Case No: C1/2009/1992 (A)

Neutral Citation Number: [2009] EWCA Civ 1168
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT, BIRMINGHAM
(HER HONOUR JUDGE KIRKHAM)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 7th October 2009

Before:

LORD JUSTICE SEDLEY
and
MR JUSTICE OWEN

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Between:

	The Queen on the application of WATTS	
Appellant	
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WOLVERHAMPTON CITY COUNCIL	

Respondent	

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Ms Y Hossack appeared as a Solicitor Advocate on behalf of the Appellant.
Mr B McGuire (instructed by Wolverhampton City Council) appeared on behalf of the Respondent.

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Judgment
Lord Justice Sedley:

1.	This is the combined hearing of an application, in particular but not solely on behalf of Mrs Louisa Watts for permission to appeal.  It is also the hearing of an application by Wolverhampton City Council to discharge an injunction designed to hold the position while permission to appeal is sought.

2.	It is accepted on both sides that if there are no grounds for an appeal then there will also be no basis on which the injunction could be continued.  Correspondingly, it is accepted that if permission to appeal is given the injunction should stay in place pending the appeal.   So everything turns on whether this is a proper case for the grant of permission to appeal.  

3.	The issue arises out of Wolverhampton City Council’s decision that their care home at Underhill House has to be closed and its residents transferred to another care home or homes.  Subject to something I will mention in a moment, that decision is not directly under attack.  The building in fact is some 40 years old.  It falls below the national minimum space standards and is, in the council’s judgment, beyond economic repair or improvement.  What is principally said in the proposed judicial review proceedings, however, is that notwithstanding this, the potential harm of moving the residents or at least some of them is such that no move should take place.  The resident of whom it is most prominently said is Mrs Watts, who at 106 is one the oldest people in the country.  For that reason this case has understandably attracted public attention.  Miss Hossack, on behalf of the applicants, also draws our attention to a second resident, Mrs Beswick, whose condition is not dissimilar to that of Mrs Watts.

4.	This being the situation, it is perhaps helpful to spell out what is and is not the court’s role.  The provision and administration of care homes is the function of local authorities, in addition of course to the private sector.  The courts have neither the resources nor the power nor the expertise to decide how they should be run.  Our role is limited to ensuring that whatever is done by a public authority is lawfully done, and this may include ensuring that a decision to close a home has been lawfully reached.  

5.	But that is not the issue here.  The issue is whether unacceptable and unavoidable harm may be caused to individuals if the decision is implemented.  The duty not to cause harm to individuals is not in fact a public law duty.  It is the common duty of care which is owed by every person or body to individuals for whose wellbeing they are responsible.  Wolverhampton council has never contested this.  It has accepted throughout that it has to take the greatest care in preparing its residents for any move and in making their transition to a new home as smooth as possible.  

6.	Miss Hossack’s argument is that this will not be enough.  She submits that this is the classic case envisaged by His Honour Judge Pelling QC in R(Verna Wilson & Ors) [2008] EWHC 2300 Admin.   In that case, which failed for prematurity, Judge Pelling said:

“In my judgment the point is premature because both local authorities have elected, as they were entitled to do, to carry out the individual assessments after the decision to close had been taken.  If the position is that the defendants had embarked upon a process of transfer of residents on the basis of individual assessments on a piecemeal basis, the point relied upon might have been arguable, but that is not what has occurred.  If subsequently the authorities embarked on such a process, then they might in the future (I emphasise the word ‘might’) be susceptible to judicial review.  However, that is a decision for another court on another day.”

7.	Among other submissions Miss Hossack suggests that this is that other court on that other day.  Her reason is that the potential disruption of any move, particularly if it is made against the residents’ wishes, is capable of shortening their lives.  Her evidence of this chiefly concerns Mrs Watts, and it is therefore to this that I turn.  

8.	Before I do so, I need to say this.  Miss Hossack has also sought before us to pursue a challenge to the initial decision to close the home.  She does so, or seeks to do so, on the grounds that the impact assessment, which we have now seen, was belatedly produced and was not before cabinet when it decided upon the closure.  The judicial review claim form at section 3 says, under “Details of the decision to be judicially reviewed”: 

“(1) The decision of the 22nd APRIL 2009 to approve the closure of Underhill House.  (2) The incompatibility of legislation which does not allow an appeal against a decision in cases where a persons life is at risk.”

9.	Section 6, giving details of the remedy sought, however, says:

“The remedy sought is that the defendant be prohibited from taking any steps to implement its decision including, but not exhaustively, re-deploying or making redundant any of its staff and moving any residents without having a report from an expert psychiatrist confirming that there will be no risk to the residents life and/or health.”

That goes entirely to the implementation of the closure decision and not to its legal validity.  It is to that that the evidence is directed.

10.	The evidence consists principally of a report by a well-qualified consultant psychiatrist, Dr Cornelius Katona.  He records that Mrs Watts has lived at Underhill House for the last five years.  When she first moved there she was already over 100, and used to go out for bingo and fish and chip lunches.  With the passage of time she has become wheelchair-dependent and very deaf, but she is regularly visited by her two sons and by friends. 
 
11.	One result of Mrs Watts’s deafness was that Dr Katona could not administer all the cognitive tests that he would have wished to use, but he concluded that she now had moderate cognitive impairment, probably because of incipient Alzheimer’s.  He guessed, albeit without reference to life expectancy tables, which Miss Hossack tells us understandably do not go beyond the age of 100, that she had a life expectancy of one to two years.  He then wrote this:

“4.2.1 Despite extensive research in the area there is no conclusive evidence that, overall, mortality has increased if people in residential care are transferred. [He then gives a reference to a research source]  There is however evidence that some people are at particular risk [He refers to the same research source] and that mortality is significantly increased in such individuals.”  

He goes on to identify the risk factors relevant to Mrs Watts as confusion, incontinence and poor mobility.  He continues:

“4.2.3 In the light of this I would conclude that on the balance of probabilities Mrs Watts’ life expectancy is likely to be reduced by 25% if she is moved from Underhill House where she has lived happily for five years.  The research… suggests that this risk is likely to be mitigated somewhat by preparation and if she were moved together with other residents with whom she has made particularly close friendships.  Such preparation is regarded as good practice by most Councils…”

12.	He then turns to Mrs Watts’ best interests and says:

“4.4.2 The ideal outcome for Mrs Watts would, in my view, be for her to remain at Underhill House for the rest of her life.  
4.4.3 If however a move is unavoidable, the key issues to ensure would be 
4.4.3.1 Moving ‘en bloc’ with her closest friends, 4.4.3.2 Continued accessibility for the very frequent visits that add significantly to the quality of her life.”

The report on Mrs Beswick has similar conclusions.

13.	Dr Katona’s report on Mrs Watts is dated 17 July 2009.  We know now that on the same day he e-mailed Miss Hossack a covering message for the report, which read as follows:

“I look forward to your comments as to whether any amendments or clarifications are necessary.  As you will see I am not convinced that the outcome of a move would be so bad for some of them.”

14.	In response to request by email from Miss Hossack for further information he wrote: 

“I was also quite surprised at what I found.  I think the people I saw were relatively well (mentally in particular), were well supported by family and in particular were quite aware of the possibility of moving and pretty laid back about it.”

15.	Miss Hossack confirms to us that the phrase “the people I saw” included Mrs Watts.  Read together with the report, it is clear that, while it is in no way a licence to be less than extremely careful about Mrs Watts’ welfare in any move, it does not predict harm to her from a move.

16.	I have cited the remedy which is sought in the judicial review proceedings.  This claim has now twice been rejected by the courts as unarguable.  On 10 July HHJ McKenna, on consideration of the papers, refused permission to apply for judicial review.  On renewal before HHJ Kirkham QC on 9 September, with oral argument in support, permission was again refused.  The following day notice of appeal to this court was given, and it is the application for permission to pursue that appeal with which we are now dealing.

17.	In the meantime a series of injunctions has been obtained to hold the position pending the making of this application.  There is no need to detail them, although I will refer in a moment to the initial application before Wyn Williams J which was rejected.  It is sufficient to say that the one which remains currently in force is the one granted by Rimer LJ on 11 September.  As I indicated, it stands or falls with the application for permission to appeal. 
 
18.	For my part, I am unable to see any viable ground on which this court can grant permission to appeal against Judge Kirkham’s decision not to give permission to apply for judicial review.  If there were any firm evidence that moving Mrs Watts was going to shorten her life, the decision would be quite different.  It would be nothing to the point that she had already enjoyed a long and active life.  Mrs Watts, like everybody else, is entitled to the full benefit of every day that still remains to her.

19.	But when one reads Dr Katona’s report with the accompanying messages that I have quoted, it is evident that there is no reason why Mrs Watts is moved to a new care home, provided it is properly managed, should do her any appreciable harm.  

20.	Is there then any reason in the evidence before us to suppose that it will not be properly managed?  Wolverhampton City Council has made it clear that it is well aware of its legal duty towards its residents.  Although it was not adequately spelt out in initial correspondence, it has more than once now undertaken in open court to conduct individual assessments, so far as these have not already been made, so that the move of each resident can be tailored to his or her own needs and own medical condition.  That undertaking was given to Wyn Williams J when he was asked for an injunction and was given again to HHJ Kirkham when she considered the application for permission to seek judicial review.  

21.	We also now have the council’s equalities impact assessment, a document which, although only disclosed today, can be seen on examination to have been the source of the greater part of what was set out in the report to cabinet which was the foundation of the decision to close the home.  It is perhaps worth quoting:

“Underhill House is a Wolverhampton City Council Residential Home for older people based in the North East of the city.  It has a total of 33 beds, 10 of which are Respite.  

Underhill House was built 40 years ago and does not meet the current physical space standards set out in the National Minimum Standards.  However there are no immediate requirements for Underhill House to meet these standards but there is an expectation that these requirements will apply to all care homes.  If work was undertaken to achieve the increased room sizes within the current building, it would be necessary to reduce the number of rooms by at least a third.  This would result in the cost of this service being financially unviable.”

22.	Among the tabulated information which has been gathered are the individual care plans of residents, the contents of the consultation process and the views of residents and relatives following face-to-face interviews by the assessment team.  In the list of findings of “adverse or positive impacts” is: 

“Concern about the detrimental effect of the upheaval of moving on residents, particularly those with dementia.”  

In the box for adverse impacts and policies or procedures or practices which may have caused them, there is listed the fact that closure: 

“…would however cause distress to current service users and their families.”

Lastly, in answer to the question, “What are you going to do to reduce or eliminate the inequality/adverse impact?” there is listed: 

“…a need to reduce the impact of closure on service users by ensuring the following steps are undertaken:

•	Each resident and their carer is provided with intensive support and are provided with arranging information on the availability of places in other homes

•	Opportunity to making prior visit before reaching a decision
•	Careful individualised care planning is completed for each resident prior to moving to another establishment

•	Where necessary advocates are provided

•	Service users & their carers will be fully engaged in the process of their move paying particular attention to their wishes, feelings and addressing their cultural differences.

•	Arrangements are made to enable friendship groups to move together to an alternative home.”

23.	In answer to the final question, “How and when will you check whether the adverse impact has been eliminated or reduced?”, the two answers are that “This proposal will be checked during the 12 week Statutory Review after placement to alternative accommodation is made” and, secondly, “Homes will be asked to contact the relevant social work team should any problems arise from the placement before the annual review.”

24.	In addition to those matters of record Mr McGuire has put in writing today an undertaking in these terms:

“The council confirms that in each individual case it will assess:

(a) whether moving the applicant presents a risk of death or to health
(b) if there is a risk in being moved, whether or how might that risk be managed.  That assessment will take place in the context of section 47 of the NHSCCA 1990 assessment.”

25.	Thus, as it seems to me, the plans for relocating the residents of Underhill House meet the concerns expressed by Dr Katona.  So long as those concerns are met, Dr Katona’s own evidence indicates no risk of undue harm to the residents, who are to be moved -- this needs to be remembered -- from an unsuitable home to a home better equipped for their needs.

26.	For those reasons, it seems to me that the HHJ Kirkham and HHJ McKenna were both right to refuse permission to apply for judicial review.  For the same reasons, it seems to me that an appeal to this court would have no realistic prospect of success.  In short, the council proposes, as it has done throughout, to take individualised measures to ensure, so far as humanly possible, that neither Mrs Watts nor any of her fellow residents is distressed or harmed in any way by the move from one care home to another.  That is all that anyone can ask.  

27.	I would accordingly refuse permission to appeal and would discharge the injunction.

Mr Justice Owen: 

28.	I agree and would simply add that the residents of Underhill House and their friends and relations, who are naturally concerned for their welfare, can take comfort from the knowledge that in the case of each of the residents, in particular Mrs Watts, whose case has been at the forefront of the argument before us, there will be an assessment of the impact of the move to another care home before any such move takes place.  Such an undertaking was given to this court, but has also been made on two earlier occasions before Wyn Williams J on 7 July and before HHJ Kirkham on 9 September.  The undertaking reflects the fact that as my Lord, Sedley LJ has observed and has been readily accepted on behalf of the respondent, the respondent owes a duty of care to those who are resident in this care home.  

29.	The application for permission to appeal against the refusal to give permission to apply for judicial review is unarguable for the reasons that have been given by my Lord, Sedley LJ, and I would therefore refuse this application and likewise discharge the injunction.

Order: Application refused