Watchdog hails High Court ruling on care home fees and equalities

The Equality and Human Rights Commission (EHRC) has hailed a High Court ruling that a county council failed to discharge the public sector equality duty when setting fees payable to care home providers.

The watchdog also revealed that it is to carry out a review of how local authorities commission their home care services.

The EHRC, which intervened in R (South West Care Homes and others) v Devon County Council, said the case “confirms that public authorities should consider the needs of older and disabled people when planning their services”.

The claimants, a group of care home providers, brought judicial review proceedings over the fees Devon proposed paying (a 6.6% increase), saying they could lead to homes being shut.

The judge ruled that the county council had breached its equalities duties in its assessment of the impact of its funding decision, and in particular in relation to the impact of potential home closures.

According to the EHRC, Devon believed that it had completed sufficient assessment under The National Assistance Act 1948, but it should also have considered the public sector equality duty.

However, the judge dismissed the claimants’ other two grounds. These were that the model Devon used to calculate fee levels was flawed and unreasonable, and that the authority had conducted a flawed consultation.

The judge said the decision on fees was “a rational one which was preceded by a fair consultation process”.

The county council has undertaken to conduct a more detailed equalities assessment and take any specific findings into account. This may, or may not, result in a change to fee rates, it said.

The review of commissioning by the EHRC follows an inquiry into the provision of care to older and disabled people in their own homes. This concluded that older and disabled people were suffering breaches of their human rights “due to the poor level of care they received, with some authorities not having properly considered the needs of vulnerable care users when commissioning and reviewing the service they provided”, the watchdog said.

John Wadham, General Counsel at the Commission, said: “This is an important case for all authorities to take note of as our population ages and with people acquiring disabilities in later life who may come to rely on care and support.

“We recognise that local authorities and care providers are under financial strain at the moment; using equality duties properly is a way to ensure that spending is targeted in the most efficient way possible to advance equality of opportunity and eliminate discrimination.”

Guidance from the EHRC on the public sector equality duty is available here.

The Commission added that the European UN Convention on the Rights of Persons with Disabilities was also cited as a factor in the ruling. For more information, click here.

Philip Hoult