Haggerty (the Queen on the application of) v St Helens Council [2003] EWHC 803 (Admin)

The claimants were residents of a private nursing home operated by Southern Cross Healthcare Services Ltd (S). S had a contractual relationship with St Helen’s Council (the Council) to provide accommodation for the claimants.  The claimants challenged the decision of the Council not to enter into a revised and more onerous arrangement with S. The proposed new arrangement included an increased weekly fee payable by the Council for placements together with a new obligation to enter into a “block contract” by which it would have to pay for a specific number of places at the home irrespective of occupancy levels.  S stated that the Council’s decision not to enter the proposed would lead to a closure of the home.  All of the claimants were elderly and suffered from senile dementia. They therefore acted by their next friends.  They contended that the Council’s decision was unlawful as it was irrational, having failed to take into account relevant considerations, and because it infringed the claimants’ rights under Articles 2, 3 and 6 of the ECHR. 

S had asked the Council for an increase in its weekly fee payable for each resident.  The Council had agreed a small provisional increase pending a review by independent consultants of all care home fees.  S considered that its increase per resident was fair and reasonable but the Council declined to enter into a new agreement for the increased fee.  The Council did consider the effect that not increasing the fees to the level sought by S would have on its residents.  They concluded that the fees sought were disproportionate in relation to the residents’ needs could be met elsewhere and that to agree to the fees would place an improper burden on its social services budget.  The Council did not have the resources to pay the sums demanded by S.  It reached this conclusion following a multi-disciplinary needs assessment of each resident in consultation with a CPN, the residents’ relatives and where necessary, a consultant psychiatrist.  The Council identified suitable alternative accommodation for the residents within easy travelling distance for visiting relatives and arranged for them to be moved in “friendship groups.” The Council tried to preserve continuity as much as possible in the circumstances.

The Choice of Accommodation Directions 1992 require that, when a local authority is obliged to provide accommodation to a person under s21 National Assistance Act 1948 (NAA), it must provide the accommodation at a place of the person’s choice. This is subject to certain provisos which include; whether or not the accommodation is available, whether the accommodation will be provided subject to the local authority’s usual terms and conditions and whether or not the cost is more than the authority would usually expect to pay for someone with the same assessed needs as the individual concerned.

There were 3 issues for court to determine;

(i) Was the decision made by the Council amenable to judicial review either on public law or human rights grounds?
(ii) Were the claimants’ Article 2, 3 and 8 rights of the ECHR breached?
(iii) Was the Council’s decision irrational as it failed to take into account relevant considerations?

(i)  The Council submitted that its decision not to enter into a contract on the terms sought by S was not a matter of law amenable to judicial review on public law or human rights grounds.  Where a private sector provider decided to close a home, the local authority’s obligations were limited to carrying out assessments of need and arranging alternative accommodation notwithstanding the decision to close would affect the quality of life of the claimants. They relied on R v Servite ex parte Goldsmith which was decided before the Human Rights Act was in force.  The court considered that the Council was potentially obliged to consider the claimants’ human rights when performing its obligations under s21 by contracting with a private sector provider under s26 NAA.  Further, the court considered that as a public body, the Council must comply with the Human Rights Act 1998. Under s6 of the 1988 Act it must not act in a way which is incompatible with a Convention right. In this way also the Council’s decision was potentially open to challenge on human rights grounds. However it was arguable that the exception under section 6(5) which applies where the nature of the act is private applied. The court did not actually make a make a finding in this regard however as it was not necessary to reaching its ultimate conclusion as to the success of the claim. This was because it considered that the claimants were not able to establish a breach of their human rights in this case. Similarly, the judge commented that it would be strange if a decision made by a Council in connection with s26 of the 1948 Act which would have an adverse impact on the service users such as the claimants, was not amenable to judicial review.  In any event it considered that it was not necessary to make such a finding as even if a public law challenge could be made, it would fail.

(ii)  The Court considered that Article 2 was not engaged since the risk to the claimants’ lives was not sufficiently high.  The Council had done all it could to prevent the claimants lives being put at risk and were in discussion with a Psychiatrist specialising in old age to find out the safest way of moving the claimants.  Therefore the claimants’ rights under Article 2 would not be infringed by the move.

Article 3 prohibits inhuman or degrading treatment by a public authority.  This is a high threshold and ill-treatment needed to reach a minimum level of severity and involve actual bodily injury or intense physical or mental suffering in order to demonstrate a breach of the claimant’s rights.  The evidence of the medical practitioners did not show that the effect of the move would come anywhere near the high threshold for the engagement of Article 3 and the challenge failed.

The Article 8 claim failed for 3 reasons. Firstly, there was no cogent evidence of disruption of home or family life or interference with the right to physical integrity. Second, by making expensive provision for one individual in the Council budget it would deprive others of services. In this case an improper burden would be placed on the social services budget by entering into the proposed agreement with S with the result that residents in other homes would be adversely affected.  A third reason why this claim failed was because the Council was entitled to a substantial degree of deference relating to the way in which it allocated its resources and provided services.

(iii)  The court held that the Council’s decision was not irrational.  The decision to close the home was made by S and not the Council and therefore the claimant’s submission that the Council should have carried out adequate consultation was unfounded.  Although the Council was aware that the residents were keen to stay, it had a statutory duty to pay no more for the resident’s accommodation than it would usually expect to pay for people who had the assessed needs of the claimants.  The Council also stated that it would have reached the same decision even if proper consultation had been possible and had taken place.

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