The judgment in R (on the application of South West Care Homes Limited) v Devon County Council  EWHC 1867 (Admin) is the latest in a line of judicial review decisions that have been handed down over the past 12 months on the setting of care home fees.
This decision follows those involving Neath Port Talbot County Borough Council, Pembrokeshire County Council, Sefton Council and Leicestershire County Council. Only Neath Port Talbot successfully resisted its judicial review challenge.
Background to the case
The claimants applied for judicial review of the Council’s decision taken on 2 March 2011and notified to them on 4 April 2011, to make no change to the fees payable for the 2011/12 financial year. The claimants issued their judicial review claim on 1 July 2011 but permission was refused. Rather unusually, the judge said that whilst the original grounds did not demonstrate any arguable case, reformulated grounds might identify a clear and arguable case. Several months later in February 2012, permission was granted on the basis of the revised grounds that were put before the Court on 2 February 2012.
Revised grounds of challenge
The were three grounds of challenge:
- The Council’s failure to have due regard to the actual cost of providing care
The Court found that the Council’s witnesses (the Interim Executive Director of Adult and Community Services and the Principal Finance Manager for Adult and Community Services) had extensive qualifications and experience in relation to the assessment of the costs of providing care. The Council gave evidence as to the inappropriate nature of the Laing & Buisson model for setting fees in the Devon area. In particular, the Council did not accept that the illustrative figures reflected the cost of care in the Devon area, nor did it accept that a 12% return on capital was appropriate.
The Court found that the Council had considered a number of relevant factors when making its decision. Furthermore, the weight to be given to any particular factor was a decision for the Council.
On the evidence put before it, the Court was satisfied that the Council did have due regard to the actual cost of care and rejected the first ground of challenge.
- The Council’s failure to consider the risk to residents, particularly the risk of reducing the quality of care, in breach of Article 8 of the European Convention on Human Rights
The Court noted that the claimants did not pursue this ground “with any vigour”, largely because the rights under Article 8 would fall to the individual residents and not the care home providers. This ground of challenge was also rejected.
- The Council’s failure to consult with care home providers
The Council’s evidence was found to be lacking on the issue of consultation. The Council’s strategic provider group met on 23 February 2011 and a representative of the claimants was present at that meeting. No evidence was given that the Council initiated a consultation process at that meeting. Even if there had been a consultation between 23 February 2011 and the date of the decision on 2 March 2011, the Court held that such a period would have been insufficient to comply with the principles of lawful consultation.
The Court found that the Council failed to issue any invitation to the claimants (or other care homes providers) to consult on the fees payable. The third ground of challenge was therefore successful.
Remedy awarded by the Court
Although the Court found that the Council had failed to consult with care home providers, it did not quash the Council’s decision of 2 March 2011. The Court’s reasoning was as follows:
- It would be contrary to good public administration to require the Council to reopen its budget which had been finalised in March/April 2011;
- It would be detrimental to care home residents and/or the tax payer if the Council reconsidered its decision and this resulted in an increase in fees; and
- The claimants’ case was “stale”. By the time that the claimants submitted their revised grounds on 2 February 2012, the Council’s decision was almost a year old.
However, the Court did grant a declaration that the Council had acted unlawfully in failing to consult with care home providers when making its decision on 2 March 2011. The Court also awarded the claimants 50% of their costs.
With both sides claiming victory, it is perhaps fair to say that the spoils were shared on this occasion. However, had the claimants brought their claim correctly at the first attempt and had the case been expedited to trial, it is quite possible that the Court might have chosen to quash the Council’s decision.
This case is a timely reminder for both care home providers and local authorities. Any claimant must ensure that it acts promptly when considering a decision made by a local authority and that it takes proper advice to have the best prospects of permission being granted for a judicial review claim. The Court will not usually give a claimant a second opportunity to get it right. Local authorities are reminded of the need to have a proper consultation when setting care homes fees. Merely paying lip service to consultation, or having none at all, will leave the local authority open to criticism and adverse judicial declarations.