Haggerty & Ors, R (on the application of) v St. Helens Council

A local authority’s refusal to agree more onerous commercial terms with a private care-home provider may be amenable to public-law or Convention challenge where the authority’s statutory duties affect residents. The court must, however, review legality rather than substitute its view on the merits. Authorities may take financial resources into account when arranging accommodation, provided assessed needs are met. A move between suitable homes will engage Articles 2, 3 or 8 only where the evidence establishes the relevant threshold of risk, suffering or interference. The authority must take reasonable steps to assess individual needs and mitigate disruption, but is not required to accept a provider’s demanded fees or occupancy risk. Convention obligations are limited by proportionality and the authority’s broad area of judgment in allocating resources.

The claimants were elderly residents with senile dementia at a private nursing home operated by Southern Cross Healthcare Services Limited. St Helens Council rejected Southern Cross’s demand for substantially increased fees and a block contract under which the Council would pay for places irrespective of occupancy. Southern Cross then decided to close the home, and the Council arranged suitable alternative accommodation.

The claimants sought judicial review, alleging irrationality, failure to consider relevant matters, inadequate consultation, and infringement of Articles 2, 3 and 8 of the ECHR. The central issues were whether the Council’s commercial decision was amenable to challenge and, if so, whether any public-law or Convention breach had been established.

1. The application was dismissed. The court’s function was to review legality, not to reconsider the merits of the Council’s decision.
2. The court assumed, without deciding, that the Council’s dealings with Southern Cross were amenable to judicial review on public-law and Convention grounds. The claim was therefore determined on the assumption most favourable to the claimants.
3. The causal chain between the Council’s refusal and the alleged Convention interference was materially broken by Southern Cross’s independent decision to close the home. In any event, the Council had assessed each resident’s needs, identified suitable alternative accommodation, preserved friendship groups where possible, and planned moves to minimise risk and distress.
4. Articles 2 and 3 impose positive obligations only within defined limits. Any obligation to protect life or prevent ill-treatment must not impose an impossible or disproportionate burden. The evidence did not establish a real and immediate risk to life or the intense physical or mental suffering required for Article 3. Article 8 was likewise not infringed because the planned arrangements protected physical integrity and home and family life.
5. The Council was entitled to take financial resources into account and to exercise a broad area of judgment in allocating resources. The statutory accommodation scheme required consideration of assessed needs and the amount the Council would usually expect to pay. The Council was not required to accept Southern Cross’s proposed fees or assume the risk of vacant places.
6. Consultation and relevant-consideration challenges failed. The closure decision was Southern Cross’s, the Council had only seven days to respond, the residents’ needs and likely disruption had been considered, and proper consultation would not have altered the decision. Government guidance and recommendations in the Cowl report were not binding, and the Council’s arrangements substantially addressed the relevant risks.
7. The Council agreed to liaise with Professor Jolley or another suitable consultant in old-age psychiatry concerning the least harmful means of moving the residents, with liberty to apply on notice. Costs were ordered in the Council’s favour, subject to the usual public-funding provisions.

First-instance judicial review in the Administrative Court. Permission to appeal was refused by Mr Justice Silber after judgment.