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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

31 JAN 2013

R (on the application of Chatting) v Viridian Housing and Another [2012] EWHC 3595 (Admin); (2013) PLLR 008

Community Care - Article 8 - Care providers

The Defendant had not breached the Claimant's Article 8 ECHR rights by transferring her care arrangements to another care provider.

13 December 2012

Administrative Court

Nicholas Paines QC

(1)        The Claimant, Florence Chatting, is a 92 year old lady who requires care due to various physical and mental impairments. Her niece acted as her litigation friend for the purpose of these proceedings.

(2)        This case arose after the reorganisation by the charity, Viridian Housing, (it owned the premises that Miss Chatting lives in) of the provision of care to the residents.

(3)        The Claimant sought declarations that Viridian, in transferring her care to another organisation, had breached an agreement made in earlier litigation and infringed her Article 8 ECHR rights. The Defendant responded that these declarations were in fact academic and should not be granted.

(4)        In relation to Wandsworth Council, the Claimant alleged that over the last 18 months it had failed to discharge its duties under the National Assistance Act 1948 to provide accommodation and had failed to consider the Claimant's best interests in accordance with the Mental Capacity Act 2005.

(5)        HELD: The Court concluded that Wandsworth Borough Council's transfer of responsibility to Viridian Housing and Viridian Housing's handling of that transfer breached neither the compromise agreement nor Article 8 EHCR.

(6)        The Court accepted that it was not unlawful for the Council to arrange for nursing care to be provided in a different manner to that initially provided, as such, no declaration was granted in relation to this. The Court concluded that the Council had not erred in law in failing to decide the arrangements for the Claimant by reference to what was in her best interests. The Claimant's best interests had not been treated as an irrelevance and, in any event, the ‘best interests test' was not imported from the Mental Capacity Act 2005 simply by reason of the Claimant being mentally incapacitated. It was thus held that Wandsworth Borough Council had not acted unlawfully.

(7)        The Court did not accept the Claimant's contention that the previous compromise agreement had been breached. It could not be said that a promise had been given that the Claimant could remain in the property if nursing care was needed, but she declined to receive it. The Court thus held that if Wandsworth Borough Council determined the Claimant to need nursing care, the compromise agreement did not automatically entitle her to continue to remain in her flat.

(8)        Further, the only promise that had been given was for the provision of accommodation and care services, with no explicit identification of the provider as Viridian Housing. The promise of performance of these duties did not require them to be carried out personally. The Court did not consider that Article 8 ECHR required Viridian to continue to provide the Claimant's care. Further, it was held that continuity had been provided regarding the provision of care to the Claimant.

(9)        The Court considered that any interference in the Claimant's private life arising from the change in care provider did not engage Article 8, further, the changes could in no way be suggested to have left her in inhuman or degrading circumstances. Finally, the Court held that there had also been the necessary consultations conducted by the Defendant.

(10)     The Claimant's claims for declarations were therefore dismissed.

Claim dismissed.

Key Paragraphs

[63] - Not unlawful.

[67] - No breach compromise.

[70] - Not need personally provide.

[84] - Article 8.

[85] - No interference.

[88] - Consultations. 

[98] - No council unlawfulness.

[99] - Best interests.

[101] - Conclusion. 

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