levels of trust and shared experience between CCGs and local authorities One key attribute of HWBs is their broad membership, and the potential they have as a result to overcome some of these challenges. There has been significant recent debate surrounding the potential for HWBs to develop into joint commissioning decision makers, and the extent to which devolution could behave as a catalyst for change, giving HWBs increased authority and flexibility, accompanied by a greater degree of direct accountability. Risks of challenge to commissioning activity Challenge under Public Contract Regulations 2015 Commissioning processes to which PCR 2015, SI 2015/102 (see above) apply will be potentially subject to procurement challenge. Challenge under judicial review With a large number of legal requirements to fulfil, there is considerable scope for commissioning decisions to be challenged by way of judicial review, including: ● decisions about the way in which services are to be specified and delivered ● failures to operate a fair process, eg: ● a failure to consult on changes to service delivery ● unfairness in the process of prioritising services to be provided, or ● unfairness in the process of selecting a provider ● failure to: ● act within the scope of the relevant statutory provisions ● have regard to relevant guidance, or ● comply with other general public law principles Case law arising from challenges to local authority decisions on fees to be offered to providers of residential care homes determined that the commissioning process was subject to public law requirements even though the process concluded with the formation of a contractual relationship between the authorities and the providers (see in particular R (on the application of Forest Care Home) v Pembrokeshire County Council [2010] EWHC 3514 (Admin)). The risk of challenges is likely to increase as authorities and providers get to grips with the CA 2014, as it has created new grounds of challenge, given the: ● new duty imposed by CA 2014, s 5 (see above), and ● focus on high quality, sustainable service provision While financial pressures on authorities may make it difficult for them to fully meet the expectations created by CA 2014 and the statutory guidance. The majority of the CA 2014 has been brought into force, although there are still some provisions which are yet to come into force or are only partially in force, particularly relating to caps on care costs. The risk of challenges could increase further still when these remaining provisions are brought into force. This article was by produced by LexisPSL Local Government in partnership with Ros Ashcroft of DAC Beachcroft and Penny Rinta-Suksi of Blake Morgan LLP. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL. Adult Social Care 2017 LocalGovernmentLawyer 30