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Dear Sirs
Re: Vera Grace Waylor Bowles Lodge Registered Care Centre Hawkhurst
We act for the above named who is an 89 year old lady (dob 20/10/1921), through her Litigation
Friend and son John Porter. Vera has the following health concerns: she is forgetful to the point that
she is unable to remember what she had for her meal a few hours earlier, she has significant hearing
impediment, registered as severely sight impaired / blind, and suffers some incontinence, her
mobility is impaired such that she can only walk a short distance with a Zimmer frame. Further, she
suffers from osteoporosis, severe aortic stenosis and depression. Her son recalls that when he was
about 15 his mother was admitted to psychiatric hospital and given Electro Convulsive Therapy.
For the above reasons there are good grounds for considering that, should she be involuntarily
transferred from her home at Bowles Lodge, Vera will be at risk to her health and that those risks
include death.
This letter is a Letter Before Claim challenging the decision to close Bowles Lodge dated on Kent
County Council’s (“KCC’s”) website as the 20th January 2011 on the basis that the Council failed to
consider properly or at all the risks that there may be to Mrs Waylor contrary to its Disability
Discrimination Act Duty cited in R (Brown) [2008] EWHC 3158 (Admin), R (Chavda) [2007] EWHC
3064 (Admin) (2007) 11 CCLR 187, R (Smith) and R (Boyejo) Neutral Citation Number: [2009] EWHC
3261 (Admin); and in breach of its Article 2 duty to [at the very least] consider what impact there
may be on life as a result of that decision.
4. At the time of the relatives and residents meeting on the 23 June 2010 Kent County Council
had already entered into a Private Finance Initiative to build Extra Care Housing. In order to
fulfil that contract it was required to provide land. In deciding to move to Extra Care Housing
the Council had already set out that this was a key component of its future models of care.
5. There was a further meeting which the minutes fix at Thursday the 29 June 2010, but is
believed to have taken place on Thursday 29th July 2010. This meeting was called by
Councillor Roger Manning who is the local Councillor for the residents of Bowles Lodge.
Councillor Manning is a member of the Party that holds the administration of Kent County
Council.
7. What Mr Porter found deeply and desperately concerning was that councillor Manning
made no mention that the risks of the Council’s proposals went much further than people
feeling angry, worried and finding difficulty in managing change. Those risks include those of
death.
8. Mr Porter has distributed to the Council the mortality data from the closure of homes in
Hull, Wolverhampton and Southampton the provenance of which is data collected on behalf
of this firm. Even without that data at an earlier stage, the dangers of moving elderly people,
the risks of mortality and the suffering caused by involuntary transfer have been in the
public domain for so long that it is inconceivable that Councillor Manning and his colleagues
were unaware of them. Even if Councillor Manning, in the teeth of the evidence, failed to
believe that risks existed he should still have considered these, properly explored them and
given evidence for his views. The same is true of his colleagues, including the decision
makers.
9. There was no further meeting relating to Bowles Lodge but Mr Porter did, along with others,
ask the Council to produce an assessment of what risk of involuntary transfer there maybe
for his mother. The Council failed to accede to his request. On the 8th September 2010 Oliver
Mills, the Managing Director of Kent Adult Services, wrote to Mr Porter saying that the
Council were “not in a position to carry out an assessment to the level of detail you require at
this stage”. With regard to your point that Members will not be able to make a decision
about the closure unless they understand the impact on the individuals, Members will be
aware that Kent Adult Social Services (KASS) has considerable experience in moving old
people both in a structured planned way and as a result of an emergency”.
10. So far as Equalities Impact Assessments are concerned, Mr Mills explains these as:
“With regard to Customer *Equalities+ Impact Assessments they are designed for
managers to understand how the policies and services they design could affect
Kent residents and staff from all communities. It enables policy and service
managers to identify the potential impact of a policy, procedure, project or service
on the residents of Kent and KCC’s workforce”.
11. Consultation ended on the 1st November 2010. On the 10th of January 2011 the Cabinet
discussed the consultation report and recommendations. On the 12 th January 2010 the Adult
Social Services Policy Overview and Scrutiny Committee also discussed the consultation
report and recommendations. On the 13th January 2010 Graham Gibbens, Cabinet Member,
made his decisions one of which was to close Bowles Lodge. On the 19 th January 2010
Cabinet Scrutiny called in the decision. Mr Porter spoke at that meeting which started at
10am and ended 5.20pm. He asked that Committee postpone the implementation of the
decision and that the matter be referred to the Full Council. Scrutiny refused to do this. The
main thrust of the Scrutiny meeting was about the sites for Extra Care Housing.
This is wholly insufficient, in breach of R (Brown) et sec and fails even to touch upon the Council’s
Article 2 duty. No one reading that sub paragraph would be aware that the risk of death is nearly
50% from the morbidity and mortality following the decision to consult, through to the involuntary
transfer itself. No mention is made of the 6 deaths during the consultation period.
The Court of Appeal has considered the risks of involuntary transfer of elderly people in R (Watts) v
Wolverhampton City Council, R (Turner) v Southampton City Council and R (Milsom) v Hull City
Council and concluded that such risks can be mitigated and managed to the extent that they are very
low indeed. This was done on a misunderstanding or misinterpretation of the evidence of the
experts Professor Cornelius Katona, Doctor Sean Lennon, Professor David Jolley and Doctor Peter
Jefferies. There is real concern about recent adjudications such that those experts have compiled a
paper relating to their position. They are unwilling, it seems, to produce that paper prior to its
publication and in these circumstances, bearing in mind that our client’s life is at risk, that 25 people
died in Hull, Southampton and Wolverhampton and that 6 people died after hearing the news of the
consultation, we will be asking the court to expedite this matter, to prohibit the council from
carrying out its intentions and asking the court to witness summons Professor Cornelius Katona,
Doctor Sean Lennon, Professor David Jolley and Doctor Peter Jefferies to give oral evidence.
Yours faithfully
Yvonne Hossack
Hossacks