Thomas & Another v London Borough of Havering
- Date: 04/09/2008
[2008] EWHC 2300 (Admin)
Related Barrister: Mark Baumohl
The London Borough of Havering took a decision to close two care homes, the residents at both being elderly, and most being physically disabled. The Claimant sought an order quashing the decisions to close, and an order requiring individual assessments to be carried out in relation to each resident in each home by an expert in psychiatric geriatrics before further consideration was given as to whether or not to close the homes.
The general point of the Claimant was that the published medical literature and two expert reports produced to the court on behalf of the Claimant established that there was a statistically demonstrable increase in the rate of mortality of residents in care homes who are elderly and/or who suffer from dementia, when they are moved from care homes where they have lived for a number of years, unless they are moved as a group from one home to another with the staff that have always looked after them. Since Article 2 of the European Convention on Human Rights applied to the local authority, the Claimant argued that if a decision was taken to close a care home without the decision maker being aware of the risks, the authority had either acted in breach of Article 2 of the Convention in taking the decision, or had failed to take into account a material factor or, alternatively, had been Wednesbury unreasonable in proceeding.
The Claimant's further submission was that the level of risk which each resident was exposed to could only properly be assessed on an individual basis and that, accordingly, the court should direct such individual assessments before any such further consideration was given to closing the homes and either dispersing or transferring residents to other homes. The local authority made clear at the hearing that it planned to carry out individual assessments before any resident was moved.
Held, granting permission but refusing the application:
(1) The point relating to the failure to conduct individual assessments was premature, in the light of the indications that were given by the authority in the course of the hearing. The local authority had elected, as it was entitled to do, to carry out the individual assessments after the decision to close had been taken. On this basis, the application for judicial review, based on the failure to undertake individual assessments before the decisions to close were taken, was bound to fail, whether advanced on an Article 2 basis or on the basis of Wednesbury unreasonableness.
(2) The most the research material before the court established was that in some studies a statistical increase of the sort alleged by the Claimant had been established, while in others it had not. On a proper analysis what the material showed was that different people may react to a move in different ways, and that moves which are sensitively and thoughtfully handled can be achieved without a significant increase in mortality, although there may be individuals who cannot be moved however carefully the moving process is handled, though such cases will be rare. The Claimant's characterisation of the evidence was not sustainable.
(3) The material before the local authority decision makers sufficiently alerted them to the research into the risks relating to care home closures and there had accordingly been no failure to take into account material considerations.