HOSSACKS

Solicitors & Commissioners for Oaths

Regulated by the Solicitors Regulation Authority
Ivy Cott, 89 Broadway, Kettering, Northamptonshire NN15 6DF
Telephone: 01536 518638 Fax: 01536 516820
Email: hossacks@hossacks.plus.com
Principal: Yvonne Hossack, Solicitor-Advocate (HCCivilP)
SRA No: 370054

Kent County Council

Geoff Wild Legal Services
cc Oliver Mills Managing Director Kent Adult Social Services

By email only to: geoff.wild@kent.gov.uk, oliver.mills@kent.gov.uk

LETTER BEFORE CLAIM

14TH February 2011

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.

History of the Consultation

1. Mr Porter first heard that his mother’s home was due for closure on June 15 th 2010. The
Cabinet made the decision to consult on the closure and development for extra care housing
at its meeting on the previous day 14 June 2010 of my mother’s home
2. A meeting took place for relatives and residents on Wednesday 23 June 2010 at 3.30 pm.
That meeting was fronted by Margaret Howard Director of Commissioning and Provision for
West Kent and Jane Barnes the Head of Provision/ Modernisation (Older People).

3. At the meeting Margaret Howard produced a powerful power-point presentation about

what was being proposed and what was behind it. She distributed a handout which faithfully
reproduced the presentation. The format of the presentation was clearly beyond the
understanding of most of the residents that attended. A number fell asleep and others were
asking to be taken to the toilet. The information given about Extra Care Housing was
irrelevant to all but possibly one of the residents as they were too frail and / or demented to
cope with their own kitchen. The criteria for Extra Care Housing, was that residents would
be “able to be fully independent”. The presentation was driven towards the conclusions on
page 6 of the leaflet.

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.

6. During the meeting, Councillor Manning is minuted as saying “I do genuinely understand

how some people feel and people may feel angry and worried and I also understand the
stress. Any sort of suggestion of change is going to be difficult and it is hard for them to
manage and understand but I give you my word I am completely understanding of those
concerns and fears”.

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.

Equality Impact Assessment/Risk to life

In the decision Report of the 20th January 2011 the only place where risk is touched upon is Section 5
“Issues raised during the consultation”. At sub paragraph (6) it is dealt with as follows:
“(6) Seven letters were received asking for a review from a multidisciplinary
team of current residents. The letter asked for a risk assessment and details at how
KASS proposes to mitigate any risk of premature death. These letters were
responded to advising that as no decision had been made, it was not appropriate
to undertake such a review. It was explained that once a decision has been made,
the home closures protocol will be followed which includes the full Individual Needs
Portrayal and would include health staff as appropriate. However, it is clear that
from those messages, the families wanted to be assured of the risk mitigation
given the information they received that people die following a home closure. It
has already been made clear through the report the steps that would be taken if a
decision is taken to close the service. KCC has considerable experience of carefully
and successfully moving older people. Each case will be managed and supported on
an individual basis to ensure residents personal needs are met at an appropriate
pace for the individual. KASS will make sure that the home’s care staff will support
the moves for individuals to enable a period of settling in to ensure that
the transition is seamless.”

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.

What is required of you

At this stage:
1. To respond to this Letter Before Claim within 14 days and
2. To confirm to us that no steps will be taken to implement the decision prior to a response to
this Letter Before Claim
3. To provide us with copy care assessment and medical records within the Council’s hands in
relation to our client Vera Waylor. Mr porter will give his consent direct to you.

Yours faithfully

Yvonne Hossack
Hossacks