R Redcar and Cleveland Independent Providers Association and Others v Redcar and Cleveland Borough Council

JurisdictionEngland & Wales
JudgeHis Honour Judge Gosnell
Judgment Date17 January 2013
Neutral Citation[2013] EWHC 4 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date17 January 2013
Docket NumberCase No: CO/5675/2012

[2013] EWHC 4 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

The Combined Court Centre , Oxford Row , Leeds

Before:

His Honour Judge Gosnell

Case No: CO/5675/2012

Between:
The Queen on the Application of Redcar and Cleveland Independent Providers Association and Others
Claimant
and
Redcar and Cleveland Borough Council
Defendant

Ms McColgan (instructed by David Collins Solicitors) for the Claimant

Mr Auburn and Mr Potts (instructed by Redcar and Cleveland Borough Council) for the Defendant

Hearing dates: 26 th and 27 th November 2012

His Honour Judge Gosnell His Honour Judge Gosnell
1

The First Claimant is an unincorporated association which represents the interests of its members, who are proprietors and managers of care homes within Redcar and Cleveland. The Second to Seventeenth Claimants are members of the First Claimant organisation. Together by November 2011 they represented 80.64% of the homes for the elderly within the Redcar and Cleveland area which is governed by the Defendant as Local Authority. The Defendant has an obligation to make arrangements for providing or making available residential accommodation for certain adults who are in need of care and attention which is not otherwise available to them, and enters into arrangements with private residential homes for the provision of such accommodation.

2

Residents in care homes can pay their fees personally, or through relatives, or they can have their fees wholly or partly funded either by their Primary Care Trust if they are primarily in need of nursing care, or by the Local Authority if they are not. This dispute centres on the rates which this Local Authority is prepared to pay care homes in its area for residents who are wholly or partly funded by them. The care homes are graded according to quality in four grades with Grade 1 being the highest quality. Supplements are also paid when the residents are categorised as "EMI" (Elderly Mentally Infirm) as such patients will clearly need more care than those who are not. Some residents start out paying their own fees but as their capital declines become entitled to have their fees wholly or partly paid by the Local Authority.

3

Like other Local Authorities the Defendant in this case sets the usual fee they are prepared to pay for different categories of residential home and type of care and review the decision on an annual basis. These proceedings arose as a result of the annual review which took place in March/April 2012 and the Claimant seeks to challenge two decisions: firstly the decision to set the particular rates for 2012/13 effectively reducing the rates below that which they paid the previous year; and secondly the decision to remove from the Defendant's provider list all care home operators who did not agree to accept the Council's new contractual framework by 23 rd April 2012.

4

The Claimant's grounds of challenge are as follows :

Ground 1

That the Defendant has failed or failed properly, contrary to relevant guidance, to assess and to take into account the actual cost of care. In particular, the Defendant:

(i) failed or failed properly to assess and take into account local factors relevant to the provision and cost of care, and

(ii) failed or failed properly to balance these factors against budgetary considerations, but was instead driven purely and to an improper degree by budgetary considerations, as a result of which it is

(iii) unable to demonstrate that the fee rates it has set are sufficient to allow it to meet assessed care needs and to provide residents with the level of care services that they could reasonably expect to receive absent the possibility of any resident or third party contributions.

Ground 2

That in failing to equip itself with knowledge of the actual cost of care, the Defendant has not been in a position properly to assess the risks to care homes and their residents contrary to its obligations under Article 8 ECHR and/or common law.

Ground 3

That in failing to equip itself with knowledge of the actual cost of care the Defendant has been unable to give proper consideration to the longer term financial viability of care homes, despite having stated that this was a consideration to which it had regard in the formulation of the fee rates for 2012/13.

Ground 4

That the Defendant failed properly to consult with care home providers.

Ground 5

That the Defendant may not, consistent with the relevant statutory directions, maintain a closed list of care homes in which it will place residents.

5

The Statutory Framework

The starting-point is section 21(1) of the National Assistance Act 1948, as amended, under which

a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing –

(a) Residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them….

By section 26(1) arrangements under section 21(1)

may include arrangements made with a voluntary organisation or with any other person who is not a local authority where –

(a) that organisation or person manages premises which provide for reward accommodation falling within subsection (1)(a)… of that section, and

(b) the arrangements are for the provision of such accommodation in those premises.

This is the statutory origin of the system under which local authorities fund the care in privately-run establishments of persons who cannot themselves meet the fees charged there.

6

By section 47(1) of the National Health Service and Community Care Act 1990

where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority –

(a) shall carry out an assessment of his needs for those services; and

(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such service.

7

In the exercise of its social service functions, a local authority is required to act in accordance with such directions as may be given by the Secretary of State under section 7A(1) of the Local Authority Social Services Act 1970. An authority must also, by section 7(1) of the same statute, "act under the general guidance of the Secretary of State." Both directions and guidance have been promulgated in relation to the foregoing statutory provisions.

8

The relevant directions are contained in the National Assistance Act 1948 (Choice of Accommodation) Directions 1992, issued on 23 December 1992. The core obligation of a local authority arises where it has assessed a person under section 47 of the 1990 Act and has decided that accommodation should be provided pursuant to section 21 of the 1948 Act. By paragraph 2 of the Directions the local authority shall, in those circumstances,

subject to paragraph 3 of these Directions, make arrangements for accommodation pursuant to section 21 for that person at the place of his choice within the United Kingdom (in these directions called 'preferred accommodation') if he has indicated that he wishes to be accommodated in preferred accommodation.

Paragraph 3 of the Directions limits the core obligation. The local authority

shall only be required to make or continue to make arrangements for a person to be accommodated in his preferred accommodation if

(a) the preferred accommodation appears to the authority to be suitable in relation to his needs as assessed by them;

(b) the cost of making arrangements for him at his preferred accommodation would not require the authority to pay more than they would usually expect to pay having regard to his assessed needs;

(c) the preferred accommodation is available;

(d) the persons in charge of the accommodation provide it subject to the authority's usual terms and conditions.

The cost which the authority usually expects to pay, referred to in (b), is commonly referred to as 'the usual cost.'

9

Statutory guidance was given by the Department of Health in local authority circular, LAC (2004) 20, issued on 14 October 2004. The object of the guidance is set out in a summary at the beginning of the circular:

"This guidance sets out what individuals should be able to expect from the council that is responsible for funding their care, subject to the individual's means, when arranging a care home place for them. This guidance is intended to describe the minimum of choice that councils should offer individuals. Even when not required to act in a certain way by the Directions… councils should make all reasonable efforts to maximise choice as far as possible within available resources."

10

Paragraph 2 of LAC (2004) 20 deals with preferred accommodation. The cost referred to in the 1992 Directions is dealt with in paragraph 2.5.4 of the circular.

"One of the conditions associated with the provision of preferred accommodation is that such accommodation should not require the council to pay more than they would usually expect to pay, having regard to assessed needs (the 'usual cost'). This cost should be set by councils at the start of a financial or other planning period, or in respect to significant changes in the cost of providing care, to be sufficient to meet the assessed care needs of supported residents in residential accommodation. A council should set more than one usual cost where the cost of providing residential accommodation to specific groups is different. In setting and reviewing their usual costs, councils should have due regard...

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3 cases
3 firm's commentaries
  • Care Providers Alert May 2013
    • United Kingdom
    • Mondaq United Kingdom
    • 30 May 2013
    ...Authority Cases R (on the application of Redcar & Cleveland Independent Providers Association) v Redcar & Cleveland BC (2013) (2013) EWHC 4 (Admin) A local authority had acted unlawfully in setting the rates which it was prepared to pay care homes in its area for residents who were ......
  • In Counsel - Care Home Fees – Local Authority Duties Questioned
    • United Kingdom
    • Mondaq United Kingdom
    • 10 May 2013
    .... The High Court decision in R (Redcar and Cleveland Independent Providers Association and others) v Redcar and Cleveland Borough Council [2013] EWHC 4 is available at http://www.bailii.org/ew/cases/EWHC/Admin/2013/4.html The High Court decision in R (Care North East Northumberland) v North......
  • Care Home Fees – Local Authority Duties Questioned
    • United Kingdom
    • Mondaq United Kingdom
    • 13 May 2013
    ...The High Court decision in R (Redcar and Cleveland Independent Providers Association and others) v Redcar and Cleveland Borough Council [2013] EWHC 4 is available at The High Court decision in R (Care North East Northumberland) v Northumberland County Council [2013] EWHC 234 is available at......

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