Care home briefings 119 – Care homes, councils and the Equality Act

Regular readers of our care home briefings will be familiar with the steady flow of judicial review cases from the Administrative Court, mainly relating to alleged failures by local councils to pay proper fees to care home operators. The latest decision, by Judge Milwyn Jarman QC in the Administrative Court in Cardiff, on 7 November 2012, was ‘won’ by South West Care Homes Limited (and others), but only because of their reliance on arguments related to the Equality Act 2010.

The Three Grounds

The application by the claimants to quash the decision of the Devon County Council was made on three grounds. The first was based on the duty on the Council to have regard to the Equality Act 2010 and to comply with its duty to have due regard to the need to eliminate discrimination and/or the need to advance equality of opportunity among elderly and disabled persons (“the equality duty”). It was not disputed that the Council was subject to the equality duty.

The second ground was the alleged failure by the Council to consult properly with care home operators in Devon. This is a well worn ground of complaint in these sort of cases.

The third ground was an allegation of irrationality – again a well trodden path when challenging administrative decisions by judicial review. The care home operators alleged that there were logical flaws in the reasoning behind the council’s decision and they backed this up with an expert’s report from Price Waterhouse Cooper, the accountants.

It is interesting to note that the only ground of complaint that succeeded was that of failure to comply with the equality duty. In this respect, there was argument between the parties regarding the precise nature of the function which the Council was carrying out. The Judge held that the council was reviewing the usual cost of providing residential accommodation for a person assessed under section 47 of the 1990 NHS and Community Care Act. He said that this review was not ‘remote’ from the duty under section 21 of the National Assistance Act 1948 and that the council could not ignore its obligation to have regard to specific equality duties. The Judge held that the council was at fault in this respect because it had paid insufficient regard to the need to eliminate discrimination and to promote equality of opportunity amongst elderly or disabled residents.

With regard to the allegation of failure to consult, the Judge decided that the process of consultation had been a fair one and that the care homes had been given sufficient opportunity to make a meaningful response to the Council’s proposals. This was the case even though the proposals were complex and, apparently, incomprehensible to a number of the care home operators (there had been an open meeting to consider them).

Like the failure to consult argument, the irrationality argument failed also. The Judge said that he was not persuaded that a lack of logic or irrationality had been proved by the claimants. With regard to this item, it is interesting that the claimants suggested that the Devon CC was intending to impose on care homes a rate of return on capital of zero per cent (after the cost of servicing debt was taken into account). This may be contrasted with the judgement in the Mavalon Care Limited case (16 December 2011) when one of the findings was that the care homes had been given no proper opportunity to comment on the Pembrokeshire County Council’s intention to reduce the capital return figure from 12% to 6%.

As mentioned in our Care Home Briefing 114, whether or not the Court grants relief to the claimant is a matter for the court’s discretion.

Inevitably, Devon CC invited the Court to say that the delay since the council’s decision of 3 April 2012 was such that it would not be appropriate for the decision to be quashed and the council asked to decide the matter afresh. However, HHJ Jarman QC decided that the council’s decision should not stand, ‘…having regard to the importance of fulfilling the equality duty in carrying out the exercise upon the council was engaged, and the difficulties in the court attempting to assess what decision may be arrived at once that duty is complied with…’


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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