Legal Update: local authorities cannot rush through charging policies

Challenges to local authorities’ pricing policies can succeed in court, particularly where decisions have been rushed into, writes Ed Mitchell 

A local authority is not like a shop on the high street. It does not have complete freedom to alter the prices it charges for its care services. As a public body, legal requirements mean that a local authority cannot change charging policies and practices overnight. However, financial pressures mean that many authorities continue to rush through changes. This explains why this remains an area of community care practice that is vulnerable to legal challenge.

Inadequate consultation with service user and family

R(B) v Cornwall CC (2009) involved a man with learning disabilities whose care was transferred from the NHS to a local authority. This meant that, for the first time, he became liable to pay for the home care services he received. Originally, the council assessed B as not being required to pay any charge and, as a result, he was able to keep his welfare benefits income. Subsequently, however, the council concluded that they had mistakenly under-charged B and many others like him. After a paper review of the case (without consulting B or his parents), the council decided to charge him £68 per week.

The High Court quashed the council’s decision and it will have to reconsider the matter. Council officers should have visited B at home, and consulted with his parents given their close involvement with his care, before fixing the amount that he could reasonably afford to pay. The council’s failure to do so meant that they had acted unlawfully.

The demands of the financial planning cycle

Changes to local authority community care charging policies inevitably have an effect on local authority finances. This can mean that planning for alterations to charges gets caught up with the general financial planning cycle. This happened in R(Berry) v Cumbria CC (2008) and the loser was effective consultation.

The date for finalising the council’s whole budget was fast approaching. One of its budgetary proposals was to introduce day centre charges. This placed the council under pressure because it had committed itself to consulting with stakeholders for 12 weeks before changing its charging policies. In the event, it carried out a shortened six-week consultation.

The High Court held that the decision to introduce charges was invalid due to a defective consultation exercise that did not give stakeholders adequate time to respond (although the defect was subsequently cured by the decision being re-taken following fresh consultation).

The lesson here was planning. Where a public authority is committed to carrying out consultation, it needs to plan its activities so that there is a sufficient amount of time during which an effective consultation exercise may be carried out.

Must promises be kept?

However, councils are entitled to make radical changes to their charging policies, provided that the underlying decision-making process is lawful. One example can be found in the case of R(Domb) v Hammersmith & Fulham LBC (2008). A council’s ruling party reneged on a manifesto commitment not to introduce home care charges. The High Court dismissed a challenge to the decision. The council had not expressly adopted the manifesto commitment upon taking office and so it could not be said that the council was bound in law to honour it.

● Ed Mitchell is a solicitor and editor of Social Care Law Today

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