R v Barking and Dagenham London Borough Council, ex parte Lloyd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN |
| Judgment Date | 11 April 2001 |
| Neutral Citation | [2001] EWCA Civ 533 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: Appeal Ref: C/2000/2767 |
| Date | 11 April 2001 |
[2001] EWCA Civ 533
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR. JUSTICE KEENE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Schiemann
Lord Justice Sedley and
Lady Justice Arden
Case No: Appeal Ref: C/2000/2767
Crown Office Ref: CO/3491/97
Mr. Richard GORDON Q.C. and Miss Jenni RICHARDS (instructed by Messrs Mackintosh Duncan for the Appellant)
Mr. James GOUDIE Q.C. and Mr. Paul STAGG (instructed by Messrs Barlow Lyde & Gilbert for the Respondent)
Overview
Before the Court is an appeal from the judgment delivered by Mr. Justice Keene in July of last year. He rightly described the case as a long drawn out and unfortunate dispute. The applicant is a severely disabled woman aged 43. She has for many years suffered from cerebral palsy as well as having learning difficulties, limited oral communication and other problems. She requires care to be available on a 24 hour basis and is dependant on a wheelchair for personal mobility. At the date when these proceedings started in 1997 she had lived for some 24 years at Sweetland Court, a residential care home owned and managed by the respondent Authority in performance of its duties under Part 3 of the National Assistance Act 1948. That home in October 1997 had 12 people living there, all of them disabled. Many of those apart from the applicant had lived in the home for a number of years.
By about 1996/1997 the Council was conscious of a number of deficiencies in the accommodation provided at Sweetland Court. It formed the view that the site needed to be redeveloped to achieve proper standards of accommodation and that the best way of achieving this was by selling the property to a Housing Association which would then grant tenancies to the former residents. This method of proceeding had the advantage that Central Government finance was available to Housing Associations for such building work and therefore the work could proceed at much earlier date than would have been possible had the Council had to rely on its own resources.
Various meetings with the residents were held in 1997 in an endeavour to secure their co-operation with the Council's proposals. The judicial review proceedings with which Keene J. was concerned were begun in October of that year but in February 1998 a consent order was made adjourning the proceedings to the first open date after 1 May 1998 upon the giving by the Council of certain undertakings to the Court.
The relevant undertakings scheduled to the order read as follows : -
The respondent will now carry out a lawful multi-disciplinary assessment of Marie Lloyd's needs for community care services in accordance with its statutory obligations and Governmental guidance, and thereafter reach a lawful service provision decision in the form of a Care Plan. The assessment of need shall include an assessment of her capacity, including her capacity to sign a tenancy agreement, as well as a risk assessment, and all the elements of a lawful assessment necessary to comply with the respondent's obligations.
The respondent will ensure that appropriate health professionals are involved in and contribute to the assessment, including an occupational therapist, physiotherapist, appropriate consultant, and Miss Lloyd's general practitioner and any other relevant professionals.
The first Care Plan shall identify which, if any needs are being met at Ms Lloyd's current accommodation at Sweetland Court. Following the identification of suitable "temporary" accommodation, the respondent will produce a second Care Plan identifying which services are required at that accommodation to meet the assessed needs, as well as a third plan identifying those services required to meet the assessed needs at the re-modelled Sweetland Court site.
The respondent will expedite the assessment of needs referred to, and the applicant's solicitors will endeavour to provide the respondent by 13 March 1998 with the name of a suitable independent health professional to approve the final plans for the external structure of any temporary accommodation and the re-modelled Sweetland Court and the health professional shall provide written reasons in the event he/she is unable to approve such plans. In this regard, the health professional shall meet with Marie Lloyd and those involved in her care, including her mother and sister in order to consider the plans as aforesaid in order to provide a written opinion by 13 April 1998 (subject to paragraph 6 below) as to the general feasibility of Ms Lloyd's needs being met within such environments, subject to further work being carried out as may be necessary by the respondent and/or a Housing Association (whether at the temporary accommodation or at the re-modelled Sweetland Court site).
In the event that the proposed plans shall alter subsequently for any reason, at the temporary accommodation or otherwise, the respondent shall ensure that the health professional and the applicant's solicitors provides [sic] prior approval to the same within 10 working days of the plans being submitted, and the health professional shall provide written reasons as to why he/she may consider the plans cannot be approved.
The respondent will ensure that the final conditional contract for the transfer of the Sweetland Court site to the Warden Housing Association contains a term that Ms. Lloyd's living space, including all internal walls, layout of her flat, access and associated communal facilities will be built/adapted in accordance with her assessed needs, whether by the respondent or by Warden.
The respondent will forward a copy of the final conditional contract for transfer of the Sweetland Court site to Warden to the applicant's solicitors prior to exchange, and will not exchange conditional contract prior to such contract being approved by the applicant's solicitors provided that the applicant's solicitors shall produce written reasons in the event that the contract is not approved within 10 working days of receipt.
The respondent will ensure that, whether by its own actions or otherwise, the nature of any temporary accommodation and services to be provided to Ms Lloyd will be in accordance with her assessed needs.
The respondent will ensure that, whether by its own actions or otherwise, the nature of the re-modelled Sweetland Court accommodation and services to be provided to Ms Lloyd will be in accordance with her assessed needs.
The respondent will consult with Ms Lloyd's mother and sister, or Ms Lloyd's solicitors as may be agreed throughout the process set out above.
For a while thereafter neither party thought it expedient to restore the proceedings. In July 1998 the residents of Sweetland Court moved into temporary accommodation provided by the Council so that the work on Sweetland Court would be able to proceed in due course. However an impasse then ensued between the Council and the applicant and the judicial review application was restored before Keene J. for hearing and determination.
The applicant's unhappiness, (which in the nature of things is that of her advisers), now centres on what is conceived to be a danger that she will be less appropriately treated in the new Sweetland Court than she was under the old regime. It is feared that she will be deprived of the regularity of the old regime, in particular in relation to communal dining, and that this will diminish her social contacts. The Council has embraced a philosophy of empowering the disadvantaged by increasing the choices available to them, in particular by enabling them to choose whether or not to dine together. The applicant's advisers contend that, whatever merits there may be in that philosophy in the abstract, without proper guarantee it is capable of resulting in the applicant's regularly eating on her own and so losing the social interaction which is important to her wellbeing.
In order to express this unhappiness as involving an illegality on the part of the Council the applicant, putting it broadly, contended that the Council's decisions to sell Sweetland Court to the Warden Housing Association in accordance with certain plans and on certain terms amounted to an abuse of power and a breach of the February 1998 undertaking. Further, it was her case that the Council had failed to produce a lawful assessment of her needs under section 47 of the National Health Service and Community Care Act of 1990 or a lawful Care Plan.
The Council denied that it had done anything which was unlawful in public law or which amounted to a breach of the undertakings given to the Court. It filed an application with the Court seeking, amongst other things, a declaration that it had complied with the undertakings of February 1998 or, alternatively, an order that it be released from them.
The Judgment below
There were a number of issues which were argued before Keene J. Not all of them have been argued before us. The following paragraphs of his judgment are germane to this appeal. We have italicised findings of present relevance.
"45. I can see that the proposed physical arrangements at the new Sweetland Court are likely to mean that fewer residents eat communally than was the case in the existing home, if only because under the old regime there was no choice but to eat communally, whereas under the new one there would be individual kitchens in the flats, with the result that some residents will be likely to chose to eat all or some of...
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