Frank Cowl and Ors. v. Plymouth City Council

Residents of a residential elderly care facility sought judicial review of a decision to close the facility.

Plymouth City Council (“Plymouth”), the owner and operator of several residential elderly care facilities, decided to close two of its facilities, including Granby Way, the home of the eight claimants. The claimants sought judicial review of Plymouth’s decision. The claimants, three of whom claimed to have been promised a “home for life” in Plymouth, sought to have the closure decision quashed and a comprehensive assessment of the residents’ needs carried out. In an open letter, Plymouth argued that the claimants’ application raised “no relevant arguable issues of legal principle,” and that Plymouth would be willing to put the decision before an independent panel. Plymouth also noted that there was a statutory complaints procedure available to the claimants, but the claimants felt that the complaints procedure was not satisfactory. A consultant in old-age psychiatry prepared a report expressing “grave concerns” about the impact that closing Granby Way could have on the residents’ physical and mental health. The claimants also argued that Plymouth was acting in violation of articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment or punishment), and 8 (right to respect for private and family life) of the European Convention of Human Rights (“ECHR”).

A judge of the Queens Bench Division Administrative Court concluded the following: (1) there was not sufficient evidence to establish that any claimants had been promised a “home for life”; (2) the consultation process carried out by Plymouth was sufficient for the initial stages of the closure process; (3) articles 2 and 3 of the ECHR were not relevant until a final decision to move individuals was made; and (4) regarding article 8 of the ECHR, a balancing act was needed to apply that article, but there was no possibility that Plymouth could abide by common law and still be in breach of article 8. The judge concluded that Plymouth had not acted unlawfully, especially because final closure was still two years off.

The lower court’s judgment was appealed to the Court of Appeal (Civil Division).

The Court of Appeal (Civil Division) chided the litigants for prematurely resorting to litigation instead of an alternative dispute resolution mechanism. It noted that parties should only escalate to litigation where truly unavoidable.

Following the decision of the lower court, the Court held that the appeal raised no point of legal principle. Although Plymouth was obligated to carry out an assessment of the residents’ needs with regard to closure, there was no statutory requirement that that the assessment occur at a particular time during the closure process. While Plymouth did not act unlawfully, it should have made its intentions and strategy very clear. Therefore the claimants’ original concerns were justified, as they did not have complete information about Plymouth’s plan.

The Court scheduled the terms of an agreement between the parties. The agreement stated that the closure would be formally reconsidered, including an independent investigation and recommendation process regarding residents’ care needs related to the move. The parties also agreed that Plymouth would take into account the residents’ physical and mental health and its human rights-related legal obligations.

“The importance of this appeal is that it illustrates that, even in disputes between public authorities and the members of the public for whom they are responsible, insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible. Particularly in the case of these disputes both sides must by now be acutely conscious of the contribution alternative dispute resolution can make to resolving disputes in a manner which both meets the needs of the parties and the public and saves time, expense and stress.” [para. 1]

“[C]ommunity care assessment would eventually be required which would involve geriatric assessments and risk management. In [the lower court judge’s] view, Plymouth would have to look very carefully at how closure would affect each individual and what alternative arrangements might be viable. But he felt consideration of these matters would be premature when the closure process is still perhaps two years from completion.” [para. 18]

“It was common ground that there has to be the fullest assessment of the effect of a possible move on the claimants before a decision whether to move the claimants could be reached. ... [The claimants] contend that as a matter of law the assessment is required to take place before closure. But absent any statutory requirement what is important is that an assessment takes place, not the time at which it takes place.” (para. 21)

“From Plymouth’s point of view ... the first step was to consider whether closure would be a viable option. ... The final decision would only be made after the full assessment of the impact upon the resident. Such an approach could be beneficial to the residents because, if the closure option was not viable, there was no need to subject them to the stress which would be involved in determining what would happen to them if they had to move. ... Unfortunately Plymouth failed to make their strategy clear.” [paras. 22-23]