Madden and others v Bury Metropolitan Borough Council (16 August 2002) (unreported) (QBD)

Residential care home –– closure – consultation – duty to act fairly – human rights – privacy – family life

The claimants were residents of Warthfield residential home in Bury, run by the local authority. M had been a resident of Warthfield for about a year and regarded it as his home. The second and third claimants had both been long-term residents of the home, and the fourth and fifth claimants were the daughters of the second and third claimants.

The local authority had written to the residents of Warthfield and their relatives on 21 May 2002, notifying them of proposals to close the home along with another residential home called Whittaker. The letter failed to mention any alternatives to closure and their relative merits, but did indicate that the decision to close Warthfield was based on serious structural problems, whilst the decision to close Whittaker was due to its failure to meet the required standards for registration. The LA then held group meetings at Warthfield and Whittaker with a view to dealing with the residents’ concerns. There were also a series of meetings, attended by the authority or its committees, at which members of the public attended and made representations. On 16 July, the council decided to accept the proposals of its executive committee, and it was proposed that Warthfield should be closed by September 2002, and Whittaker by June 2003 subject to further assessment and consultation.

The claimants subsequently saw a survey report dated March 2002 detailing the structural damage to Warthfield as surface plaster cracking which could be repaired. The report gave suggested ways in which that could be achieved, and the cost of such repair. It went on to state that the main foundations were not affected, and that such damage should not be taken out of context.

In light of the report, the claimants took the view that the letter sent to them on 21 May giving the reasons for closure of Warthfield as structural damage was inaccurate and misleading. They sought judicial review, claiming that the authority’s decision to close Warthfield and Whittaker unlawful on the grounds that the authority owed them a duty to act fairly in considering whether or not to close the homes, and fairness in that case required consultation. They contended that the authority had not consulted them adequately of its proposals, and had not given them adequate time for consideration of, and response to, those proposals, as a result of which its decision should be quashed. They further contended that as those were their homes, art 8 of the European Convention on Human Rights was also invoked.

The court allowed the application, ruling that:

  1. consultation had to be at a time when proposals were still at a formative stage;
  2. the proposer had to give sufficient reasons for any proposal to allow for intelligent consideration and response;
  3. adequate time had to be given for consideration and response; and
  4. the product of consultation had conscientiously to be taken into account in finalising any proposals.

In this case, the letter of 21 May gave no adequate summary of the reasons for closure of the two homes, and the specific reasons given for their closure were incorrect or misleading. In the case of Warthfield, the reasons given were misleading, and in the case of Whittaker there was an inadequate explanation of those reasons. Further, there had been no comparison with other homes, no indication of possible alternatives, and no reasons given for favouring Warthfield and Whittaker for closure over the other homes. Accordingly, the authority had not done enough to meet its requirement to ensure fairness and the decision to close the homes would be quashed.

The court also found that as those homes were the residents’ homes, art 8 of the Convention applied and the authority had to carry out a careful balance to ensure that any interference with their rights was necessary in relation to a legitimate aim. There was no evidence that such a balance had been carried out or addressed, and the required exercise was not followed. The authority was therefore in breach of art 8 of the Convention.

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