52. I have already set out the evidence concerning the likely effect of the move on the claimants. The evidence of the medical practitioners does not show that the effect of the move would come anywhere near the high threshold for the engagement of Article 3, namely of constituting ‘intense mental and physical suffering’. In any event, their evidence does not comment on or take into account the precautions outlined by Mr Stoker. Professor Jolley’s evidence was that the effect on the claimants of the move to another home would depend on the precautionary steps taken by the Council to ensure that any suffering was ameliorated. As the report of Age Concern produced by Professor Jolley shows, these precautions can entirely or at least very substantially obviate the adverse consequences to elderly residents of such a move. This is particularly relevant because the evidence of Mr Stoker shows that the substantial lengths to which the Council is going to ensure that the claimants do not have to suffer unnecessarily. Thus, my first reason for rejecting the Article 3 challenge is that in absence of comments by anybody medically qualified on the effect on those claimants of moves to other homes in the light of Mr Stoker’s precautions, the claimants’ evidence does not show suffering up to the requisite high threshold for Article 3 to be engaged. My second reason is that the Council have as I have stated in paragraph 49 agreed to liaise with the claimant’s expert on the psychiatry of the old aged on the best way of moving the claimants so as to reduce any risk to them. …

58. I consider that the claim in respect of Article 8 fails for three reasons. First, there is no cogent evidence of disruption of home or family life or interference with the right to physical integrity. Professor Jolley and the general practitioners of the claimants do not deal in their evidence with the proposed or actual arrangements as outlined by Mr Stoker, which show that Article 8 rights are not engaged.

59. The way in which the moves are and have been planned, as described by Mr Stoker in his evidence and which is not contradicted, indicate that a great deal is being done to ensure that the move is as undisruptive to the claimants as it could possibly be. No cogent criticism has been made by Mr Skilbeck of the proposed arrangements. It is particularly noteworthy that the Council intends to do all that is necessary to preserve friendship groups and thus shows respect for what would be covered under Article 8(1) as ‘family life’. The other measures that Mr Stoker outlines, show the claimants’ rights to physical integrity and respect for home and family life have been safeguarded and are not infringed. As I have explained, Mr Stoker has said that the individual assessments of all residents have been carried out. I have explained in paragraph 49 above the way in which the Council has agreed to liaise with the claimants’ expert consultant psychiatrist on the best ways of moving the claimants so as to reduce any risk to them.

60. Second, the financial resources of the Council is an important element to be considered to the balancing exercise required in the application of Article 8(2). Thus, in R (F) v Oxfordshire Mental Health Care NHS Trust [2001] EWHC 535 (Admin), Sullivan J held that it was highly relevant to the balancing exercise required by Article 8(2) that by making expensive provisions to one individual item in the Council budget, this would deprive others of services and this would thereby adversely effect their rights. As I have explained, the Council considered that the fees sought by Southern Cross were disproportionate and that if it was to agree to pay them, an improper burden would be placed on the social services budget with the result that other patients in other homes would be adversely effected. Similarly, in R (Birmingham Care Consortium) v Birmingham CC [2002] EWHC 2188 (Admin), Stanley Burnton J said ‘affordability is in general a highly relevant consideration to be taken into account by any local authority in making a decision on rates to be offered to service providers, subject to a local authority being able to meet its duties at the rates it offers’ [para 32]. This would enable the Council to justify its decision. Another way of reaching that conclusion is that, as I have explained in paragraphs 10 and 14 above, a local authority is obliged by statute and entitled to take into consideration resources when deciding how to meet individual needs.

61. A third reason why this claim based on Article 8 must fail is that the Council is entitled to a substantial degree of deference relating to the way in which it allocates its resources and provides services. This is relevant as Article 8(2) requires a balancing exercise. These are matters very much within the expertise of a local authority and with which a court should only interfere where the evidence is very clear, but this is, as I have explained, not such a case. For all those reasons, the Article 8 claim and all aspects of the ECHR challenge fail.