The Uk's Healthcare Law Service

Susan Strickland runs a care home in Hertfordshire. In 1995, after a history of disagreement with Hertfordshire Registration and Inspection Unit, her home was closed down by emergency order on the ground that there would otherwise have been a serious risk to the life, health or wellbeing of residents.

Mrs Strickland had had no notice of the fact that an emergency application was to be made, despite my being in negotiation with the authority at this time, and the home was closed immediately, all residents being taken to other homes, many in great distress. A substantial number of the residents soon died, although no one can say if that was caused by or contributed to by the trauma of the closure. What was clear, however, was that Mrs Strickland faced very substantial losses and possibly financial ruin.

One year after the closure our appeal to the Registered Homes Tribunal was heard and, extraordinarily (I don’t think it had happened before) a submission by us akin to "no case to answer" was made after the authority’s evidence had been heard and allowed. We had won without calling any of our numerous witnesses.

The basis of the submission was that the officers had not visited the home during the 6 days preceding their application for the emergency order and could not, therefore, say what conditions existed in the home at the time they were telling the magistrate that there would be a serious risk. Their "evidence" was historical.

In the meantime Herts had issued a separate proceeding to cancel Mrs Strickland’s registration on the ground that she was unfit and an application that Mrs Strickland had made to manage her own home was refused. About another year passed pending the hearing of her "fit person" appeal when, on the afternoon of the day before the hearing was due to start, the Council faxed a letter to the tribunal saying they wanted to withdraw. The tribunal subsequently re-instated Mrs Strickland’s registration and, some 7 ½ years after the original blow, this tenacious woman is getting back on her feet, filling the home and battling on.

Mrs Strickland is now suing for compensation. The main plank of her argument is that the Council were, at the very least, negligent in the way they treated her and have caused her very substantial loss.

For years now the law in relation to this kind of action has been firmly tilted against home owners. The rot set in with a case called Martine in 1993 that established, in effect, that Registration Authorities did not owe home owners a duty to take care in the exercise of their functions. The rationale for this was essentially that for them to owe such duties may produce a conflict of interest between that and the clear duties they owed to residents. Martine was followed by a line of other cases unhelpful to our cause.

In the light of this Herts decided to apply for Summary Judgment. That is to say it submitted the law was so clearly against us that we had no chance of succeeding at trial and therefore our claim should be struck out.

The matter came before a High Court judge recently. Mrs Strickland was represented by Leading and Junior Counsel, so important is the issue at stake for her.

The Council’s lawyers put forward a number of alternative arguments in support of their contentions and the decision was reserved.

When the reserved decision was handed down it contained the following passage:

We have won the battle – now for the war!

It has to be said there is no guarantee the court that eventually tries the case will agree with the judge who heard the Summary Judgment application. However, that one judge can find it in himself to acknowledge Mrs Strickland may very well have rights, whereas previously the door has been slammed very firmly in such home owners’ faces, is a very significant departure from the accepted position on this issue.

It must be right that home owners should have some form of redress where regulatory authorities act so incompetently as to cause them such horrendous damage. That this may give rise to a fine balancing act between the duties owed to residents and those whom they police is no bad thing. The absence of any safeguards for home owners has for too long been a window for abuse of power with impunity. If Mrs Strickland is successful this will, at last, be closed.