High Court judge quashes care home fee freeze

The High Court has quashed a local authority’s decision to freeze the fees payable to care home providers in 2011/12.

It was the second year running that Sefton Council had decided there should be no increase.

The claimant care homes in The Sefton Care Association & Ors, R v Sefton Council [2011] EWHC 2676 had challenged Sefton’s decision on seven grounds, although these did not include irrationality.

His Honour Judge Raynor QC found in favour of the claimants. He concluded that Sefton had:

• in fixing the fees in December 2010, “failed adequately to investigate or address the actual costs of care with the claimants (and the other providers), and thereby failed to have due regard to the same” contrary to guidance and certain provisions of the Building Capacity and Partnership in Care agreement
• failed to have due regard to local factors relevant to the costs of care, such as local pay levels and property costs
• failed in its duty properly to engage in proper consultation with the providers.

However, the judge rejected the claimant’s contention that Sefton had also failed to comply with the general equality duty under s. 49A of the Disability Discrimination Act.

He agreed with the council’s submission that “if the assessment of the usual cost of care is unimpeachable (i.e. undertaken in accordance with the requirements of the 1992 Directions and the statutory Guidance and the Agreement) then there is no further need for the defendant to consider the public sector equality duty when fixing its fees.”

A spokesman for Sefton Council said: “This judgement provides welcome clarification around the difficulties of making such important decisions in such a short period of time. The judgement does not say that we have made the wrong decision. It is merely critical of some elements of the process we went through. The proposal not to increase fees for care homes has not been criticised.

“This has been a very complicated legal process. It shows that the speed at which we needed to make cuts last year has meant we did not consult with care home providers early enough about the possible freeze in their fees. We accept that.”

The Sefton spokesman said that “given more time”, it could have had further discussions with care providers.

“We have already learned lessons” he insisted, adding that as part of this year’s budget process the authority had launched a significantly larger consultation around the options facing councillors.

The spokesman pointed out that Sefton had had to make budget reductions totalling £65m “this year and last”.

He added: “A large part of our budget spend is on this type of care and we have to get the best possible value.

“The judgement actually recognised our consideration of the balance, between the level of care people should expect, and the appropriate cost to the council tax payer. It has also shown that we have given proper regard to equality in our decision-making."

The spokesman said the council would now use the guidance laid out in the judgement as a way forward in further discussions with care providers.

Philip Hoult