"There is no money" to pay for shortfall in care home fees, says Sefton Council

Sefton Care Association has been told, “there is no money” to pay for the shortfall and backdating of care fees that were frozen by Sefton Council, in contravention of a High Court ruling that says, “no money is not an excuse”.

Members of Sefton Care Association met with Care Minister Paul Burstow, John Pugh MP, Sefton Borough Council chief executive Margaret Carney and other officials in Westminster. Before SCA could put their case, they were told there was no money.

Dan Lingard of Sefton Care Association said: “As soon as that was said we realised that not only was our meeting a waste of time, but also that the situation had not been properly researched.

“As the meeting was conducted under Chatham House Rules, we can’t say who said there was no money – but it was said nevertheless.

“Sefton Council has already defied a High Court ruling and told care home owners and the borough’s vulnerable that it will be freezing care fees for both 2011/12 and 2012/13, a dispute which led to SCA committee members being invited to Westminster to discuss the issue.

“But it’s clear there was no intention of arriving at any sort of a conclusion in that meeting which would be of any benefit to people needing care, or care home owners and operators – especially when we were told ‘there’s no money’.

“But what people in the meeting seemed to have lost sight of is that the High Court ruling in November 2011 said that lack of resources is no excuse for not fulfilling care obligations.”

In paragraph 90 of the ruling, His Honour Judge Raynor QC, sitting as a judge of the High Court, quoted an earlier precedent and ruling: “In paragraph 46(2) of his judgment in the Forest Care Home case, Hickinbottom J stated: ‘In deciding whether a person is in need of care and accommodation, an authority is entitled to have regard to its own limited financial resources. However, having set that threshold and found that a particular person surpasses it, an authority is under an obligation to provide care and accommodation in fulfilment of its section 21 obligations (under the National Assistance 1948), which is a specific duty on the authority owed to an individual, not a target duty: lack of resources is no excuse for non-fulfilment of that obligation…’

“The Claimants (Sefton Care Association) submit that the evidence in this case shows that the decision to freeze fees was taken for budgetary reasons alone or at least to an improper extent, without there being any attempt to balance other factors against the need for financial savings.”

Dan Lingard of Sefton Care Association commented: “In other words, no money is not an excuse – care obligations must be fulfilled, and they are not being fulfilled by a freeze in care fees, which, given inflation and other factors, means that not only have care fees been frozen – they’ve actually fallen.”

Judge Raynor ruled that Sefton Council should not have frozen 2011/2012 payment levels to elderly people in care in the borough, and that it did not pay due regard to the actual cost of care in making its unilateral decision.

He directed Sefton Council to enter into consultation with local care homes, and to reassess care payments for the 2011/2012 financial year – and establish the actual cost of care by which care fee rates could be set.

Sefton Care Association say that Sefton Council not only ignored the February 9, 2012 deadline to respond, it has also said it will freeze care fees retrospectively, and for the 2012/13 financial year as well – meaning that care fees have been static despite the Retail Prices Index rising nearly 12% in the three years since care fees were last increased.

The Court also took into account evidence from the Laing and Buisson “Fair Price for Care” costing model and a report that Laing & Buisson had prepared in relation to fees paid in Wirral, which is close to Sefton.

The Court stated that Sefton Council was not obliged to follow the Laing and Buisson materials, but it did take them as evidence that the fees being paid by Sefton Council might not be sufficient to meet the actual costs of care.

A spokesman for Sefton Council said: "The original High Court judgement did not say that Sefton Council made the wrong decision.

“The Judicial Review case and judgement were about the decision making process and not the actual decision made.

“The judgement actually recognised our consideration of the balance, between the level of care people should expect, and the appropriate cost to the Council Tax payer. It also showed that we gave proper regard to Equality in our decision making.

"Since the judgement we have engaged with all care homes in Sefton in order to try to gain a better understanding of the actual costs of providing residential care in the borough. There are more than 140 care homes in Sefton and we believe there is a very wide range of actual costs for providing care.

"In February we provided Sefton Care Association with an extensive list of questions about the Laing and Buisson report and its findings. To date we have not been provided with any answers.

"We have now shared our proposals for care home fees for 2011/12 and 2012/13 and are now consulting on them.

"Sefton is not the only local authority in this position as many others face similar challenges. Our priority has, and always will be, to provide high quality services for the most vulnerable residents in the borough and we will continue to work with all care providers in order to achieve that."