CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 15 octobre 2002

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Pellonpää , President ,   Sir   Nicolas Bratza ,   Mr   A. Pastor Ridruejo ,   Mrs   V. Strážnická ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki, judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged on 1 March 2002, Having deliberated, decides as follows:                     THE FACTS The applicant, Ms Katie Collins, is a United Kingdom national, who was born in 1966 and lives in Lincoln. She is represented before the Court by Mr   I. Wise, counsel practising in London, and Ms S. Hawson, a solicitor practising in Lincoln. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant, now aged 36, is microcephalic, has spasticity to her lower limbs and is autistic. She has limited verbal skills and has been assessed as having the mental age of about four and a half years. From 1986, she was resident in a longstay hospital for the mentally handicapped. In about January 1990, she was moved to live in Long Leys Court, a purpose built complex of five bungalows and communal facilities for severely disabled adults which forms a unit within the grounds of St   George’s Hospital, Lincoln. At the time of her move, the applicants and others who were also moved at this time were promised a “home for life” at Long Leys Court. In August 2000, the Lincolnshire Health Authority (the “LHA”) issued proposals for consultation which would result in the provision at Long Leys Court ceasing and the site being used for 16 assessment/treatment and forensic beds. It was envisaged that the current residents would be transferred to social care in the community by April 2001. During the period of consultation, the applicant’s parents wrote to the LHA complaining of this intention to renege on its promise to provide a home for life for the applicant at Long Leys Court. The applicant’s parents took the view, as later set out in their judicial review application, that the applicant would be adversely affected by the change to her routine and environment and that the applicant was adamant that she wished to remain in Long Leys Court. On 26 October 2000, the LHA considered the outcome of the consultation process, whose proposals had been supported by the Community Health Council but opposed by the residents’ carers. While they agreed to proposals to transfer provision for the residents to “Social Care Providers” they deferred a decision about the future use of the site and sought legal advice concerning the “home for life” promises allegedly made to the residents. It was acknowledged by the LHA, in face of the consistent statements by the families of Long Leys residents, that there was a possibility that such had been given to some of the residents.     The LHA were given advice by solicitors that: “The view is that ‘home for life’ does not necessarily mean a ‘home for life’ at a particular hospital or place of residence; rather a ‘home for life’ by reference to the needs of those individuals being met appropriately. Their need at the time that any decision is made to transfer them to other accommodation must be taken into account as must their own wishes.” On 30 November 2000, the LHA took the decision to stop the provision of long term care beds at Long Leys and to transfer the future care of the residents to the Social Service Directorate, with due regard to working closely with the users of the services, their relatives and carers in the shape and design of new services to replace those long term care beds. The applicant took judicial proceedings through her mother and litigation friend, alleging inter alia that the LHA had failed to respect the promise made to the applicant of a home for life at Long Leys Court, that the LHA had failed to assess her needs prior to deciding to move her and failed to give rational reasons for the decision to resile from the promise. In his judgment of 6 September 2001, the Deputy High Court judge rejected all the applicant’s arguments. He found that the decision reflected the government policy which was to encourage the removal of persons with learning disabilities away from long term care in institutions, particularly where there was no need for the use of health resources, since the view was being taken that it would benefit the individual by promoting their independence, choice and civil rights. The decision was not taken on an erroneous view that all persons in institutional care had to be moved but was based on an assessment of the personal circumstances of the residents in this case. The judge was also satisfied that the authority did properly take into account the strong preference of the applicant and her family that she should continue to live at Long Leys. While the LHA regarded this as a weighty factor, they nonetheless concluded that it would be very much in the interests of the applicant to move into the community as she had no health needs requiring a hospital setting and her autonomy and progress would be enhanced by the move. He referred to the evidence of the consultant psychiatrist, according to whom previous patients moved into community homes had made impressive progress in health, behaviour, social skills and communication, and to his opinion that such a move would have a positive impact. He considered that there was no failure in assessment of the applicant’s situation as the consultant psychiatrist and the LHA were entitled to rely on their experience of the applicant to conclude that she would be able to adjust well to a move with adequate support without seeking a specific psychological assessment of the impact of the change. As regarded the giving of the promise of “a home for life”, the judge found that the local health authority’s approach had accorded with legal requirements of giving due consideration to the promise - they had quite properly taken legal advice on the point – and that they had been entitled to decide to move the applicant in light of their conclusion that she would benefit positively from the move. He concluded: “For similar reasons, I am satisfied that the assessment ... of the benefits to [the applicant] of moving her out of NHS care and the [LHA’s] decision to act on those views, mean that the interference with [the applicant’s] right to respect for her home is justified under Article 8 § 2 of the Convention. The [LHA] are entitled to a degree of deference in relation to such a decision and I cannot say that their decision is a breach of Article 8, in the particular circumstances of [the applicant’s ] case, having regard, again, as I have mentioned, to the fact that moving [the applicant] will promote other aspects of her rights as a citizen in the community.” The applicant applied for permission to appeal against this decision. A single judge of the Court of Appeal refused permission finding that the judge had reached the right decision for the right reasons. The Court of Appeal refused the renewed application on 7 November 2001, finding that the judge had taken into account all relevant matters and that his approach to the issues could not be faulted. COMPLAINTS The applicant complained under Article 8 of the Convention that the decision to remove her from Long Leys was an unjustified interference with her right to respect for her home. This enforced removal which overrode the promises made to her could not be described as necessary and there had been a failure to give due weight to her own wishes. THE LAW The applicant complains that a decision has been taken to remove her from her home in the residential unit at Long Leys, invoking Article 8 of the Convention which provides as relevant: “1.     Everyone has the right to respect for ... his home ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Court is satisfied, first of all, that the applicant, who has lived in Long Leys since about January 1990 in circumstances where the residents and their families were given assurances of a “home for life”, may claim that her right to respect for her home guaranteed under Article 8 § 1 of the Convention has been interfered with by the decision of the LHA to move her elsewhere. The question to be determined is whether this interference complies with the second paragraph of Article 8, namely whether it is in “accordance with the law”, pursues one or more of the aims identified in that paragraph and may be regarded as “necessary in a democratic society” in respect of that aim or aims. An interference will be considered “necessary” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity in respect of which they enjoy, inevitably, a certain margin of appreciation, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see amongst many authorities, Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2000-VIII, §§ 90-91). The Court recalls that in this case the High Court, as upheld by the Court of Appeal, held that the decision by the LHA complied with requirements of lawfulness. It finds that the decision was therefore “in accordance with the law”. Having regard to the materials in the file which indicate that the LHA considered that the move would be substantially beneficial for the applicant, it is also satisfied that the measure was taken in pursuit of the legitimate aim of furthering the applicant’s welfare, and thus of the protection of the rights of others. As regards the necessity of the decision, the Court observes that the applicant’s principal objections to the decision are that it runs counter to her own wishes to remain where she is and to the promise made by the LHA that Long Leys would be a “home for life”. Though the applicant’s family sought to argue that a move would be harmful as the applicant disliked and reacted badly to a change in routine, the consultant psychiatrist who gave evidence to the court and who had experience of such moves took the view that the impact on the residents of the move would be beneficial in a wide range of areas. While it was noted that residents and their carers could often be resistant to change for understandable reasons, it was envisaged that with proper care and support the applicant would be able to cope with the move. The Court further notes that in reaching the decision to move the applicant and the other residents the LHA consulted the concerned parties and was careful to obtain legal advice as to the status of the promise of a “home for life”. It cannot therefore be said that the LHA did not give weight to the applicant’s wishes or the assurance given many years before. The propriety of the decision-making procedure was, in addition, subject to the scrutiny of the High Court which found that the LHA had acted with due regard to all the relevant factors. Though the Court considers that it was highly regrettable that a promise was apparently made that misled the applicant and her family into the belief that she would be able to remain at Long Leys indefinitely, this assurance was not, in the event, found to amount to a legally binding obligation on the LHA to comply with the applicant’s personal preferences. The Court does not find that this an unreasonable or arbitrary conclusion, since, given the vagaries of future circumstances, a statement made in 1990 could not realistically have been expected to guarantee the continued suitability of Long Leys as a placement for the applicant, whether for practical, medical or other reasons. In conclusion, the Court finds that the decision to move the applicant from Long Leys into alternative social care was not disproportionate, gave proper consideration to her interests and was supported by relevant and sufficient reasons relative to her welfare. It may therefore be regarded as “necessary in a democratic society” in the pursuit of protecting her rights. It follows that the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Michael O’Boyle   Matti Pellonpää   Registrar   President