In Frank Cowl and others v Plymouth City council the high court
considered another in a series of cases concerning proposals to
close residential care homes.
Here, eight residents of a council-run home applied for judicial
review of the decision to close the home, as part of a budgeting
device to save £993,000 from the council’s social services
budget. The council instigated a consultation process with
residents in order to take their views into account before
finalising the decision to close the home.
In line with the Coughlan judgement, all the residents were
asked whether they had been promised a “home for life”. (If this
was established then there would need to be an overriding public
interest to overcome the residents’ legitimate expectation that a
“home for life” would be provided, and there may well have been a
breach of the residents right to “respect for home and private
life” as protected by article 8 of the ECHR.)
The residents of the home overwhelmingly wanted to remain there,
but the council made the decision to close the home anyway, even
though it said it had taken the residents’ views into account, as
no resident had a “need” to be provided services there, rather than
in another home. The council was aware of the need for great care
when moving elderly residents.
The main complaints were that “home to life promises” had been
broken and that assessments of the residents had failed to take
into account psychological and emotional needs before the decision
to close had been made.
On the “home for life” point Mr Justice Scott Baker found that
the evidence was insufficient to establish that any “actionable
representations” had been made, either in writing or otherwise.
Given the serious implications of a promise of a home for life the
evidence must be “convincing”.
As to assessing all the residents’ needs, the judge held that
there was little purpose in assessing psychological and emotional
needs before the decision to close took place, as the actual
closure may be months away and the circumstances of the aged and
infirm can change quite quickly.
As to human rights points raised, the judge indicated that any
concerns about article 2 (protection of the right to life) and
article 3 (freedom from inhuman and degrading treatment) could and
should be dealt with at the time that residents would actually
move, and any breach of the right to respect for a home (article
8.1) could be justified under article 8.2 because of the economic
concerns of the council.
Comment: The judgement appears to be at odds
with the judgement in Bodimeade where the judge said that
assessments should take place before the decision to close was
taken. In addition, the judge appears to have left the question of
whether the breach of article 8 rights can be justified as
something for the council to decide, where recent cases suggest
strongly that the Court needs to take a more proactive role in
deciding whether interference with rights is justified. Given the
result of the case, the council’s decision to take advice from a
senior barrister prior to making the decision seems to have paid
Doughty Street Chambers