Council taken to court for second time over care home fees

Providers have taken a council to court over its care home fees for the second time in a year.

Devon Council is being challenged in a judicial review over the way it set care home fees for 2012-13 in a hearing today – five months after a court found that it failed to consult lawfully with providers on fees for 2011-12.

The providers bringing the latest challenge say the council failed to consult lawfully in its 2012-13 fee-setting process; that the process was not rational and was based on inaccurate figures; and that the authority failed to assess the impact of its decision on vulnerable groups, as required by the public sector equality duty.

The council froze its care home fees in 2010-11 and 2011-12 but has provided an increase of 6.6% for 2012-13. However, provider representative body the Devon Quality Care Forum (DQCF) said fee levels were not sufficient.

‘Incredibly difficult’

“We continue to hear from our members that providing high-quality care is incredibly difficult given the level of fees paid for local authority residents,” said DQCF member Alan Beale, who is managing director of South West Care Homes Ltd, a claimant in both judicial reviews.

However, a council spokesperson said: “We are disappointed that after receiving a 6.6 per cent rise in fees this year, these few home owners continue a costly legal dispute that we can ill-afford and that detracts from the business of meeting the care needs of vulnerable people in Devon.

“We believe that we have acted sensibly and fairly in determining fee levels and will contest the case vigorously. We will, of course, abide by any decision from the court.”

Unlawful lack of consultation

In the first judicial review, at the High Court in Birmingham in May, Mr Justice Singh rejected providers’ claims that the council had failed to have due regard to the cost of care in its decision to freeze fees in 2011-12.

However, he accepted their claim that Devon had not conducted a lawful consultation process because it failed to invite providers to comment on whether there should be an increase in fees for 2011-12, and only gave notice of the proposed fee freeze a week before it was ratified.

This was one of a string of cases in the past two years in which providers have successfully challenged councils’ fee-setting processes for care. However, unlike in other cases, Mr Justice Singh did not quash the fee freeze instituted by Devon in 2011-12 because of the costs and disruption that would ensue

Equality watchdog

The Equality and Human Rights Commission has intervened in the latest judicial review to make clear the law surrounding the public sector equality duty.

“We hope that this case will highlight the importance of local authorities considering all service user needs under the Equality Act 2010,” said John Wadham, group director legal at the EHRC. “If local authorities identify any potential adverse effects on ‘protected groups’ such as older and disabled care home residents, they need to be able to show these have been considered before putting plans into action.”

Today’s hearing takes place at Cardiff Administrative Court. Besides South West Care Homes Ltd, the other claimants are South West Residential Homes Ltd (a wholly-owned subsidiary of South West Care Homes Ltd), Forde Park Care and Chartbeech Ltd.

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