Judge backs council decision to close centre for older people

Councils must consider all the right issues when making a
decision to close a long term residential care home for older
people. That was the decision of the QBD (Administrative Court) on
16 April 2003 in the case of R. (on the application of Dudley) v
East Sussex county council.

This was an application for judicial review of the decision of
East Sussex county council in December 2002 to close a long term
residential care home for older people. The home was used by
permanent residents, day care users, respite care patients and
carers of the respite care patients. All these groups were unhappy
at the decision to close the home, which had been made on the basis
that alternative appropriate care could be provided more cheaply in
the private sector and the existing site could be used for the
provision of much needed intermediate care with the aid of a
£1 million government grant.

There had been a consultation process during which there had
been an opportunity for all those affected to make representations
and there had been assessments of the needs of the residents and
users. Mrs Dudley, one of the permanent residents, submitted

(1) the consultation process had been unfair because:
(a) the information provided in a key letter had used unclear
language and, in particular, avoided reference to closure of the
(b)  the council had pre-judged its decision to close the home
before the completion of the consultation process;
(c) the consultation with residents had been rushed and cut short;
(d)  there had been a failure to discuss relocation en masse;

(2) the council had been unreasonable by failing to take into
(a) an alleged increase in the mortality rate for long term care
residents who are moved;
(b) the needs of residents; and
(c) guidelines from the government together with a report from
Plymouth; and
(3)   the council had failed to take account of Mrs Dudley’s
rights under Article 2 (right to life), Article 3 (no torture,
inhuman and degrading treatment) and Article 8 (right to respect
for private and family life, home and correspondence) of the
European Convention on Human Rights.

Refusing the application, Mr Justice Maurice Kay held that:

(1)  the consultation process had not been unfair. It had been
made clear that closure of the home was a possibility and whilst
the council might have been pre-disposed towards closure that did
not amount to a pre-judgment.  Further, each resident and/or family
member had had the opportunity to make representations during the
consultation period which had not been rushed or cut short. Indeed,
the consultation had been sufficient and had taken into account
special relationships between residents who may wish to be
re-located together;
(2)  the evidence regarding mortality rates had not been all one
way and the council had been aware in general terms of that
risk. Further, the care assessments had been sufficient to properly
consider the needs of residents. The Plymouth report had merely
been a local area report and did not have the authority “to
promulgate guidelines for the world at large” and the
government report referred to had dealt with long stay National
Health Service patients not residential care patients; and
(3)  the evidence had not supported a breach of Article 2, the
threshold for Article 3 had not been reached and any breach of
Article 8 was justified by the high demand for care for the elderly
in the context of a restricted budget.  Courts should be slow
“to interfere with decisions involving the balance of
competing claims on the public purse in the allocation of economic
The judge went on to say that he did not want the litigation in
this matter to be prolonged and urged the parties to consider
mediation if they continued to be in conflict.

Comment: The judge dealt thoroughly with each of the objections
made and found that the evidence was against the objectors on every
issue and that the criticisms of the council were unsustainable. 
The council had considered all the matters they needed to very
thoroughly, in fact “it may well be that the consultation was
more extensive than the law requires”. 

Local authorities need to read this judgment as they try to find
the “most effective ways of fulfilling its various statutory
responsibilities within existing financial restraints”. Mr
Justice Maurice Kay thought that “It is hardly surprising
that it (the council) was not anxious to lose the prospect of a
£1 million grant from central government”. Protesters
who wish to campaign against the closure of a care home or other
facility will need to present better arguments in the future.

Bernadette Livesey

Human Rights Solicitor

Walker Morris

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