Litigation over care home funding does not seem to be slowing down.

In R (Southwest Care Homes Ltd) v Devon CC (No 2) [2012] EWHC 2967 (Admin) the Administrative Court held that the public sector equality duties in the Equality Act 2010, s 149 applied to local authority decisions as to care home fees. Devon applied for permission to appeal that decision and were refused permission. Local authorities may wish to conduct EIAs prior to setting their fee rates. Obvious considerations may include whether the fee rates may impact on certain age groups, and on certain groups of disabled residents.

There have been two cases concerning local authority “benchmarking”, ie consideration of fees paid by neighbouring authorities. In R (Redcar and Cleveland Independent Providers’ Association) v Redcar and Cleveland BC [2013] EWHC 4 (Admin) the fee rates decision was quashed due to what was held to be undue reliance on benchmarking. In R (Care North East Northumberland) v Northumberland CC [2013] EWHC 234 (Admin) benchmarking was also used to an extent, but the decision was upheld. Both decisions have been appealed to the Court of Appeal, and we are waiting to hear whether the Court of Appeal will grant permission to appeal.

In the Redcar and Cleveland case the local authority made a root and branch attack on the recent line of cases built up in this area. The Court decided the case without addressing the case put by the local authority. It is clear though from Supperstone J’s judgment in the Northumberland case that the guidance relied on by claimants in this area may in the future not be regarded as the stable base it has previously been assumed to be. The tide may be turning in favour of local authorities in these challenges.