Claimant has private law remedies to enforce the rights enjoyed by it under that contract. I am conscious of how concisely the Claimant puts the matter, and how little authority is placed before me to which I can turn. . However I do not here discern deprivation of possessions or ownership, or interference with “possessions” within the meaning of Article 1. If I were wrong in this, I nonetheless see no arguable prospect of success, for the same reasons as set out above. Amendment to pursue Public Law view of termination of individual care plan contracts.

[128]As I have indicated above, this is not a matter for which permission was given. First, at the suit of the Claimant it is difficult to see that the Claimant will enjoy better prospects of success in relation to an individual resident’s contract than it does in respect of termination of the Contract. Second it potentially raises very different considerations. It would raise(i) consideration of the circumstances of the particular and in individual care plan contract in each case, and of each individual resident

(ii) whether in respect of that particular individual that there has been inadequate assessment of risk

(iii) whether in respect of each individual resident, by his appointed representative or IMCA , there is in fact a wish to resist removal. All this is raised four weeks on from the letter dated 12 December 2011. Provisionally only, because I have not had argument, it seems to be a matter where it is the representative of an individual who ought, if at all, to be pursuing application. If that amendment is pursued it may be necessary for directions for filing of further argument upon it, unless the parties elect to stand on their existing submissions. Injunctive relief in Queen’s Bench contractual proceedings.

[129]Leading counsel for the Defendant in his skeleton argument raises formidable argument that specific performance or injunctive relief is inappropriate in support of the application by the Defendant that this part of the claim should be struck out. However time did not permit oral argument on this point on 9th January 2012 and I can form no concluded view. If necessary the parties can seek directions in respect of the hearing of that application. Interim relief pending judgment.

[130]I have ruled separately upon, and not without hesitation granted relief for the very short period to delivery of judgment in respect of, an application issued on Thursday afternoon 12th January 2012, ,

[131]This judgment will be sent to the parties by e-mail in the usual way to allow them to correct typographical or obvious error but I shall abridge time for them to do so with a view to delivering judgment on Thursday of this week 19th January 2012, or such other date as they may propose if capable of being then listed by the court. I would consider handing down judgment in the absence of the parties, deferring any consequential matters, if they jointly so prefer.

Broadway Care Centre Ltd, R (on the application of) v Caerphilly County Borough Council [2012] EWHC 37 (Admin)

Cited in 4 later judgments