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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 off.

Stephen Cragg

Doughty Street Chambers