R and Others v Neath Port Talbot County Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 17 February 2012 |
| Neutral Citation | [2012] EWHC 236 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5985/2011 |
| Date | 17 February 2012 |
[2012] EWHC 236 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
The Honourable Mr Justice Beatson
Case No: CO/5985/2011
Patricia Robertson QC and Madeleine Heal (Instructed by Alison Castrey Solicitors) for the Claimants
Elisabeth Laing QC (Instructed by Neath Port Talbot Cbc Legal Department) for the Defendant
Hearing dates: 21-22 November 2011
Further submissions: 28 November and 2 December 2011
I. Introduction
In these proceedings, lodged on 24 June 2011, the claimants, nine operators of residential homes in the area of the Neath Port Talbot County Borough Council ("the Council"), challenge the Council's decision on 25 March 2011 setting the rate to be paid to providers of residential accommodation for the 2011/2012 year at £426 per resident per week with a £23 supplement per week for residents with dementia. This represented an increase of 5.7%. The Council also decided to offer to enter into a four-year agreement with providers with a minimum guaranteed increase of 4% each year. Permission was granted on the papers by HHJ Vosper QC on 25 July 2011.
There are 25 care homes with approximately 1032 beds in the Council's area. Approximately 814 of the beds are in independently or voluntarily run homes and 218 are in homes run by the Council. The claimants, six companies, one limited liability partnership, and two individuals, provide 351 beds, approximately 34% of the total number, and 43% of the beds in privately run homes. The Council makes arrangements under sections 21 and 26 of the National Assistance Act 1948 ("the 1948 Act") for approximately 660 elderly and frail persons. The majority are in homes in the independent or voluntary sector. Placements by the Council account for between 45% and 70% of the residents in the homes run by the claimants. The remainder of the residents are funded either by the Health Board, at fee levels set by the Welsh Ministers, or privately. Across the sector as a whole the average figure for residents placed by the Council is about 40% of the total number of residents in a home. When the homes run by the Council are taken into account, it provides or makes arrangements for accommodation for around 58% of the beds in its area.
The claimants' case is that the Council unlawfully failed to set a rate which reflected their costs in providing care, and the need, given projected requirements for provision by private care homes, for the sector to be sustainable. It was also submitted by Miss Robertson QC on their behalf that the Council failed to take account in a number of ways of relevant guidance ("the Commissioning Guidance") by the Welsh Assembly Government (the relevant provisions are set out at [12]—[13]) and that the decision was procedurally unfair. As to the latter ground, it is stated that, in setting the rate for 2011/2012, the Council relied on the absence of long-term business plans by the claimants, when such plans (a) were only first mentioned shortly before the decision and (b) were mentioned in circumstances which did not inform the claimants of their importance for the decision for 2011/12.
The Council's case is that the decision, which increased the rate at a time of acute pressure on its finances, clearly recognised the need to maintain the care home sector. Miss Laing QC, on its behalf, maintained that the challenge is a disguised attack on the merits of the decision or on the weight given to various factors, and that neither of these are the province of a court exercising its supervisory jurisdiction by way of judicial review. She also submitted that the claimants' reliance on the Commissioning Guidance is misconceived because that Guidance is aspirational and has the purpose of seeking to measure performance and improve performance by reference to standards rather than imposing legal duties on local authorities.
More fundamentally, Miss Laing submitted that the Council's function of setting a fee under its contracts with providers is a private function and not amenable to judicial review. She also invited the court to refuse relief because, although these proceedings were lodged one day short of the three-month period from the date of the decision, there was undue delay by the claimants.
Over the past twelve months there have been a number of other challenges to the weekly rates set by Councils to be paid to providers of residential accommodation: see the challenges to decisions of Pembrokeshire CC by Forest Care Homes and ( Mavalon Care Ltd [2010] EWHC (Admin) 3514 and [2011] EWHC (Admin) 3371) and to a decision of Sefton BC by ( Sefton Care Homes Association [2011] EWHC (Admin) 2676). This case differs from those cases because in none of them did the defendant Council argue that its function in setting the fee to be paid to providers under the contracts with them is a private function which is not susceptible to judicial review. Indeed the Council in Mavalon's case declined to adopt the position taken by Neath and Port Talbot in these proceedings: [2011] EWHC 3371 at [16].
This case is similar to those cases because the issues between the parties include the way the Council used an economic model, "the toolkit", developed by the Laing and Buisson healthcare consultancy, and the significance of that model. The model was first published in a 2002 report, Calculating a Fair Price for Care: A Toolkit for Residential and Nursing Care Costs, for the Joseph Rowntree foundation. The report was updated in 2004 and in 2008. In 2004 Laing and Buisson also prepared a report, A Fair Price for Care: Wales, for the Welsh Local Government Association ("the toolkit for Wales"). Page 5 of "the toolkit for Wales" states that in order to establish valid fair fee rates in any specific locality "it is essential to enter local data on pay rates and land prices, and to vary any other of the model's parameters if local benchmarks differ from national ones" (emphasis added). The foreword to the 2008 edition of the "toolkit" states that it "allows its users to vary the data entered according to local circumstances and conditions, and is simply intended to inform negotiation from a transparent basis". It made provision for local rather than national baseline costs and fees because pay rates and land prices, the two main determinants of care home costs, vary significantly according to locality. It did not use average baseline costs and fees (i.e. "reasonable costs") because "Councils would not wish to pay for inefficient modes of operation on a cost-plus basis – unless they were specifically to decide to do so for service quality reasons, or some other overriding reason".
II. The evidence
The evidence on behalf of the claimants consists of statements of Sanjiv Joshi (23 June and 27 September), Margaret Jenkins (23 June and 27 September), Martin Joyce (23 June), Barry Latham (12 June), Alison Castrey (23 June, 27 September and 9 November), Anita Williams (26 September and 24 November), Eric Davies (2 October), Timothy Valler (30 September), Pauline Barber (30 September), and Nigel Clarke (1 October). Mr Joshi is the Managing Director of the fifth claimant; Ms Jenkins is the fourth claimant and a director of the third claimant; Mr Joyce is a director of the sixth claimant, Mr Valler is the Operations Manager of a care home owned and operated by his mother, the eighth claimant, Ms Barber is a director of the second claimant, and Mr Clarke is a partner in the first claimant. Mr Latham was, until April 2011, when he retired, the senior policy advisor for Care Forum Wales, an organisation representing independent providers. His statement is made on behalf of that organisation. Ms Castrey is the claimants' solicitor. Anita Williams is the matron and company secretary of the ninth claimant. Mr Davies is a partner in the accountancy firm of DRP and Co and the third and fourth claimants' accountant.
The evidence on behalf of the defendant consists of statements of Robert Rees (2 September 2011), acting Head of Community Care and Housing Services for the Council since August 2010, Susan Gorman (1 November 2011), the defendant's Principal Officer, Finance, for the Directorate of Social Services, Health and Housing, and Darren Williams (2 December 2011), a Council officer responsible for procurement and contract management.
Ms Williams' second statement and Mr Williams' statement in response were filed after the hearing and concerned the ninth claimant's position in relation to PAYE. The claimants' post-hearing submission is that the new evidence supports the evidence previously before the court of a clear risk of enforcement action by HMRC against the ninth claimant and shows that risk has materialised. It is also submitted that it shows that its home "is near having to close suddenly" because it could not meet its PAYE liability. The latter is not supported by the evidence. There does appear to be an outstanding liability for PAYE in respect of 2010. But, while the recently filed material provides some additional evidence of financial pressure on a provider, it was not material before the Council when it made its decision. It is therefore not relevant to the determination of whether that decision was unlawful.
III. The Law:
(i) The 1948 Act
Section 21 of the National Assistance Act 1948 , as amended ("the 1948 Act") provides:
"(1) Subject to and in accordance with the provisions in this part of this Act, a...
To continue reading
Request your trial
-
R David Edward Ames v The Lord Chancellor
...of the trust's properties.” 49 In R on the application of Bevan & Clarke LLP and others v Neath Port Talbot County Borough Council [2012] EWHC 236 (Admin) the claimants were operators of nursing homes in the area of the defendant Council. They challenged the defendant's decision as to the ......
-
Joanna Trafford v Blackpool Borough Council
... ... and Wheeler v Leicester County Council ... Beatson J (as he then was) in Bevan & Clarke LLP & others v. Neath Port Talbot BC [2012] EWHC 236 (Admin), where in ... ...
-
R Redcar and Cleveland Independent Providers Association and Others v Redcar and Cleveland Borough Council
...or bad faith. I can do no better than relying again on the logic put forward for rejecting these arguments by Mr Justice Beatson in Neath Port Talbot: 52Miss Laing had two "fallback" submissions. The first was that any public law duties owed by the Council are owed to those for whom it arra......
-
R Torbay Quality Care Forum Ltd v Torbay Council
...detriment to good administration which a quashing order would involve. Discussion and Determination 60 R (Bevan and Clarke) v Neath [2012] LGR 728 contains the sage lesson that although amenable to judicial review decisions in relation to the particular statutory duty here involved are gen......