Independent social care providers are waiting with baited breath for the outcome of the latest judicial review on council care fees. The case centres on the 2014 Care Act, which set high expectations for care of the most vulnerable in our society. It promised a vision for person-centred, wellbeing-based decision-making when meeting social care needs. This was to be based on a dialogue between public sector commissioners, care providers and service users and their families. The aim was to create a sustainable market for high quality affordable care.
Unrealistic local authority care fees threaten the whole care system.
However, the funding crisis afflicting local government and our NHS is threatening to wipe out this picture. In many cases, local authorities and NHS Clinical Commissioning Groups are making decisions about care based on what they claim dwindling budgets allow. The decisions should be based upon what is fair, adequate and sustainable. As a result, in many areas local care systems are on the brink of collapse. Providers find their business models unworkable because of unrealistically low payments. However, this could change.
So Care England launched Judicial Review proceedings against Essex County Council.
In October 2016, Care England, a national membership body for care homes, declared “Enough is enough”. Care England sought – and received – leave to launch Judicial Review proceedings against Essex County Council. It argues the fee rates Essex offers independent care home providers breach its duties under the 2014 Care Act. These also include a duty to maintain a sustainable market for care. By setting rates “significantly below” the costs of providing care, Care England argues Essex is putting the whole market at risk of collapse. If the courts agree, this could open the floodgates to legal challenges in other localities.
The Essex Judicial Review challenges a New Contract for care placements that took effect on 1 February 2016. According to Care England, a majority of the county’s care providers did not sign up to the New Contract. They claim this was because the rates were unsustainable. The maximum fee levels Essex offered were £401.31 to £538.37 per week for residential care and £420.91 to £577.29 for nursing care. It offered these rates without any enquiry into providers’ actual costs of care. In the case of a 50 bedded care home, Care England calculated the level of underfunding is of an order that would exceed £400,000 per annum in the case of residential care.
This case could set a powerful precedent for many more claims.
It is a story that will be familiar to service users and care providers all over the country. Unsustainably low local authority care rates mean many homes have to turn down publicly funded residents. In other cases, local authorities and even some NHS CHCs are wrongly relying on third-party top up payments to subsidise care.
As a legal firm specialising in the recovery of care fees, Just Caring Legal helps families who are unfairly paying the price for this inadequate funding. We work closely with independent care providers to ensure residents get all the care funding they are entitled to.
Which is why if Care England’s judicial review succeeds, it will pave the way for many more claims. Providers would seek to secure more sustainable rates for care, based on what would be a powerful legal precedent. Additionally, it could change how social care is treated in the UK.
Watch this space!
If you believe you or a relative may be entitled to NHS Continuing Healthcare funding, contact us today.