Dempsey v London Borough of Sutton
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lady Justice Black |
| Judgment Date | 21 February 2013 |
| Neutral Citation | [2013] EWCA Civ 863 |
| Date | 21 February 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2012/2342 |
[2013] EWCA Civ 863
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR TIMOTHY STRAKER QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
and
Lady Justice Black
Case No: C1/2012/2342
Mr Stephen Cragg (instructed by Irwin Mitchell LLP) appeared on behalf of the Appellant.
Mr Hilton Harrop-Griffiths (instructed by Adults and Education, LB Sutton) appeared on behalf of the Respondent.
This is an appeal by Ms Susan Dempsey, the appellant, against a decision of Mr Timothy Straker QC, acting as a Deputy High Court Judge, on 22 August 2012. The appellant made an application for judicial review complaining of the failure by the London Borough of Sutton ("LBS") to provide her with suitable accommodation. A claim was also made against NHS South West London for failure to fund her existing placement at1 Sewardstone Close, but that has not in the event been pursued. I will refer to them as the primary care trust ("PCT").
The appellant, who had worked as a nurse for many years, underwent surgery for the removal of a brain tumour on 19 October 2010. On 22 October she suffered a stroke. She now suffers from frontal ataxia, dizziness, poor motor co-ordination and dexterity, restricted mobility, dysarthria, dysphasia and dysmetria. She is wheelchair-bound.
From 8 March 2011 the appellant was a resident at 1 Sewardstone Close, a placement which provides for long-term and medium-term services for people with complex physical and nursing needs. Her placement was financed by the PCT.
The appellant was told of a proposal by LBS to move her to Belsize Court, Sutton, in mid-December 2011. That is an independent live-in placement. The appellant visited Belsize Court. Initially she was not opposed to going there, but, well before the relevant events, she formed the view that her care needs would not be met there and it would not provide an environment where she would be able to make progress by way of rehabilitation. She consulted solicitors. On her behalf the solicitors wrote to LBS on 22 November 2011 requesting a copy of the appellant's most recent NHS and Community Care Act 1990 section 47 assessment and care plan.
There were discussions. The material was not immediately forthcoming. The solicitors then stated that, if the appellant was to be moved from 1 Sewardstone Close on 15 December (as had been planned) without substantial evidence that her needs would be met elsewhere, they would write a formal Letter before Action challenging the decision and, if necessary, taking proceedings.
The question arose as to the continued funding of the existing placement by the PCT. They had formed the view that the appellant no longer had primary healthcare needs which required continuing rehabilitation at Sewardstone Close. In a letter dated 9 December 2011 the LBS wrote to the appellant's solicitors referring to that opinion and stating:
"The London Borough of Sutton has identified what it deems to be a suitable community placement for your client and confirms that they would have no objection to your client moving and taking up a tenancy there from the 4th January 2011, if the PCT are prepared to commission the on-going placement at the Rehabilitation unit…"
In the event the PCT were not prepared to fund the current placement as from 15 December 2011 and the responsibility for the appellant became that of LBS.
The solicitors requested sight of any assessment of the care plan as it related to the proposed accommodation at Belsize Court. It is clear to me, on a consideration of the documents, that Belsize Court was the proposed place of placement. When LBS referred to what it deemed to be a suitable community placement it was Belsize Court that they had in mind. Mr Harrop-Griffiths for the LBS says that it was the only place available at the time. One must keep aware of the strains imposed on the resources of councils by the statutory requirements.
By letter of 12 December 2011 the solicitors repeated the appellant's claim that the proposed placement at Belsize Court would not meet her needs "rehabilitation-wise or socially". It was pointed out that they had yet to receive any paperwork from LBS including a copy of the appellant's social care assessment.
That situation having arisen, the solicitors wrote the appropriate pre-action protocol and then commenced proceedings for judicial review. They claimed injunctive relief. The reasons for urgency were stated to be:
"Funding for the placement will cease tomorrow, 15 December 2011. It is proposed that she moves tomorrow to unsuitable alternative provision arranged by the London Borough of Sutton."
What was challenged was the decision of LBS to fail to provide suitable alternative accommodation.
The application came before Wilkie J, who considered documents lodged by the parties. The judge ordered that the defendants, both of them, the PCT being a party at that stage "..shall arrange for and fund the provision of accommodation and services at the claimant's current placement at 1 Sewardstone Close forthwith and until further notice".
The judge ordered that the application for permission to apply for judicial review be considered as soon as possible and in any event before 23 January 20On 21 December 2011 a care planning document was produced by the council. That continued to recommend that the appellant be placed at Belsize Court. In detailed Grounds of Resistance it was accepted that the options had not been put directly to the appellant in writing, but LBS claimed that the oversight had now been remedied.
The case came before Stadlen J on 20 January 2012: that is, close to the end of the period contemplated by Wilkie J, business in the vacation having of course intervened. Stadlen J listed a hearing for 13 March 2012. However, on 1 March 2012 a round-table meeting was arranged and the LBS produced a new proposal under which the appellant could be accommodated in a flat in independent living at Flat 17, 49 Hackbridge Road. That building was almost complete by that time and, when it was completed, a care package was arranged by LBS and a consent order signed on 11 May 2012. The appellant moved into the premises on 21 May 2012.
The issue of costs came before...
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