Council slams legal interpretation of public sector equality duty as it launches appeal over care home fees ruling

Devon County Council is to appeal a High Court ruling that it breached the public sector equality duty when setting care home fees for 2012/13.

The council said it wanted “to draw a line in the sand over future legal challenges and put a stop to ‘excessive, costly and unreasonable bureaucracy’ surrounding the legal interpretation" of the duty.

The local authority has also conducted an extended impact assessment, as required by the court, but has decided not to change its fee structure or levels. It pointed out that the propoals would give an average 8.6% increase to owners of care homes.

Earlier this month HH Judge Milwyn Harman QC ruled in R (South West Care Homes and others) v Devon County Council that Devon had failed to give sufficient consideration to equalities.

The judge rejected two other grounds put forward by the claimants, concluding that the decision on fees was “a rational one which was preceded by a fair consultation”.

The original ruling was hailed by the Equality and Human Rights Commission, which had intervened. The watchdog claimed that the case “confirms that public authorities should consider the needs of older and disabled people when planning their services”.

Confirming the appeal, Cllr Stuart Barker, Devon's Cabinet Member responsible for adult social care, said: “We have conducted a thorough assessment of our fee level decision with regard to fairness and equality and concluded that the current banding structure and fee levels, set using a model that the High Court has fully supported, are fair and should remain unchanged.

“We have also decided to appeal against the High Court's ruling that insufficient regard was made to our equalities duty, because we believe the court's decision was wrong and will result in an excessive, costly and an unreasonable layer of bureaucracy on all local authorities that will divert millions of pounds away from the care of vulnerable people.”

The council claimed in its equality impact assessment that care homes would be paid at a level which enabled them to meet the care and accommodation needs of individuals placed in their homes by the council. It also said that the levels were “correctly banded to reflect the differing levels of need”. 



The EIA insisted that robust plans were in place to ensure the care needs of residents would continue to be fully met should a home choose to close for any reason.

Devon argued that its proposed increases were far higher than those proposed by many other local authorities.

In its appeal, the council will argue that HH Judge Milwyn Harman QC’s ruling was flawed and “failed to acknowledge how the council already complies with its equality duty”.

It claimed that the High Court ruling would add “unprecedented new level of red tape and bureaucracy that could potentially cost the taxpayer millions and divert money from the care of older people”.

Cllr Barker said: “I cannot believe that the public sector equalities duty was ever intended to be interpreted in this way and it is high time a clear line was drawn in the sand to avoid a constant round of needless, costly and ultimately fruitless legal challenges."

Alan Beale of South West Care Homes attacked Devon's decision to appeal the case and to leave the fee levels unchanged.

He told Carehome.co.uk: “Given that Devon has now confirmed it will make no change to its fees, it seems, in our opinion that they are simply not taking account of the needs of people with dementia, despite the judgment, which is disgraceful. The council also seems not to be concerned that its fees are so low that a large number of care homes may close."

Beale added that the decision left the claimants with no alternative but to continue to resort to legal action.

See also: Care home fees and the public sector equality duty by Nicholas Dobson.