vera waylor media briefing 28 sep 11

8/4/2019 Vera Waylor Media Briefing 28 Sep 11

1/17

MEDIA BRIEFING - FOR IMMEDIATE RELEASE28

thSeptember 2011, prepared by John Porter

(Particulars of Claim and the 2 letters Before Claim are includedat the end of this briefing.)

Vera fights for her life!

89 year-old Vera Waylor issued a claim in the High Court today against Kent CountyCouncil.

In January this year the Council decided to close the home, Bowles Lodge, whereVera lives in Hawkhurst, Kent. During the consultation process last year the thenManaging Director of Adult Social Services, Oliver Mills, wrote to Vera refusing toassess the risks to her life by taking her home away against her will.

Mrs Waylor is registered blind, deaf in both ears and suffers from depression,

osteoporosis and heart failure. In July this year she had a stroke that has weakenedher right hand and is currently recovering from pneumonia and ventriculartachycardia. Her short-term memory is very poor but despite everything she is avery determined lady, smiles a lot and makes people laugh.

Dr Chris Fox, a Specialist Consultant Psychiatrist in the Psychiatry of Old Age, statesin his report for the Court that if the Council moves Vera to another care home herlifespan will be shortened to 6-12 months. If she stays at Bowles Lodge he says shecould have a minimum of three years to live.

Mrs Waylor's solicitor, Yvonne Hossack, specialises in these cases nationally and iswell known for her compassionate and professional advocacy on behalf of people


2/17

who are rarely able to speak for themselves in court proceedings. She is currentlyseeking a moratorium and public enquiry into elderly care home closures and hassuccessfully prevented the closure of many homes across the country. She says:

For too long those charged with protecting elderly people like Vera havepretended that it does no harm to move them. This has resulted in many

premature deaths as we can show from outcomes to clients of this firm. It is myprayer that Veras brave Claim will not only protect her life but those of all theother Veras who face being evicted from their homes to their death.

Since June 2010 John Porter, Vera's son, has led a campaign against the closure ofBowles Lodge on his mother's behalf and the other elderly and frail residents calledBowles Lodge Stays!(www.bowleslodgestays.blogspot.com ). He has become anarticulate critic of the County Council's plans through his plain speaking, personalpassion and common sense arguments. He says

"Kent County Council say they treat elderly people with respect and dignity.

Taking my frail mother's home away from her against her will is the absoluteopposite. They refused to assess the risks to mum's health of moving her toanother home because they knew it would be risky. Several people who havemoved out of Bowles Lodge to other homes have died already this year. Ask theCouncil if they are tracking this sad and shocking data! Mum is determined thatthis case is seen right to the highest court in the land and beyond if necessary."

The usual legal recourse in similar circumstances to Mrs Waylor's is to seek a JudicialReview of the Council's decision. This is a blunt legal instrument as it is relativelyeasy for the Council to prove they acted reasonably and within legislation and rules.

Matt Hutchings, a specialist barrister in cases involving local authorities, will presentlegal argument to evidence the assertion that Kent County Council acted in anegligent manner by not assessing the risks to Vera's life of moving her to anotherhome. He thinks Vera's case could set a legal precedent that will force localauthorities to think again about assessing the medical risks of premature death topeople before deciding to close a home or not.

The date for the hearing at the High Court has yet to be fixed.

- ENDS -

Contacts

John Porter: 07976 607079, 020 7091 0014 (work), 01732 360151 (home),[email protected]. Lives in Tonbridge, Kent.

Yvonne Hossack: 01536 518638,[email protected]://www.hossackssolicitors.comPrincipal Solicitor, office based in Kettering,Northamptonshire.

Dr Chris Fox, 01603 593583,[email protected]. Is Clinical Senior Lecturer atNorwich Medical School, University of East Anglia.
http://www.bowleslodgestays.blogspot.com/http://www.bowleslodgestays.blogspot.com/http://www.bowleslodgestays.blogspot.com/mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]://www.hossackssolicitors.com/http://www.hossackssolicitors.com/mailto:[email protected]:[email protected]:[email protected]:[email protected]://www.hossackssolicitors.com/mailto:[email protected]:[email protected]://www.bowleslodgestays.blogspot.com/


3/17

Matt Hutchings, 020 7242 4986,[email protected]://www.2-3graysinnsquare.co.uk/barristers/barrister/?b=4076239BarristerChambers in central London.

John Porter will certainly do interviews.

Vera Waylor will probably not be able to give an interview due to being frail andhaving very limited hearing. Contact John Porter in the first instance.

Notes to editors

Bowles Lodge Stays! campaign

Launched and led by her son, John Porter, in June 2010 - website:www.bowleslodgestays.blogspot.com

Is a group of 20 relatives concerned about the Council's plans to demolish Bowles Lodgeand build Extra Care housing under a Private Finance Initiative scheme

Several meetings held in 2010 two of which were attended by Yvonne Hossack Now the campaign is only about Vera Waylor

Sequence of events and key media coverage to date

28th September 2011: Proceedings initiated in the High Court by way of Particulars of Claim 22nd August 2011: supplementary Letter Before Claim sent to Kent County Council they do

not respond again

5th September 2011: Mrs Waylor admitted to hospital with pneumonia and ventriculartachycardia - discharged and recovering at Bowles Lodge one week later

14th February 2011: Yvonne Hossack issues Supplementary initial Letter Before Claim toKent County Council - they do not respond

14th June 2011: Mrs Waylor suffers a small stroke that effects her right hand 18th February 2011: ITV Meridian Tonight broadcasts interview with Vera about her disgust

at the Council's decision

14th February 2011: Yvonne Hossack issues initial Letter Before Claim to Kent CountyCouncil

8th February 2011: MPs debate closure of homes in Kent in Westminster Hall - covered by

BBC TV news and ITV news 26th January 2011: Council informs Mrs Waylor in writing that the decision to close Bowles

Lodge by January 2010

20th January 2011: extended interview with John Porter on BBC Radio Kent 19th January 2011: Vera attends Cabinet Scrutiny meeting to hear he son give evidence and

appears on BBC TV news

19th January 2011: 7-hour Cabinet Scrutiny meeting considers evidence from John Porterand others - decision is unchallenged by Members - six residents have died since 23rd June

2010

13th January 2011: Councillor Graham Gibbens, Lead Member, decides to close Bowles

Lodge
mailto:[email protected]:[email protected]:[email protected]://www.2-3graysinnsquare.co.uk/barristers/barrister/?b=4076239http://www.2-3graysinnsquare.co.uk/barristers/barrister/?b=4076239http://www.bowleslodgestays.blogspot.com/http://www.bowleslodgestays.blogspot.com/http://www.bowleslodgestays.blogspot.com/http://www.2-3graysinnsquare.co.uk/barristers/barrister/?b=4076239mailto:[email protected]


4/17

30th December 2010: Council publishes consultation report recommending Bowles Lodge isclosed

1st November 2010: Consultation ends 29th October 2010: John Porter submits alternative proposal - this is dismissed by Kent

County Council

20th October 2010: Vera celebrates her 89th birthday - 3 residents have died since 23rdJune

8th September 2010: Oliver Mills, Managing Director, Kent Adult Social Services, writes toVera refusing to do an assessment of the risks to her life if moved from Bowles Lodge

29th July 2010: Public meeting at Hawkhurst Primary School covered by BBC Radio Kent andregional BBC TV and ITV news

11th July 2010: Bowles Lodge Stays is launched and meets to plan campaign 27th June 2010: Kent & Sussex headline: "Residents will die if moved" 23rd June 2010: Kent County Council presents plans to residents and relatives at Bowles

Lodge

Additional information on Vera Waylor

Born in central London in October 1921 Served in Women's Auxiliary Air Force (became Women's Royal Air Force in 1949),

typed up sortie reports for Bomber Command

Married Harry Philip Porter on 4th March 1950 - the love of her life Worked as secretary until 1978 Moved to Bowles Lodge on 29th November 2009 as her health deteriorated and she

needed residential care

Additional information on John Porter

Social Enterprise Manager at Suzy Lamplugh Trust in London where he has workedfor 3 years

Appointed as a Magistrate in 2004 - sits in Central Kent Previous roles include Chef, Probation Officer, Health Educator, Community Safety

Manager and Senior Director in national Leadership Development organisation

Harry Porter, his father, died in 1973 Lives with his Civil Partner in Tonbridge

Additional information on Yvonne Hossack

http://www.guardian.co.uk/society/2008/may/21/interviews.society http://www.independent.co.uk/news/uk/home-news/care-home-residents-denied-

legal-aid-ndash-by-typing-error-2199002.html http://www.solicitorsjournal.com/story.asp?sectioncode=2&storycode=18696&c=1 http://www.dailymail.co.uk/news/article-1214034/Care-home-crusader-Ive-saved-

thousands-lives-says-lawyer-fighting-bid-strike-off.html

Additional information on Dr Chris Fox

http://news.sky.com/home/uk-news/article/16017855 http://www2.hull.ac.uk/pgmi/pdf/Doc1foxcv.pdf

http://www.bbc.co.uk/news/health-13880553
http://www.guardian.co.uk/society/2008/may/21/interviews.societyhttp://www.guardian.co.uk/society/2008/may/21/interviews.societyhttp://www.independent.co.uk/news/uk/home-news/care-home-residents-denied-legal-aid-ndash-by-typing-error-2199002.htmlhttp://www.independent.co.uk/news/uk/home-news/care-home-residents-denied-legal-aid-ndash-by-typing-error-2199002.htmlhttp://www.independent.co.uk/news/uk/home-news/care-home-residents-denied-legal-aid-ndash-by-typing-error-2199002.htmlhttp://www.solicitorsjournal.com/story.asp?sectioncode=2&storycode=18696&c=1http://www.solicitorsjournal.com/story.asp?sectioncode=2&storycode=18696&c=1http://www.dailymail.co.uk/news/article-1214034/Care-home-crusader-Ive-saved-thousands-lives-says-lawyer-fighting-bid-strike-off.htmlhttp://www.dailymail.co.uk/news/article-1214034/Care-home-crusader-Ive-saved-thousands-lives-says-lawyer-fighting-bid-strike-off.htmlhttp://www.dailymail.co.uk/news/article-1214034/Care-home-crusader-Ive-saved-thousands-lives-says-lawyer-fighting-bid-strike-off.htmlhttp://news.sky.com/home/uk-news/article/16017855http://news.sky.com/home/uk-news/article/16017855http://www2.hull.ac.uk/pgmi/pdf/Doc1foxcv.pdfhttp://www2.hull.ac.uk/pgmi/pdf/Doc1foxcv.pdfhttp://www.bbc.co.uk/news/health-13880553http://www.bbc.co.uk/news/health-13880553http://www.bbc.co.uk/news/health-13880553http://www2.hull.ac.uk/pgmi/pdf/Doc1foxcv.pdfhttp://news.sky.com/home/uk-news/article/16017855http://www.dailymail.co.uk/news/article-1214034/Care-home-crusader-Ive-saved-thousands-lives-says-lawyer-fighting-bid-strike-off.htmlhttp://www.dailymail.co.uk/news/article-1214034/Care-home-crusader-Ive-saved-thousands-lives-says-lawyer-fighting-bid-strike-off.htmlhttp://www.solicitorsjournal.com/story.asp?sectioncode=2&storycode=18696&c=1http://www.independent.co.uk/news/uk/home-news/care-home-residents-denied-legal-aid-ndash-by-typing-error-2199002.htmlhttp://www.independent.co.uk/news/uk/home-news/care-home-residents-denied-legal-aid-ndash-by-typing-error-2199002.htmlhttp://www.guardian.co.uk/society/2008/may/21/interviews.society


5/17

http://www.telegraph.co.uk/health/healthnews/8594677/Fatal-cocktail-of-common-drugs-putting-elderly-at-risk.html

Additional information on Matt Hutchings

Won a case in the Supreme Court http://www.2-

3graysinnsquare.co.uk/barristers/barrister/areas_of_practice/?pr_ID=jr_public&b=4076239

Ranked a Leader at the Bar in the categories of Social Housing and LocalGovernment by Chambers and Partners 2011 where it is said of him:an extremely sharp-witted advocate, often involved in big cases & extremelythorough, very responsive and a good communicator

Also described in previous years editions as follows:

phenomenally bright, particularly imaginative in his advocacy, can argue theimpossible and win

IN THE HIGH COURT OF JUSTICE

CLAIM NO.

QUEENS BENCH DIVISION

BETWEEN:

VERA GRACE WAYLOR

(by her litigation friend, JOHN PORTER)

Claimant

-and-

KENT COUNTY COUNCIL

Defendant

PARTICULARS OF CLAIM
http://www.bbc.co.uk/news/health-13880553http://www.bbc.co.uk/news/health-13880553http://www.telegraph.co.uk/health/healthnews/8594677/Fatal-cocktail-of-common-drugs-putting-elderly-at-risk.htmlhttp://www.telegraph.co.uk/health/healthnews/8594677/Fatal-cocktail-of-common-drugs-putting-elderly-at-risk.htmlhttp://www.telegraph.co.uk/health/healthnews/8594677/Fatal-cocktail-of-common-drugs-putting-elderly-at-risk.htmlhttp://www.2-3graysinnsquare.co.uk/barristers/barrister/areas_of_practice/?pr_ID=jr_public&b=4076239http://www.2-3graysinnsquare.co.uk/barristers/barrister/areas_of_practice/?pr_ID=jr_public&b=4076239http://www.2-3graysinnsquare.co.uk/barristers/barrister/areas_of_practice/?pr_ID=jr_public&b=4076239http://www.2-3graysinnsquare.co.uk/barristers/barrister/areas_of_practice/?pr_ID=jr_public&b=4076239http://www.2-3graysinnsquare.co.uk/barristers/barrister/areas_of_practice/?pr_ID=jr_public&b=4076239http://www.telegraph.co.uk/health/healthnews/8594677/Fatal-cocktail-of-common-drugs-putting-elderly-at-risk.htmlhttp://www.telegraph.co.uk/health/healthnews/8594677/Fatal-cocktail-of-common-drugs-putting-elderly-at-risk.html


6/17

1. The Claimant is an 89 year old lady (date of birth 20 October 1921) who resides at a

residential care home at Bowles Lodge, All Saints Road, Hawkhurst, Cranbrook TN18 4HT

(the Care Home).

2. The Claimant suffers from poor health, including heart disease, breathlessness on exertion,

weakness of the right arm as a result of a stroke, osteoporosis and frequent falls, dementia,

depression and anxiety. The Defendant has assessed her as requiring 24 hour care in a

residential setting.

3. At all material times the Defendant owned, managed and administered the Care Home and

provided care and medical services there (and continues to do so).

4. The Defendant owes a duty of care to the Claimant in relation to her care and medical

services. This duty includes a direct, non-delegable duty to ensure that reasonable care is at

all times taken in relation to the medical and other care with which the Claimant is provided.

5. The Defendant employs or engages the medical and care staff who work at the Care Home

and accordingly the Defendant is also liable in respect of any breach of duty or negligence on

their part.

6. The Defendant has proposed to close the Care Home and to move the Claimant elsewhere.

The Claimant does not wish to move. By their letter dated 19 August 2011 to the Claimants


7/17

Litigation Friend, they informed the Claimant that she would be moved by mid-November

2011. A copy of this letter is attached at Appendix 1.

7. The Defendant, its servants and/or agents threaten and intend to act negligently towards the

Claimant:

a. It is the Claimants case that the risks posed to her health by the proposed

involuntary move are clinically unjustifiable: please see the report dated 21 July 2011

of Dr G C Fox, Consultant Psychiatrist attached hereto at Appendix 2 (see section

4.5);

b. In particular, the proposed move will probably reduce the Claimants life expectancy

by 6-12 months (see the above report at section 4.7);

c. If, which is denied, an involuntary move is clinically justifiable, the Defendant

proposes to implement such a move without putting in place an adequate package

for mitigating the associated risks and in particular for assessing and mitigating the

medical and care risks associated with such a move (see the above report at

paras.4.12.3-4.12.5).

8. Further or in the alternative, the Claimant has protected characteristics within the meaning of

s.149(7), Equality Act 2010, namely age and disability (for particulars of these, see paras.1

and 2 above). In proposing to move the Claimant involuntarily in the manner stated above,

the Defendant has failed to have due regard to the need to advance equality of opportunity

between the Claimant and persons who do not share her age or disability, contrary to s.149,

Equality Act 2010.


8/17

9. The Claimants solicitors served letters before action on the Defendant dated 14 February

2011 and 22 August 2011. Copies are attached hereto at Appendix 3. [The Defendant has not

replied substantively to either letter.]

10.The Defendant threatens and intends to act negligently and in breach of its equality duty as

stated above, unless restrained by order of the Court.

AND the Claimant claims:

(1) An injunction prohibiting the Defendant from moving the Claimant from the Care Home

involuntarily;

(2) Alternatively an injunction prohibiting the Defendant from moving the Claimant from the Care

Home involuntarily without first putting in place an adequate package for mitigating the associated

risks;

(3) Further or other relief.

Dated this day of 2011

MATT HUTCHINGS

STATEMENT OF TRUTH

(I believe)(the Claimant believes) that the facts stated in these Particulars of Claim are true

I am duly authorised by the Claimant to sign this statement

Full name.....

Position............................................................

Signed..


9/17

HOSSACKSSolicitors & Commissioners for Oaths

Regulated by the Solicitors Regulation AuthorityIvy Cott

89 Broadway, Kettering, Northamptonshire NN15 6DFTelephone: 01536 518638 Fax: 01536 516820

Email:[email protected]: Yvonne Hossack, Solicitor-Advocate (HCCivilP)

SRA No: 370054

Kent County CouncilGeoff Wild Legal Servicescc Oliver Mills Managing Director Kent Adult Social Services

By email only to:[email protected],[email protected]

SUPPLEMENTARY LETTER BEFORE CLAIM22nd August 2011

Dear Sirs

Re: Vera Grace Waylor Bowles Lodge Registered Care Centre Hawkhurst

You will recall that I wrote a Letter Before Claim to you on the 14th February 2011 a copy of which Ireproduce below. This was prior to our obtaining an expert report on the risk to our client. Pleasenow find the Report of Dr Chris Fox attached.

On the 17th August 2011 Kent County Council sent the attached assessment of Mrs Waylor to her sonMr John Porter. Please note that the assessment does not address the risks of the involuntary transfer

of our client. Dr Fox has highlighted that Kent itself states that: When Mrs Waylor finds herself insituations that she is uncomfortable with she becomes very anxious and distressed and requires

reassurance. Nevertheless on the 19th August 2011 a Margaret Howard Director of LearningDisabilities and Mental Health of the Council wrote to Mr Porter as follows:

From:[email protected][mailto:[email protected]]OnBehalf [email protected]:19 August 2011 09:05To:[email protected]:Closure of Bowles Lodge

Dear John

I understand that you were informed at the assessment of your mother's needs thatwe would need to move residents out of Bowles Lodge by mid-November and thatyou have asked for an explanation of this. As you know, Bowles Lodge is planned toclose at the end of January. In order to de-commission the buildings and services bythis date we will need to ensure all residents have moved by November. Also wehave always made it clear that we want to proceed with care and caution in managingthe moves of our residents from one home to another, and so we want to make surethis is undertaken in a timely way and in circumstances that minimise the anxiety anduncertainty for each of them. Most of our residents will have moved by then, as willmany of our staff on to the alternative roles that they have secured. This could meanthe unit will be staffed increasingly by agency staff adding potentially to theuncertainty.
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[mailto:[email protected]]mailto:[mailto:[email protected]]mailto:[mailto:[email protected]]mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[mailto:[email protected]]mailto:[email protected]:[email protected]:[email protected]:[email protected]


10/17

You will remember that last winter we had a couple of particularly heavy snowfallsand we want to ensure that we avoid the worst weather if possible. It is important thatthe planning that has been done for individuals is concluded in a timely mannerto enable their smooth transition, with the support of staff who know them, into theirnew homes. As I explained in my letter of 29 June 2011 it is important that we meetour duty of care to your mother in planning and facilitating her move. That is why it is

important there are definite plans for her and a timetable that gives her someassurance as to where she will be living and when she will be moving. Her recentassessment records that your mother is saying she wishes to stay at Bowles Lodgeuntil the end the assessment, but it also highlights the anxiety that she isexperiencing due to not knowing what will happen. As I have said before, I amsure with your help and support we can relieve this anxiety by agreeing the next stepsand the timings of these.

There is some scope for slippage of the proposed moving date (of about 2 weeks) inorder to secure a room in the right home for your mother should it not be available bymid-November. I understand that you have not yet confirmed an alternative home foryour mother but have made some enquiries. Support in securing alternativeaccommodation with local authority funding is available either through Margaret Terry

or Jayne Hodge.

Of course we want to avoid moving your mother twice, should a room not be availablein your selected home by the end of November at the latest, and her having to movetemporarily into another home while a vacancy arises. I believe this was all explainedto you by Beverley and Margaret on 5 August. It reinforces the need to make plansnow.

Yours sincerely

Margaret HowardDirector of Learning Disabilities and Mental Health

It is not known to us whether Ms Howard herself has any clinical training nor what expert input therewas to her email to Mr Porter. So it is not clear to us how she came to the conclusion that KentCounty Council would meet its duty of care to our client by planning and facilitating her move ratherthan in considering whether a move would cause personal injury or bring forth death and so whethersuch a move should take place at all.

The purpose of this supplementary letter before claim is to make clear to Kent County Council theseriousness of their decision to move Mrs Waylor and invite you to stay that decision and anyimplementation of it, to pass this email and its attachments to decision-makers and to invite them torescind their decision in the light of the information now known.

We would particularly draw your, and decision-makers, attention to the crucial conclusions in DrFoxs report in 4.5.5, 4.6.1, 4.7.1 (final sentence), 4.10.1, 4.10.2, 4.12.2-4.12.5 which we reproducebelow.

4.5.5 It is my opinion that these risks would be clinically difficult to justify.

4.6.1 I would estimate from my clinical experience and from the literature that

Mrs Waylor perhaps has a minimum of three years duration of life in her current

placement if she were not to be moved.

4.7.1 On the balance of probabilities, it is my opinion that her lifespan will beshortened to 6-12 months from date of transfer if she were to be transferred


11/17

involuntarily, whatever mitigating measures were taken, given her physical

and psychological vulnerabilities.

4.10.1 There appears to be no information provided to inform lay people to

enable them to comprehend the clinical effects of involuntary transfer and

assist in the decision making process. I would have expected some

information on potential health risks of transfer including risk of premature

mortality. This would allow informed decision making for families and

residents.

4.10.2 I am also unclear what a pace that suits the individualmeansif they do

not want to move as this could be indeterminate. In addition, what is the

evidence that, in respect of the ten residents moved to alternate homes,

these were better placed to meet their needs?

4.12.2-4 It would be my recommendation that she remains at Bowles Lodge Care

Home. The only question I would raise is that as I have now made a diagnosis of dementia

whether Bowles Lodge actually has the

status to look after patients with dementia, i.e. is registered for patients

with dementia. If not, then a variation could be applied for with the CQC which can occur if

patients are felt to be placed and

adequately looked after.

If Mrs Waylor is to be moved despite the clear risks, she will need a

dependency rating and KCC have a policy for this. This would be a joint

assessment. This would benefit from involvement by a care manager,

possibly a Registered Mental Nurse/Community Psychiatric Nurse due to her

dementia and possibly also a practice nurse due to her physical health and

this would need to be carefully managed with the input of her treating

General Practitioner to make sure that her delicate state, both from a mental

and physical perspective, is not decompensated by the stress of transfer.

Despite any intervention to mitigate any risk, the risks would remain and on

the balance of probabilities transfer in my opinion would shorten her lifespan

to 6-12 months from date of transfer.

I have not been provided with any documents to suggest that this has been

adequately considered by those providing care for Mrs Waylor and the local


12/17

authority has a responsibility to ensure this happens if it insists on transfer.

This also requires a risk assessment.

4.12.5 Her physicians opinion about the impact of stress on her cardiac

decompensation would also be advisable.

In the light of Dr Foxs opinion it would appear that KCC proposes to act in a way which would benegligent in relation to the medical care of Mrs Waylor and contrary to her best interests.

Please respond in full within 14 days. Should you need longer please confirm that the Council will inthe meantime stay all and any steps to forward the decision and any moves. When replying please letus have (anonymised) the mortality outcomes so far for transferred residents. We understand thatvery recently a resident has died within weeks of a move.

If the Council fails to stay and/or rescind its decision within the time-scales above we shall issueproceedings in personal injury without further notice and apply for injunctive relief.

Yours faithfully

Yvonne HossackHossacks

From: Yvonne Hossack[mailto:[email protected]]Sent: 14 February 2011 16:18To: '[email protected]'

Cc: '[email protected]'Subject: Letter Before Claim Bowles LodgeImportance: High

HOSSACKSSolicitors & Commissioners for Oaths

Regulated by the Solicitors Regulation AuthorityIvy Cott

89 Broadway, Kettering, Northamptonshire NN15 6DF

Telephone: 01536 518638 Fax: 01536 516820Email:[email protected]

Principal: Yvonne Hossack, Solicitor-Advocate (HCCivilP)

SRA No: 370054

Kent County CouncilGeoff Wild Legal Servicescc Oliver Mills Managing Director Kent Adult Social Services

By email only to:[email protected],[email protected]

LETTER BEFORE CLAIM

14TH February 2011
mailto:[mailto:[email protected]]mailto:[mailto:[email protected]]mailto:[mailto:[email protected]]mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[mailto:[email protected]]


13/17

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 20/10/2010), 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 Councils (KCCs) 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 mothers home was due for closure on June 15th 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 mothers 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).


14/17

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 Councils proposals went much further than people feeling

angry, worried and finding difficulty in managing change. Those risks include those of death.


15/17

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 8 th 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 KCCs

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 12th January 2010 the Adult


16/17

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 amultidisciplinaryteam of current residents. The letter asked for a risk assessmentanddetails at how KASS proposes to mitigate any risk of prematuredeath. These letterswere responded to advising that as no decision had been made,

it was not appropriate toundertake such a review. It was explained that once a decisionhas been made, the homeclosures protocol will be followed which includes the fullIndividual Needs Portrayal andwould include health staff as appropriate. However, it is clearthat from those messages,the families wanted to be assured of the risk mitigation given theinformation they receivedthat people die following a home closure. It has already beenmade clear through the

report the steps that would be taken if a decision is taken toclose the service. KCC hasconsiderable experience of carefully and successfully movingolder people. Each case willbe managed and supported on an individual basis to ensureresidents personal needs aremet at an appropriate pace for the individual. KASS will makesure that the homes carestaff will support the moves for individuals to enable a period ofsettling in to ensure that

the transition is seamless.


17/17

This is wholly insufficient, in breach ofR (Brown) et secand fails even to touch upon the Councils

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 clients 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 Councils hands in relation

to our client Vera Waylor. Mr porter will give his consent direct to you.

Yours faithfully

Yvonne Hossack

Hossacks

vera waylor media briefing 28 sep 11

Documents