Davis & Anor v West Sussex County Council [2012] EWHC 2152 (QB)

Case No CO/2213/2011

[2012] EWHC 2152 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/08/2012

Before

HIS HONOUR JUDGE MACKIE QC

Between

MARY DAVISClaimants

PHILIP DAVISClaimant

WEST SUSSEX COUNTY COUNCILDefendant

Mr Mathew Purchase (instructed by David Collins Solicitors) for Claimants

Mr Bryan McGuire QC (instructed by West Sussex Legal) for Defendant

Hearing Hearing dates: 26 to 28 June 2012

Judgment

JUDGE MACKIE QC:

[1]The Claimants own two care homes and apply, with permission from Langstaff J, to quash decisions made by the Defendant (“West Sussex”) at a case conference which they say were made in breach of the rules of natural justice, government guidance, the Defendant’s own policies and a legitimate expectation. The Defendant denies this and has also recently asserted by amendment that dealings between the parties was governed by their private law contractual arrangements and that it owed the Claimants, as opposed to others, no relevant public law duties.

Background

[2]The Claimants own Nyton House Care Home in Westergate, West Sussex. The Defendant (“West Sussex”) has public responsibilities for the protection of vulnerable adults under which it enters into contracts with care homes. As part of these responsibilities it may investigate alleged abuse at a home whether or not it has a contract with the owner. Following such an investigation West Sussex decided at a “safeguarding vulnerable adults case conference” (The Case Conference) on 10 December 2010 that;(a) fifteen allegations of abuse of a number of residents, made against various members of staff at Nyton House and against Nyton House as an ‘institution’, were ‘substantiated’;

(b) ten further allegations of abuse of residents, made against members of staff, were ‘inconclusive’ (rather than ‘unsubstantiated’);

(d) three members of staff at Nyton House should be referred to the Independent Safeguarding Authority (‘the ISA’) and/or the Nursing and Midwifery Council (‘the NMC’) for possible disciplinary action.

[3]The Claimants submit that these are findings of the utmost gravity which called for the most serious and informed prior consideration. They say that much of the supposed abuse arose from the fact that staff at Nyton House (whom the Claimants claim were perfectly qualified to do so) undertook treatments of particular residents which the Defendant felt should have been left to the community nursing service. The Claimants contend that those interventions were in the residents’ best interests and with their full approval. It has not been alleged that there was intentional or reckless neglect of residents. No resident has supported the allegations and the relatives of some have strongly supported the Claimants. The police investigated the allegations but took no action. Complaints made by the Defendant to the professional bodies of some of the staff involved have not been upheld. The Quality Care Commission investigated the home after the allegations had been made and withdrew its initial suspension (imposed following a report from the Defendant) finding that all the Key Essential Standards had been met. The Claimants main objections to the process, all vigorously challenged by the Defendant, are that;(a) They were not given adequate notice of the allegations made against them so as to allow them a fair opportunity to present their case at the Case Conference. They were only provided with a copy of the very substantial Investigation Report – which set out the allegations for the first time, albeit in unclear form – one working day before the Case Conference.

(b) They were not shown the evidence against them.

(d) They were not permitted, or given an adequate opportunity, to produce relevant evidence to the Case Conference, whether through witnesses or otherwise.

The relevant legal functions of West Sussex

[4]Under section 47(1) of the National Health Service and Community Care Act 1990:

“… where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of such services, the authority – (a) shall carry out an assessment of his need for those services; and (b) having regard to the results of that assessment, shall decide whether his needs call for the provision by them of any such services.”

[5]Under section 21(1) of the National Assistance Act 1948 (‘the 1948 Act’):

“… a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing – (a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them…”

[6]Under section 26 of the 1948 Act, local authorities may commission the provision of such accommodation from the private sector. The Defendant has an ‘Adults Services Contracts Commissioning Unit’ for this purpose.

[7]Under section 29(1) of the 1948 Act:

“A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority, make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister.”

[8]Under section 45(1) of the Health Services and Public Health Act 1968:

“A local authority may with the approval of the Secretary of State and, to such extent as he may direct, make arrangements for promoting the welfare of old people.”

Safeguarding vulnerable adults: Government Guidance

[9]In March 2000, the Department of Health issued “No Secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse “ (‘the No Secrets Guidance’). There is no dispute that the protection of vulnerable adults from abuse falls within the scope of the Defendant’s community care functions. The No Secrets Guidance was issued under section 7 of the Local Authority Social Services Act 1970. The Claimants contend that the Defendant is required to comply with it in the absence of good reason.

[10]Section 7(1) of the Local Authority Social Services Act 1970 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.”

[11]In R v London Borough of Islington, ex parte Rixon

[1997] ELR 66

, 71, Sedley J held that:

“Parliament in enacting section 7(1) did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it… in my view Parliament by s.7(1) has required local authorities to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.”

[12]The No Secrets Guidance requires local authorities to take a lead role in co-ordinating, in conjunction with other public bodies, the development of local operational guidance on protecting vulnerable adults from ‘abuse’. These duties are not confined to residents placed by local authorities in care homes but apply to allvulnerable adults at risk of abuse.

[13]The No Secrets Guidance provides guidance as to what constitutes abuse, a complex area analysis of which is not as I see it necessary for my decision.

[14]At paragraph 6.3, the No Secrets guidance addresses the purposes and scope and an investigation into alleged abuse and states:

‘Objectives of an investigation. The objectives of an adult abuse investigation will be to: • Establish facts; • Assess the needs of the vulnerable adult for protection, support and redress; and • Make decisions with regard to what follow up action should be taken with regard to the perpetrator and the service or its management if they have been culpable, ineffective or negligent.’

[15]At paragraph 6.13, the No Secrets Guidance states that:

“The following stages of investigation of any allegation of abuse will need to be undertaken: • reporting to a single referral point; • recording, with sensitivity to the abused person, the precise factual details of the alleged abuse; • initial co-ordination involving representatives of all agencies which might have a role in a subsequent investigation and could constitute a strategy meeting; • investigation within a jointly determined framework to determine the facts of the case; and • decision making which may take place at a shared forum such as a case conference.”

Safeguarding vulnerable adults: the Defendant’s Policy

[16]The Defendant and other local agencies subsequently produced and adopted the Sussex Multi-Agency Policy and Procedures for Safeguarding Vulnerable Adults (‘the Sussex Multi-Agency Policy’). Mr Purchase for the Claimants says that the Defendant is required to comply with that policy unless there are good reasons for not doing so, citing” R (Lumba) v Secretary of State for the Home Department

[2011] 2 WLR 671

, paragraph 16 where the Supreme Court held that “A decision-maker must follow his published policy (and not some different unpublished policy) unless there are good reasons for not doing so. “

[17]At section 1.2, the Sussex Multi-Agency Policy adopts, in essence, a definition of abuse materially the same as that set out in the No Secrets guidance. It also specifically adopts the definition of ‘significant harm’.

[18]Section 5 of the Sussex Multi-Agency Policy sets out its guidance on investigations. There are four levels of investigation, depending on the perceived severity of the allegations. In this case, a level 4 investigation was carried out. Section 5.5 and appendices 7.7 to 7.15 of the policy set out various steps and timescales for such an investigation; there is also further guidance in Safeguarding adults: a guide to investigations and case conferences in West Sussex. In summary:(a) The Investigating Manager should decide within 24 hours of receipt of the referral whether or not it is an adult protection referral and on the most appropriate level of investigation based on the information then available.

(b) The Investigating Officer should visit the vulnerable adult within 24 hours of the referral if there is a significant risk or, otherwise, within 3 working days.

(d) ‘All relevant parties should be included [in the strategy meeting] unless delay would put the vulnerable adult at risk… The Provider Manager, owner or representative of a service will normally be involved in discussions at an early stage, except where s/he is implicated in the allegation’.

(e) The investigation should follow, resulting in a ‘full investigation report’.

(f) A case conference should take place within four weeks of the strategy meeting.

(g) The investigation report should be discussed with those involved before the case conference.

(h) The purpose of the case conference is to ‘complete all investigations and to agree the protection plan’; the chairperson should, among other things, ‘ensure that a decision based on a balance of probability is taken, regarding whether abuse occurred, did not occur, or that the evidence is inconclusive’ and ‘ensur[e] that the conference takes the decision required of it in an informed and objective way…’

(i) ‘The Investigating Manager must ensure that any case conference is held at a convenient time and place, especially for those with essential first hand information… Invitations to an adult protection case conference should be confirmed using the standard letter and sent as far as possible in advance of the conference. For reasons of both efficiency and confidentiality, attendance at an adult protection conferences should be restricted to those who have a contribution to make to the deliberations involved or on a need to know basis…’ .

(j) The minutes of the case conference should be distributed within 5 working days.

(k) Any amendments to the minutes should be sent to the chairperson within 10 working days.

[19]In an ‘Adult Safeguarding Case Conference Information Sheet’, the Defendant stated that:

“Except in particular circumstances you should receive a copy of the Investigation Report at least two days in advance of the Case Conference meeting. At the meeting you will have the opportunity to ask questions and make comments on the information presented.” 20. But: “The person who is thought to be responsible for the harm or concern the vulnerable adults was alleged to have experienced would not usually be invited to a Case Conference. They will have had an opportunity to input into the investigation.”

[20]It is common ground that the issues to be addressed when considering whether a person, or a care home, has committed an act or acts of abuse and whether or not any such acts call for intervention are complex. It is necessary not only to make findings of primary fact as to what was or was not done by the alleged perpetrator in each individual case of alleged abuse, but also findings on a number of other issues of fact, such as whether the individual in question consented to the treatment or whether the individual suffered significant harm or an unavoidable deterioration in health. It is then also necessary to make a judgment as to whether the treatment in question was sufficiently serious to justify intervention. The Claimants say that it is obvious that in undertaking these safeguarding functions the Defendant and its partners are carrying out a public function. The Claimants do not dispute that the making of those findings, and judgments, is primarily for the Defendant but submit that:(a) the Defendant has to consider those issues, and

(b) the Claimants are entitled to have a fair opportunity to address the Defendant, before the relevant findings are made.

The contract between the parties

[21]In about December 2007, the Claimants entered into a Contract for Care Home Services with the Defendant (‘the Contract’). Under the Contract, the Defendant placed a number of individuals at the Care Home in the exercise of its community care functions.

[22]The contract between the parties runs to 43 pages and the particular provisions relied on by the parties must be read in context and as part of the whole. The agreement is described as a “framework contract” the terms and conditions of which apply to all Service Users whose care is funded by West Sussex in a contracted Care Home. The service to be provided in this case is accommodation and personal care. Nursing care is not to be provided. At 20.2 the Service Provider (the Claimants) has to co-operate with the processes of the Service Purchaser (West Sussex) for monitoring evaluation and quality audit in whatever way is reasonably requested by West Sussex. West Sussex reserves the right to visit the home at any reasonable time without notice. Either party may terminate the contract by giving three months’ notice. West Sussex may terminate the contract without notice in the event of breaches, cancellation of the Home’s registration and other misfortunes arising. West Sussex, at 22.6 “reserves the right to reasonably suspend this Contract where there are significant concerns about the operation and management of the Home and/or protection of Service Users”. At 26.10 West Sussex may at any time require the removal of a care worker from duties during an investigation into his or her conduct.

[23]The Claimants are required to “co-operate with representatives of the Council in any investigation carried out in relation to West Sussex County Council’s Statutory Duties, e.g. Sussex Multi-Agency Policy and Procedures for Safeguarding Vulnerable Adults and Risk Procedures”. And the Claimants are also obliged, at 27.2 to “act in accordance with the protection of vulnerable adults with the Sussex Multi-Agency procedures and guidance, for the protection of vulnerable adults and the Public Disclosure Act 1998 to ensure appropriate action is taken in response to the suspicion or evidence of abuse or neglect (including whistle blowing) to ensure the safety and protection of Service Users.”

[24]Paragraph 32 deals with default. If either party considers that the other is in default of their obligations they may notify the other party in writing of the default and specify a reasonable time within which the matter must be rectified. Where the matter remains unresolved then it may be referred to the Disputes Procedure contained in the Contract. This provision is without prejudice to the other rights or remedies of either party. Paragraph 33 is headed Resolution of Disputes. The parties are to use their best endeavours to resolve by agreement any dispute, either considers that the other party has failed to comply the matter will be discussed within seven working days at a meeting between representatives of the parties. If it is not then resolved a meeting is to be arranged between senior managers within 28 days. If it is still not resolved the matter will be referred to a mediator agreed by the parties. Should mediation prove unsuccessful or the parties fail to agree the appointment of a media for arbitrator within fourteen days, either party may request the Institute of Arbitrators to appoint a person to arbitrate.

[25]The Claimants refer in these proceedings to the issues in public law terms and the Defendant does so in terms of those of contract. The witness statements adopt a similar approach and each side can point to pieces of correspondence where the other characterises the issues in a way which may be read as unhelpful to its case. The terminology of individual letters and emails is not much of a guide to the substance of the relationships.

The facts

[26]It is not the function of this court to decide whether or not abuse took place. The court is concerned with the process by which allegations were investigated. There is some disagreement about the long and complex dealings between the parties over a lengthy period and Mr McGuire QC for West Sussex places emphasis on what he describes as ‘the true factual context’.

[27]There are six bundles of documents. For the Claimants there are two witness statements from Mrs Davis and one from her solicitors. The Defendants rely on six witness statements. Mr Leonard Yong was the investigating manager overseeing another witness Ms Susan Teverson, an investigator and Ms Ellen Seymour an independent health investigator. Ms Sharon Gogan is a Senior Manager responsible for adult social care provision in the western area of West Sussex. Mr Ian McCarthney is a manager of care home contracts among other duties. Ms Jane Attwood is an ‘Independent Chair’ in the Adults Safeguarding Unit at West Sussex. In the sense that she is an employee of the Defendant within the unit she is not strictly independent but she is not involved directly with the adult safeguarding investigations requiring a Case Conference meeting which she chairs.

[28]On 21 April 2010 following allegations by a ‘whistleblower’ believed by the Claimants to be a former member of staff a safeguarding alert was issued by West Sussex. On 4 May Mrs Davis was telephoned by West Sussex and told that ten allegations of abuse had been made against the staff. The details were thin but Mrs Davis was told that there were concerns about nursing practices such as dressing cuts and wounds and carrying out ear syringing. Mrs Davis was asked to suspend the manager, Felicity Hillary-Warnett and another staff member, Rosie Holt. It was later agreed that Mrs Hillary-Warnett could remain on restricted duties but Ms Holt was suspended. On 5 May West Sussex gave notice suspending any further placements under the Contract while the proposed investigation was conducted. On the same day Ms Seymour and Ms Teverson went to Nyton House to examine and remove documents. On the next day they interviewed Ms Holt. On 7 May Mrs Hillary-Warnett sought details of the allegations from West Sussex by email but received no response. On 7 May Mr and Mrs Davis held a meeting with residents to explain in broad terms what had happened. The residents were obviously concerned about the developments taking place around them and it was explained that Nyton House would no longer provide residents with minor wound dressing support or undertake ear syringing. On 12 May Ms Seymour and Ms Teverson agreed to visit Nyton House to talk to the residents who had asked to meet them. Details could not be provided at that point and, according to Mrs Davis, residents and their families were concerned about being kept in the dark.

[29]On 10 May 2010 the police were involved and became the lead investigators, something that the Claimants did not learn until Mr Yong told Mrs Davis in a telephone conversation on 3 August. On 2 June 2010 the Claimants’ solicitors wrote to Mrs Garrett of West Sussex who had served the suspension notice on 5 May asking for particulars of the concerns that were being investigated given the duties owed by the Claimants to the residents. The solicitors referred to the principles of natural justice, emphasised the desire of their clients not to be confrontational and expressed a wish for a speedy resolution which they suggested would be assisted by the prompt supply of requested information.

[30]On 14 June Mrs Garrett replied on behalf of the investigation. She accepted that details of the allegation had not been provided but declined to make these available placing emphasis on the Sussex Multi-Agency Policy and Procedures. She gave various reasons for not providing information. She relied on the family relationship between Mr and Mrs Davis and Mrs Hillary-Warnett who is their niece (albeit a nurse and fully qualified for her position). Mrs Garrett claimed that it became clear at the residents meeting on 7 May that Mrs Davis had shared confidential information with one of the alleged perpetrators, Mrs Hillary-Warnett. She complained that the Investigating Officers had been asked to address the meeting to answer questions, stating that this was inappropriate and a potential breach of confidentiality and disruption of the investigation process. Mrs Garrett also relied upon and objected to the fact that Mrs Hillary-Warnett had sent emails and communications seeking information from herself and the Investigating Officers and “that this action may itself be regarded as a potential breach of her professional Code of Conduct within the Nursing and Midwifery Council (‘the NMC’)”.

[31]The Claimants were understandably concerned about this. West Sussex had not told Mrs Davis at the outset that she should not discuss the allegations so it is difficult to see how any complaint about this can be justified. It is equally difficult to see how the Claimants could suspend two employees without giving them indications of what the reasons for this might be or ignore requests from residents for information about what was obviously going on in their home. It was not appropriate to characterise requests for information as constituting a failure to co-operate with an investigation and wrong to threaten that this was arguably professional misconduct. West Sussex was correct to identify the difficulty presented by Mrs Hillary-Warnett, an alleged perpetrator, being close to the Claimants. Later criticism of the fact that the Claimants’ solicitors also represented Mrs Hillary-Warnett seems to me unrealistic. Serious allegations of professional misconduct would or might be made against employees of the home for which they might expect to receive their employer’s help and advice. However desirable separate representation might be in theory, this is a sphere where legal aid or assistance is unavailable. It is unrealistic to expect care workers to engage their own legal team from limited resources.

[32]The letter added this:- “The next stage of the safeguarding process is to progress the investigation through interviews. Your client Felicity Hillary-Warnett will then be given the opportunity to respond to the allegations through the interview process. “Once this is complete and the Investigation Reports have been written for each allegation, and an overarching report for Institutional abuse, these will be shared with the proprietor prior to the Case Conference, and time given for Mrs Davis to provide a detailed response. It is only at the point of the Case Conference that a decision is taken as to whether the outcomes of the investigation and allegations of abuse are substantiated or not. Mrs Davis will be invited to that Case Conference. Furthermore, Felicity Hilliary-Warnett will be given the opportunity to respond to the allegations being made against her before the Case Conference takes place…” The Claimants submit that this gave rise to a legitimate expectation.

[33]On 12 July the Care Quality Commission (‘CQC’) asked the Claimants to suspend all further placements at Nyton House for the time being. On the next day Mrs Hillary-Warnett resigned denying any abuse or wrongdoing but considering that she had to go in the interests of Nyton House.

[34]On 3 August Mr Yong spoke to Mrs Davis mentioning that the police were in control and providing no specific details about the allegations. Yet on the same day he mailed the CQC that “Our conclusions are that many of the allegations are substantiated”. It is unclear what enabled him to express that view so early in the process. On 5 August Mr Davis wrote to West Sussex complaining about the lack of progress. Ms Gogan replied on 13 August that it was not in a position to disclose details until the investigation was completed but stating that the Davis’ would be invited to attend the Case Conference and would receive a copy of the Investigation Report to consider. She made it clear that the position being adopted was in line with Sussex Multi-Agency Policy and Procedures. Recognising the need for guidance but unable to provide details of the allegations Ms Gogan set out a list of thirteen recommendations some specific but some quite general, e.g. “staff are not directed to undertake tasks for which they are neither trained nor qualified”. To the extent that West Sussex maintains that this letter gave sufficient information for the Claimants to know the nature of the complaints against them it is mistaken.

[35]On 3 September 2010 the Claimants’ solicitors wrote to say that particulars of the allegations had still not been provided and suggested a dialogue about the continuing suspension. This was refused on 14 September.

[36]On 20 October Mrs Hillary-Warnett was interviewed by a detective constable. Ms Seymour of West Sussex also attended. Although the summary prepared by the police was disclosed only during the proceedings it is quite clear that Mrs Hillary-Warnett was given an opportunity to address the substantial number of allegations in detail and in full and that she did so willingly. The police decided to take no action and on 4 November the CQC lifted its suspension. In August and in November Mrs Davis spoke to Mr Yong and unsurprisingly told him that she wanted the matter processed as soon as possible. Mr Yong claims that in the 9 November discussion he told Mrs Davis that if the Case Conference was to take place before Christmas she would not have long to digest the Investigation Report. If Mr Yong said this the remark would not have been seen as significant. Mr Yong himself did not refer to it when setting out his account of the conversation in an email of 9 December to Ms Attwood, the chair.

[37]Ms Seymour and Ms Teverson interviewed four members of staff in mid-November and, on 26 November, Mrs Davis. The details of allegations were not put explicitly to those interviewed. The records of the interviews were disclosed in the proceedings but not to the individuals at the time. It was clear from the interview with Mrs Davis that she did not have detailed knowledge of what happened at Nyton House as she was the owner, not the manager and was dependent for information on what she was told by the staff and what the records showed. Mrs Davis said that Regulations only required her to carry out one monitoring visit a month to ensure that the manager was carrying out her role. She was always more involved with the home than that but she did not have a detailed knowledge of care practices, policies or residents requirements. (The Defendant contends that Mrs Davis should in her evidence have said more about what she learned of the allegations from discussions with Mrs Hillary-Warnett after the latter’s interview).

[38]On 2 December Mrs Hillary-Warnett contacted the safeguarding team about progress and was told that the Case Conference would be held on 10 December.

[39]On 7 December 2010 the CQC visited Nyton House and inspected it. An oral report from the CQC on the spot was confirmed in writing in February 2011 to the effect that Nyton House was meeting all the Key Essential Standards.

[40]By the middle of 8 December nothing further had been heard from West Sussex about the conference set for 10 December and Mrs Hillary-Warnett sent a reminder to the Council which responded at 4pm confirming that the conference would proceed at 9.30 on 10 December and that a copy of the report would be hand delivered. This was received at 7pm on 8 December. It was 22 pages long alleging abuse against thirteen residents of Nyton House (five of whom had since died).

[41]The Claimants submit that the report is incoherent and unclear about what is being alleged against whom. The report referred to the investigations as having been ‘extensive and complex’ and it had taken seven and a half months to produce. However for much of that time the police had been the lead investigator and it had been difficult for West Sussex to carry out the necessary and important work. Of the thirteen residents identified in the report only one had been placed at Nyton House under the Contract. Every relative of a resident at Nyton House that had been questioned was positive about the quality of care provided.

[42]Mrs Davis’s evidence, unsurprisingly, is that she was quite unable to deal with the report in the very short time available. On 9 December the Claimants’ solicitors wrote to Mr Yong pointing out the difficulties of holding a Case Conference within the proposed timescale and proposing an adjournment for something over ten days so that Mrs Davis could consider the report and provide a written response within seven to ten days. The solicitors suggested as an alternative that ‘no expectation or pressure’ be put upon Mrs Davis at the next day’s Case Conference to respond and that she should be given the opportunity to provide a detailed written response within seven to ten days. The solicitor could not themselves have attended at such short notice.

[43]Mr Yong rejected both options by fax at about 6pm on 9 December.

[44]So Mrs Davis attended the Case Conference but took with her for support Mrs Hillary-Warnett, Ms Hillary who was the acting manager and, apparently, a Mr Fieldhouse the son of one of the residents. Mr Fieldhouse apparently soon left. Mrs Hillary-Warnett was refused admission on the basis that she was an alleged perpetrator, a decision understandable in the circumstances. Ms Hillary was also refused admission for similar reasons. So no one remained who was able to speak to day to day management issues at the home. Mrs Davis then attended the meeting alone. She was 77 years old and faced ten members of the safeguarding authorities, eight of whom were employees of West Sussex. Mrs Davis handed up her solicitors’ letter of 9 December but Ms Attwood, the chair declined to consider it or to show it to the others present.

[45]The meeting lasted more than 8 hours. It is unclear what documents were available to the panel. Mr McGuire emphasises the extent of the discussion at Mrs Hillary-Warnett’s interview with the police, at which all matters complained of were apparently covered. However there is nothing to suggest that the record of the interview was disclosed or discussed with the panel despite the fact that it must have been one of the factors leading the police to decide to take no action. It does not appear from the record that notes of other interviews were available to the panel either. West Sussex, surprisingly, relies on the fact that Mrs Davis did not herself at the conference ask to have the matter adjourned. But it was or should have been obvious that she wanted it adjourned because her solicitors had written to say so and Mrs Davis had reminded the meeting of the letter. Ms Attwood points to the fact that Mrs Davis started by making it clear that she was going to follow her solicitors’ advice to make no comment but then chose to go on and comment on a number of occasions. There was no indication that West Sussex saw anything amiss in relying on what this elderly lady went on to say, despite knowing of her solicitors’ advice. During the lunch break which according to Ms Attwood was ‘relaxed’ Mrs Davis made a remark to her informally. Ms Attwood “suggested … that she share these comments with other attendees when the meeting reconvened and she agreed and … repeated this statement towards the end of the meeting”. This was unfair.

[46]West Sussex was aware of Mrs Davis’s limited role as owner not manager of Nyton House. The chair refused an adjournment, gave Mrs Davis no proper opportunity to prepare for the meeting, refused even to consider her solicitors’ letter, continued for eight hours knowing that she was an elderly lady, where the meeting was ten on one side and one on the other and where even the informality of a brief lunch break was abused. Nevertheless conclusions were drawn about Mrs Davis’s credibility and her fitness to own a care home. These were in part based on detailed matters relating to individual carers and patients (see paragraph 18 of Ms Attwood’s statement) which West Sussex knew or should have known were outside Mrs Davis’s knowledge given the impossibility of looking into all these allegations in such an absurdly short time and its decision (for reasons which were of themselves legitimate ) to exclude from the meeting those who would have had the answers . West Sussex, as Mr McGuire put it, considered that Mrs Davis had ‘made a long series of admissions’.

[47]I again remind myself that the prime object of the investigation was to protect vulnerable adults and to prevent abuse not to give particular consideration to Mrs Davis. But her treatment at and around the meeting was deplorable.

[48]The Case Conference concluded that fourteen allegations of abuse were substantiated and ten were ‘inconclusive’. An allegation of ‘institutional abuse’ was found to substantiated based amongst other things on an ‘incestuous management and ownership structure’, an odd description of a family business. The conference imposed 45 ‘actions’ mainly on Nyton House. They also, referred, with potentially devastating professional and personal consequences, Ms Hillary, Ms Bidwell and Ms Hillary-Warnett to the ISA and NMC.

[49]The policy required minutes of the Case Conference and its outcomes to be sent to the Claimants within five days but these were not received within that time but delivered to the Claimants thirteen days later on 23 December with a request to respond within seven days (which would have been 31 December) shorter than the ten days permitted by the policy.

[50]It is not necessary for my decision for me to evaluate the quality of the decisions taken at the Case Conference but, having looked at the relevant material it seems to me that the submissions that there were serious flaws in the Defendants’ approach, for the reasons set out in paragraph 89 of Mr Purchase’s written argument, are well-founded. The object of the Case Conference was primarily to investigate allegations in the interests of protecting vulnerable adults, not to make determinations about Mrs Davis or the Case Conference and so it is understandable to a degree that West Sussex did not see the vulnerability of Mrs Davies as a concern.

[51]On 22 December, before the Claimants had received the minutes of the Case Conference and of course before they had had an opportunity to respond as permitted by West Sussex’s policy, a Default Notice was served under the Contract. The letter draws attention to a meeting on 10 December. The letter refers to the minutes of the meeting and sets out alleged defaults over four and a half pages. A response on nine items was required on or before 31 December and on two others by 7 January 2011.

[52]West Sussex had started to investigate the allegations in April 2010 and, partly as a result of the police intervention, had not reached or communicated its conclusion orally until 10 December. It had not communicated its conclusions in writing until 22 December. It is hard to see how a responsible council genuinely seeking the views of the Claimants could have expected them to respond within a ludicrously short timescale set to expire on 31 December in the middle of what, for so many, is the Christmas and New Year break. In the event the council extended the deadline to 21 January 2011 and on 24 January the Claimants’ solicitors submitted a response running to 45 pages with a further eleven pages of attachments.

[53]There is some controversy about the subsequent steps taken by the parties over the Default Notice. The Dispute Resolution Procedures did not proceed. West Sussex did not actively progress the matter. I do not criticise the Claimants’ solicitors or the Defendant because whether intentionally or otherwise their correspondence over a protracted period had the effect of calming the dealings between the parties but without resolving the issue of suspension. On 2 February 2012 the Claimants gave notice of termination and the Contract is now at an end.

[54]On 28 January 2011 the Claimants’ solicitors wrote a letter before action in response to which Mid Sussex’s legal department on 11 February offered “A review of the Safeguarding Process ... will be undertaken by an officer of the council who is not involved in the original safeguarding process and procedure. There will also be an independent health representative to review the health matters.” The Claimants were not happy with what was offered which was a paper review of whether the decisions of the Case Conference were reasonable and in accordance with procedures. Nevertheless the review proceeded. The review needs to be considered because of West Sussex’s argument that ‘the failure to participate in the review process totally undermines the Claimant’. This appears to relate to the fact that on 11 February the Defendant had invited the Claimants to make written submissions within seven days. This was before the scope of the proposed review had been confirmed. Furthermore the Claimants had already made representations running to more than 40 pages to which West Sussex had understandably not yet responded. West Sussex contends that any complaints about the review are ‘an exercise in cherry picking’ and that the non-participation by the Claimants in the review is fatal.

[55]In a report dated 10 March 2011 Mr Tony Benton in a review that did not purport to consider all the allegations and findings, focused on three residents and on six of the 25 allegations found to be substantiated or inconclusive. Mr Benton reviewed material which on the evidence, and judging from what he says, did not include the Claimants’ solicitors’ 40 page letter of 24 January 2011. His review reached conclusions which endorsed many of the findings of the case conference. He concluded that findings of physical abuse against two residents were not substantiated and recommended that these be set aside. He also made some criticisms of the Case Conference minutes.

[56]Another report by Ms Lynne Phair dated 4 March 2011 considered the evidence gathering process from a ‘health focused’ point of view. It seems that Ms Phair had supervised Ms Seymour during some parts of the investigation. She agreed with a number of elements of the report but criticised the quality of analysis and presentation.

[57]The reports, but not many of the documents relied on, were disclosed to the Claimants’ solicitors who repeatedly asked the Defendant to say what action was being taken about it. The Defendant’s Detailed Grounds in this action indicate that it accepted the findings of the reports. This was not true.

[58]Mid Sussex convened a further Case Conference on 28 July to consider the recommendations made by the reviews. The process had some extraordinary aspects. First the conference did not seem to address the criticisms by the reviewers about the quality of the reasoning in the report and in the minutes. It did however accept a recommendation by Ms Phair that one finding of abuse change from ‘inconclusive’ to ‘unsubstantiated’. However it rejected Mr Benton’s recommendations that two findings of physical abuse should be set aside. Disturbingly the Defendant held this Case Management Conference without informing the Claimants of its existence let alone inviting them to make representations or to attend, apparently in complete disregard of its own guidance. The Claimants only learned of this further Case Conference through a Request for Further Information. It is unfortunate that a public body should characterise these concerns as an ‘an exercise in cherry picking’.

[59]In considering the implications of how West Sussex dealt with the Case Conference the point is fairly made, as I have regularly reminded myself that this was a conference addressed primarily to the protection of vulnerable adults. However in the course of making recommendations and taking decisions directed to that objective West Sussex reached conclusions, most obviously those to refer members of staff to their professional bodies, which had wide implications for those affected.

The claims based on lack of procedural fairness and/or natural justice-law

[60]Mr Purchase refers to the following well-known cases about the approach to the rules of natural justice. As statements of principle they are not controversial but Mr McGuire contests their application to the facts of this case.

[61]In Lloyd v McMahon

[1987] AC 652

, 702, Lord Bridge held that:

“The so-called rules of natural justice are not set on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individual depends on the character of the decision-making body, the kind of decision which it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.”

[62]In Kanda v Government of Malaya

[1962] AC 322

, 337, the Privy Council held that:

“The rule against bias is one thing. The right to be heard another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it… ‘If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.”

[63]Similarly, in R v Thames Magistrates Court, ex parte Polemis

[1974] 1 WLR 1371

, 1375, the Divisional Court held that:

“Of course the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called upon to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense.”

[64]In R v Board of Visitors of Hull Prison, ex parte St Germain

[1979] 1 WLR 1401

, 1408, the Divisional Court held that:

“The right to be heard will include, in appropriate cases, the right to call evidence. It would in our judgment be wrong to attempt an exhaustive definition as to what are appropriate cases, but they must include proceedings whose function is to establish the guilt or innocence of a person charged with serious misconduct.”

Legitimate expectations-law

[65]In Nadarajah v Secretary of State for the Home Department

[2005] EWCA Civ 1363

, paragraph 68, Laws LJ held that:

“Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public.”

[66]This summarises and illustrates the relevant principles which Mr McGuire does not challenge but he submits that they have no application in this case either on the facts or because of what he calls ‘the vulnerable adult centred investigation defence’ which I deal with below.

Application to the facts of the legal principles

[67]Mr Purchase submits that the determinations reached at the Case Conference were unlawful because of procedural unfairness, a failure without good reason to comply with the Defendant’s own policies or with a legitimate expectation. He does not suggest that the Case Conference was a trial in the judicial sense but submits that the allegations against Nyton House and the individuals were grave and these were, as in St Germain“proceedings whose function is to establish the guilt or innocence of a person charged with serious misconduct”. The allegations are numerous and complex. The report is lengthy, discursive and imprecise about findings of abuse. The impacts of the findings of the Case Conference on the Claimants, their business and employees were very serious. Nyton House claims to have suffered loss of at least £150,000. The residents and their families have suffered disruption and three of the Claimants’ staff were referred to their professional bodies. It is no thanks to West Sussex Council that the complaints to professional bodies for these individuals were in time exonerated. As regards legitimate expectation the Claimants rely on the passage which I have taken from Mrs Garratt’s letter of 14 June 2010 set out above and on passages in the Sussex Multi-Agency Policy which I have set out above.

[68]Mr Purchase then says that the Claimants received insufficient notice of the allegations, strong recommendations were made in the report before they had any notice of the detail let alone the chance to respond and no evidence was disclosed or produced at the Case Conference. The reviews, far from curing any procedural unfairness made things worse.

[69]Mr McGuire rejects these allegations. He says that West Sussex did provide enough information to enable the Claimants to know what the concerns were and to take steps to correct them. They were uncooperative and obstructive. Mrs Davis chose to have the conference on 10 December aware of the possible consequence and if there were any defects in the procedure they were cured by the conduct of a review.

[70]The conference was not a trial of Mr and Mrs Davis but the process of investigation and the taking of decisions had potentially serious consequences for their business, for their residents and for their staff. The Claimants were given an assurance in June on which they were entitled to rely. Nothing relevant occurred between the giving of that assurance and the Case Conference. The length, importance and content of the report was such that Mrs Davis could not reasonably have absorbed it so as to respond in the short time that she was given, the circumstances of the conference itself and the consequences were unfair and unjust to Mrs Davis in the ways I have explained.

[71]The procedure adopted and carried out was unfair. It did not follow fully the guidance in the Multi-Agency Policy. The policy did not comply with the legitimate expectations of the Claimants created by the letter of 14 June. There was no good reason for the commitment made in that letter not to be carried out. It follows that subject to the two further arguments which West Sussex were given permission to bring when this case was first listed for trial before Mrs Justice Nicola Davies on 27 March 2012, and to questions of remedy, the application would be granted.

The “vulnerable adult centred investigation defence”

[72]Mr McGuire submits that no public law rights which the Claimants can invoke are created by reason of the passages cited from ‘No Secrets’ and the local protocol under which West Sussex operated. He submits that the structure created by No Secrets and the local protocol is a Multi-Agency communication and information sharing process with a focus on adults at risk and ensuring that they are safeguarded. As part of that process each constituent body is enabled by the structure to perform its own particular function more effectively. Recommendations may include referring cases to professional bodies but any citizen has a right to do that. The Case Conference may make a recommendation but it has no way of compelling any services or partner agencies to follow it. The structure is not there to protect the financial interests of care home proprietors. It is designed to ensure that legal rights are identified and protected but not changed or added to in any way.

[73]Mr McGuire points to what is accepted to be the informed and accurate summary of the legal position contained in Part 9 of the Law Commission Report on Adult Social Care. This refers to the existing legal framework being neither systematic nor co-ordinated and, unlike in Scotland, lacking a single or coherent statutory framework for adult protection. The report at 9.135 says “Both ‘No Secrets’ and ‘in safe hands’ were issued under section 7 of the Local Authority Social Services Act 1970. The consultation paper raised concerns that while section 7 guidance must be linked to a local authority’s statutory functions ‘No Secrets’ and ‘in safe hands’ cover an area of law where there is currently no specific statute therefore, we argue that while the guidance will be effective in guiding local authorities in the exercise of their existing statutory functions, they cannot provide a freestanding justification for any act.”

[74]Mr Purchase responds by reference to authorities emphasising the willingness of the court to take a broader view than it once did of what constitutes a ‘sufficient interest’ for an application for judicial review. He argues that the statutory imprecision surrounding ‘No Secrets’ does not mean that because the guidance is aimed at protecting vulnerable adults it can be disapplied insofar as it impacts on others. He submits that it is difficult for the Defendant to maintain that this was a process focused solely on the victims of alleged abuse when the ‘actions’ mandated by the Case Conference did not require anything to be done by or to the particular adults. Remedial action was addressed against the alleged perpetrators and the management at Nyton House.

[75]As Mr McGuire and the Law Commission point out there is a lack of precision because ‘No Secrets’ contains guidance for local authorities in the exercise of existing statutory functions but no freestanding justification for an investigation. Quite rightly this has not deterred West Sussex, like other authorities, from carrying out investigations and Mr McGuire does not go as far as suggesting that that is a defence to judicial review where the public body did not have statutory power to do what it did. It seems to me that this defence is closely linked to the whole question of natural justice. While there may well be situations where the obligation to protect vulnerable adults justifiably permits a local authority to infringe what might otherwise be the rights to natural justice of third parties no question of this arises here. There was, by December 2010, no respect in which the duty to protect vulnerable adults conflicted with the less pressing obligation to treat other parties affected in a just manner.

The contractual remedy point

[76]Mr McGuire contends that the complaints in this case do not relate to decisions, actions or failures in the exercise of a public function but to alleged breaches of a contract entered into, in its private capacity, by West Sussex. He points to the correspondence in which the Claimants’ solicitors refer to the relevant contractual provisions such as 22.6 which concerns suspension. In their letter before claim the Claimants complain of four matters, first the absence of a fair procedure, secondly West Sussex’s failure to give due consideration to the evidence but thirdly to a contractual Default Notice being based on unsubstantiated allegations and fourthly to it being defective. West Sussex says that the procedure was that laid down by the Contract between the parties and all the allegations of abuse if substantiated would have been breaches of contract. Mr McGuire lists a series of clauses in the Contract relating to standards of care, health and safety, default suspension and resolution of dispute as being at the heart of this dispute. He says that the primacy of contract is obvious from the correspondence and in particular West Sussex’s letter of 22 December giving notice of default as soon as the Case Conference had taken its decisions.

[77]West Sussex also contends that the statutory scheme governing the provision of accommodation and support to the elderly envisages that that duty may be carried out directly by the local authority or by entering into a commercial contract. Once that contract is entered into, while its relationship with residents of a home will be governed by public law obligations that with the proprietor will be exclusively contractual.

Contractual Remedy – The Law

[78]The Claimants do not, as I understand it, dispute the basic proposition set out by Lord Scott at paragraph 27 of YL -v- Birmingham County Council

[2008] 1 AC 95

:- “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.”

[79]There is however controversy about the interaction between the contractual relationship and the private law duty when these potentially overlap. The recent authorities tend to express the legal approach in different ways shaped by the circumstances before the courts. Thus in SupportwaysCommunity Services Limited -v- Hampshire County Council

[2006] EWCA Civ 1035

the Court of Appeal was concerned with a review of services provided by Supportways under a contract with a council. The Court of Appeal, in passages on which Mr McGuire relies, emphasised that public law remedies were not available to a Claimant suing a public body under a contract simply because the private law remedies were seen to be inadequate:- “42 However, it cannot be right that a claimant suing a public body for breach of contract, who is dissatisfied with the remedy afforded 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. “43 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 should be entitled to base his claim in public law merely because private law does not afford him a sufficiently attractive remedy. It is one thing to say that, because a contracting party is a public body, its actions are, in principle, susceptible to judicial review. It is quite another to say that, because a contracting party is a public body, the types of relief which may be available against it under a contract should include public law remedies, even where the basis of the claim is purely contractual in nature”. (Neuberger LJ) “61 Seventhly, it cannot be right in principle for a party to a contract with a public authority to have recourse to public law remedies simply on the ground the private law remedies, such as specific performance, are not available after the relevant contractual obligations have expired, or because they are too vague and uncertain to be specifically enforceable by the court, or because alternative private law remedies, such as damages for breach of contract, are inadequate. The relevant remedies are those available in private law for breach of contract.” (Mummery LJ)

[80]However it is worth pointing out to other passages in the judgments, at paragraph 38 Neuberger LJ, as he then was, says “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 a 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.” Mummery LJ says at paragraph 36 “… In order to attract public law remedies, it would be necessary for the applicant for judicial review to establish, at the very least, a relevant and sufficient nexus between the aspect of the contractual situation of which complaint is made and an alleged unlawful exercise of relevant public law powers.” At paragraph 59 he agrees that the case was not one of public law “Because there was no sufficient nexus between the conduct of the review and the public law powers of the Council to make this a judicial review case. The required public law element of unlawful use of power was missing from the support services review.” He also observed that in that case the source of the power of the Council’s support services review was in the relevant contract but not in legislation or guidance.

[81]In R (Weaver) v London Quadrant Housing Trust

[2010] 1 WLR 363

, the Court of Appeal held that, in terminating a tenancy, a registered social landlord was carrying out a ‘public function’ for the purposes of the Human Rights Act 1998. Having considered the authorities (including YL) at paragraph 41, in a passage on which Mr Purchase relies, Elias LJ said:

“I would draw these tentative propositions from this analysis. First, the source of the power will be a relevant factor in determining whether the act in question is in the nature of a private act or not. Second, that will not be decisive, however, since the nature of the activities in issue in the proceedings is also important. This leads on to the third and related proposition, which is that the character of an act is likely to take its colour from the character of the function of which it forms part.”

[82]At paragraphs 73-79, Elias LJ considered the argument that the exercise of a contractual power meant that an act was necessarily a ‘private one’. The Lord Justice rejected that contention, holding that ‘the act of terminating the tenancy of Mrs Weaver did not constitute an act of a private nature’. Mr McGuire points out that there are potential differences in approach between considering, as in Weaver, attaching liability under section 6 of the Human Rights Act 1998 and considering whether a body should be subject to administrative law principles. However, there are close parallels. In Weaverwhen determining the section 6 question the Court of Appeal decided that it was necessary to consider whether the act was in pursuance of, or at least connected with, performance of functions of a public nature. In that case a number of factors cumulatively established sufficient public flavour to make provision of social housing by the landlord a public function.

[83]In R (Bevan & Clark) v Neath Port Talbot County Borough Council

[2012] EWHC 236 (Admin)

, Beatson J applied that judgment, and those propositions, in the judicial review context (see paragraphs 47-48 of the judgment). That claim involved a challenge to the local authority’s decision on what fees it would pay to care homes for residents placed in those homes by it. The residents were placed under contract, and the fees were paid under contract. Beatson J held that, subject to two qualifications which do not apply here, ‘in a case such as this the scope of review in principle extends to all the conventional public law grounds’. The judge saw close parallels between the application of section 6 and that of public law principles – paragraph 47. Mr McGuire submits that the case turns on the fact that the decision concerned the wider context of the function of a local authority under the 1948 Act rather than the operation of the contract itself.

[84]Mr McGuire also relies upon the recent decision of Judge Seys Llewellyn QC in The Queen on the Application of Broadway Care Centre Limited v Caerphilly County Borough Council

[2012] EWHC 37 (Admin)

. In that case a Claimant care home sought to challenge the decision of a local authority to terminate its contract. The judge unsurprisingly concluded that this was a matter of private law for which judicial review was not available. He said, at paragraph 39, that to approach matters otherwise would be “39 … 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.”

[85]Mr Purchase contends that the decisions of the Case Conference were made in the exercise of a public function. It was attended and conducted by members of public bodies carrying out their various statutory functions and to protect residents of care homes from abuse. Those functions are controlled by governmental guidance and published local policy and do not derive from contract. The point is starkly illustrated by the fact that only one of the residents who are alleged to have been abused was placed at Nyton House by the local authority under the Contract. He submits that while there is a contractual dispute following on from the allegations of abuse and the action taken by West Sussex following the decisions at the Case Conference there is no challenge to the Defendant’s exercise of its contractual rights in stark contrast with the facts in Caerphilly (a case in which Weaver was not cited and, which Mr Purchase argues, is wrong).

[86]I follow the guidance given by the Court of Appeal in Supportways and Weaver. In Supportways the question was whether a review which led to the decision not to renew a contract was a public law matter. As I read the judgments an applicant for a judicial review who has a contract with the body sued must establish a relevant and sufficient nexus between the matters complained of and the alleged unlawful exercise of public law powers. The caution about permitting a public law remedy does not apply to the same extent if the issue is not, as Neuburger LJ put it, ‘fundamentally contractual in nature’. The issues here are not fundamentally contractual or, to borrow the words of Elias LJ, ‘in the nature of a private act’.

[87]West Sussex responded to allegations by starting an investigation under its regulatory powers which was to lead to findings of abuse of thirteen residents at Nyton House only one of whom was there under a contract with West Sussex. The original complaint led swiftly to the exercise of the contractual power of suspension about which the Claimants’ solicitors corresponded. At different points in the investigation notices were given under the Contract. The Claimants’ solicitors’ letters referred to contractual rights, as well as to those under public law but there are also letters from West Sussex indicating that the two are seen as separate matters. When the decisions now challenged were taken at the Case Conference in December 2010 Default Notices under the Contract were soon given and one of the West Sussex employees present at the conference Mr Ian McCarthney attended because his responsibilities were for management of contractual matters. But it is plain that the investigation would have been carried out whether or not a contract had been in place between the parties as would the process of conference and decision-although the actions to be taken as a result would have differed. West Sussex issued Default Notices under the contract following the case conference but this was one of a series of steps consequent upon the decisions. It seems to me that West Sussex was rightly and primarily concerned with investigating allegations of abuse under its legal powers.

[88]The contractual issues were ancillary. There is no direct challenge to the contract in this case. The Claimants originally sought to quash the Default Notice, a grievance for which a private law remedy was available. Their other complaints are some distance from the contract. The contractual remedies would have been inadequate because these are essentially public law claims. The decisions were not about whether or not to continue a contract or to change its terms, they were about whether or not abuse had been established and if so what the consequences would be in a number of areas, only one of which was the contract. The Claimants are trying to clear their names from what they see as unfair findings of abuse by West Sussex (but not by the other public agencies concerned) and protect their staff from what they see as unfair referrals to professional bodies. In essence these are public law not contractual concerns.

[89]When taken together the factors cumulatively establish sufficient public flavour, as it was put in Weaver, to make the process of investigation and decision a public function distinct from the contractual relationship. So this defence fails.

The relief

[90]The Claimants seek:-89.1 A declaration that the adverse determinations made at the Case Conferences on 10 December 2010 and 23 July 2011 and/or the adverse recommendations made pursuant to the review were unlawful.

89.2 An order that these be quashed.

89.3 An order that the Defendant shall inform the ISA and the NMC of the court’s judgment and order and/or shall withdraw its referrals of Felicity Hillary-Warnett, Joy Hillary and Zona Bidwell to those bodies.

[91]The Claimants also sought an order requiring withdrawal of the Default Notice of 22 December 2010 but that is not pursued

[92]West Sussex argued that the court should refuse any relief in the exercise of its discretion and relies on a number of grounds.

[93]First West Sussex argues that the mechanism under the Contract provided a suitable alternative remedy. Failure to invoke that remedy indicates that judicial review is not being pursued, as it should be, as a remedy of last resort. West Sussex also contends that the Claimants have not only failed to use the route available but have not contested the Default Notices. This last contention seems to be based on an erroneous assumption that if a Default Notice is served under the Contract its allegations are deemed to be true until shown to be otherwise. While Mr Purchase in his submissions underestimated the extent of the powers of an arbitrator the fact remains that a contractual remedy would be inadequate to redress the Claimants’ legitimate grievance.

[94]The Defendant next argues that the need for relief has gone as the concerns are historic only. The Contract is at an end. The referrals of individuals to their professional bodies have been made but no proceedings have been brought.

[95]The Defendant then alleges that the context shows that a claim to relief is without merit. The Defendant alleges that the Claimants did not address findings of abuse in the care home over a fifteen month period. It is said that there has been a ‘catalogue of failures since December 2010 to address the contractual issues raised’ identified by Mr McCarthney in a witness statement. This claim seems to me to be groundless and to be an inaccurate and unfair characterisation of the correspondence between Mid Sussex and the Claimants’ solicitors.

[96]The Defendant also argues that the remedy of quashing would be disproportionate as it would be extremely difficult to carry out further investigation. Reliance is placed on the decision of the Court of Appeal in R -v- Secretary of State for the Environment ex p Walters

[1998] 30 HLR 381

. The Claimants disagree and cite the words of Lord Hoffmann in R (Edwards) v Environment Agency

[2009] 1 All ER 57

. “It is well settled that 'the grant or refusal of the remedy sought by way of judicial review is, in the ultimate analysis, discretionary' (Lord Roskill in IRC v National Federation of Self Employed and Small Businesses

[1981] 2 All ER 93

at 116,

[1982] AC 617

at 656.) But the discretion must be exercised judicially and in most cases in which a decision has been found to be flawed, it would not be a proper exercise of the discretion to refuse to quash it.”

[97]Mr Purchase says that very serious findings of abuse were made about which the Claimants were not given a fair opportunity to put their case. The findings of the Case Conference are inconsistent with or unsupported by the findings of the CQC, the professional bodies and to some degree the decisions of the police. No resident or family member ever complained. The findings had a serious impact on the Claimants and their residents and staff who in the real world do not have the means or resources to redress their grievance.

[98]I accept the submissions of Mr Purchase. The matters are not historic. The decisions continue to cast a shadow over the Claimants and their present and former members of staff. These decisions were reached unfairly. It is true that anyone might have referred individuals to their professional bodies but no-one else did. Furthermore a referral following a considered lengthy investigation by a variety of agencies is obviously a very much more serious and weighty matter than one sent in from a member of the general public.

[99]Another significant factor is that there has been no recognition by the Defendant that it has acted in any respect unjustly or inappropriately. It has stood by all the decisions which have been the subject of this case. Some of the evidence put forward by the Defendant, all of which I accept was given in good faith, shows an apparent inability to recognise, even with the wisdom of hindsight, some basic requirements of fairness. West Sussex has also unfortunately mischaracterised as a lack of cooperation the legitimate pursuit by the Claimants of a real and long lasting grievance through very reputable and knowledgeable specialist solicitors and through the democratic process of complaints to councillors.

[100]In these circumstances a quashing order is necessary and appropriate.

[101]As I have been critical of West Sussex I repeat my view that the professionals in this case acted throughout in good faith and having in mind the best interests of those whom they are engaged to protect. There are obviously great pressures on local authority employees carrying out this important and stressful work. The consequences of a failure to intervene can be grave. Those working in this area face criticism for allegedly interfering when they intervene and for alleged neglect or worse when they do not. These factors need to be borne in mind by anyone making a further issue of the matters I have identified.

Conclusion

[102]This application succeeds and the court will grant the relief sought by the Claimants except that relating to the Default Notice.

[103]I shall be grateful if not less than 72 hours before the hand down of this judgment the parties will provide a list of corrections of the usual kind and a draft order, both preferably agreed, together with a note of any matters which they wish to raise at the hearing.