R Torbay Quality Care Forum Ltd v Torbay Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Lambert |
| Judgment Date | 23 December 2014 |
| Neutral Citation | [2014] EWHC 4321 (Admin) |
| Docket Number | Case No: CO/2027/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 December 2014 |
[2014] EWHC 4321 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Bristol Crown Court
The Law Courts
Small Street
Bristol
BS1 1DA
His Honour Judge Lambert
(sitting as a Judge of the High Court)
Case No: CO/2027/2014
Mathew Purchase instructed by David Collins Solicitors for the Claimant
Charles Bourne QC instructed by Torbay Council Legal Services for the Defendant
Hearing: 2 nd December 2014 at Bristol Civil Justice Centre
I direct pursuant to CPR Part 39 PD 6.1 that no official recording shall be taken of this judgment and that copies of this version, subject to editorial corrections, may be treated as authentic.
Synopsis
This is the substantive hearing of an application for judicial review. The Claimant is an association of independent care home operators and challenges the decision of the Defendant local authority dated 5 February 2014 setting a "usual cost" figure in respect of the costs of care. This figure is the amount which the local authority assesses as the normal cost of providing care services for care home residents. It becomes the figure it is prepared to pay to providers where it is responsible for the costs of care.
In September 2011 the Defendant local authority received an account's report which it later adopted as its fee model for the calculation of the "usual cost" of care. This governed the period 2012–2014. On 23 October 2013 the Defendant proposed to use the same model for 2014–2015 calculations subject to a very small inflationary increase. On 6 November 2013 the Claimant made representations opposing this proposal. Discussions took place and on 5 December 2013 the parties met to discuss the proposal. On 18 December 2013 the Claimant made more detailed representations in opposition. On 5 February 2014 the Defendant made its decision as to the "usual cost" for 2014–2015 which adopted its previous proposal. On 24 March 2014 the Claimant sent a pre-action letter. On 7 April 2014 the Defendant provided its response maintaining the previous decision.
It will be necessary to descend to a further detailed chronology in due course but the above is sufficient for an initial synopsis.
By the time of the hearing before me on 2 December 2014 the parties had narrowed the issues to two grounds:
The Claimant contended:
(1) the model on which the decision was based, specifically with regard to a staffing ratio calculation (staff hours required per patient), was mathematically flawed and was, thus, unreasonable; and
(2) the decision was unreasonable as the model considered top-up fees paid by privately paying residents which were not relevant. This took into account costs in an unlawful manner and was contrary to Government guidance.
The Defendant contended:
(1) there were no mathematical errors. The challenge to the staffing ratio calculation represented no more than a difference of opinion and approach; and
(2) they were entitled to take into account the fees paid by privately paying residents. The duty here was restricted to ensuring that those residents receiving state-funded care were not required to, themselves, top-up fees paid on their behalf.
Proceedings
Counsel both submitted detailed skeleton arguments for which the court was very grateful. I heard argument on 2 December 2014. It will, at times, be necessary to refer to the detailed calculations explored in the skeleton argument and set these out extensively.
The Facts
Frances Mason is the Head of Adult Partnership Commissioning for the Defendant. She is responsible for leading the team of commissioning staff who work jointly with health and care staff to commission design and support services for which the Defendant is responsible. She informs the court that after May 2012 the Defendant in cooperation with a healthcare trust embarked upon a detailed process in order to make a detailed decision as to fee rates. A working group was formed which tried to develop the revised banding structure of which care providers were informed in September 2012.
The services of an external accountancy consultant, Geoff Thomas (now deceased) were secured in order to develop technical aspects of the mathematical model that was developed. On 4 September 2012 all 108 care home providers in the Defendant's local authority area were sent an e-mail asking for copies of accounts and information on staffing levels and ratios so as to inform the model being developed. At a meeting with providers on 6 September 2012 concerns were expressed over providing this information and consideration was given to anonymized responses. An independent team of accountants were engaged to receive the information and to anonymize it prior to its being used by the team producing the model. Only eight sets of accounts were ever received. Of those two were "parent" company accounts which included care homes from other parts of the country. Responses to the questions on staffing were provided by only nineteen out of the 108 care homes despite reminder calls being made to each provider.
None of that would, however, excuse significant error but I place it in the factual part of the judgment to emphasise my ultimate conclusion that whatever the outcome the Defendant was honest and straightforward throughout the process balancing the needs of those requiring care against its duty to ensure that public funds must be properly expended. The Defendant throughout was trying to do the right thing. It recognises that a viable care home market has to be maintained so that it can do its duty and it is largely responsible for funding some parts of that market. The ultimate decision was certainly not approached in a commercial way but with everybody trying to do their duty in difficult circumstances.
I am told that the project team then considered responses received and concluded that the information was not reliable due to the small number of responses and the quality of the information. A decision was therefore made to consult further with those in the sector and to identify alternative sources of information so as to attempt to produce a model on which "usual fees" could be assessed.
The proposed fee rates were notified to providers on 11 October 2014 and there followed a period of consultation. A decision was taken by the full council on 6 February 2013 whereby the model developed was approved. All care home providers were written to on 13 February 2013 notifying them of the decision that had been taken.
The fee levels were therefore set for the period 2012 to 2014. On 15 April 2013 the Claimant's solicitors wrote stating an intention to apply for judicial review of the 2012/14 decision. This was not pursued but it may be important to return to this in due course.
The "usual cost" figure for 2014/2015 then fell to be determined. In order to make best use of staff resources and allow time to plan the changes the Defendant proposed to use the existing model adjusting it for inflation. Inflation figures were garnered from the Office of National Statistics and applied to the existing model to give fee proposals for 2014–2015.
Consultation then took place between 23 October 2013 and 19 December 2013. Various complaints were made about the model and these were considered by the Defendant.
As the lead officer involved in creation of the model Frances Mason sought to be satisfied that each of her assumptions was fair to providers, and consequently to service users. She tells me she is actively aware that other authorities may pay fees in excess of those payable by the Defendant but that she considers the Defendant's model to be "Torbay's model, with assumptions appropriate for Torbay built into it." She points to the fact that in Torbay there is something of an oversupply of residential care (as opposed to nursing care).
Ms Mason is aware that other Directors of Adult Social Services have to consider care home fees also. Local authorities are required to produce a usual cost and this is what the model developed was designed to do. The model was produced after development with that of Devon County Council and with the help of an external accountancy consultant, (Geoff Thomas who developed the technical aspects of the Torbay model having been engaged also by Devon to assist previously the development of their own model).
Ms Mason can, however, provide only limited help as to how the mathematical model was engineered by Mr Thomas (deceased). She can help as to top-up and other fees which were admittedly taken into consideration. Top-up and income derived from private fees and other publicly funded residents were, she says entirely properly, considered as part of the income which a care home can expect. She says they are therefore relevant when quantifying the further income which a care home needs to earn from local authority-funded residents in order to provide a reasonable and sustainable return on capital for a care home provider. The model, she says, takes them into account by assuming that, over time, a home of average size will receive an average quantity of such revenue. However in the creation of the model officers were quite clear that such payments do not affect the day-to-day running costs of the home. Top-up payments are for additional items such as a better room or view or additional services and these are not to pay for care needs properly so-called. The Defendant's "usual cost" covers the cost of care and accommodation (including...
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