Devon care homes could still be at risk despite winning fees battle

Care homes in Devon could still face closure, despite winning a court battle to get Devon County Council to raise its fees.

A group of Devon care home providers has just won a second Judicial Review action against Devon County Council over its fee rates for the 2012/13 financial year.

The council had set an increase of 6.6 per cent for 2012/13.

Devon Quality Care Forum, which represents more than a hundred care homes across Devon, were successful in their argument that Devon County Council failed to meet its public sector equality duty and properly consider how its actions would impact on vulnerable groups such as people with dementia.

However the court did find in favour of Devon County Council on two of the three challenges: the way in which it calculates its fees is rational and fair and that it consulted properly with care home owners. The judge at the Administrative Court in Cardiff ordered Devon County Council to pay a third of the complainants’ costs.

Alan Beale, managing director of South West Care Homes, one of the claimants in the case claims around 25 care homes could close if Devon County Council does not increase its fee rates.

He said: “We are very happy with the outcome. But this is a case that we should never have needed to bring. Worryingly, it is the second time this year that we have needed to take legal action to protect the vulnerable elderly people in our care homes, and the second time a court has declared that Devon County Council (DCC) has acted unlawfully when setting its fees for their care. It is a concern that the council does not seem able to conduct itself in a lawful way when it comes to protecting elderly and vulnerable people.

“We brought this action reluctantly, because we were extremely concerned for the welfare and safety of the vulnerable people in care homes in Devon. We felt that DCC’s proposed fees put frail elderly people at serious risk and that the council was not taking steps to protect them.

“Because of our very serious concerns we asked the Equality and Human Rights Commission (EHRC) to intervene in the case, and try to ensure that our residents are protected. Although DCC submitted a written objection, fortunately the Court decided to allow EHRC’s intervention and so benefited from its advice on equality and human rights laws.”

He added: “We very much hope that when DCC reconsiders the fees it now acts lawfully, so we do not need to bring a third legal challenge to protect our residents.”

Mei-Ling Huang, a partner at QualitySolicitors Burroughs Day, which acted for the care home providers said: “We hope that this case will properly refocus the minds of local authorities on the elderly people for whom they are tasked with the provision of social care.”

She added: “My firm has been involved in fees negotiations on behalf of social care providers throughout England and we have found that without resort to litigation, it is very difficult to convince local authorities that the sector cannot continue to bear the increasing costs of providing care without there being a negative effect on the quality of care.”

Devon County Council has said it will carry out a more detailed equalities assessment, before deciding whether it makes any difference to the fee levels.

Tim Golby, the council's lead on social care commissioning, welcomed “the Court’s ruling that the way we calculated this year’s 6.6 per cent fee increase was fair and appropriate.

“The judgement shows clearly that the model we used was rational, took into account the level and quality of care, and that we consulted widely before implementing the decision.

"We are however very disappointed the judge felt that we did not pay enough regard to equalities legislation and that we had not properly considered the impact of home closures when setting fees.

“We firmly believe that assessing and meeting the needs of vulnerable elderly people in a fair way is integral to everything we do and always at the forefront of our thinking.

“We also have a good record of working with homes at risk of potential closure to ensure residents are not disadvantaged in any way and are fully protected.”

Councillor Stuart Barker, cabinet member responsible for adult social care in Devon added: “The council relies on private providers to deliver the vast majority of residential care for older people across Devon who are eligible for the council's support.

“We know that some home owners are feeling the pinch but like everyone else over the last few years they have needed to become more efficient.

“We also understand the pressures on the market and that is why, after consulting widely, we decided to substantially increase fees by an inflation busting 6.6 per cent this year.

“Care home businesses can and will fail for many reasons including quality and a failure to attract private customers.

“We try to set our fees at a fair level so that efficient homes are sustainable but we have a clear duty to use public money wisely. “We also need to make sure we are buying only the right kinds of services and care packages to meet local needs.”

“I sincerely hope that this ruling means we can now all move on and get back to working together to provide for Devon’s growing numbers of older people instead of wasting valuable time and money on expensive legal action.”

This is the second Judicial Review involving the Devon Quality Care Forum, following a court case in May this year at which a High Court judge granted relief to the claimants in the form of a declaration that DCC had acted unlawfully by failing to consult properly with providers when making its decision to freeze care home fees for the second year in a row for 2011/12.

The members involved in the Judicial Review proceedings are: South West Care Homes Ltd which owns and operates six care homes, two of which are in Devon County Council’s administrative area.

South West Residential Homes Ltd (a wholly-owned subsidiary of South West Care Homes Ltd) which owns and operates four care homes, two of which are in Devon County Council’s administrative area.

Forde Park Care which owns and operates two care homes within Devon County Council’s administrative area.

Chartbeech Ltd which owns and operates two care homes within Devon County Council’s administrative area.