R Miss Florence Chatting v (1) Viridian Housing (2) London Borough of Wandsworth

JurisdictionEngland & Wales
JudgeMr Nicholas Paines QC
Judgment Date13 December 2012
Neutral Citation[2012] EWHC 3595 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/3994/2012
Date13 December 2012

[2012] EWHC 3595 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Nicholas Paines QC

(sitting as a Deputy High Court Judge)

Case No: CO/3994/2012

Between:
The Queen on the application of Miss Florence Chatting
Claimant
and
(1) Viridian Housing
Defendants
(2) London Borough of Wandsworth

Stephen Cragg (instructed by Messrs Hereward & Foster) for the Claimant

Christopher Baker (instructed by Anthony Collins Solicitors LLP) for the 1 st Defendant

Elisabeth Laing QC (instructed by Wandsworth Council Legal Services) for the 2 nd Defendant

Hearing dates: 21 & 22 November 2012

Mr Nicholas Paines QC
1

These proceedings originate in a claim for judicial review brought by Miss Florence Chatting, a lady now aged 92, who suffers from a number of physical and mental impediments which, together with her age, put her in need of care. She has a concerned relative, her niece Ms Marlene Turner, who takes a close interest in Miss Chatting's welfare and is her attorney under an enduring Power of Attorney as well as her litigation friend in these proceedings.

2

This litigation arises out of what may be loosely called the reorganisation by Viridian Housing, the charity which owns the premises, of the arrangements for the provision of care to residents of the building in which Miss Chatting lives. The litigation was commenced because of understandable anxiety about the effect of the reorganisation upon Miss Chatting's continued occupation of her flat in the building. By the time I heard the application the reorganisation had taken place in a way that enabled Miss Chatting to continue to live in the flat (albeit pursuant to arrangements that Ms Turner is dissatisfied with), but a new threat to Miss Chatting's continued occupation of the flat had surfaced, in the shape of her possible need for nursing care. On behalf of Viridian Housing, Mr Christopher Baker urged upon me that the relief sought against his client – namely, declarations that in transferring responsibility for Miss Chatting's care to another organisation Viridian were in breach of a compromise agreement made in earlier litigation and had infringed article 8 of the European Convention on Human Rights – was academic and should not in any event be granted.

3

On behalf of Miss Chatting Mr Stephen Cragg pursued claims for those declarations, as well as a declaration that Wandsworth Borough Council had acted unlawfully in its management of the transfer of Miss Chatting's care, in that it had failed to ensure that care was provided to her in a way that meets her assessed needs and takes into account her best interests. At the hearing Mr Cragg focussed his case against Wandsworth as being that it had failed to act in Miss Chatting's best interests as required by the Mental Capacity Act 2005. For the Borough Council, Ms Elisabeth Laing QC resisted Mr Cragg's claim and also sought a ruling on two further issues of interpretation of the compromise agreement.

4

I have concluded that the transfer of responsibility for Miss Chatting's care, and Viridian's handling of the transfer, do not amount to breaches of the compromise agreement or of article 8 and that Wandsworth Borough Council have also not acted unlawfully. One of the two further declarations sought by Ms Laing proved not to be controversial. As regards the other, I have concluded that the compromise agreement does not entitle Miss Chatting to remain in the flat if a lawful community care assessment is made by Wandsworth Borough Council to the effect that she needs nursing care of a sort that could not have been provided in an establishment registered under Part I of the Registered Homes Act 1984.

The history

Mary Court

5

Since 1995 Miss Chatting has lived in a flat in premises known as Mary Court, to which she moved following the death of her brother. Mary Court was until about 10 years ago a care home in which accommodation and care was provided to, among others, people in need of care to whom local authorities owed duties under section 21 of the National Assistance Act 1948. It was then registered as a residential care home under Part I of the Registered Homes Act 1984, but not as a nursing home under Part II of the Act. Miss Chatting's occupation of her flat has always been pursuant to arrangements made by the Council of the London Borough of Wandsworth under section 26 of the National Assistance Act.

6

Mary Court was originally purpose-built as a care home with separate flat units, giving residents a greater degree of independence than is typical of care homes. It forms part of a site owned by Viridian Housing, formerly known as Servite Houses, a charity and private registered provider of social housing. Mary Court is situated at the south western corner of Battersea Park in south London. Its site contains a triangular building; one flank of it consists of Mary Court and another establishment called Sir Jules Thorn Court; Sir Jules Thorn Court occupies the lower ground and ground floors and Mary Court the first to fourth floors (the lay-out of the building is relevant to one of the issues in the case). The other flanks contain other establishments that are not relevant to these proceedings.

The earlier litigation

7

In 1999 Servite Houses decided to close the care home at Mary Court, which was loss-making, and to convert the premises into a residential block in which domiciliary care would be provided to tenants (in other words, sheltered housing). This involved re-housing any of the then occupants for whom sheltered housing was unsuitable. Two residents, Miss Chatting and the late Mrs Lisa Goldsmith, applied for permission to seek judicial review of this decision; they maintained that they had been promised a 'home for life' in Mary Court and had a legitimate expectation that they would not be required to leave.

8

The applications came before Moses J (as he then was) in May 2000. The respondents were Servite Houses and Wandsworth. One of the issues was whether, at the time the two ladies moved in, Servite Houses had given them an assurance of a home for life rather than merely telling them that it hoped to provide them with one. The judge reviewed the written evidence before him, which included a brochure which Ms Turner had seen at the time; this stated "Servite Houses wish to provide a home for life whenever possible, but unfortunately cannot do so if specialist nursing care is required". The witness statements of two Mary Court staff varied as to whether, in discussions with prospective residents or their relatives, they always qualified the promise of a home for life with the proviso that this was subject to changing medical needs, but the judge concluded (see R v Servite Houses and Wandsworth London Borough Council ex p Goldsmith and Chatting (2001) 33 HLR 35 at paragraph 36) that "both the first and second applicants were assured that they would be able to remain at Mary Court for the rest of their life, so long as their health did not lead to the requirement of nursing care". He rejected the argument that this was an expression of hope rather than an assurance.

9

To the extent that the assurance might be capable of producing legal effects, it was obviously important that its terms be clear. In that regard the judge added in the same paragraph that

"… neither the relatives nor the applicants were given or could have expected an absolute assurance. The expression "home for life" is not accurate. There was no assurance or promise of a home for life, since no one could know whether the health of the applicants would permit continued residence at a residential home where specialist nursing care was not available. Thus, although it is true that the eventuality to which the promise referred, namely a deterioration in health requiring specialist nursing care, never in fact occurred, no relative could have had any unconditional confidence that their aged relative would be able to remain for the rest of her life at Mary Court."

10

The critical question of law in the case was whether Servite Houses was amenable to judicial review; if it were, the assurance could have engendered a legitimate expectation that it would be honoured, making the closure of the care home a potential abuse of power. But as far as the situation in private law was concerned, Servite Houses had given Wandsworth Council a notice of termination that it was contractually entitled to give. Wandsworth had no means of securing the honouring of any assurance given to the claimants.

11

Following a comprehensive review of the relevant case-law the judge concluded that the claimants' only rights and remedies against Servite Houses were in private law. He added that article 8 of the European Convention on Human Rights could not be regarded as imposing any public law obligation on Servite Houses prior to the coming into force of the Human Rights Act 1998. He concluded that Servite Houses was not under any public law obligation to the two claimants and that Wandsworth Borough Council were not in breach of any, adding the following footnote:

"I cannot conclude this matter without expressing my sympathy for the applicants. This case represents more than tension between public law and private law rights, but a collision. If I am right in my reasoning, it demonstrates an inadequacy of response to the plight of these applicants now that Parliament has permitted public law obligations to be discharged by entering into private law arrangements. Whether the solution lies in imposing public law standards on private bodies whose powers stem from...

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3 cases
  • MN (Adult)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 7 May 2015
    ...COPLR 458, para 10 ("currently available or reasonably foreseeable options"). As the Deputy Judge said in R (Chatting) v (1) Viridian Housing (2) London Borough of Wandsworth [2012] EWHC 3595 (Admin), [2013] COPLR 108, para 99, "the fact that Miss Chatting is mentally incapacitated does not......
  • R ASK v The Secretary of State for the Home Department NHS England (Interested Party)
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 9 February 2017
    ...circumstances where a person with capacity would take, or participate in the taking of, a decision": R (Chatting) v LB Wandsworth [2012] EWHC 3595 (Admin) at paragraph 60 In relation to restraint section 6(4) MCA 2005 safeguards an incapacitated person from the use of force or restriction ......
  • R ASK (by his Litigation Friend the Official Solicitor) v The Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 16 July 2019
    ...where a person with capacity would take, or participate in the taking of, a decision ( R (Chatting) v Viridian Housing [2012] EWHC 3595 (Admin) at [100] per Nicholas Paines QC sitting as a Deputy High Court Judge). The Act provides for a range of measures such as the appointment of indepen......

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