Chatting, R (On the Application Of) v Viridian Housing & Anor

A compromise protecting a resident’s continued accommodation and care does not ordinarily require the contracting provider to perform personally. Unless personal performance is expressly or necessarily implied, the obligation is to secure the promised result. A promise of residence subject to the need for nursing care ends where a lawful assessment establishes a need for nursing care that cannot lawfully be provided in the establishment. Article 8 does not generally confer a right to retain the legal identity of a care provider where the resident’s environment and care staff remain substantially continuous. The Mental Capacity Act 2005 best-interests decision-making provisions apply to decisions made for or on behalf of a person lacking capacity, but do not make best interests the universal yardstick for all care arrangements.

The claimant, a 92-year-old resident of Mary Court, challenged the transfer of the care-home operation from Viridian Housing to Gold Care. She alleged breaches of a compromise agreement made following earlier judicial-review proceedings, interference with her rights under article 8 of the European Convention on Human Rights, and unlawfulness by Wandsworth Borough Council in arranging her care.

The claimant also argued that the compromise agreement entitled her to remain at Mary Court unless she needed nursing care that could not lawfully be provided there. The Council sought declarations concerning the meaning of the agreement and its funding obligations. The central issues were whether Viridian had promised personal performance, whether the transfer engaged or infringed article 8, and whether the Council was required to make arrangements by reference to the claimant’s best interests.

1. Construction of the compromise agreement. The agreement promised that the claimant would continue to receive accommodation with board and care at Mary Court, subject to the specified conditions. It did not expressly or impliedly require Viridian to provide those services personally. The contractual obligation was an obligation of result: Viridian had to bring about the continued provision of the promised accommodation and care. Transfer of the operation to Gold Care therefore did not breach the agreement while that result continued.
2. The agreement was made against the background of the earlier assurance that the residents could remain at Mary Court unless their health required nursing care. Properly construed, the nursing-care condition ended the entitlement to remain where a lawful community-care assessment established a need for nursing care of a kind that could lawfully be provided only in an establishment registered for nursing care. The agreement did not promise that Mary Court would be registered for nursing care, or that a resident could remain there while declining nursing care.
3. Article 8. Section 145 of the Health and Social Care Act 2008 required compliance with the Convention while the private provider was performing the delegated public function of providing care and accommodation. It did not, however, require Viridian to retain the legal identity of the provider or particular management arrangements. The claimant’s environment and dedicated care staff had remained substantially continuous. Any interference was minor and did not amount to an infringement of article 8. Consultation had occurred, and the claimant’s views and interests had been made known and taken into account.
4. Wandsworth’s duties. The Council had regard to the claimant’s welfare as required by section 21(2) of the National Assistance Act 1948. The Mental Capacity Act 2005 did not require every care-management decision to be determined by asking what was in the claimant’s best interests. Its substitute decision-making provisions applied where an act or decision was made for or on behalf of a person lacking capacity. The Council could rationally decide that the arrangements met the claimant’s needs without obtaining her assent or establishing a residential unit of one.

The claims for declarations against Viridian and Wandsworth were dismissed. It was declared that the compromise agreement did not entitle the claimant to remain at Mary Court if a lawful assessment established the relevant need for nursing care.

Not stated in the judgment.