R (Haggerty and Others) v St Helens Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber,MR JUSTICE SILBER,‘MR JUSTICE SILBER’ |
| Judgment Date | 11 April 2003 |
| Neutral Citation | [2003] EWHC 803 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 April 2003 |
| Docket Number | Case No: CO/1300/2003 |
[2003] EWHC 803 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Silber
Case No: CO/1300/2003
Mr. Rupert Skilbeck (instructed by Hossacks of Kettering) for the claimants
Miss. Fenella Morris (instructed by The Solicitor, St. Helens Council) for the defendant
The claimants are residents of Delamere House (“the home”), a private nursing home in St. Helens in Lancashire, which is operated by Southern Cross Healthcare Services Limited (“Southern Cross”), who have a contractual relationship with St. Helens Council (“the Council”) by which Southern Cross accommodates the claimants. The claimants challenge the decision of the Council made on 9 December 2002 contained in a letter of that date not to enter into a revised and more onerous arrangement with Southern Cross at an increased weekly fee payable by the Council for placements of at the home together with a new obligation on the part of the Council to enter a block contract by which the Council would have to pay for a specific number of places at the home, irrespective of occupancy levels. All the claimants are elderly and suffer from senile dementia. Thus they all act by their next friends, who are obviously and commendably very anxious to do everything to help the claimants. Anybody who reads, as I have, of the sad medical condition of the claimants will have great sympathy for them.
The challenge to the Council's decision arises out of the claimants’ contention that the Council's decision not to enter into the proposed contract with Southern Cross has led to Southern Cross deciding to close the home. The claimants contend that this decision of the Council, which will lead to the claimants having to move is impugnable on public law grounds as it was irrational, as it failed to take into relevant considerations and as it infringes the claimants’ rights under Articles 2, 3 and 8 of the European Convention on Human Rights (“ECHR”). It is not contended that the alternative accommodation proposed by the Council for the claimants is defective, or that it does not comply with the statutory obligation owed by the Council to the claimants. Instead the focus of the claimants’ challenge is the effect on them of having to move to other homes in the vicinity. I should stress that my task is not to determine if I agree with the Council's decision but whether it can be impugned on established legal grounds.
In response, the Council submits first that its decision not to enter into a revised and more onerous contract on the terms sought by Southern Cross is not as a matter of law amenable to judicial review by the claimants, whether on public law or on human rights grounds. The Council also contends that it has complied with both its obligation not to infringe the claimants’ rights under the ECHR and under public law, as well as its statutory obligations to assess the claimants’ needs and to provide them with accommodation that meets their needs. Southern Cross was joined as an Interested Party on this application but it has not been represented at the hearing.
Sullivan J refused to give permission to a claimant on a written application on 7 March 2003 when he stated that:-
“The application and the application for interim relief are wholly misconceived. Southern Cross has decided to close the home and evict the residents on 31 March, the Council has to respond to that situation. I can see no error of law in the Council's decision-making process as explained in the Council's letter dated 17 February 2003. Southern Cross has not challenged the Council's decision. This challenge appears to be an attempt to put indirect pressure on the Council to negotiate improved commercial terms with Southern Cross”.
The claimants and Southern Cross were at pains to point out that they were not acting in collusion and I accept that. On a renewed oral permission application on 19 March 2003, Sir Richard Tucker, sitting as a Deputy High Court Judge, granted the claimants permission to pursue their claim and he directed that the matter be heard on 27 March 2003. Since the grant of permission, Southern Cross has further extended its deadline for closure of the home until mid-April 2003. It now seems that the home will be closed at the end of April 2003. In the limited time available for preparation for the present substantive hearing, the legal advisers of both parties have adduced much evidence and admirable skeleton arguments. I reserved judgment at the conclusion of the hearing and have since received much further evidence, mainly from the claimants and this has inevitably delayed delivery of this judgment.
The claimants’ solicitor also sought to raise for the first time four days after the end of argument, a fresh issue concerning the ability of the Council to obtain financial assistance from the National Health Service for funding the claimants’ accommodation. In all fairness to the claimants, I decided to consider that point which I do in paragraphs 79 to 82 below, even though it was raised so late. I received commendably helpful written submissions from Miss. Morris on this issue but that has inevitably delayed the handing down of this judgment.
The background to the dispute
Prior to September 2002, the Council had a written contract with Southern Homes to provide care and accommodation for a number of residents at the home for a weekly fee of between £348 and £365 per individual. The contract provided that fees should be agreed annually (clause 8.5.1), that it might be terminated by either party on 12 weeks’ notice (clause 15.9.4) and that disputes arising out of the contract should be resolved by arbitration (clause 15.8.2).
In September 2002, Southern Cross asked the Council for an increase in the fee payable to £450 per week per resident. On 7 November 2002, the Council agreed a provisional increase of this fee to between £398.60 and £413.60 per week pending a review by independent consultants of all care home fees, in consultation with the home and with other private service providers. By 9 December 2002, Southern Cross remained insistent that the fee payable should rise gradually to £450 per week per resident by September 2003 and that the obligation of Southern Cross should be to pay on a block contract basis, rather than on an individual basis. Thus, the Council would then have to pay for a specific number of places even if it did not use them. On 5 December 2002, Southern Cross notified the Council by email that they would not continue to provide the present service and unless agreement was reached in 7 days, “we will close the unit”.
The Council rejected this proposal in its letter to Southern Cross dated 9 December 2002, which is the decision under challenge on this application. In this letter, it explained that the proposed contract would pre-empt its review of care home fee levels, which would specifically consider the needs of residents such as those at the home. The Council also stated that purchasing facilities from Southern Cross on a block contract and thereby accepting responsibility for the home's occupancy levels would be improper for the Council as the risk relating to occupancy at a private home providing services to a Council should remain with the home and not be passed to the Council. It was considered by the Council that to do otherwise would mean that the Council would give preferential treatment to the home over other local homes. The Council considered that the offer of fee levels made by it of £413 per week per resident in occupation was fair and reasonable. It is noteworthy that according to the Council's skeleton argument, £404 per week per resident is the fee paid by the Council to Green Park Nursing Home, another local home to which it is proposed that twelve of the residents at the home should be moved. I regard that as correct because the Council would know what fee is actually paid for that facility, even though this was at one time disputed by the claimants. In any event, according to the Council, it did not have the resources to pay the rates sought by Southern Cross as it had overspent by that time on its relevant budget.
On 9 December 2002, Southern Cross gave notice to the Council of its intention to close the home, with the result that the Council had 12 weeks in which to assess and to find accommodation for the claimants under the contract. Southern Cross informed the residents and their relatives of its decision to close shortly afterwards, but as I have explained, that period has since been extended. Normally, I would have considered adjourning a case such as this to see if it could be resolved by some form of alternative dispute resolution, but the decision to close the home had already been made by Southern Cross before the hearing to close the home in the very near future. I decided that alternative dispute resolution had no prospect of success in this case in the time available, especially as if it was unsuccessful it would not have been possible to arrange another hearing before the home was due to close.
It is apparent from the correspondence that the home had many vacant beds, and that Southern Cross intended the proposed fee increase to offset its “occupancy shortfall”, as well as to meet its “trading losses”. In an email dated 18 December 2002, the Council explained to Southern Cross the need to adopt a long-term contractual framework that would sustain services over that period. It stated that, since Southern Cross...
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