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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Objective Care Ltd v The London Borough of Ealing [2022] EWHC 844 (QB) (11 April 2022) URL: https://www.bailii.org/ew/cases/EWHC/QB/2022/844.html Cite as: [2022] EWHC 844 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
OBJECTIVE CARE LIMITED |
Claimant |
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- and – |
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THE LONDON BOROUGH OF EALING |
Defendant |
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Genevieve Screeche-Powell
(instructed by Legal Services L.B. Ealing) for the Defendant
Hearing dates: 1 April 2022
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Crown Copyright ©
MR JUSTICE MARTIN SPENCER :
The Relevant Background
"Following on from your conversation with the Director of Adults' Services, I'm writing to you to confirm the background reasons for the transfer of the 3 Ealing funded clients at Parkside Care Home to alternative accommodation and support.
As you will be aware each resident's support arrangements are routinely reviewed by Adults' Services in early – mid November 2013. During the reviews (held at Parkside) each client raised serious concerns as to the quality of support being provided at the home; and each requested that they be urgently moved to alternative accommodation. The concerns cited included:
- Feeling intimidated and unable to express their needs and views to staff
- Residents advised that they were only allowed out of the home between the hours of 9 AM – 6 PM; and that if they returned late then they "were told off by staff"
- No access to the kitchen – residents advised that the kitchen was continuously locked that they were not allowed access to make their own drinks, access snacks or prepare meals. It was noted by Council Officers that the kitchen was locked during a brief tour of the home.
- Independence skills restricted. Whilst, each care plan reflected the need for independence building, in practice residents advised that they were not allowed to carry out domestic chores, unable to clean their rooms, or do their own laundry. It was noted by Council Officers that the laundry room was locked during a brief tour of the home.
- Many restrictions – residents complained as to the lack of choice of menu and when they made suggestions to staff they were refused.
- Activities – the residents advised that they were not supported in developing their skills ought supported to engage in meaningful activities, rather they were simply left all day to their own devices."
It is the Claimant's case that all these concerns were orchestrated, indeed fabricated, by Ms Rashid as part of her vendetta against Mr Pragashparan and were untrue.
"Despite the above, on 6 December 2013, all three of these service users were unlawfully removed from their home by social workers from Ealing Council, breach of the Council's contractual obligations and duty of care to these service users and with complete disregard for the service users' rights under the Human Rights Act 1998. There has been no notice to terminate the contract, nor are there adequate grounds to do so. …
Given the above, you can understand why the provider was shocked at the unlawful removal of these residents. This has been compounded by the fact that he always received extremely positive feedback about Parkside House. Only as recently as June 2013, the same Mr Mellow of Ealing Council told the provider that his home was "the best care home in the borough".
The only reason which Mr Pragashparan can think this could have happened is because of Ms Rashid may be harbouring a grudge against him. On more than one occasion since 2011, Ms Rashid has sought to apply for a job as a manager of the home. Mr Pragashparan and was initially considering her for this position but was ultimately unable to provide her this job because she was unwilling to undertake the necessary NVQ training. Since Ms Rashid started her new position in the commissioning team as a placement officer in the summer of 2013, no new referrals had been made to Objective Care Ltd."
Thus, the Council has been on notice of the principal issues in this case from an early stage.
"On 6 December 2013 the Care coordinators who had attended Parkside asked the 3 service users if they would like to move that same day. All 3 said that they would like to move on that day 6 December 2013 and the service users were supported in moving to alternative accommodation."
The Core Terms of the IPA
"4. Termination of Agreement
4.1 This agreement may be terminated by either party giving a minimum twenty-eight days written notice to terminate – subject to justified and reasoned rationale for same. Each party therefore may at any time by notice in writing to the other party terminate their participation within this agreement twenty-eight days from the date of serving of such notice.
4.2 However, Ealing Council reserves the right to terminate this agreement with immediate effect in the event of: [certain events such as the death of the nominated customer are then set out, none of which apply here]
…
6. Payment method, fee increases and insurance requirements
6.1 Payment will be as follows:
- [provision is then made for the making of payments]
6.2 Cancellation of payment(s)
There are a number of circumstances where the service provider will cease to provide the service and Ealing Council will cease to make payments, these include:
- The death of the nominated customer. Please note that for all care home placements Ealing Council will only pay up to a maximum of 3 additional days following death of the nominated customer to allow the service provider to remove/store personal effects.
- The hospitalisation of the nominated customer from the care home placement for a period exceeding or expected to exceed twenty-eight days.
- The inability of the service provider to supply the level of care identified as being required by the nominated customer either in their support plan following a re-assessment of need.
- The nominated customer's departure from the service for any other reason, including the exercise of a choice to transfer to another support service or care home (subject to CQC licensed/regulated activity requirements where appropriate).
…
9. Complaints
9.1 The service provider will maintain and make available a robust complaints policy and procedure.
9.2 All complaints about the service will in the first instance be dealt with through the service providers' own complaints procedure. However, this does not affect the right of the nominated customer and/or their representative to have recourse to Ealing Council's complaints procedures.
9.3 The provider shall provide Ealing Council with a quarterly report detailing all customer complaints and outlining action taken by provider to remedy complaint.
…
11. Monitoring Visits
11.1 The provider shall permit access by Ealing Council to the provider's premises/services for compliance checks and monitoring visits. Such visits will be evidenced-based inspections and will be made by a Council Officer(s). The visits may be announced or unannounced. While it is not possible to limit the number of such visits, Ealing Council acknowledges that such visits are an intrusion, and undertakes to keep compliance visits to the necessary minimum. Ealing Council will supply the provider with a copy of any written report compiled following compliance visits."
The Proceedings
"The discretion exercised by the Defendant in removing the residents from Parkside was exercised dishonestly, as particularised above, and for an improper purpose. Ms Rashid intended to remove the residents from Parkside and the decision to remove the residents was made prior to the inspection on 11 November 2013."
Thus, breach of contract is alleged and damages are claimed by reference to the period that the Claimant was deprived of the income referrable to the three clients ending with the date when replacements were found, namely 16 November 2016.
The Application for Summary Judgment
"42. Under Clause 6.2 of the Agreement, the Council's liability to make payment ceases on the nominated customer's departure from the service for any other reason, including the exercise of a choice of transfer. Accordingly, under the terms of the agreement Ealing's contractual liability to make payment, and Objective Care's obligation to provide a service, ceased when the residents departed on 6 December 2013. For this reason alone the claim is doomed to fail.
43. Clause 4.1 entitles either party at any time to terminate their participation in the agreement on 28 days' notice. Accordingly, there can be no contractual basis for a claim that the Council is under any continuing liability to make payment to Objective Care.
44. Clause 4.2 also entitles the Council to terminate the agreement with immediate effect if the provider cannot supply the level of care identified. The service-users were in the age range 40-50 years old at the relevant time. The recovery model, promoting independence and maintaining their daily life skills, was an integral part of their care plan. The restrictions placed on them while residing at Parkside, as detailed in their placement reviews, did not meet that."
Discussion
(i) Strike-out is only appropriate for plain and obvious cases;
(ii) Judges should not rush to make findings of fact and contested evidence as a summary stage: there are many cases in which a full trial is the only appropriate means of determining issues;
(iii) If an application to strike out involves a prolonged and serious argument, the judge should, as a general rule, declined to proceed with the argument unless he not only harbours doubts about the soundness of the pleading but is also satisfied that striking out and remove the necessity for a trial;
(iv) Judges hearing strike-out applications should not conduct many trials involving protracted examination of the documents and facts;
(v) A judge may refuse to hear a strike-out application if the application is unlikely to succeed or will not be decisive or appreciably simplify the eventual trial.
"(a) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 1 All ER 91. A realistic claim is one that carries some degree of conviction: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472. But that should not be carried too far: in essence, the court is determining whether or not the claim is "bound to fail": Altimo Holdings v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 at [80] and [82].
(b) The court must not conduct a mini-trial [referring to the Three Rivers case]. Although the court should not automatically accept what the claimant says at face value, it will ordinarily do so unless it's factual assertions are demonstrably unsupportable [referring to the ED & F case]. The court should also allow for the possibility that further facts may emerge on discovery or at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 5450."
"(i) Whilst there is disputed content in the witness statements filed by C, it is not the function of the court in summary judgement to conduct a "mini-trial".
(ii) That does not mean that the court must take at face value and without analysis everything a claimant says in a statement if it clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel. However, the court should also take into account evidence that can also reasonably be expected to be available at trial.
(iii) If an application raises a short point of law or construction and the court is satisfied it has before it all the evidence necessary for the proper determination of the issue it should grasp the nettle and decide it."
Amendment
"The need for the amendment has transpired in the review of the case prior to the Costs and Case Management Conference fixed for 2 February 2021. Whilst preparing the draft witness statements the Claimant's Solicitors observed an inconsistency with the statement of case, which the amendment seeks to rectify."
In the course of the hearing, residual deficiencies in the proposed Amended Particulars of Claim were identified and I required Mr Butler to submit to the court, in due course, a draft amended pleading which addressed those deficiencies.
"Failure to follow due process"
in addition to breaching the contract by failing to give notice to terminate and removing the service users unlawfully, there have been other failures to follow due process: no meeting was convened to discuss concerns with the provider and/or relatives or advocates acting for the service users, the written report was produced in relation to the inspection and no risk assessment was conducted prior to removing the service users to assess the possible harm would be caused to them following this stressful and highly disruptive event. Gordon Crighton, Ms Rashid's new manager, even told Mr Pragashparan "we do not need to follow protocols" when he spoke to him on 6 December 2013."
Costs