Chatting, R (On the Application Of) v Viridian Housing & Anor

These proceedings originate in a claim for judicial review brought by Miss Florence Chatting, a lady now aged 92, who suffers from a number of physical and mental impediments which, together with her age, put her in need of care. She has a concerned relative, her niece Ms Marlene Turner, who takes a close interest in Miss Chatting’s welfare and is her attorney under an enduring Power of Attorney as well as her litigation friend in these proceedings.

This litigation arises out of what may be loosely called the reorganisation by Viridian Housing, the charity which owns the premises, of the arrangements for the provision of care to residents of the building in which Miss Chatting lives. The litigation was commenced because of understandable anxiety about the effect of the reorganisation upon Miss Chatting’s continued occupation of her flat in the building. By the time I heard the application the reorganisation had taken place in a way that enabled Miss Chatting to continue to live in the flat (albeit pursuant to arrangements that Ms Turner is dissatisfied with), but a new threat to Miss Chatting’s continued occupation of the flat had surfaced, in the shape of her possible need for nursing care. On behalf of Viridian Housing, Mr Christopher Baker urged upon me that the relief sought against his client – namely, declarations that in transferring responsibility for Miss Chatting’s care to another organisation Viridian were in breach of a compromise agreement made in earlier litigation and had infringed article 8 of the European Convention on Human Rights – was academic and should not in any event be granted.

On behalf of Miss Chatting Mr Stephen Cragg pursued claims for those declarations, as well as a declaration that Wandsworth Borough Council had acted unlawfully in its management of the transfer of Miss Chatting’s care, in that it had failed to ensure that care was provided to her in a way that meets her assessed needs and takes into account her best interests. At the hearing Mr Cragg focussed his case against Wandsworth as being that it had failed to act in Miss Chatting’s best interests as required by the Mental Capacity Act 2005. For the Borough Council, Ms Elisabeth Laing QC resisted Mr Cragg’s claim and also sought a ruling on two further issues of interpretation of the compromise agreement.

I have concluded that the transfer of responsibility for Miss Chatting’s care, and Viridian’s handling of the transfer, do not amount to breaches of the compromise agreement or of article 8 and that Wandsworth Borough Council have also not acted unlawfully. One of the two further declarations sought by Ms Laing proved not to be controversial. As regards the other, I have concluded that the compromise agreement does not entitle Miss Chatting to remain in the flat if a lawful community care assessment is made by Wandsworth Borough Council to the effect that she needs nursing care of a sort that could not have been provided in an establishment registered under Part I of the Registered Homes Act 1984.

Since 1995 Miss Chatting has lived in a flat in premises known as Mary Court, to which she moved following the death of her brother. Mary Court was until about 10 years ago a care home in which accommodation and care was provided to, among others, people in need of care to whom local authorities owed duties under section 21 of the National Assistance Act 1948. It was then registered as a residential care home under Part I of the Registered Homes Act 1984, but not as a nursing home under Part II of the Act. Miss Chatting’s occupation of her flat has always been pursuant to arrangements made by the Council of the London Borough of Wandsworth under section 26 of the National Assistance Act.

Mary Court was originally purpose-built as a care home with separate flat units, giving residents a greater degree of independence than is typical of care homes. It forms part of a site owned by Viridian Housing, formerly known as Servite Houses, a charity and private registered provider of social housing. Mary Court is situated at the south western corner of Battersea Park in south London. Its site contains a triangular building; one flank of it consists of Mary Court and another establishment called Sir Jules Thorn Court; Sir Jules Thorn Court occupies the lower ground and ground floors and Mary Court the first to fourth floors (the lay-out of the building is relevant to one of the issues in the case). The other flanks contain other establishments that are not relevant to these proceedings.

In 1999 Servite Houses decided to close the care home at Mary Court, which was loss-making, and to convert the premises into a residential block in which domiciliary care would be provided to tenants (in other words, sheltered housing). This involved re-housing any of the then occupants for whom sheltered housing was unsuitable. Two residents, Miss Chatting and the late Mrs Lisa Goldsmith, applied for permission to seek judicial review of this decision; they maintained that they had been promised a ‘home for life’ in Mary Court and had a legitimate expectation that they would not be required to leave.

The applications came before Moses J (as he then was) in May 2000. The respondents were Servite Houses and Wandsworth. One of the issues was whether, at the time the two ladies moved in, Servite Houses had given them an assurance of a home for life rather than merely telling them that it hoped to provide them with one. The judge reviewed the written evidence before him, which included a brochure which Ms Turner had seen at the time; this stated “Servite Houses wish to provide a home for life whenever possible, but unfortunately cannot do so if specialist nursing care is required”. The witness statements of two Mary Court staff varied as to whether, in discussions with prospective residents or their relatives, they always qualified the promise of a home for life with the proviso that this was subject to changing medical needs, but the judge concluded (see R v Servite Houses and Wandsworth London Borough Council ex p Goldsmith and Chatting (2001) 33 HLR 35 at paragraph 36) that “both the first and second applicants were assured that they would be able to remain at Mary Court for the rest of their life, so long as their health did not lead to the requirement of nursing care”. He rejected the argument that this was an expression of hope rather than an assurance.

To the extent that the assurance might be capable of producing legal effects, it was obviously important that its terms be clear. In that regard the judge added in the same paragraph that

“… neither the relatives nor the applicants were given or could have expected an absolute assurance. The expression “home for life” is not accurate. There was no assurance or promise of a home for life, since no one could know whether the health of the applicants would permit continued residence at a residential home where specialist nursing care was not available. Thus, although it is true that the eventuality to which the promise referred, namely a deterioration in health requiring specialist nursing care, never in fact occurred, no relative could have had any unconditional confidence that their aged relative would be able to remain for the rest of her life at Mary Court.”

The critical question of law in the case was whether Servite Houses was amenable to judicial review; if it were, the assurance could have engendered a legitimate expectation that it would be honoured, making the closure of the care home a potential abuse of power. But as far as the situation in private law was concerned, Servite Houses had given Wandsworth Council a notice of termination that it was contractually entitled to give. Wandsworth had no means of securing the honouring of any assurance given to the claimants.

Following a comprehensive review of the relevant case-law the judge concluded that the claimants’ only rights and remedies against Servite Houses were in private law. He added that article 8 of the European Convention on Human Rights could not be regarded as imposing any public law obligation on Servite Houses prior to the coming into force of the Human Rights Act 1998. He concluded that Servite Houses was not under any public law obligation to the two claimants and that Wandsworth Borough Council were not in breach of any, adding the following footnote:

“I cannot conclude this matter without expressing my sympathy for the applicants. This case represents more than tension between public law and private law rights, but a collision. If I am right in my reasoning, it demonstrates an inadequacy of response to the plight of these applicants now that Parliament has permitted public law obligations to be discharged by entering into private law arrangements. Whether the solution lies in imposing public law standards on private bodies whose powers stem from contract or in imposing greater control over public authorities at the time they first make contractual arrangements may be for others to determine.”

Moses J gave permission to apply for judicial review but dismissed the claims. He gave permission to appeal to the Court of Appeal.

Both claimants appealed; all I know of what then occurred is that on 16 July 2000 a consent order was sealed dismissing the appeal by consent on the agreed terms set out in a schedule. The schedule recited

“The parties have agreed the following terms of compromise:

(1)

Subject to the Second respondent’s continued compliance with paragraph 3 hereof the First Respondent agrees to continue to provide residential accommodation with board and care at Mary Court to the Appellants until the earlier of the respective Appellants’ death or the event set out under paragraph 2 below;

(2)

The First Respondent’s obligation to provide residential accommodation with board and care at Mary Court to each of the Appellants will cease 28 days after receipt by the First Respondent of a lawful local authority community care assessment stating that the respective Appellant’s assessed needs can no longer be met at Mary Court and/or that nursing care is required such that it would not be lawful for the respective Appellant to remain at Mary Court;

(3)

The Second Respondent agrees to provide funding pursuant to its obligations under Part III of the National Assistance Act 1948 in respect of the First and Second Appellants respectively at such rates as may be agreed between the First and Second Respondents from time to time;

(4)

The Respondents agree not to enforce the costs order made by Moses J dated 12 May 2000 against the Appellants.”

The outcome was that Miss Chatting and Mrs Goldsmith were insulated from the conversion of Mary Court from a care home into sheltered housing. Miss Chatting continued to live in her flat, as she still does. So, initially, did Mrs Goldsmith, who has since died. The other flats were occupied by tenants to whom domiciliary care was provided by Servite Houses through an ‘Extra Care’ team. Mary Court had previously been registered as a care home under the Registered Homes Act 1984, the then applicable legislation. No registration was required of the tenanted flats; Miss Chatting’s flat was included in the registration of Sir Jules Thorn Court, the residential home run by Servite Houses on the lower floors of the building, but care continued to be provided to Miss Chatting as part of the operation of Mary Court. Despite being technically a resident of the Sir Jules Thorn Court home, Miss Chatting has also, for example, taken her meals and participated in social activities with the tenants of Mary Court.

Miss Chatting has for some time at least had a dedicated care team who provide 24-hour care exclusively to her. For most of the period until September 2011 her care was managed by the care manager managing the Extra Care at Mary Court, a person in whom Ms Turner has had confidence, although a different person has been the registered manager of Sir Jules Thorn Court, of which Miss Chatting’s flat technically forms part. In 2006 an attempt was made to separate Miss Chatting’s care from the work of the Extra Care team at Mary Court and transfer it to the Sir Jules Thorn Court staff. Ms Turner found the arrangement unsatisfactory, and complained. In 2007, practical responsibility for Miss Chatting’s care was transferred back to the Extra Care team, although the registered manager continued to be the manager of Sir Jules Thorn Court.

In 2008 Servite Houses launched a ‘Transform Servite’ strategy. In 2010 it changed its name to Viridian Housing. The implementation of the strategy has included a programme, announced and launched in April or May 2011, of exiting from the direct provision of care services for older people. This has involved various forms of disposal of care homes. In the case of Mary Court and Sir Jules Thorn Court the intention was to retain ownership of the building but for there to be new providers of the domiciliary care at Mary Court and of the care at Sir Jules Thorn Court.

Mr Cragg took me to a circular letter sent out by Viridian in May 2011 giving some details of the planned exit from care for older people. The letter said that Viridian managed a comparatively small portfolio of such homes, which did not consistently generate a surplus. The provision of care services was becoming increasingly specialised. Viridian did not regard itself as the best organisation to “drive business excellence in these care homes”. The letter indicated that the domiciliary care service at Mary Court would continue but Sir Jules Thorn Court might close down. The letter was followed by meetings at Mary Court and Sir Jules Thorn Court. There has since been extensive correspondence between solicitors acting for Miss Chatting, Wandsworth Borough Council and Viridian. It is not necessary to review the whole of it.

In outline, Ms Turner has been understandably concerned about the possible implications regarding Miss Chatting’s continued accommodation and care at Mary Court. On 3 June 2011 solicitors wrote to Viridian on Miss Chatting’s behalf reminding Viridian of the terms of compromise, saying that the ‘exit from care’ would be a breach of the agreement and asking for confirmation that the agreement would be complied with. Viridian’s reply was that it could not confirm that Viridian would continue to meet the obligations under the agreement. Viridian was working with Wandsworth over the issue. The letter stated that Miss Chatting would not be expected or asked to move from her flat, but did not make it clear how her continued receipt of care there would be achieved. This prompted Miss Chatting’s solicitors to make an application to the Court of Appeal for the enforcement of the consent order to which the compromise agreement was attached. I refer to the history of the litigation in more detail below.

In September 2011 the care manager at Mary Court took sick leave; she did not return until May 2012, when she began to work for the new provider of domiciliary care there (as described below). In her absence the management of Miss Chatting’s care was, from about December, undertaken by a manager at Sir Jules Thorn Court; this was done because Viridian considered that Miss Chatting’s care had suffered from the lack of a manager, but it was an arrangement that Ms Turner found unsatisfactory.

In December 2011 Viridian’s solicitors wrote to Miss Chatting’s solicitors, offering two options: for Miss Chatting to switch to receiving care from the Mary Court Extra Care team under domiciliary care arrangements as a tenant of her flat, or for her care to be managed and provided from Sir Jules Thorn Court. The letter also proposed, in the context of Miss Chatting’s application to the Court of Appeal, an agreed variation of the consent order expressly to permit Miss Chatting’s care and board to be provided by a third party. These two options, Mr Cragg said to me, were being offered without discussion of other alternatives; in his submission, Viridian’s stance was driven by commercial factors, without consideration of her article 8 rights. Miss Chatting’s solicitors rejected both proposals. A meeting was held between the parties on 20 December, but no agreement was reached.

Ms Turner’s stated preference was for Mary Court to be registered as a care home with one occupant. This would enable Miss Chatting’s care both to remain care under sections 21 and 26 of the 1948 Act rather than domiciliary care and to be provided and managed by Mary Court staff without any involvement of Sir Jules Thorn Court. This was proposed by Miss Chatting’s solicitor in an e-mail of 17 February 2012.

As far as Mary Court was concerned, the provision of domiciliary care to Viridian’s tenants is commissioned by Wandsworth; until April 2012 it was provided by Viridian, but a re-tendering was due in any event. With effect from April 2012 Wandsworth has commissioned its provision from a new provider called Care UK. The staff providing domiciliary care, together with the manager in whom Ms Turner had confidence, were entitled to transfer from Viridian to Care UK pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 1987 (‘TUPE’); I was told, however, that that manager subsequently left Care UK’s employment and that Wandsworth Borough Council’s contract with Care UK does not provide for an on-site manager. The dedicated care team providing Miss Chatting’s care remained initially with Viridian.

In a letter of 5 March 2012 Viridian’s solicitors informed Miss Chatting’s solicitors of the appointment of Care UK and added that the identity of the new care provider at Sir Jules Thorn Court would be disclosed when a contract had been exchanged. I was told that it was this letter that prompted Miss Chatting’s solicitors to commission the report from an independent social work consultant that I refer to below. In an e-mail of 9 March, Wandsworth Borough Council informed Miss Chatting’s solicitors that the Council agreed with Viridian in rejecting the suggestion that Miss Chatting’s flat be registered as a care home in its own right. The reason given was that the Council had tendered for care at Mary Court on the footing that domiciliary care was involved. Tendering for combined domiciliary care and residential care would have been an entirely different and more lengthy process and would not have delivered a value for money option by 1 April 2012, as was said to be required.

Sir Jules Thorn Court was a home providing accommodation with care to residents funded by Wandsworth Borough Council and other local authorities or paying privately. The task of finding a new provider to take over its operation fell to Viridian. Viridian negotiated with a first bidder, which was rejected as unsuitable, and subsequently with an organisation called Gold Care. The bidders’ identity was kept confidential.

Gold Care’s identity as the new provider at Sir Jules Thorn Court was not announced until July 2012, once a contract had been exchanged between it and Viridian for Gold Care to take over various Viridian properties, provisionally including Sir Jules Thorn Court together with Miss Chatting’s flat. I have not seen the full contractual documentation but am told that one of the terms is that Gold Care could not, without Viridian’s consent, close the care home at Sir Jules Thorn Court save upon six months’ notice, which could not be given before the lease had run for two years. It was also agreed that the placement agreements between Viridian and residents or local authorities would be novated to substitute Gold Care for Viridian as the party.

The future of Sir Jules Thorn Court was not, however, rendered secure by this agreement. The building is of an unsuitable design and occupancy has recently been low. The home’s future viability was regarded as uncertain. The contract with Gold Care empowered Viridian to serve notice prior to completion removing Sir Jules Thorn Court from its terms. In a witness statement made in August of this year, Mr Matt Campion of Viridian described the closure of Sir Jules Thorn Court as inevitable. Until recently it still appeared likely that Sir Jules Thorn Court would be excluded from the agreement and that Viridian would proceed to close it down. The implications for Miss Chatting’s flat, physically part of Mary Court but organisationally part of Sir Jules Thorn Court, were not worked out.

On 11 October 2012 Viridian’s solicitors wrote open letters to the solicitors for the claimant and Wandsworth Borough Council in anticipation of the forthcoming hearing of this judicial review. The letter said that the location and provision of accommodation to Miss Chatting were not in issue; nor were the Council’s statutory obligations. However, Viridian were likely to disappear from the arrangements and Sir Jules Thorn Court might close. The letter proposed the replacement of the 2000 terms of compromise with an agreement to the effect that the Council would continue to discharge its statutory duty through arrangements for her accommodation at Mary Court, which Viridian would facilitate as the owner of the building. Viridian would notify Wandsworth timeously of the closure and/or transfer to Gold Care of Sir Jules Thorn Court; Wandsworth would notify the others of the proposed new arrangements to be made in consequence and Viridian would use its best endeavours to facilitate them.

Miss Chatting’s solicitors sought clarification from Wandsworth of their proposals. Wandsworth objected to the proposed dilution of Viridian’s obligations as compared with the 2000 agreement and considered that the judicial review hearing was unavoidable.

At the eleventh hour, Viridian and Gold Care concluded that Sir Jules Thorn Court could be viably transferred to Gold Care. A decision was taken not to exclude it from the completion of the transfer of properties which subsequently took place on 31 October 2012, three weeks before I heard the case. In a witness statement dated 9 November 2012, Mr Campion testified that Sir Jules Thorn Court had been transferred to Gold Care on the terms as to notice of closure that I have referred to in paragraph 24. The Sir Jules Thorn Court management and staff, including Miss Chatting’s dedicated care team were entitled to (and, in the case of Miss Chatting’s care team, did) transfer to Gold Care under TUPE.

Ms Turner has become increasingly critical of Viridian’s handling of her aunt’s care, particularly in the period since the announcement of Viridian’s exit from care and the subsequent departure on sick leave of the manager of the Extra Care team at Mary Court. Ms Turner is critical of Viridian’s staff and management. In their turn, Viridian have described some of Ms Turner’s actions and her behaviour towards members of staff as inappropriate. Ms Turner has described the situation as one in which her trust and confidence in Viridian has broken down. Wandsworth Borough Council have also raised concerns about whether Ms Turner’s continued involvement is in Miss Chatting’s best interests.

These are issues upon which I remain resolutely neutral. I am neither going to indicate any form of conclusion upon the issues (for I have formed none) nor elaborate this judgment with examples of the opposing contentions. Mr Cragg does not rely upon particular alleged behaviour of Viridian staff as part of his case; apart from making a general point to the effect that the real issues in this case are about personalities rather than about the lawfulness of particular arrangements, Mr Baker does not rely on any aspect of Ms Turner’s alleged behaviour either, and nor for that matter does Ms Laing. In short, the matter is irrelevant to my decision in this case.

As has been seen, Viridian’s proposals were that Miss Chatting should either become a tenant in Mary Court and receive her care by way of domiciliary care (a proposal which was later dropped as Miss Chatting’s care needs exceeded those that can be provided by way of domiciliary care) or that her flat should continue to be a satellite of Sir Jules Thorn Court, with care being managed from there. Ms Turner objected to that second proposal on various grounds, principally that Mary Court was on a different floor of the building from Sir Jules Thorn Court, that Miss Chatting’s care would be managed by nurses although she did not need nursing care and that insufficient steps were being taken to ensure that she could continue to participate in meals and activities in Mary Court once the care there ceased to be provided by Viridian.

In November 2011 an application was made to the Court of Appeal on Miss Chatting’s behalf, seeking an order that Viridian comply with the terms of compromise attached to the consent order. The thrust of the application as originally formulated appears to have been that Viridian should comply with the terms by continuing to be the provider of Miss Chatting’s accommodation and care. The application was initially kept out of the Court list at Miss Chatting’s request but came before Stanley Burnton LJ on paper in March 2012. By then matters had moved on and, ina witness statementmade for the Court of Appeal in March, Ms Turner had indicated that her preferred solution was that Miss Chatting’s flat be registered as a care home in its own right, with care being provided by Care UK.

The Court of Appeal had issued the claimant’s application without prejudice to whether it had any powers to deal with it. In March 2012 Stanley Burnton LJ gave the provisional view, with which none of the parties have expressed disagreement, that that Court had no such powers as the order was a consent order and not a Tomlin form of order. That led to the bringing of the present proceedings.

Also in March 2012 Miss Chatting’s solicitors commissioned a report from an independent social work consultant on Miss Chatting’s care needs and whether the arrangements proposed by Wandsworth and Viridian were capable of meeting them, were in her best interests and were commensurate with her welfare. The social worker met Miss Chatting in Ms Turner’s presence and also interviewed Ms Turner and telephoned the relevant social work manager at Wandsworth and the manager of Sir Jules Thorn Court. (The social worker reported that neither had been prepared to comment; the social work team leader to whom she spoke at Wandsworth said in a witness statement that she was guarded in her replies, not having received authorisation to discuss Miss Chatting’s care with the social worker, but thought she had given sufficient information for the social worker’s purposes.) The social worker had seen, among other things, Wandsworth Borough Council’s care plan for Miss Chatting, which she described as one of the most comprehensive care plans she had encountered.

The social work consultant’s opinion, given in a report dated 26 March, was that Miss Chatting needed the assistance and encouragement of one person continuously during the day and a person to assist her with moving to her commode at night. Miss Chatting also needed peace and quiet and continuity in her routine. The social worker shared Wandsworth’s view that Miss Chatting needed residential care. She reviewed the history of events since 2000 and proceeded to question why, in the circumstances, Wandsworth had not sought to set up a ‘residential unit of one’ within Mary Court; this would have been the option most responsive to Miss Chatting’s needs and circumstances. She went on to point out that this would have enabled the manager who had a good relationship with Miss Chatting and Ms Turner to continue to manage her care team. (In fact, the manager was still on sick leave at that time, though she did subsequently take up a post with Care UK, which I am told she has since left.) The social worker added that this arrangement “would also have been consistent with principles of Best Interests decision-making, a statutory requirement under the Mental Capacity Act 2005 given Miss Chatting’s lack of mental capacity to make decisions about her care, treatment and residence”.

While approving the proposal that Miss Chatting’s care should continue to be provided by a separate team, the social worker viewed the proposal to manage it from Sir Jules Thorn Court as giving rise to ‘practical difficulties which have the potential to run contrary to Miss Chatting’s best interests’. This was on the grounds that the team would be managed by someone located in a different building who did not have responsibility for the building in which Miss Chatting and her team were located.

The greatest concern felt by the social work consultant in this regard was that Miss Chatting and her team would not have the immediate access to the Sir Jules Thorn Court manager that they had previously had to the Extra Care team manager. In conclusion the social worker said that the difficulty lay not so much in the delivery of her care by her dedicated team but in the organisational structures around it. Provision of a ‘residential unit of one’ was in her view consistent with Miss Chatting’s best interests, while the proposed management of her care from Sir Jules Thorn Court ran contrary to those interests. She also said that Miss Chatting did not have the mental capacity to take complex decisions regarding her care, treatment and residence, though she could express views. She said that decisions must therefore be taken in Miss Chatting's best interests pursuant to the Mental Capacity Act 2005; she was concerned at the apparent absence of formal best interests decision-making process having been followed or recorded.

These various points were considered by Wandsworth Borough Council, who have said in a witness statement of their social work team leader that in their view Miss Chatting’s care could be effectively managed by the manager at Sir Jules Thorn Court.

The NHS Continuing Care panel, which makes decisions about NHS-funded nursing care, met in early November 2012 to discuss Miss Chatting’s case. They concluded that her care needs could best be met in future by NHS-funded nursing care, though Ms Turner does not agree with this assessment. Wandsworth Borough Council are currently re-assessing Miss Chatting’s care needs in the light of this. Three options are currently under consideration: two possible nursing homes and provision of nursing care at Mary Court. Gold Care have apparently estimated the cost of this at considerably more than the current cost of Miss Chatting’s care, which is higher than the average cost of residential care met by Wandsworth Borough Council, and have said that the NHS contribution could not lawfully be paid unless Miss Chatting’s flat’s registration status were changed to cover nursing care.

Wandsworth Borough Council’s response to seeing the social worker’s report was to question what Ms Turner wanted the Council to do, dismissing the proposal for Miss Chatting’s care to be provided by Care UK in a residential unit of one as not being financially or practically viable; the Council said they would continue to ensure that Miss Chatting’s needs continued to be met either at Mary Court while she remained there or elsewhere should she choose to move or it no longer be possible to meet her needs at Mary Court.

Miss Chatting’s solicitors wrote to the Borough Council under the pre-action protocol on 30 March 2012, asking for Miss Chatting’s needs to be met in a residential unit at her flat in Mary Court which was overseen and managed from that unit or from Mary Court. The Council responded by letter of 3 April, saying that the Council had in place a system of care that met Miss Chatting’s needs; they were unable to control Viridian’s decisions about its business and its premises and could not dictate to Viridian that Miss Chatting’s care be provided in a residential unit at her flat that was managed from the flat or from Mary Court. How the flat was managed, and how care was provided, were matters for Viridian. The Council’s role was to ensure that Miss Chatting’s care needs were met, within the constraints just mentioned. Mr Cragg criticises that letter as showing that Wandsworth Borough Council were not prepared to take into account the views of the independent social worker as to where Miss Chatting’s best interests lay. He also criticised Wandsworth’s lack of a proactive stance. Viridian’s response to the pre-action letter denied that it was unlawful for it to cease providing Miss Chatting’s care.

In April 2012 Miss Chatting sought permission to bring judicial review proceedings against Viridian and Wandsworth. The relief sought was a declaration that Viridian had been acting in breach of Miss Chatting’s rights under the European Convention on Human Rights, an order quashing Viridian’s decision to withdraw from Miss Chatting’s care, a declaration that Wandsworth had not complied with their duty to meet Miss Chatting’s needs and/or had failed to take her best interests into account, an order as to the correct interpretation of the terms of compromise attached to the consent order, and specific performance of the agreed terms.

The proceedings were expedited by Nicola Davies J and in May 2012 Mr John Bowers QC gave permission for judicial review on all issues save those relating to the interpretation and enforcement of the terms of compromise. He adjourned the consideration of permission to ventilate those matters by way of judicial review to the substantive hearing of the other matters. At the start of the hearing on 21 November 2012 I directed pursuant to CPR 54.20 that those claims should continue as if they had not been started by way of judicial review but should continue to be heard in the Administrative Court along with the claims that were properly brought by way of judicial review. In order to obviate the need for argument as to whether the fact that Viridian was performing a public function for the purposes of the Human Rights Act 1998 (see section 145 of the Health and Social Care Act 2008) also made it amenable to judicial review rather than a Part 7 or Part 8 claim, I directed that the same should apply, if necessary, to the claimant’s human rights claim against Viridian.

The unexpected successful transfer of Sir Jules Thorn Court, along with Miss Chatting’s flat, to Gold Care has somewhat changed the landscape. Miss Chatting’s representatives had not sought to prevent it and did not suggest that they had been deprived of an opportunity to do so. While Mr Cragg on behalf of Miss Chatting did not abandon his application for specific performance of the terms of compromise as interpreted by Miss Chatting (i.e. as requiring her accommodation and care to be provided personally by Viridian), he – realistically – did not pursue it with any vigour.

It remains Miss Chatting’s case that the transfer of her care to Gold Care was both a breach of the terms of compromise attached to the consent order (issue 1) and an infringement of her human rights under article 8 of the ECHR (issue 2); she pursues claims against Viridian for declarations to that effect.

Miss Chatting’s case against Wandsworth is that in performing its role in the events of the last 18 months the Council have failed properly to discharge their duties under section 21 of the National Assistance Act and failed to take her best interests into account, contrary to the Mental Capacity Act 2005 and/or Department of Health Guidance to local authorities on social care for people who lack mental capacity (issue 3).

On behalf of Wandsworth Ms Laing seeks two further declarations as to the interpretation of the terms of compromise attached to the consent order; the first – raising issue 4 – is as to the meaning of paragraph (2) of the terms of compromise.

The second declaration sought by Ms Laing is not controversial. It is to the effect that paragraph [3] of the terms of compromise does not add to the extent of Wandsworth’s funding obligations as they stand under Part III of the 1948 Act and the general law.

The National Assistance Act 1948 provides so far as material as follows:

21.- Duty of local authorities to provide accommodation.

(1)

Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing –

(a)

residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; …

(2)

In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection.

(4)

Subject to the provisions of section 26 of this Act, accommodation provided by a local authority in the exercise of their functions under this section shall be provided in premises managed by the authority or, to such extent as may be determined in accordance with the arrangements under this section, in such premises managed by another local authority as may be agreed between the two authorities and on such terms, including terms as to the reimbursement of expenditure incurred by the said other authority, as may be so agreed.

(5)

References in this Act to accommodation provided under this part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary.

26.- Provision of accommodation in premises maintained by voluntary organisations.

(1)

Subject to subsections (1A) and (1C) below, arrangements under section 21 of this Act may include arrangements made with a voluntary organisation or with any other person who is not a local authority where-

(a)

that organisation or person manages premises which provide for reward accommodation falling within subsection (1)(a) or (aa) of that section, and

(b)

the arrangements are for the provision of such accommodation in those premises.

(1A) Arrangements must not be made by virtue of this section for the provision of accommodation together with nursing or personal care for persons such as are mentioned in section 3(2) of the care Standards Act 2000 (care homes) unless-

(a)

the accommodation is to be provided, under the arrangements, in a care home (within the meaning of that Act) which is managed by the organisation or person in question; and

(b)

that organisation or person

i)

in the case of a home in England, is registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of a regulated activity (within the meaning of that Part) carried on in the home…

(4A) Section 21(5) of this Act shall have effect as represents accommodation provided under arrangements made by virtue of this section with the substitution for the reference to the authority managing the premises of a reference to the authority making the arrangements.

Chapter 2 of Part I of the Health and Social Care Act 2008, referred to in section 26(1A)(b)(i), contains the following relevant provisions

“8 Regulated activity

(1)

In this Part “regulated activity” means an activity of a prescribed kind.

(2)

An activity may be prescribed for the purposes of subsection (1) only if-

(a)

the activity involves, or is connected with, the provision of health or social care in, or in relation to, England

9 Health or social care

(1)

This section has effect for the interpretation of this Part.

(2)

“Health care” includes all forms of health care provided for individuals, whether relating to physical or mental health, and also includes procedures that are similar to forms of medical or surgical care but are not provided in connection with a medical condition.

(3)

“Social care” includes all forms of personal care and other practical assistance provided for individuals who by reason of age, illness, disability, pregnancy, childbirth, dependence on alcohol or drugs, or any other similar circumstances, are in need of such care or other assistance.

(4)

“Health or social care” means health or social care.

10 Requirement to register as a service provider

(1)

Any person who carries on a regulated activity without being registered under this Chapter in respect of the carrying on of that activity is guilty of an offence.”

Section 6 of the Human Rights Act 1998 provides so far as material as follows:

“6.- Acts of public authorities.

(1)

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(3)

In this section “public authority” includes-

…

(b)

any person certain of whose functions are functions of a public nature…

(5)

In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.”

Finally, section 145 of the Health and Social Care Act 2008 provides so far as material:

“145 Human Rights Act 1998: provision of certain social care to be public function

(1)

A person (“P”) who provides accommodation, together with nursing or personal care, in a care home for an individual under arrangements made with P under the relevant statutory provisions is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (c. 42) (acts of public authorities) to be exercising a function of a public nature in doing so.

(2)

The “relevant statutory provisions” are- (a) in relation to England and Wales, sections 21(1)(a) and 26 of the National Assistance Act 1948 (c.29)…

It is convenient to start with the issues of interpretation of the terms of compromise attached to the consent order. The contention that Viridian have breached the terms of compromise in transferring Miss Chatting’s care to Gold Care is an ingredient of her case on issue 2 and needs to be resolved for the purpose of deciding issue 2 in any event. It is convenient to consider all relevant aspects of its interpretation of the terms of compromise together.

The parties’ respective positions on issue 1 are as follows. Mr Cragg contends that the words ‘the First Respondent [Servite Houses, now Viridian] agrees to continue to provide residential accommodation with board and care at Mary Court’ mean what they say: there would be accommodation, board and care for Miss Chatting at Mary Court and Servite Houses would provide them. He emphasises the words ‘continue to provide’ as promising a continuation, subject only to the conditions referred to in the paragraph (namely those in paragraph 2 and continued compliance by Wandsworth of its statutory funding obligations) of the provision of these things by Servite Houses, as had gone on before. He also submits, in reliance on section 21(5) and 26(4A) of the 1948 Act, that accommodation and care pursuant to the Act cannot be provided by different providers.

Mr Baker submits that the requirement of paragraph (1) of the terms of compromise is that accommodation be provided to Miss Chatting and that it have board and care with it: Viridian are still providing accommodation and the fact that the board and care are now provided by Gold Care does not alter the fact that that the accommodation is accompanied by them and thus provided ‘with’ them. He referred me to R (Wahid) v TowerHamlets LBC [2002] EWCA Civ 287, in which Hale LJ (as she then was) accepted without disapproval a concession that ‘residential accommodation’ under section 21 of the National Assistance Act could mean ordinary housing without the provision of ancillary services, and also to R (Moore) v Care Standards Tribunal [2005] EWCA Civ 627, in which the Court of Appeal upheld a decision that an establishment in which accommodation was provided by one charitable company and care by another related charity was an establishment providing ‘accommodation, together with personal care’ within the meaning of section 3 of the Care Standards Act 2000. Thirdly he referred me to R (L) v Westminster CC [2011] EWCA Civ 954, in which Laws LJ observed that ‘care and attention’ within the meaning of section 21(1)(a) of the 1948 Act was not limited to acts done by a local authority’s employees or agents.

He also submits that I should decline to make any declaration on issue 1. It would, he says, be devoid of purpose in the light of the transfer of Sir Jules Thorn Court from Viridian to Gold Care, which Miss Chatting did not seek to prevent; furthermore, even before that transfer occurred, Ms Turner was asking for her aunt’s care to be moved from Viridian to Care UK, despite the fact that that would be inconsistent with paragraph (1) as the claimant’s case interprets it.

Issue 4 relates to the meaning of the last three lines of paragraph (2), which releases Viridian from its obligations under the terms of compromise where certain conditions are satisfied. There is no dispute as to the meaning of the first, which is (a) that Viridian receives a lawful community care assessment from Wandsworth. It is followed by two alternative conditions, one of which is (b) that the assessment states that Miss Chatting’s assessed needs can no longer be met at Mary Court. The other is (c) that nursing care is required such that it would not be lawful for Miss Chatting to remain at Mary Court.

Condition (b) was not debated before me. As regards condition (c), the issue is whether (as Wandsworth contend) the clause releases Viridian from its obligation to provide a home to Miss Chatting if Wandsworth produce a lawful care assessment stating that nursing care for her is required or (as Miss Chatting contends) Viridian are only released from the obligation if such a care assessment is produced and Miss Chatting does not decline to receive the care and it is not possible to make arrangements so that it can be provided lawfully. Mr Cragg pointed out, aptly, that the words ‘lawful for the respective Appellant to remain at Mary Court’ were not well chosen; it was not a question of their residence becoming unlawful as such. It was common ground between counsel that the intended meaning related to the lawfulness of nursing care being provided to them.

For Wandsworth, Ms Laing points out that, at the time Moses J gave judgment, Mary Court was registered under Part I but not Part II of the Registered Homes Act 1984. It would not have been lawful for Servite Houses to provide nursing care to Miss Chatting or Mrs Goldsmith without registering under Part II. It is clear from the terms of the judge’s judgment, she submits, that the assurance given to the ladies did not extend to an assurance that Servite Houses would provide them with nursing care. Her primary submission is that, read against its factual matrix, paragraph (2) of the terms of compromise means that Miss Chatting’s entitlement to remain there comes to an end if she is lawfully assessed as needing nursing care.

The current legislative position is more complicated than it was in 2000. It is dealt with in counsel’s skeleton arguments. The Registered Homes Act 1984 has been repealed and new provision for the registration of care homes made in the Health and Social Care Act 2008. Ms Laing referred me to the evidence of Mr Campion that, whilst the lower ground and ground floors of Sir Jules Thorn Court were registered under the 2008 Act to provide both nursing and residential care, Miss Chatting’s flat was included in the registration only for the purpose of providing residential care. She submits that by virtue of the National Health Service (Nursing Care in Residential Accommodation) (England) Directions 2007 it would be unlawful for the NHS to make payments in respect of nursing unless Miss Chatting were resident in premises registered in respect of nursing care under the 2008 Act, which she is not. Moreover, because section 49 of the Health and Social Care Act 2001 stipulates that a local authority is not required or authorised to arrange for the provision of nursing care by a registered nurse, it would not be lawful for Wandsworth Borough Council to set up arrangements for Miss Chatting to receive nursing care in any other way.

Mr Cragg did not dispute Ms Laing’s analysis of the current legislative framework, instead characterising Ms Laing’s argument as being that, at most, it might be unlawful for Miss Chatting’s nursing care to be funded, which he said was not the same thing as it not being lawful for it to be provided. He also suggested that Miss Chatting need not accept nursing care, even if she were assessed as requiring it; he referred me to paragraph 2(5) of the 2007 Directions, which makes NHS payment for nursing care conditional upon a person agreeing to receive it. Thirdly he submitted that, as a matter of the plain meaning of the paragraph, a need for nursing care would not be ‘such that it would not be lawful [to provide it]’ if its provision could be rendered lawfully by altering the registration.

I do not consider that I need or ought to make any declaration as to the lawfulness or otherwise of nursing care being provided by Gold Care, from whom I have not directly heard. I am persuaded by Ms Laing’s primary submission recorded in paragraph 61 above.

As with any written contract, the meaning of the terms of compromise is the meaning that its terms would convey to a person with the background knowledge that the parties had of the matrix of facts surrounding the making of the agreement. So far as it is known to me, the factual matrix existing at the relevant time (which I take to be early to mid July 2000) is that Servite Houses and Wandsworth were offering terms in order to settle Miss Chatting’s and Mrs Goldsmith’s appeals, brought with the leave of the judge, against the decision of Moses J. He had found that both of them had received assurances that that they would “be able to remain at Mary Court for the rest of their life, so long as their health did not lead to the requirement of nursing care”. He had concluded, however, that the assurance was not capable of giving rights in public law because Servite Houses was not a body amenable to judicial review. Paragraph 93 of his decision had indicated that the situation might change with the coming into force of the Human Rights Act and paragraph 105 (set out at paragraph 11 above) indicated a lack of enthusiasm for the conclusion he had reached, resonating with his grant of permission to appeal. The Human Rights Act was, moreover, due to come into force on 2 October 2000 pursuant to the Human Rights Act 1998 (Commencement No. 2) Order of 12 July 2000.

It is apparent that Servite Houses, and possibly Wandsworth, felt a degree of anxiety as to their prospects in the Court of Appeal. They might have persuaded the Court to uphold Moses J’s conclusion on the amenability of Servite Houses to judicial review; they might have succeeded in an argument that to disappoint the claimants’ legitimate expectations would not in the particular circumstances be an abuse of power. On the other hand, they might not have. It is not necessary to gauge their degree of anxiety, save to note that it was sufficient to lead Servite Houses to offer, by way of contract, rights similar to those that, on the judge’s factual conclusions, might have existed in public law if Servite Houses were held to be a body amenable to judicial review. Wandsworth Borough Council offered to fund the arrangement (in accordance, as is common ground, with their obligations under the general law).

As regards the extent of the assurance that they had received, the two ladies were unlikely to achieve any greater degree of success in the Court of Appeal than they had achieved before Moses J. The judge had recorded their own position as being “that Servite promised them that Mary Court would be their permanent home for life unless their medical condition required care which the facilities of this residential care home could no longer provide”. Ms Turner had seen the Servite Houses brochure in which the promise of a home for life was qualified by the proviso that Servite Houses could not provide it “if specialist nursing need care is required”. There was in any event no issue as to the ladies’ entitlement to remain in Mary Court in the event of their needing nursing care, which had not happened. In short, whatever the degree of risk of the assurance found by Moses J being held to be enforceable against Servite Houses, the risk of any more extensive assurance being found to have been given to them was minimal if not non-existent.

As regards issue 4, I agree with Ms Laing that, against the background that I have described, the ladies could reasonably be regarded as being promised a home for life unless they came to need nursing care. It was, however, necessary for the terms of compromise to be more specific about the form of need for nursing care that would bring the assurance to an end. The reference to lawfulness in paragraph (2) thus protected them against loss of their security of tenure in the event of some temporary need for nursing, whether within Mary Court or elsewhere, as a result of short-term illness or accident; subject to that, the agreement would reasonably be seen, in the context of the 1984 Registered Homes legislation, as only entitling them to a home for life so long as their care needs were confined to personal care within the meaning of section 1(1) of the 1984 Act and did not extend to nursing care that could only lawfully be provided in an establishment registered under Part II of the Act. The ladies could not in my judgment reasonably be regarded as receiving any promise that Servite Houses would register Mary Court under Part II of the Act in order to be able to provide them with nursing care if they should need it, nor as receiving a promise that they could remain in Mary Court if they needed nursing care but declined to receive it.

I turn to issue 1. There had been no discussion by Moses J of what the position would be if Servite Houses wished to transfer the operation of Mary Court, as a care home, to another care provider. Given that no such transfer was in anybody’s mind, it would be wrong for me to read too much into the judge’s formulation of their case as being that Mary Court would ‘be their home’, without any specific assurance as to who would run it. What, however, does plainly emerge from the judge’s findings is that the preoccupation of both Mrs Goldsmith and Miss Chatting and their respective families was that the ladies would not be required to face the disruption of a move away from Mary Court (at least, unless it were medically necessary). There is no reference to any importance being attached to the provision of accommodation and care being by Servite Houses as such. As Mr Baker points out, Ms Turner’s recent preference has been for the provision of care to be transferred away from Viridian, albeit with Miss Chatting remaining in her flat.

In my judgment the two ladies were promised that they could continue to receive accommodation and care services falling within Part I of the Registered Homes Act at Mary Court, subject only to paragraph 2 and to compliance by Wandsworth with paragraph 3. That was the assurance that they had received and were concerned to enforce in the face of the then threatened change of use of Mary Court. There was no explicit assurance that the identity of the provider would not change, whether as a result of an internal reorganisation of Servite Houses, a decision to subcontract or contract out the operation, or (as has happened) a transfer of the operation that now includes the provision of Miss Chatting’s accommodation and care to a third party as a going concern.

As a matter of law it is open to a party to a contract to procure its performance by another unless the agreement requires performance of it personally by the contracting party, either expressly or by necessary implication from the surrounding circumstances. The mere fact that the contracting party promises performance is not on its own sufficient to require personal performance, since otherwise no contractual performance could be subcontracted; I do not read the word ‘provide’ in clause 1 as necessarily, as a matter of language, meaning ‘provide personally’ rather than ‘secure the provision of’. Unless personal performance is expressly or impliedly promised, the party’s obligation is an obligation of result: to bring about performance of what he has promised.

The terms of compromise do not clearly stipulate personal performance by Viridian, which in any event is an industrial and provident society and not a natural person; for the performance at least of the care element of its promise it would have to rely upon human agents. As far as the accommodation element is concerned, the arrangements in respect of Miss Chatting were made between Viridian and Wandsworth Borough Council pursuant to section 26 of the 1948 Act, rather than directly between Viridian and Miss Chatting. Analysed against this factual background, Mr Cragg’s contention must be that on the true construction of the terms of compromise Servite Houses was agreeing that Miss Chatting’s occupation would continue to be pursuant to arrangements made between Wandsworth Borough Council and it and no other and that the care would be provided by staff employed by it and no other.

Cases in which a contract is taken to require personal performance by the contractor are typically those where it is apparent that the other party selected him on account of his particular qualities, competence or skill. Miss Chatting had of course selected Mary Court some years before the terms of compromise were entered into. There is no evidence that her and Ms Turner’s choice of care home in 1995 had been based on Viridian’s particular qualities, rather than the attractions of the home and the fact that it was offered for life. Nor is there any suggestion that Servite Houses had given any assurances as to how or by whom Mary Court would be managed. There is no warrant for reading the terms of compromise as promising for the first time something that was not the subject of any assurance at the outset.

It can make no difference to the quality of Miss Chatting’s residence in Mary Court whether her permission to occupy the flat derives directly from Viridian or from another. As far as the care is concerned, I accept that the quality both of the managerial and care staff and of the systems and procedures within a care home are of high importance but, as Mr Baker pointed out, staff come and go over time; this is as true of managerial staff who set up the systems and procedures and supervise as of the care staff who directly provide the care. Mr Cragg realistically does not contend for any assurance or implied promise that the human agents employed by Viridian would not change; I see no warrant for implying an undertaking that the identity of the corporate body employing them would not change.

I do not consider that reference in paragraph 1 to Servite Houses ‘continuing’ to provide accommodation and care alters the position. The clause could simply have said that Servite Houses would provide accommodation and care subject to the stated provisos, though a clause worded in that way might have read a little oddly given that Servite Houses was already doing so. At all events, it would be to read too much into the chosen formula ‘continue to’ to extract from it a promise of personal performance.

I therefore hold that Viridian’s obligation under paragraph 1 is to bring about the result that Miss Chatting continues to receive accommodation with board and care in Mary Court, subject to paragraph 2 and Wandsworth’s compliance with paragraph 3. Viridian is not in breach of the terms of compromise so long as that situation obtains.

It is unnecessary for me to decide conclusively whether the same conclusion can be reached by Mr Baker’s alternative route of saying that Viridian is still providing the accommodation and that the terms of compromise do not prevent Gold Care being the provider of board and care ‘with’ it. One difficulty with the argument is that Viridian has granted a lease of Miss Chatting’s flat to Gold Care. Contractually, everything that Miss Chatting is now receiving comes (via Wandsworth) from Gold Care. As a result of the novation, Wandsworth’s only relevant relationship is with Gold Care. The most that can be said of Viridian is that it has given Gold Care an interest in the flat that enables (or possibly requires; I have not seen the relevant terms) Gold Care to make the ‘accommodation’ part of the provision. I do not reject Mr Baker’s analysis outright but prefer to rest my conclusion on my reasoning above, which makes it unnecessary for me to decide whether accommodation and care under section 26 of the 1948 Act can be provided by different providers.

Mr Cragg relied on section 145 of the 2008 Act as making the Human Rights Act 1998 applicable to Viridian’s provision of accommodation and care to Miss Chatting. His argument on article 8 proceeded in two stages. First, he submitted, Viridian’s withdrawal from providing Miss Chatting’s accommodation and care was capable of engaging article 8 of the ECHR. Viridian had agreed to care for her for life (an argument based on the terms of compromise, which I have just rejected); as a physically frail person with mental difficulties, she needed continuity; she had had continuity of care from Viridian for 16 or 17 years. The case fell within the territory in which positive obligations are owed under article 8 to a person in need of care.

In that connection he took me to passages in R (A, B, X and Y) v East Sussex County Council [2003] EWHC 167 (Admin) and to R (McDonald) v Kensington and Chelsea Royal Borough Council [2011] UKSC 33 – a decision also relied on by Mr Baker. In the East Sussex case Munby J (as he then was) reviewed decisions of the European Court of Human Rights and noted the positive obligation of the state to take steps to secure the human dignity of severely disabled people. I shall refer to McDonald below. Mr Cragg submitted that article 8 was not merely engaged but infringed by Viridian’s ceasing to provide Miss Chatting’s accommodation and care. This was as a result of a combination of particular factors: Viridian had agreed to provide her with a home and care for life; they had been doing so for 17 years; Viridian were ceasing to run Sir Jules Thorn Court for purely commercial reasons; no individual consideration had been given to the impact on Miss Chatting or to her article 8 rights; Miss Chatting and Ms Turner had not been consulted about the switch to Gold Care. In support of the submission that the failure to consult on the change led to an infringement of article 8, Mr Cragg relied on passages in McDonald.

In response Mr Baker submitted first that section 145 of the 2008 Act made the provision of ‘care and accommodation’ pursuant to the National Assistance Act a public function; the position in the present case was Viridian was now only providing Miss Chatting’s accommodation, with the result that section 145 did not apply. Alternatively he submitted that transferring the arrangements for Miss Chatting’s accommodation and/or care to another provider was not within the scope of section 145, which did not require a provider of care to continue providing it, or alternatively was an act of a private nature, akin to a change of subcontractor that had been held to be an act of a private nature in R (Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587. He accepted, however, that article 8 could be engaged if a provider of residential care ceased providing it in a manner that infringed article 8.

I agree, and for that reason do not consider that either of these submissions answers Mr Cragg’s case. Mr Baker is in my judgment right to regard section 145 as only requiring a private body to comply with the Convention for so long as a local authority has delegated to it the state’s obligation, which may arise under the Convention as well as under the 1948 Act, to provide care and accommodation to a person. But he was also right to acknowledge that article 8 would apply to a decision to cease to provide care if the mere fact, or the manner, of ceasing to provide it contravened the article. Mr Cragg’s complaint is both about the fact that Viridian have ceased to provide care and accommodation to Miss Chatting and about the way in which they did it.

Mr Baker further submitted that the complaint was about form, not substance; it did not include any claim that inadequate care had been or was being provided. The continuity that Miss Chatting required, in the shape of continuity of the identity of her carers, had been secured. Viridian had been open and transparent and had taken care in the selection of a suitable replacement provider. A decision whether or not to continue with Viridian’s residential care activity could not be taken at the level of considering the impact on each resident; Viridian could only realistically be required to satisfy itself that, overall, the transfer arrangement was a suitable one. He submitted that Mr Cragg went too far in implicitly suggesting that article 8 affords an individual in need of care a right, which prevails over all other considerations, to choose the identity of her care provider.

Mr Baker also referred me to passages in the East Sussex case in which Munby J recognised that the local authority remained the primary decision-maker in relation to the form of care to be provided, with the function of the court being one of review, and to the same judge’s observations to similar effect in the Children Act case of R (P, W, F and G) v Essex County Council [2004] EWHC 2027 (Admin). He also referred to the decision of the Court of Appeal in the Children Act case of R (O) v Hammersmith and Fulham LBC [2011] EWCA Civ 925, to the effect that a local authority’s decision to meet a child’s needs in one way rather than another did not interfere with the family’s private or family life and the decision of the European Court of Human Rights in Marzari v Italy Application No 36448/97 that article 8 did not require the provision of accommodation in an apartment of the claimant’s choice. He also referred to Anufrijeva v Southwark LBC [2004] QB 1124, a decision discussed in McDonald,

Like Mr Cragg, Mr Baker relied on paragraphs 15 to 19 of the judgment of Lord Brown of Eaton-under-Heywood in McDonald, a passage with which the majority of the members of the Court agreed. The case concerned a severely disabled claimant who was not incontinent but needed to urinate a number of times during the night. Her physical disabilities put her in need of assistance to prevent her falling between her bed and her commode. A review of her care plan concluded that her need for assistance at night could be obviated by supplying her with incontinence pads. She claimed that to require, for financial reasons, a person who was not incontinent to use incontinence pads demonstrated a lack of respect for her private life so as to infringe article 8. Lord Brown summarised the facts and expressed his conclusion on article 8 as follows:

“1 Ill health can be dreadfully cruel. Some 30 years ago the appellant was the prima ballerina of Scottish Ballet. Alas, in September 1999 (then aged 56) she suffered an incapacitating stroke leaving her with severely limited mobility and other disabilities besides. In April 2006 she fell heavily and broke her hip in several places, remaining in hospital for four months. She then suffered two further falls each leading to further hospitalisation. The problem at the centre of these proceedings, however, is that the appellant suffers also from a small and neurogenic bladder which makes her have to urinate some two to three times a night. Up to now she has dealt with this by accessing a commode with the help of a carer provided by the respondent Royal Borough as part of a package of care services to ensure her safety. For some years past, however, the respondents have been proposing instead that the appellant should use incontinence pads or special sheeting (hereafter “pads) which would avoid the need for a night-time carer. The respondents say that this would provide the appellant with greater safety (avoiding the risk of injury whilst she is assisted to the commode), independence and privacy, besides reducing the cost of her care by some £22,000 per annum. The appellant, however, is appalled at the thought of being treated as incontinent (which she is not) and having to use pads. She considers this an intolerable affront to her dignity. Whether night-time care can be provided on this revised basis is the critical issue in these proceedings.

…

15

Article 8 is too well known to require citation again here. There is no dispute that in principle it can impose a positive obligation on a state to take measures to provide support and no dispute either that the provision of home-based community care falls within the scope of the article provided the applicant can establish both (i) “a direct and immediate link between the measures sought by an applicant and the latter’s private life” (Botta v Italy (1998) 26 EHRR 241, paras 34 and 35) and (ii) “a special link between the situation complained of and the particular needs of [the applicant’s] private life” (Sentges v The Netherlands (2003) 7 CCL Rep 400, 405).

16

Even assuming that these links do exist, however, the clear and consistent jurisprudence of the European Court of Human Rights establishes “the wide margin of appreciation enjoyed by the states” in striking “the fair balance…between the competing interests of the individual and of the community as a whole” and “in determining the steps to be taken to ensure compliance with the Convention”, and indeed that “this margin of appreciation is even wider when…the issues involve an assessment of the priorities in the context of the allocation of limited state resources”: Sentges, at p 405, Pentiacova v Moldova (2005) EHRR 209 and Molka v Poland (Application No 56550/00) (unreported) 11 April 2006, p 17. Really one only has to consider the basic facts of those three cases to recognise the hopelessness of the article 8 argument in the present case. Sentges (considered by Rix LJ at para 64 of his judgment concerned a sufferer from muscular dystrophy complaining of a refusal to supply him with a robotic arm. Without it he depended on others for every single act and so was unable to develop and establish relationships with others; with it, his “severely curtailed level of self-determination would be increased”: 7 CCL Rep 400, 404. The applicants in Pentiacova suffered from renal failure and complained of insufficient funding for their haemodialysis treatment. The applicant in Molka was confined to a wheelchair and, for want of positive assistance, was unable to vote in local elections. The complaints in all three cases were unanimously held to be manifestly ill-founded and thus inadmissible.

17

This approach too is consistent with the domestic jurisprudence on the point. The appellant seeks to rely on R (Bernard) v Enfield London Borough Council [2003] LGR 423 (considered by Rix LJ at para 63 of his judgment). But really what is striking about Bernard is the contrast between that case and this. The claimants were husband and wife. They had six children. The wife was severely disabled and confined to a wheelchair. In breach of their duty under section 21(1)(a) of the NAA 1948, the respondent council failed for some 20 months to provide the family with accommodation suited to her disability. The consequences were appalling. The wife was doubly incontinent, because there was no wheelchair access to the lavatory, was forced to defecate and urinate on the living room floor. And she was unable to play any part in looking after her six children. Small wonder that Sullivan J, at para 31, described the article 8 case as “not finely balanced” and awarded £10,000 damages.

18

The leading domestic case on the positive obligation to provide welfare support under article 8 is Anufrijeva v Southwark London Borough Council [2004] QB 1124. It concerned three separate asylum-seekers, one complaining of a local authority’s failure to provide accommodation to meet special needs, the other two of maladministration and delay in the handling of their asylum applications. All three failed in their claims. Giving the judgment of the court, Lord Woolf CJ observed, at para 33, that: “It is not possible to deduce from the Strasbourg jurisprudence any specific criteria for the imposition of such a positive duty [i.e. the duty ‘to provide welfare support’]”. At para 43, however, the court concluded that Bernard was rightly decided- “family life [having been] seriously inhibited by the hideous conditions prevailing in the claimants’ home”- but that:

‘We find it hard to conceive…of such a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, article 8 may require the provision of welfare support in a manner which enables family life to continue.’

(Bernard was said to illustrate that.)

19

There is, of course, a positive obligation, under article 8 to respect a person’s private life. But it cannot plausibly be argued that such respect was not afforded here. As already indicated, the respondents went to great lengths both to consult the appellant and Mr McLeish about the appellant’s needs and the possible ways of meeting them and to try to reach agreement with her upon them. In doing so they sought to respect as far as possible her personal feelings and desires, at the same time taking account of her safety, her independence and their own responsibilities towards all their other clients. They respected the appellant’s human dignity and autonomy, allowing her to choose the details of her care package within their overall assessment of her needs: for example, the particular hours of care attendance, whether to receive direct payments in order to employ her own care assistant, and the possibility of other options like extra care sheltered housing. These matters are all fully covered in paras 5, 42 and 66 of Rix LJ’s judgment below. Like him, I too have the greatest sympathy for the appellant’s misfortunes and a real understanding of her deep antipathy towards the notion of using incontinence pads. But I also share Rix LJ’s view that the appellant cannot establish an interference here by the respondents with her article 8 rights. I add only that, even if such an interference were established, it would be clearly justified under article 8.2- save, of course, for the period prior to the 2009 review when the respondents’ proposed care provision was not “in accordance with the law”- on the grounds that it is necessary for the economic well-being of the respondents and the interests of their other service-users and is a proportionate response to the appellant’s needs because it affords her the maximum protection from injury, greater privacy and independence, and results in a substantial costs saving.”

In the present case I am concerned not with alleged deficiencies in the care provided by Viridian to Miss Chatting but with the fact of Viridian’s ceasing to be the provider and an alleged lack of adequate consultation. I deal first with the fact of Viridian ceasing to be the provider. In that connection I have already held that Viridian had not promised in the terms of compromise that it would provide the care and accommodation personally. I do not consider that it can be argued that article 8 required Viridian to continue to be the provider of Miss Chatting’s care on the other grounds raised - her need for continuity and the fact of Viridian having been the provider for many years.

As far as continuity is concerned, continuity both of the environment in which care is provided and of the staff providing it – both of which I can see are important to Miss Chatting – have in fact been secured (I say nothing about whether this was a legal obligation). Given the factual situations involved and the decisions reached in McDonald and the other cases reviewed by Lord Brown, I do not consider that any positive obligation under article 8 delegated to Viridian under section 145 of the 2008 could conceivably extend to maintaining the legal identity of the organisation providing Miss Chatting’s care and accommodation, nor maintaining any particular arrangements for managerial supervision of that care and accommodation. Any consequent interference in Miss Chatting’s private life is minor in comparison with the denials of care and facilities that failed to engage article 8 in those other cases. Still less could it be suggested (cf paragraph 18 of McDonald) that the changes have left her in inhuman or degrading circumstances.

Mr Cragg relied on paragraph 19 of the judgment as demonstrating a need to consult the person being cared for. As regards the procedural dimension of article 8 he also referred to paragraph 51 of the judgment of Munby LJ in H and v A City Council [2011] EWCA Civ 403, where Munby LJ said:

“Article 8 likewise has an important procedural component. Long established Strasbourg jurisprudence, articulated by the court as long ago as 1988 (see W v United Kingdom (1988) 10 EHRR 29, paras [63]-[64]), requires that, where Article 8 is engaged, the local authority’s decision-making process must be such as to secure that the views and interests of those who will be adversely affected by its decision are made known to and duly taken into account by the local authority, and such as to enable them to exercise in due time any remedies available to them. The question, according to the court, is whether, having regard to the particular circumstances of the case and the serious nature of the decisions to be taken, those affected have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests.”

That was a case where article 8 was engaged by the local authority’s disclosure of the claimant’s sexual offending history. The local authority had made the disclosure without giving the claimant an opportunity to be heard.

As far as the allegation of inadequate consultation in this case is concerned, there have been consultations; Mr Cragg’s complaint is that they did not pay adequate regard to Miss Chatting’s article 8 rights. That is an argument that I find circular: since, as I have held, the changes did not interfere with her article 8 rights, I cannot see how specific consideration of article 8 could have been required or have made a difference. Ms Turner was able to state her preference, supported by the independent social work consultant, for registration of Mary Court as a residential unit of one person, designed to enable her care still to be managed within Mary Court. Viridian and Wandsworth Borough Council considered this suggestion, albeit that they dismissed it. Miss Chatting’s views and interest were, in Munby LJ’s words, made known to, and duly taken into account, by Viridian and Wandsworth.

It was a plank of Mr Cragg’s case against Viridian that its exit from care was motivated by commercial considerations: its desire to improve its overall financial performance. Mr Baker disputed that it was purely a matter of saving money; Viridian had concluded that it was engaged in more types of care provision than it could optimally manage; he also relied on R (W) v Lambeth [2002] EWCA Civ 613, to the effect that a local authority could take into account economic well-being and the rights of others in need of care in deciding what provision to make. In that connection Mr Cragg submitted that, Viridian’s funds not being public funds, it was not as well placed as, for example, a local authority to invoke the need for economy or interests of other service users.

As far as that is concerned, it seems to me that an organisation that has shouldered the state’s obligations under article 8 as a result of section 145 of the 2008 Act must have some entitlement to have regard to economy, at least where (as here) it is a charity whose funds are therefore quasi-public. But I do not need to rule on this; in my judgment the changes that have occurred to Miss Chatting’s care arrangements have not interfered with her private life and I do not consider that any financial motivation of Viridian’s could cause them to do so.

Mr Cragg contends that Wandsworth Borough Council have acted unlawfully as a matter of public law in their management of the transfer to the new arrangements. He submits that the Council are under duties, both as part of the discharge of their duties under the National Assistance Act and pursuant to binding guidance issued under the Mental Capacity Act 2005, to meet Miss Chatting’s community care needs and to take into account her best interests as a mentally incapacitated person. He contends that the Council have acted unlawfully in not taking Miss Chatting’s best interests into account; faced with a report saying that accommodation in a residential unit of one was consistent with Miss Chatting’s best interests, the Council ought to have taken a decision according to where Miss Chatting’s best interests lay. In response Ms Laing disputes the suggestion that Miss Chatting’s best interests were not regarded as a material consideration, but submits that they were not the yardstick by which it fell to Council to take decisions about her.

Ms Laing submitted to me that Mr Cragg had not identified any unlawful decision of Wandsworth Borough Council, nor had he made out a case that the Borough Council’s approach had been unlawful. Mr Cragg had not submitted that anything in Miss Chatting’s care plans was inadequate. The documents that Mr Cragg criticised in fact showed, she said, that Wandsworth Borough Council were focussed on meeting Miss Chatting’s assessed needs. She said that the independent social worker’s concerns, which were hesitantly expressed, were based on a misconception about the practicalities of Miss Chatting’s care being managed from Sir Jules Thorn Court; in that connection she took me to witness statements on behalf of the Council and Viridian, to the effect that the manager’s office in Sir Jules Thorn Court (which is in the same building as Mary Court) was approximately as close to Miss Chatting’s flat as the office of the Mary Court care manager had been. The Council had considered the social worker’s report and did not agree with its conclusions; Ms Laing referred in that connection to the witness statement of its social work team leader, rejecting the suggestion that Miss Chatting’s care could not be effectively managed by the manager at Sir Jules Thorn Court. Ms Laing submitted that the Council could rationally regard the proposed arrangements for Miss Chatting’s care after the transfers to Care UK and Gold Care as adequate. It was not the function of the judicial review court to decide how Miss Chatting’s needs were best managed.

Mr Cragg’s case on the ‘best interests’ issue is that section 7(1) of the Local Authority Social Services Act 1970 requires local authorities, in the exercise of their social services functions, to act under the general guidance of the Secretary of State for Health. Pursuant to section 7(1), the Secretary of State has issued guidance entitled Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care. Its aim is to assist councils with adult social services responsibilities in determining eligibility for social care. Under the heading “Links to other legislation and guidance” it says:

“The Mental Capacity Act

The Mental Capacity Act 2005 provides a statutory framework for acting and making decisions on behalf of people who lack capacity to make particular decisions for themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future. It sets out who can act and take decisions on behalf of a person who lacks capacity, in which situations, and how they should go about this.

The Act sets out five principles which must be adhered to when working with people who lack capacity to make certain decisions. Councils are expected to follow these principles carefully during assessment and supporting planning.

Councils should also consider where the use of Independent Mental Capacity Advocates (IMCAs) and other advocates – such as dementia advocates or learning disability advocates – might be appropriate to ensure that as far as possible people are supported to be involved in the decision-making process.”

The principles referred to in the Guidance are contained in section 1 of the Mental Capacity Act 2005, which provides as follows:

“1 The principles

1)

The following principles apply for the purposes of this Act.

2)

A person must be assumed to have capacity unless it is established that he lacks capacity.

3)

A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

4)

A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

5)

An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made in his best interests.

6)

Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.”

Mr Cragg relies on the decision of Ouseley J in R (W) v Croydon BC [2011] EWHC 696 (Admin). In that case a young man with severe autism and learning difficulties was accommodated by the local authority pursuant to sections 21 and 26 of the National Assistance Act in an establishment in a rural area. In 2010 the local authority conducted an assessment of him which concluded that the establishment was no longer suitable for him. A best interests meeting was held, at which it was determined, against his parents’ wishes, that he be transferred to supported living accommodation. Quashing the decision, the judge described the 2005 Act as “of particular importance in view of SW’s lack of capacity”. He referred to section 12(5) and the procedural requirements of section 4 and held, for reasons that it is unnecessary to go into, that the consultation conducted under section 4 had been inadequate.

Ms Laing disputed Mr Cragg’s contention that a best interests decision-making process fell to be undergone in the present case. Section 1(5) of the Act referred to the taking of a decision ‘for or on behalf of’ a person: no decision fell to be taken for or on behalf of Miss Chatting given that nobody was suggesting that she move to different accommodation. She distinguished R (W) v Croydon BC on the grounds that, there, a change of accommodation was in contemplation and, as Ouseley J had noted, SW had “no capacity to make or participate in a decision about where he might be moved to”.

As regards the complaint of Wandsworth Borough Council being insufficiently proactive, Ms Laing submitted that the Council’s duty under section 26 of the 1948 Act and the relevant directions was met by making arrangements under section 26 which met Miss Chatting’s care needs, those needs and arrangements being kept under review. Seeking to give effect to the ‘residential unit of one’ proposal would have involved unscrambling the arrangements that were in the process of being made with Care UK. She referred me to Moses J’s observations in 2000 about Wandsworth Borough Council’s limited ability to influence Viridian. If Wandsworth considered that Viridian’s arrangements were inadequate, she submitted, the only course open to them was to terminate Miss Chatting’s placement; but even that was precluded in this case by the 2000 agreement.

I do not consider that Mr Cragg has succeeded in demonstrating any unlawfulness in Wandsworth Borough Council’s handling of Miss Chatting’s care. I can see no basis for saying that the Council were under a legal duty, enforceable by way of judicial review, to make arrangements under section 26 of the 1948 Act for Miss Chatting to receive accommodation and care in a residential unit of one person at Mary Court; that being so, the complaint that they illegally failed to be sufficiently proactive in seeking to bring this about also falls away.

As regards the Mental Capacity Act 2005 and the Guidance, I have to decide whether the Council made a legal error in failing to decide what arrangements should be made for Miss Chatting by reference to the question of what was in her best interests. I agree with Ms Laing that they did not err in law in this regard. Plainly they would have erred in law if they had regarded Miss Chatting’s best interests as an irrelevance, because they would have been in breach of their duty under section 21(2) of the 1948 Act to have regard for her welfare. But the fact that Miss Chatting is mentally incapacitated does not import the test of ‘what is in her best interests?’ as the yardstick by which all care decisions are to be made.

Section 1(5) of the Act applies to ‘an act done, or decision made ... for or on behalf of a person who lacks capacity’. Its decision-making criteria and procedures are designed to be a substitute for the lack of independent capacity of the person to act or take decisions for him or herself. They come into play in circumstances where a person with capacity would take, or participate in the taking of, a decision. In deciding not to press for the registration of Miss Chatting’s flat as a residential home for one person and in deciding (as they appear to have done) to agree to a novation of their section 26 arrangements for Miss Chatting so as to substitute Gold Care for Viridian, Wandsworth Borough Council were taking decisions that fell to them to take, with due regard for her welfare. They could rationally conclude that the decisions were compatible with her welfare. They did not as a matter of law require Miss Chatting’s assent to these decisions; no decision, or participation in a decision was involved on her part.

It follows that I dismiss Miss Chatting’s claims for declarations against Viridian Housing or Wandsworth Borough Council. I declare that on the true construction of the terms of compromise attached to the order by consent of the Court of Appeal in case C/042/2000 they do not entitle Miss Chatting to remain in her flat in Mary Court if a lawful community care assessment is made by Wandsworth Borough Council to the effect that she needs nursing care of a sort that could not have been provided in an establishment registered under Part I of the Registered Homes Act 1984.