About the judgement
The public sector equality duty, under section 149 of the Equality Act 2010, requires public bodies to have due regard to the need to eliminate discrimination against and promote equality of opportunity for groups including disabled and older people.
The judge’s conclusion that the council failed to fulfil this duty centred on the equality impact assessment (EIA) it carried out into its setting of care home fees for 2012-13. This identified one adverse impact on older or disabled people, namely the need for them to move if the care homes they were living in failed financially.
But the impact assessment did not identify any measures to mitigate the impact of people having to move despite the well-known adverse impact on health that this can have. The council, unlike other authorities, also did not have a protocol in place on dealing with home closures.
Furthermore, the EIA was not reconsidered in the light of a subsequent “fee structure proposal report” received by council officers just before the final decision on fees for 2012-13 was taken, which said 25 homes were at risk of closure.
The council argued that mitigation for care home closures would be provided by the measures council social care staff would take to safeguard residents affected. It also claimed that the fee structure proposal report set out the number of homes at risk of closure due to the state of the market, not because of the council’s fee decision.
However, the judge said: “Even if most if not all homes identified in the fee structure proposal report as at risk of closure would close in any event, there was no proper consideration of mitigation measures or proper management of such closures in setting the fees. The EIA should have been reconsidered having regard to this information.”
He also agreed with the claimants that the council had breached its equality duty in giving “no proper consideration” to the staff costs of engaging and interacting with people with dementia in the way the council set fees. This is because, during the fee-setting process, the council had said that the sum it allocated for nursing care for people with dementia was based on only one consultation response, may need to be higher and was “worthy of further more extensive research”. But no such research was undertaken.
A council is to review its care home fees after the High Court found that it failed to meet its duty to promote equality for disabled and older people in setting rates.
Devon Council did not properly consider the impact on residents of possible care home closures in its assessment of the impact of fees for 2012-13, which amounted to a breach of its duty to promote equality for or eliminate discrimination against groups including older and disabled people, under the Equality Act 2010.
This week’s judgement, in relation to a legal challenge brought by local care home providers, followed the intervention of the Equality and Human Rights Commission in the case, to clarify councils’ duties in this area.
Second care fees case in six months
It comes six months after the High Court found against the same council for failing in its duty to consult on care home fees in 2011-12, in a challenge brought by the same providers.
Devon Council increased fees by an average of 6.6% in 2012-13, following two consecutive years of fee freezes. In the latest case, the High Court in Cardiff rejected claims from providers that the council failed to consult properly on its decision or that its decision was irrational in the way it calculated fees.
Fair consultation and rational process
Judge Milwyn Jarman QC concluded that the consultation process was “a fair one which gave a sufficient opportunity for a meaningful response”, and the way that it calculated the costs faced by providers was “based on tenable reasoning”.
However, he said that the decision was reached “without the necessary due regard to the need to eliminate discrimination against and to promote equality amongst elderly or disabled residents”.
Consequently, the judge said that the fees decision “should not stand” and asked for a remedy to be agreed by the two sides.
Equality assessment to be redone
The council proposed to conduct another, more detailed equality impact assessment of the decision and, on that basis, conclude whether or not the current fees should be revised, by 28 November. This has been agreed, and pending this process, the current fees will remain in place.
The case was brought by South West Care Homes Ltd, its subsidiary, South West Residential Homes Ltd, Forde Park Care and Chartbeech Ltd, which together operate eight homes in the council area.
Both providers and council claimed victory after the case.
Victory claimed by both sides
“We are very happy with the outcome,” said Alan Beale, managing director of South West Care Homes. “We brought this action reluctantly, because we were exteremely concerned for the welfare and safety of the vulnerable people in care homes in Devon.”
But the council pointed to the small number of homes represented in the challenge and the fact that two of the three grounds of the challenge had failed.
“The judgement shows clearly that the model we used was rational, took into account the level and quality of care, and that we consulted widely before implementing the decision,” said Tim Golby, the council’s lead on social care commissioning.”
“We are however very disappointed the judge felt that we did not pay enough regard to equalities legislation and that we had not properly considered the impact of home closures when setting fees.”
He said the council had a “good record of working with homes at risk of potential closure to ensure residents are not disadvantaged in any way and are fully protected”.