Goldsmith, R (on the application of) v London Borough Of Wandsworth

When a local authority decides that a person must leave an established home for nursing accommodation, a professional assessment of nursing needs is only one factor. The authority must make its own rounded decision, considering the person’s overall needs, the suitability of existing accommodation, available care arrangements, the effect of the move and relevant representations. It must follow its assessment procedures, use adequate and current information, and give reasons. Article 8 requires proportionality to be addressed where the decision interferes with private life and home. A procedurally defective decision should be quashed and reconsidered with an open mind.

The appellant, a 95-year-old resident at Mary Court, challenged Wandsworth’s decision to move her from registered residential accommodation to a nursing home after a fall and hospital admission. Beatson J granted permission to apply for judicial review but dismissed the application on 5 December 2003. The Court of Appeal considered whether the authority’s decision-making process was lawful, whether a medical assessment had been treated as determinative, and whether the authority had considered the appellant’s representations, the suitability of Mary Court and Article 8 proportionality.

Lord Justice Wall delivered the leading judgment. Chadwick LJ and Brooke LJ agreed.

1. Outcome and scope. The appeal was allowed. The order dismissing the claim was set aside and Wandsworth’s decisions of 13 August and 6 October 2003 were quashed. In judicial review, the appellate court’s task was to decide whether the judge had erred in law in relation to the decisions under review. The more liberal approach to later evidence sometimes adopted in asylum and children cases, illustrated by E v Secretary of State for the Home Department [2004] EWCA Civ 49, did not readily fit the strict discipline of judicial review.
2. Statutory and policy framework. Section 47 of the National Health Service and Community Care Act 1990 required assessment of community-care needs and a subsequent decision having regard to that assessment. Section 21 of the National Assistance Act 1948 imposed an individual duty to provide accommodation suitable for the person’s needs. The authority also had to comply with relevant statutory guidance, as recognised in R v LB Islington ex p Rixon (1998) 1 CCLR 119, and with its own local guidance.
3. Defective process. The Local Continuing Care Panel had proceeded without the up-to-date community-care assessment, and there was no adequate minute, rationale or written decision. Its recommendation was advisory, but it gave Wandsworth defective advice. The appellant’s carer had relevant information and representations to contribute; the discussion could not properly be treated as purely clinical so as to exclude that contribution.
4. Independent decision-making. Dr Cottee’s role was limited to reviewing the professional reports and expressing an opinion on the applicable care level. His opinion was an important factor, but it was not determinative of whether care had to be delivered in a nursing home. Wandsworth had to make a rounded decision, weighing the appellant’s overall well-being, the effect of removing her from Mary Court, the possibility of meeting her needs there and the representations made on her behalf. The October meeting was not a genuine reconsideration because the decision-maker approached it with a closed mind.
5. Article 8. The proposed move engaged the appellant’s right to respect for private life and home. Even if the interference pursued the protection of health and was otherwise lawful, it had to be proportionate. There was no evidence that Wandsworth had undertaken that balancing exercise. The court assessed the decision and its communication as made, and later evidence could not retrospectively cure the omission.
6. Remedy. Wandsworth was directed to reconsider its position with an open mind and on the material available when the fresh decision was made. The process was expected to be transparent and the reasons clearly stated in writing. The merits of the fresh decision remained for Wandsworth, not the court. Costs were awarded to the appellant.

• Court of Appeal (Civil Division): allowed the appeal, set aside the order dismissing the judicial review claim, quashed the decisions of 13 August and 6 October 2003, and directed reconsideration. [2004] EWCA Civ 1170
• Administrative Court: Beatson J granted permission to apply for judicial review but dismissed the application for an order quashing Wandsworth’s decision.