ECHR rejects Human Rights claim against council for closing care home

The European Court of Human Rights has ruled that local authorities are not in breach of human rights law when closing care homes unless there is clear evidence that residents' lives would be endangered by relocating them. The court also found that that councils are entitled to balance the financial implications of their actions against the human rights of residents when assessing whether to close care homes and compulsorily move their residents.

The claim against Wolverhampton City Council, led by Hossacks Solicitors on behalf of a 106-year-old care home resident, had argued that forcing elderly residents to move on the closure of a care home breached their 'right to life' under Article 2 of the European Convention on Human Rights (ECHR).

The claim also alleged that the stress and distress of compulsorily relocating care home residents was a violation of Article 3 (the prohibition of inhuman or degrading treatment) and that by breaking up deep relationships formed between residents and staff, transferring residents was a breach of article 8 (the right to private and family life).

Finally, the claimants contended that the lack of appeal procedure was a breach of article 6 (right to a fair trial) and that the applicant was being discriminated against as a disabled person, in contravention of article 14 (the prohibition of discrimination).

The claimant, Louisa Watts, had been a resident for five years at the council-owned Underhill House in Bushbury, which was identified for closure by the council in 2008. Following a consultation process, the council's report into the home found that the cost of beds at Underhill House was 50% higher than beds in the independent care home sector, and that replacing council-run homes by commissioning places in the independent sector was the best way for the council for to deal with its dwindling resources for adult social care.

In rejecting the claim in respect of Article 2, the judges noted that while there was a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk, “...for the Court to find a violation of the positive obligation to protect life, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.”

Moreover, they said, “the scope of any positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, including in respect of the operational choices which must be made in terms of priorities and resources. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.”

The ECHR also upheld Lord Justice Sedley's interpretation of the medical evidence (commissioned by the claimant's solicitor) submitted in an earlier judicial review application of the same case. This was interpreted to conclude that, if properly managed, there was not a quantifiable risk to life expectancy of transferring elderly residents between care homes.

The Court said that the claim under Article 3 should be considered under Article 8, which it also ruled to be inadmissible for the same reasons as Article 2, and that the measures taken by the council to minimise and monitor the effects of the transfer – which included efforts to keep friendship groups together - were sufficient.

The Article 6 claim was rejected on the grounds that the claimant could have sought judicial review proceedings before applying to the European Court of Human Rights, and had, in this case, done so.
Before taking the claim to the European Court of Human Rights, Louisa Watts' solicitors applied to the High Court for permission to launch a judicial review action in July 2009, but this was rejected on the grounds that the points raised under articles 2, 3 and 8 of the ECHR had already been considered in earlier cases, including R (Haggerty and others) v St Helens Council [2003] EWHC 803 (Admin), R (Wilson and others) v Coventry City Council [2008] EWHC 2300 (Admin), R (Rutter) v Stockton on Tees Borough Council [2008] EWHC 2651 (Admin) and R (Turner and others) v Southampton City Council [2009] EWCA Civ 1290.

The claimant's solicitors renewed their claim for a judicial review in September 2009, which was again refused. This was appealed in October 2009, but this too was turned down following an undertaking by Wolverhampton City Council to assess whether moving the applicant presented a risk of death or to health that such as assessment would take place in the context of section 47 of NHSCCA 1990 assessment.

The claim of discrimination under Article 14 of the ECHR was ruled inadmissible on the grounds that the application had not included details of alleged different treatment of people in a comparable situation.

Yvonne Hossack, Mrs Watts' solicitor, told the Daily Telegraph: "They're saying that human life has a monetary value. I think this will set a precedent as local authorities will know there's nowhere else residents can go, and it will wrongly give them the signal that what they're doing is OK but it's not. I would have hoped that the views of all the consultants that it is at least potentially harmful to move elderly people should have been enough."

A full copy of the judgement can be found by clicking here.