Introduction
16.1Sometimes, local authorities close care homes, day centres and other services, and re-model local services, in a way that commands a high degree of acceptance locally. Sometimes, because of the personalities involved, the scale of the changes or the potential risks, that objective is not accomplished. However, it is in everyone’s interests, including their own, that local authorities do everything they can to explain, discuss, involve, persuade and seek agreement with local voluntary groups, service users and their families: it maximises opportunities for the useful exchange of information and views, minimises the risk of expensive litigation and promotes an atmosphere of mutual understanding, fairness and respect.
16.2There can be no doubt that, even if the service users’ ‘eligible needs’ will still be met in other ways, as will invariably be the case, the closure of a particular service can be highly distressing and seriously damaging, in particular if a consensus has not been reached and/or the process is not well-managed. In addition to the understandable fear of change, especially among the elderly, closures are usually accompanied by highly worrying statements about budgetary cuts, creating the real prospect of a worse service even if ‘eligible needs’ are met, threaten the loss of important friendships and relationships with care staff at the facility targeted for closure, uncertainty, increased caring roles and visiting difficulties for family members – and so on. However, service users and their families who try to keep a service open experience a number of formidable difficulties:
•because of the way the Care Act 2014, and other primary legislation, is drafted, service users have a guarantee that their ‘eligible needs’ will be met, but are not usually entitled to insist on their preferred service;
•closure decisions are almost always subject to future assessments and arrangements whereby the local authority undertakes not just that ‘eligible needs’ will be met but that mitigating steps will be taken to minimise distress and the risks of damage, endeavour to keep friendship groups together, maintain at lest some staff continuity – and so on;
•there are usually strong budgetary or policy reasons for the change, which are the types of reasons that the court is especially cautious about supervising because these types of decisions are in principle within the constitutional remit and institutional expertise of democratically elected bodies, not the court;
•events on the ground often move on: for example, some residents opposed to the closure of a service may opt nonetheless to accept a relatively good, alternative offer, before someone else takes it up, thereby denuding the service in question of both supporters and continued viability; and
•the court may perceive that the cost and distress occasioned by correcting past procedural errors may outweigh that caused by the errors themselves and may be of little avail in terms of affecting the ultimate outcome.
16.3However, whilst service users face an uphill struggle in this context, the courts do recognise the distress and harm that may be caused by the termination of a service, in particular when the users of that service have not been treated fairly and with respect for their situation, and it does grant remedies in appropriate cases where the process has been flawed, usually as a result of inadequate consultation or inadequate discharge of the public sector equality (PSED) (see chapters 3 and 5 above).
Homes for life
16.4There was a period of time, when local authorities and health authorities quite often promised people that they would have a ‘home for life’ in a particular care home. This was usually given as an assurance to people, on the basis of which they moved without protest from some earlier accommodation where they had wanted to stay. Such promises are not made at all frequently now.
16.5The approach of the courts has been that:
•the existence of a ‘home for life’ promise has to be proven, where it is disputed, by clear evidence;
1R (C, M, P, HM) v Brent, Kensington and Chelsea and Westminster Mental Health NHS Trust [2002] EWHC 181, (2003) 6 CCLR 335. •a clear assurance of a ‘home for life’ gives rise to a legitimate expectation;
2R v North and East Devon Health Authority v Coughlan [1999] 2 WLR 622, (1999) 2 CCLR 285. •local authorities have to take into account that they have created such a legitimate expectation and must have a sufficiently cogent and proportionate reason for overriding it.
3R v North and East Devon Health Authority v Coughlan [1999] 2 WLR 622, (1999) 2 CCLR 285. Consultation
16.6Many challenges to service closures are brought on the basis of inadequate consultation: some of the cases set out below consider such grounds of challenge and others are included in chapter 3, ‘Consultation’ above.
16.7The court invariably proceeds on the basis that care home residents, day centre users and other service users have an interest that requires them to be consulted before their care service is terminated. In this context, the grounds most likely to succeed involve complaints that:
•the decision had already been taken;
4R (Boyejo) v Barnet LBC [2009] EWHC 3261, (2010) 13 CCLR 72. •inadequate time was given for considered responses;
5R (Boyejo) v Barnet LBC [2009] EWHC 3261, (2010) 13 CCLR 72. •officers failed to provide consultees and/or decision-makers with accurate information about the risks and benefits of closure;
6R (Madden) v Bury MBC [2002] EWHC 1882 (Admin), (2002) 5 CCLR 622.and that
•the local authority failed to consult over realistic alternatives.
7R (Madden) v Bury MBC [2002] EWHC 1882 (Admin), (2002) 5 CCLR 622. 16.8It is however lawful to consult first of all on high level policy changes, which will very probably result in care home and other service closures, subject to later consultation over specific service closures.
8R (LH) v Shropshire Council [2014] EWCA Civ 404, (2014) 17 CCLR 216 at paras 21–26.The public sector equality duty (PSED)
16.9Broadly, the same applies to challenges brought on the basis of an alleged failure to discharge the PSED: some of the cases set out below consider such grounds of challenge and others are included in chapter 5 at paras
5.43–
5.68 above.
16.10The essential point is that decision-makers are required to read a report that:
•makes it clear, in unvarnished and robust terms, what the potential risks are of the proposed service closure, as well as what the benefits, justification, mitigating and monitoring measures are;
•advises the decision-makers clearly as to existence and content of their duty under the PSED.
16.11The courts have made it clear that they will not quash decisions based on minor breaches of the PSED but will require local authorities to satisfy them that there has been a proper and conscientious focus on the substance of the PSED.
9R (Michael Robson) v Salford CC [2015] EWCA Civ 6 at paras 37–48.16.12As with consultation, it is lawful to pass a budget that is highly likely to result in service closures on the basis of a relatively general, high level discharge of the PSED, subject to later more focussed discharge of the PSED before any specific service is closed.
10JG and MB v Lancashire CC [2011] EWHC 2295 (Admin), (2011) 14 CCLR 629 at paras 43–45.Prior assessments
16.13In general, local authorities are
not required to undertake formal assessments of any of the users of a particular service before deciding in principle to terminate it. In general, it suffices for local authorities to undertake a few representative assessments, or to operate on the basis of a reasonable understanding of the levels of need of the individuals concerned and the alternative provision available to meet those needs.
11R (Wilson) v Coventry CC, R (Thomas) v Havering LBC [2008] EWHC 2300 (Admin), (2009) 12 CCLR 7.16.14This approach is in line with the courts’ approach to consultation and discharge of the PSED, which allows macro decisions to be made on the basis of relatively broad, high-level information, subject to more focussed consideration (with the possibility of a change of tack) in due course.
12R (LH) v Shropshire Council [2014] EWCA Civ 404, (2014) 17 CCLR 216 at paras 21–26; JG and MB v Lancashire CC [2011] EWHC 2295 (Admin), (2011) 14 CCLR 629 at paras 43–45.It is on the basis that, notwithstanding the macro service closure decision, no individual will be deprived of the service in question unless and until their needs have been fully assessed and an alternative identified that meets their ‘eligible needs’.
16.15A different approach may be required, however, where statutory or non-statutory guidance advises that individual assessments should be completed before a decision is taken to close a particular service or where the circumstances strongly indicate that a failure to do so is irrational: usually, when what is contemplated is the closure of a niche or intensive service, in circumstances where it is highly questionable whether that service can be replicated elsewhere in a way that meets ‘eligible needs’.
13R (Bishop) v Bromley LBC [2006] EWHC 2148 (Admin), (2006) 9 CCLR 635.Management of the closure process
16.16Persons opposing care home closures fought long and hard, with some success, to improve the quality of closure arrangements, but were unable to establish that care home closures necessarily entailed unacceptable risks to the life or health of the residents.
16.17The furthest the courts have gone,
14A good example, is R (Wilson) v Coventry CC, R (Thomas) v Havering LBC [2008] EWHC 2300 (Admin), (2009) 12 CCLR 7.is to accept that:
•a badly managed closure may cause distress and serious harm including personal injury or death;
•hypothetically, an irreduceable, unmanageable risk of personal injury or even death might arise, in the case of an exceptionally vulnerable individual. That could well prevent the termination of a service, no matter what stage had been reached; however,
•that risk need only be identified after an in-principle decision to close has been made, and individual assessments are being undertaken; and
•there is no reported case in which such an irreduceable risk has been recognised as existing.
16.18In addition, the European Court of Human Rights has shown itself to be wholly unsympathetic to cases involving opposition to service closures, including care home closures: it regards such cases as prime examples of cases that involve questions of social policy that fall well within the ‘margin of appreciation’ of national authorities.
15Collins v United Kingdom (2003) 6 CCLR 388; Watts v United Kingdom (2010) 51 EHRR SE5.16.19All that notwithstanding, the courts do recognise that it is vital that local authorities have an up-to-date protocol for managing home closures and transfers and that officers advise decision-makers carefully about all the potential risks.
16.20It is surprising that the Department of Health has still not issued nationally applicable guidance on this important subject. However:
•the Personal Social Services Research Unit (PSSRU) has produced an interesting and useful review of local authority guidelines and protocols, called
Guidelines for the closure of care homes for older people: prevalence and content of local government protocols;
17www.pssru.ac.uk/pdf/dp1861_2.pdf. Mediation and Alternative Dispute Resolution
16.21Local authorities are often under time constraints, as well as budgetary constraints, but if there was one area of adult social care where mediation and alternative dispute resolution (ADR) ought to be used more often, in everyone’s interests, this is surely it.
16.22
R (Cowl) v Plymouth CC (see below at para
16.33)
19[2001] EWCA Civ 1935, (2002) 2 CCLR 42.is an example of the Court of Appeal taking this point very strongly. The subsequent ADR process, convened before an extraordinary complaints panel, did in fact result in Plymouth changing its position and keeping open Granby Way, re-named Frank Cowl House in honour of Mr Cowl, who sadly died during the ADR process.
16.23It is fair to point out, however, that the Panel’s Report did itself uncover a number of serious defects in the ADR process and advised, inter alia, that it was important, to correct imbalances of power and that public funding was available to assist residents and their families in such complaints/mediation proceedings. Accordingly, local authorities desirous of promoting ADR need to consider how to address such disadvantages, for example, by the use of advocates.
Private services
16.24The reported cases involve challenges to the closure of local authority homes and the termination of local authority services.
16.25It is harder to imagine a challenge to the closure of a private sector home succeeding, not least because, in most cases, such closures are dictated by insolvency or enforcement activity triggered by grossly inadequate care.
16.26However, in principle, such a case could be brought, either on contractual grounds or, more likely, on the basis of section 73 of the Care Act 2014. This legislates that a private or social sector provider is exercising a function of a public nature if, on the basis of payments or arrangements made by a local authority, it provides care and support to an adult, or support to a carer, in the course of providing i) personal care where the adult is living, or ii) residential accommodation together with nursing or personal care.