Turner & Ors, R (on the application of) v Southampton City Council

Article 2 does not make every risk associated with closing a care home justiciable. Intervention requires evidence of a real and immediate risk to an identified resident’s life, together with a failure to take measures that could reasonably be expected to avoid it. The threshold is high. A speculative expert prognosis, unsupported by research showing a consistent increase in mortality, is insufficient. Local authorities should assess each resident’s risks and take professionally appropriate steps to minimise them. Where they do so, and no real risk of an injurious transfer is shown, the supervisory jurisdiction has no immediate role.

These conjoined applications concerned decisions by Southampton City Council and Hull City Council to close residential care homes and relocate elderly residents. The residents sought judicial review, arguing that relocation might accelerate death and engage Article 2. Southampton proceedings were refused by Sales J after further consultation and investigation; the Hull application was refused by HH Judge Grenfell. The appellants sought permission to appeal. The central issue was whether the evidence established a real and immediate risk to an identified resident’s life, and whether the authorities’ proposed risk assessments and mitigation measures were legally sufficient.

1. Permission to appeal refused. The Court of Appeal refused permission in both cases. Article 2 imposes a positive obligation to take appropriate preventive steps where the authorities knew or ought to have known of a real and immediate risk to the life of an identified individual and failed to take measures reasonably expected to avoid it. Gross negligence is not required. The approach in Osman v UK (1998) 29 EHRR 245 was applicable in Savage v South Essex Partnership NHS Foundation Trust [2007] EWCA Civ 1375, upheld on appeal [2008] UKHL 74.
2. The real and immediate risk threshold is high, as explained in In re Officer L [2007] UKHL 36. In care-home relocation cases, the supervisory jurisdiction requires at least evidence of a real risk that the transfer will be carried out in a manner injurious to the particular resident’s health. A general possibility that relocation may shorten life is insufficient.
3. The expert evidence did not meet that threshold. The research relied on identified few consistent outcomes from relocation and no observed increase in mortality in the limited studies reviewed. The expert prognoses were guarded and substantially speculative. They did not establish a real risk in any of the cases.
4. Both councils accepted that individual risks would be assessed and that reasonable professional measures would be taken to reduce them. The court accepted that section 6 of the Human Rights Act 1998 would require compatible action if a real and immediate risk were identified. Article 2 does not require every risk to be eliminated. If a council does all that can professionally be done to minimise identifiable risks, the law has no immediate role.
5. The court referred to the similar analysis in R (on the application of Wilson) v Coventry City Council [2008] EWHC 2300 and distinguished the evidential situation described in R (Watts) v Wolverhampton City Council [2009] EWCA Civ 1168. The judgment was directed to the Legal Services Commission because of concerns about repeated publicly funded litigation.

• Court of Appeal (Civil Division) — permission to appeal refused in both cases: [2009] EWCA Civ 1290.
• High Court, Queen’s Bench Division, Administrative Court — in the Southampton proceedings, Sales J refused judicial review on 22 October 2009. In the Hull proceedings, HH Judge Grenfell refused permission to apply for judicial review on 6 October 2009.