Care homes, residents and public law challenges

To what extent can care home providers act on residents’ behalf when bringing public law challenges? The Court of Protection team at 39 Essex Street report on a recent High Court case.

The case of Broadway Care v Caerphilly CBC [2012] EWHC 37 (Admin) – one of a string of recent cases arising out of attempts by local authorities either to cancel or vary the terms of contracts with residential care providers – is noteworthy because of a number of comments made as to the extent to which care home providers are entitled to act on behalf of the residents of their homes when seeking to bring public law challenges.

The claimant care home specialised in the provision of care to sufferers of dementia. It had 23 residents, of whom 19 were funded by the defendant local authority. By a decision dated 12 December 2011, Caerphilly CBC sought to terminate the framework contract for the provision of care services which the parties had entered in to in 2006 on the basis of concerns as to the quality of the care provision.

Upon the care home’s (rolled up) application for judicial review of the decision, HHJ Seys Llewellyn QC held that the Court should be willing to entertain applications for interim relief brought by a care home in a very unusual case, during such period as might be necessary to preserve the status quo until individual residents or their representatives can themselves pursue applications, if at all they choose to do so. Once there is time and opportunity for them to do so, there is plain risk of a conflict of interest between the care home and the residents and insufficient reason why the care home should purportedly act on their behalf.

However, the judge accepted the defendant’s submission that to acquire ‘victim’ status one must be ‘directly affected’ by the act or omission [1]. Those "indirectly affected" can only bring proceedings where, exceptionally, it is "impossible" for those directly affected to do so. On the facts, the claimant was precluded from pursuing the proceedings in defence of the Article 8 rights of its residents because it was not the victim of a breach of those rights.

The judge further rejected the claimant’s submission that the defendant was under a public law duty to consult with relatives before terminating the contract and reiterated that in the absence of a right to rely on the residents’ article 8 rights, there should be no public law remedy for termination of the contract.

Comment

This case is of note for the restrictive approach that the Court adopted to the circumstances in which a care home could pursue proceedings on behalf of its residents, even where on the facts the residents may be unlikely to bring proceedings in their own right. However, it does leave open the possibility of urgent relief being sought in an appropriate case so as to allow for individual residents to take their own steps to seek to safeguard their position and, as such, recognises the (limited) common cause that care home providers and their residents may have in securing the continuation of placement contracts.

This article was written by the Court of Protection team at 39 Essex Street.

[1] See e.g. Klass v Germany Application 5029/71, 6 September 1978.