Local authority faces second JR after retaking decision setting care home fees

A local authority that lost a judicial review over its approach to setting care home fees is due back in the High Court next month after the claimants challenged its retaken decision.

Mr Justice Hickinbottom ruled in Forest Care Home Ltd and Ors, R v The Welsh Minister and Anor [2010] EWHC 3514 that Pembrokeshire County Council had been entitled to take into account its own financial position when determining the level of accommodation and care services upon the minimum required by section 21 of the National Assistance Act 1948, and in setting the fee rate for those who provide the services.

However, the judge concluded that the local authority had erred in law in failing properly to taken into account other factors he had identified. These included the potential adverse consequences of the decision for providers and residents, which he said should have been balanced against the constraints on its own resources.

The judge also said: “The manner in which the council dealt with capital costs for the purposes of setting the rate was simply methodologically wrong; but the other sub-grounds succeed because the council failed to take into account matters other than its own financial resources in a proper and lawful way.”

The Director of Social Services at Pembrokeshire retook the decision in January this year. This saw the county council raise the payment from £390 a week per resident to £448, backdated to the start of the financial year. An additional payment was also to be made to reflect the loss of interest which could have been earned.

Pembrokeshire’s Leader, Cllr John Davies, estimated at the time that the new fees would produce an additional cost to the authority of almost £1.5m.

However, the claimants – together with some additional care home providers – subsequently challenged the retaken decision. The High Court will hear the case on 15-16 November in Cardiff.

Alison Castrey, lawyer to the claimants, said the main issue would be the manner in which the retaken decision was reached on return on capital.

A spokesman for the council said it would not be commenting on the case until the outcome of the hearing.

Philip Hoult