NEW NORTHERN IRELAND CASE: While Northern Ireland has different guidance in place, there are still useful points to draw from the care home fee-setting challenge in Re Independent Health and Care Providers (NI)’s Application for Judicial Review [2013] NIQB 29. The three grounds will be familiar to practitioners in England and Wales: (1) failure to set a rate that was related to the actual costs of care, (2) failure to have regard to the effect on Article 8 rights, and (3) failure to adequately consult the providers’ association.

The claim failed. Of particular interest from an English and Welsh perspective is the Court’s reasoning that the Northern Irish guidance was not addressed to commercial providers of care homes, but to the Board which set the rate annually and to others, and so where the guidance directed attention to the affordability of expenditure on care homes, it was considering affordability to the funding Board, and not to the commercial providers. The guidance did not require the Board to set a rate based on an assessment of the costs to the providers. A not dissimilar argument was run in the Redcar and Cleveland care home fees challenge (see below), but the point was not dealt with by the court in that case.

The Article 8 and consultation challenges were also rejected. The Court’s rejection of the Article 8 challenge is consistent with Singh J’s decision last year in R (Southwest Care Homes Ltd) v Devon CC (No 1).

APPEALS IN NORTH-EAST CASES: In our last edition we noted the judicial review claims by provider associations against local authorities in the North East, including R (Redcar and Cleveland Independent Providers’ Association) v Redcar and Cleveland BC [2013] EWHC 4 (Admin) and R (Care North East Northumberland) v Northumberland CC [2013] EWHC 234 (Admin). Appeals were filed in both of these cases. The Court of Appeal has now granted permission to appeal in both cases. The matters are expected to be linked and heard together. This will be the first time in which the Court of Appeal considers the line of cases concerning challenges to local authority decisions setting care home fees.