Watts, R (on the application of) v Wolverhampton City Council

A local authority’s decision to close a care home is principally a matter for the authority, subject to lawful decision-making. The court does not decide how care homes should be run or substitute its assessment of residents’ welfare. Residents remain protected by the ordinary common duty of care owed by the authority. Where the evidence does not establish appreciable harm from relocation, and the authority undertakes individual assessments and tailored arrangements, a proposed judicial review appeal has no realistic prospect of success.

Wolverhampton City Council decided to close Underhill House and transfer its residents elsewhere. Mrs Watts and another resident relied on evidence that the upheaval might shorten residents’ lives and sought to challenge the proposed implementation of the decision.

Permission to apply for judicial review had been refused on the papers by HHJ McKenna and, on renewal, by HHJ Kirkham. The Court of Appeal heard an application for permission to appeal together with the council’s application to discharge an injunction preserving the position. The central issue was whether the evidence and the council’s proposed safeguards disclosed an arguable public law basis for preventing the moves.

1. Application refused; injunction discharged. Permission to appeal against the refusal of permission to apply for judicial review was refused because the proposed appeal had no realistic prospect of success.
2. The provision and administration of care homes are functions for local authorities and the private sector. Courts lack the resources, power and expertise to decide how care homes should be run. Their public law role is confined to ensuring that public authorities act lawfully, including in reaching a decision to close a home.
3. The duty not to cause harm to residents was the ordinary common duty of care, rather than a public law duty. The council accepted that it had to take the greatest care in preparing residents for a move and making the transition as smooth as possible.
4. The expert evidence did not establish that moving Mrs Watts to a properly managed home would cause appreciable harm. Although certain risk factors were identified, the evidence indicated that preparation and moving with close friends could mitigate those risks.
5. The council had undertaken to assess each resident’s risk of death or harm to health and how any risk should be managed. Its equalities impact assessment identified distress and proposed safeguards including individualised care planning, prior visits, advocacy where necessary, engagement with residents and carers, and moving friendship groups together. Those measures addressed the concerns raised by the evidence.
6. Mr Justice Owen agreed that the application was unarguable and that the injunction should likewise be discharged.

• Court of Appeal (Civil Division): permission to appeal was refused and the injunction was discharged.
• Administrative Court, Birmingham: HHJ Kirkham refused permission on renewal on 9 September 2009.
• On the papers: HHJ McKenna refused permission to apply for judicial review on 10 July 2009.