On 23 December 2014, judgment was handed down in the judicial review claim initiated by Torbay Quality Care Forum Limited ("TQCF Limited"), a group of care home providers, against Torbay Council ("the
On 23 December 2014, judgment was handed down in the judicial review claim initiated by Torbay Quality Care Forum Limited ("TQCF Limited"), a group of care home providers, against Torbay Council ("the Council"). The claimants successfully contended that the model devised by the Council to carry out their mathematical calculation for the cost of residential care was fundamentally flawed that and the decision to consider "top-up payments" in this process was unreasonable and also a breach of government guidance.
Under section 21 of the National Assistance Act 1948 local councils have a legal obligation to provide "residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstance are in need of care and attention which is not otherwise available to them". Section 26 of the 1948 Act permits councils to make these arrangements with the private sector. TQCF argued that paying too little could cause staffing and maintenance problems. This poses an interesting issue; if this is true, it directly impacts on the ability of the provider to comply with the regulatory requirements imposed by the Health and Social Care Act 2008 and associated regulations. If this is pleaded by a provider as a mitigating circumstance in cases where concerns are identified by the Care Quality Commission ("CQC"), one can envisage difficult discussions between commissioners of care and the CQC, particularly given the credibility of the arguments advanced in this case. There are clearly multiple competing duties of care that conflict with the commercial reality that many Councils are looking to drive down fees. Providers (particularly smaller ones) caring for residents with increasingly complex care needs are struggling financially in an environment with ever increasing regulation.
Whilst not one of the primary issues in the case, it is pertinent to note that the Council sought to argue that the model they devised was one specific to Torbay where, it submitted, that there exists an oversupply of residential care. This suggests that whilst the provision of an adequate level of care commensurate with their legal obligations is the primary position of local authorities, they are alive to the commercial environment they are operating in and may use this in any fee considerations.
Given the complex socio-economic issues presented in this case together with the finite resources of the Council, the Court determined that this was a case where traditional judicial review principles in relation to administrative decisions must be honoured scrupulously. The court heard clear evidence that the Council was paying TCQF providers up to £70 less per person per week than neighbouring Devon County Council. It was determined that the TQCF had properly made out that the weighting element in the model devised by the Council was significantly flawed and, given it was the Council's choice to deploy such a model, it was only appropriate that this was subjected to scrutiny based on public law principles. Whilst it recognised that wherever possible the merits of the decision should remain with the decision maker, in this case the decision was one which no reasonable decision maker properly directing themselves on the facts could have made.
The second ground was also made out. The Court determined that the Council had failed properly to justify why it had chosen to depart from Government guidance. It was recognised that it was not mandatory to comply with "guidance", however in the absence of clear reasoning as to why, and any details on the credibility of an alternative proposal, the failure to comply with the guidance was sufficient to constitute a serious error in the decision making process. The decision made by the Council was quashed and remitted for further consideration and redetermination of the rate payable for residential care.
The Council has indicated that would "reflect" on the High Court judge's ruling, indicating that given the significant financial impact the judgement may have, these issues may yet fall to be considered by the Court of Appeal in due course.
Under section 21 of the National Assistance Act 1948 local councils have a legal obligation to provide "residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstance are in need of care and attention which is not otherwise available to them". Section 26 of the 1948 Act permits councils to make these arrangements with the private sector. TQCF argued that paying too little could cause staffing and maintenance problems. This poses an interesting issue; if this is true, it directly impacts on the ability of the provider to comply with the regulatory requirements imposed by the Health and Social Care Act 2008 and associated regulations. If this is pleaded by a provider as a mitigating circumstance in cases where concerns are identified by the Care Quality Commission ("CQC"), one can envisage difficult discussions between commissioners of care and the CQC, particularly given the credibility of the arguments advanced in this case. There are clearly multiple competing duties of care that conflict with the commercial reality that many Councils are looking to drive down fees. Providers (particularly smaller ones) caring for residents with increasingly complex care needs are struggling financially in an environment with ever increasing regulation.
Whilst not one of the primary issues in the case, it is pertinent to note that the Council sought to argue that the model they devised was one specific to Torbay where, it submitted, that there exists an oversupply of residential care. This suggests that whilst the provision of an adequate level of care commensurate with their legal obligations is the primary position of local authorities, they are alive to the commercial environment they are operating in and may use this in any fee considerations.
Given the complex socio-economic issues presented in this case together with the finite resources of the Council, the Court determined that this was a case where traditional judicial review principles in relation to administrative decisions must be honoured scrupulously. The court heard clear evidence that the Council was paying TCQF providers up to £70 less per person per week than neighbouring Devon County Council. It was determined that the TQCF had properly made out that the weighting element in the model devised by the Council was significantly flawed and, given it was the Council's choice to deploy such a model, it was only appropriate that this was subjected to scrutiny based on public law principles. Whilst it recognised that wherever possible the merits of the decision should remain with the decision maker, in this case the decision was one which no reasonable decision maker properly directing themselves on the facts could have made.
The second ground was also made out. The Court determined that the Council had failed properly to justify why it had chosen to depart from Government guidance. It was recognised that it was not mandatory to comply with "guidance", however in the absence of clear reasoning as to why, and any details on the credibility of an alternative proposal, the failure to comply with the guidance was sufficient to constitute a serious error in the decision making process. The decision made by the Council was quashed and remitted for further consideration and redetermination of the rate payable for residential care.
The Council has indicated that would "reflect" on the High Court judge's ruling, indicating that given the significant financial impact the judgement may have, these issues may yet fall to be considered by the Court of Appeal in due course.