Cowl & others v Plymouth City Council (14 December 2001) (unreported) (CA)

The Court of Appeal heavily criticised the culture of litigiousness in cases involving community care, and hinted strongly that from now on, parties will be expected to satisfy the court, courtesy of the case management powers given to the courts by the Civil Procedure Rules, that both sides have done their utmost to achieve resolution of the dispute, by way of the Complaints Procedure, or other forms of mediation/alternative dispute resolution.

The case involved review of a closure decision, and a promise of a home for life was alleged to have been made. Plymouth had written openly to the residents offering to treat the dispute as a complaint, and this offer had been rejected. The Court approved of that offer, and suggested that a court might hold an inter partes pre-trial hearing at which such offers and reactions to them would be considered, before permission to proceed to a full hearing would be given.

In terms of the law involved in the actual dispute in this case, the Court took the view that an over-technical approach to the requirements of the law regarding consultation prior to a closure decision had been taken by the residents’ advisors, and that it had done nobody any good, since what ultimately mattered was the welfare of the individuals who might have to be moved. The Court upheld the notion of a two stage approach to closure decisions – whether the home should in principle be closed, and secondly, as to exactly when and how it should be closed, in view of the welfare and needs of, and risks to, the individuals currently residing there. It agreed that it was not necessary to do a full blown assessment of each resident before making the first stage decision, even though it could be suspected that a decision in principle to close a home would pre-empt any later decision as to the propriety of moving a particular individual. For the first stage decision, no more than a limited assessment of the impact on the residents and of the practicality of their being re-housed is needed, and this strategy should have been made clearer to the residents if dispute was to be avoided.

The parties agreed to schedule a complaints process at which the advisory services of an independent law firm and advocates’ services would be provided if thought necessary, and all three members of the panel would be independent. It should be noted that this was offered although the judgment in Beeson was not then available.

Leave a Reply

Your email address will not be published.