Council to face legal challenge over ‘Care Act breach’ claims

Care providers’ body wins right to judicial review of Essex council’s fees policy for nursing and care homes

Essex County Council, County Hall. Photo: Andrew Drysdale/REX/Shutterstock

Essex council will face a legal challenge over the fees it pays to care home providers.

Care England, a national membership body for care homes, has won the right to a judicial review after arguing the council breached its duties under the Care Act 2014 by setting fees that fall “significantly below” the costs of providing care.

The local authority said it took its Care Act duties “extremely seriously”.

The case, which will be heard next month, marks the escalation of a row over fees that began last year.

‘Unsustainable and unaffordable’

Last February Essex introduced a new contract for care providers that offered maximum fees of £538.37 per week for care homes and £577.29 for nursing homes.

Months later, a cost of care exercised carried out by the council found a fair rate would be £647 for care homes and £665 for nursing homes. At the time council bosses told providers that paying these rates to all would be “unaffordable”.

According to Care England, most providers in Essex rejected the new contract after deeming the rates offered unsustainable but some felt “under commercial pressure” to sign the deal.

The council offered those who refused to sign up to the new contract a maximum fee uplift of £13.58 to £13.79 per resident per week to cover the cost of the national living wage. The average rate paid at the time was £470 per week for residential homes and £534 for nursing.

“In real terms, if the national living wage cost is stripped out of this nominal increase, the council yet again failed to provide any real term increase on fee rates,” a briefing produced by Care England said.

The briefing said the council had since revised the new contract but the fee rises proposed were “nominal” and fell short of the rates recommended in the cost of care exercise.

‘Deep concern’

Martin Green, chief executive of Care England, said: “We are deeply concerned about the council’s conduct towards the care home market within Essex and as a result, the sustainability of that market.

“We believe the council’s actions to date to be a breach of its responsibilities under the Care Act 2014. This is an important challenge in support of providers in Essex and those new and existing residents receiving care.”

A spokesperson for Essex council said: “In order not to prejudice legal proceedings we are unable to comment on the specifics of this case. We do take our obligations under the Care Act 2014 extremely seriously and are committed to enabling a sustainable social care market.”

10 Responses to Council to face legal challenge over ‘Care Act breach’ claims

  1. Northern poorhouse April 12, 2017 at 12:33 am #

    This is not at all helpful to anyone. What is the point of taking a council to court for paying a fee that is set by the fiscal policy of an elected govt?!!

    Surely better for the councils and providers to get together and fight back against this immoral government than force each other into impossible positions!

    • Luke B April 12, 2017 at 4:23 pm #

      A quick internet search shows me that Essex are a Conservative controlled council though….

    • Reality check April 13, 2017 at 1:47 am #

      Councils are implementing the Government’s austerity measures and only by challenging the initiators of the policy can we get change of direction. Many Nazi’s stated they were following orders for their horrific practices. If an order is unjust, no longer can those implementing them claim they had no choice and rightly so! Our councils have a responsibility to make it widely known that they cannot continue in this vein of further cuts and instead of thinking of their own circumstances make a mass resignation and see what happens in Parliament???

    • Peter Cox April 17, 2017 at 10:55 am #

      Care Home fees are not ‘set’ by central government, they are decisions taken by local Councils having regard to all of their statutory duties and elective responsibilities for expenditure. Section 4.35 of the final Statutory Guidance under the Care Act is unambiguous with regard to Care Home fees:

      ‘Local authorities must not undertake any actions which may threaten the sustainability of the market as a whole, that is, the pool of providers able to deliver services of an appropriate quality – for example, by setting fee levels below an amount which is not sustainable for providers in the long-term.’ [‘must not’ is in bold.]

      That Councils are struggling to discharge this duty – or say they are – in no detracts from their legal obligations. By all means let the LGA and providers jointly lobby the Government, but if providers want this taken to JR then that is their right and I wish them every success.

  2. CareEB April 12, 2017 at 2:59 pm #

    Well said northern powerhouse.

  3. Sandra April 12, 2017 at 3:05 pm #

    Same in this area, the council contribution is never enough to cover the cost of the care homes. A lot of people we meet have worked all their lives but have no savings so are placed in the home which is cheapest rather than the one they would have chosen as family is not able to top up.
    I agree with the above comment, change needs to come from the top i.e. the government or we will get to the stage where future generations will not have a social care service.

    • Desperate social worker April 12, 2017 at 7:37 pm #

      Conservative government don’t want public services, so your statement is probably accurate Sandra. Keep squeezing the budgets, while demand increases and the inevitable happens.

  4. jim kennie April 12, 2017 at 5:41 pm #

    The whole system is a farce. We should have fees set nationally by an ‘independent body’ like CQC.
    The same challenge was made against the council in Sheffield a couple of years back. The judge who heard the case was an ex Sheffield Cit Council councillor.!!!!!!
    Talk about a fair judicial sytem. You can’t make it up. It really is so bent. Essex, you guys are like David v Goliath. Very best of luck to you. I really hope you are the catalyst to creating a FAIR fee for care homes.
    The responsibility needs to be taken away from biased councils most of whom hate the private sector, and as I said earlier set nationally.

  5. A Man called Horse April 12, 2017 at 10:04 pm #

    Very recently a Tory minister said it was the job of families to look after their own relatives not the job of the state. With such statements as this we are paving the road back to the workhouse. This Government want low taxes and a small state. The Tories do not want Scandinavian or Swedish Social care standards, they want cheap hollowed out public services used only by the very poor. You want decent services that would require tax dodgers and Business to pay fair taxes which is not going to happen. Banks already making plans to move abroad and pay even less tax. Public squalor and private wealth is the name of the game.

  6. jim kennie April 13, 2017 at 11:27 am #

    This has become a national problem. It really needs sorting nationally once and for all.