R (Johnson and Others) v Havering London Borough Council; YL v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Forbes,MR JUSTICE FORBES |
| Judgment Date | 11 July 2006 |
| Neutral Citation | [2006] EWHC 1714 (Admin) |
| Docket Number | Case No: CO/08481/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 July 2006 |
[2006] EWHC 1714 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Forbes
Case No: CO/08481/2005
Jessica Simor (instructed by HossacksSolicitors) for the Claimants
Roger McCarthy QC and Jason Coppel (instructed by Christine Dooley, Assistant Chief Executive, Legal and Democratic Services) for the Defendant
Philip Sales and Cecilia Ivimy (instructed by The Treasury Solicitor) for the First Intervener
David Wolfe (instructed by The Disability Rights Committee) for the Second Intervenerx
Introduction. The claimants are representative residents of the care homes at Hampden Lodge, Elmhurst Lodge and Marks Lodge. The Lodges are elderly people's homes and together with Winifred Whittingham House comprise the relevant four care homes for elderly people that are currently owned and controlled by the defendant Local Authority (“the Council”). All three claimants are in the residential care of the Council by reason of age and infirmity and are provided with that care in accordance with the Council's statutory obligations under section 21 of the National Assistance Act 1948 (“the NAA 1948”).
In these proceedings for Judicial Review, the claimants challenge the Council's decision in principle of 20 th July 2005, a decision that was retaken and confirmed on 11 th April 2006 (“the decision”): (i) to seek a private sector operator to accept transfer of, to operate and to expand Elmhurst Lodge and Winifred Whittingham House and (ii) to close Hampden Lodge and Marks Lodge, once their current residents have been transferred to suitable alternative accommodation, with a view to the sale of the property on which these homes are located. Hereafter, I will refer to these care homes collectively as “the homes”.
The Factual Background. It appears to be uncontroversial that there is a pressing need for the improvement of the facilities available to all residents and users of the homes in question. The quality of the current facilities is far from satisfactory. It is said that this has adverse implications for residents' welfare and quality of life as well as posing risks to the health and safety of staff members working in the restricted space in residents' rooms. The Commission for Social Care Inspection (the “CSCI”) has expressed concern about delay in the implementation of a plan to upgrade the homes.
According to the Council, the objective of the process that was commenced by the decision is to develop residential facilities which meet the environmental and spatial requirements set out in guidance that has been issued pursuant to the Care Standards Act 2000 (“the CSA 2000”) for newly built modern care homes.
Precisely how the necessary improvements to the homes should be undertaken is a matter that has been under discussion since 1999. It appears that the process has been delayed as a result of changes in political control of the Council and the need to consult widely at every stage and on all options.
In a decision of 14 th December 2004 (which is not subject to any challenge), the Council rejected various possible options, including that it should refurbish or remodel its existing care homes and continue to manage them with their existing staff. Following a further period of consultation and consideration, on 8 th June 2005 the Council's Cabinet (“the Cabinet”) decided that its preferred option was: (i) the transfer to the private sector of Winifred Whittingham House and Elmhurst Lodge as going concerns and (ii) that, in principle, Hampden Lodge and Marks Lodge should be closed, as and when all their residents had transferred to suitable alternative accommodation, and that the surplus sites should be sold when vacant. Accordingly, it was also decided that a tendering process should commence to implement the chosen option. It is said that the Cabinet's decision was made on the basis of extensive background material, including advice as to the legal implications for residents of the transfer of care homes to private sector operation and a presentation by the Claimants' solicitor: see paragraph 11 of the Council's written skeleton argument.
It was also decided on 8 th June 2005 that the Cabinet's decision should be subject to further scrutiny by the Council's Social Care and Health Overview and Scrutiny Committee (“the Overview and Scrutiny Committee”), following which the Cabinet would review the decision as necessary. A “Topic Group” was established by the Overview and Scrutiny Committee and this duly produced a report on 11 th July 2005. On 12 th July 2005, the Overview and Scrutiny Committee adopted the Topic Group's report and proceeded to make appropriate recommendations to the Cabinet.
At its meeting on 20 th July 2005, the Cabinet had before it for its consideration the Topic Group's report, the recommendations made by the Overview and Scrutiny Committee and the responses to those recommendations by the Council's officers and by the relevant Cabinet member. In the event, the Cabinet decided to confirm its earlier decision of 8 th June 2005 and to proceed with a tender process.
The Council considered the matter further at a Cabinet meeting on 11 th April 2006, when the Cabinet was provided with a report that included an account of the legal implications of the transfer of the homes to a private sector operator. The report in question highlighted the claim made in these proceedings and dealt with the allegations about what the Cabinet did or did not understand on 20 th July 2005 regarding the legal implications of transfer of care homes to the private sector and how this affected its decision to proceed with the re-provisioning process. The Cabinet was invited to give further consideration to its 20 th July 2005 decision in the light of that account. As the report made clear, the Cabinet had the option to reverse or vary its earlier decision in the light of the report. In the event, the Cabinet noted the summary of the legal implications set out in the report, but concluded that no revision was required of its decision of 20 th July 2005. In effect, this later decision (i.e. the decision of 11 th April 2006) replaced the earlier decision of 20 th July 2005 and is the decision that governs the Council's future actions and plans. It has also had the effect of rendering the first ground of challenge academic, other than on the question of costs (see paragraph 14 below).
Since the decision of 20 th July 2005, the tender process has commenced and has now progressed to an advanced stage. Expressions of interest were invited by advertisements published in September 2005. Nine tenderers out of twenty were shortlisted following consideration by the Council in October 2005. Invitations to tender were issued on 21 st December 2005 and a bidders' day was held on 11 th January 2006. The original deadline for return of tenders was 17 th March 2006, but this was extended to 20 th June 2006 in the light of these proceedings.
It appears that the current position is that only three of the nine tenderers who were invited to tender remain interested in the project. At the date of the hearing of these proceedings (8 th and 9 th May 2006), no tenders had been received. Accordingly, details of the tenderers' proposed methodology for the delivery of services and (for example) the process of change for residents were not available. As Mr McCarthy QC on behalf of the Council pointed out, once the tenders have been received and considered, it will be possible to evaluate the effectiveness of the proposals and there may be a period of further negotiation leading to tenderers submitting their best and final offer. During that period, the tenderers may make representations about any contractual arrangements and there remains scope for further negotiations, even once a bid has been selected: see paragraph 30 of the Council's written skeleton argument.
It appears that there will then be a further stage in the overall process in which the Council's officers will prepare and present a pre-award report to Cabinet which will evaluate the net benefits to the Council of entering into a contract with a tenderer, compared with the net benefits of continuing to provide the relevant services in-house. Legal advice may also be given at this stage with regard to the proposed contractual arrangements, the legal status of any prospective provider and the Council's own statutory obligations vis-à-vis residents. The Cabinet will then have to decide what, if any, authorisation should be given for entering into a contract with a prospective provider. As Mr McCarthy observed, the Council may decide that none of the tenders are of sufficient quality, or offer sufficient value for money, and that the tender process should be halted: see paragraph 21 of the Council's written skeleton argument.
Accordingly, as Mr McCarthy pointed out (see paragraph 22 of the Council's written skeleton argument), the effective claim in these proceedings (see paragraph 15 below) is a challenge to prospective contractual arrangements for the transfer of residential homes to a private sector provider, which is brought before there has been any final decision to implement an actual transfer to any specific provider and before the details of any contract to achieve that purpose have been finalised.
14. The Issues. Since the Council retook and confirmed its earlier decision on 11 ...
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