The claimant was a 101 year old British-Asian woman who sought to challenge the decision of the Council to close her care home.
The claimant had three heads of challenge. Firstly that the decision to close the home was based on a material mistake of fact as to the level of demand for care homes, and as to the nature of that demand. Secondly, that the decision maker failed to have due regard to her legal duties pursuant to The Equality Act 2010, s 149. Thirdly, that the decision failed to take into account relevant considerations, specifically the claimant’s future rights under ECHR, art 8, the breach of claimant’s legitimate expectation that her current care home was a home for life and whether the claimant’s care needs can be satisfied in alternative accommodation.
The hearing was a rolled up hearing, and although the Court granted permission for the claim to be heard, rejected all three grounds.
With regard to the mistake of fact, the Court cited the authority of E v Secretary of State for the Home Department [2004] EWCA Civ 49 and noted that in order for a challenge under this head to succeed the claimant would have to show the mistake of fact must be uncontentious and objectively verifiable. The claimant’s case was based on a survey by the National Social Care Intelligence Service (“NACSIS”). However, the Court said that the Council had given cogent reasons for not accepting the figures published the NACSIS, and therefore the Claimant failed to meet the test as set out in E.
With regard to the alleged breach of the public sector equality duty, the Court emphasised that the duty of the decision of maker was only to have regard to the duty and was not a requirement to eliminate discrimination and promote equality of opportunity. The Court cited R (Baker) v Secretary of State for Communities & Local Government [2008] EWCA Civ 141 and noted that this distinction was “vital” and the Court was satisfied that the decision maker had regard to the public sector equality duty.
With regard to the Council’s alleged failure to have regard to relevant considerations, the Court noted that the decision had considered the claimant’s present rights under ECHR, art 8, and that any challenge to a future breach of ECHR, art 8 would require a fresh challenge. With regard to the claimant’s legitimate expectation of a home for life, even if such a legitimate expectation existed it could be overridden because there were powerful reasons to close the care home, namely the disproportionate cost in keeping it open. Finally with regard to whether the claimant’s future care needs could be met in alternative accommodation, the Court again noted that such a challenge was premature as there were no exceptional factors which warranted an assessment prior to the claimant’s future accommodation being decided upon.
Helen Mountfield QC was involved in this case.