South West Care Homes Ltd, R (on the application of) v Devon County Council

A public authority required by statutory guidance to have due regard to the actual cost of providing care must take that matter into account, but need not adopt a particular costing model or reach a particular result. The weight given to relevant factors is for the decision-maker, subject to irrationality review.

Where consultation is required by a past practice or legitimate expectation, it must occur while proposals remain formative, provide sufficient reasons and time for an intelligent response, and be conscientiously considered. A meeting which gives no genuine invitation, timetable or mechanism for wider responses may be inadequate.

A breach of consultation does not automatically lead to quashing. The court may refuse that remedy where it would harm good administration, but may grant a declaration.

Care home providers challenged Devon County Council’s decision to make no increase in the fees paid for placements during 2011/12. They alleged failure to have due regard to the actual cost of care under statutory guidance, failure to assess risks to care quality and residents’ rights, and failure to consult providers.

The Council accepted that its established practice gave rise to a duty to consult. The claim was heard after permission had been granted on reformulated grounds. The central issues were whether the decision-making process complied with the statutory guidance and consultation duty, and what remedy was appropriate.

1. Ground 1 dismissed. The Council had due regard to the actual costs of providing care. The evidence showed consideration of inflationary pressures, local costs, provider views, alternative costing models and comparative information. The statutory guidance imposed a duty to have due regard, not a duty to achieve a particular fee level or to use the Laing and Buisson model. The weight given to competing factors was for the Council, absent irrationality: [2012] EWHC 236 (Admin); [2008] EWCA Civ 141.
2. Ground 2 dismissed. The Article 8 issue was not decided because it was not pursued and was unnecessary to the result. The claimants could not directly rely on Convention rights unless they were victims under section 7(1)(b) of the Human Rights Act 1998. The court nevertheless accepted that human-rights considerations might in principle be relevant in public-law decision-making. The alternative irrationality argument added nothing to ground 1 and the Council had given sufficient regard to the indirect impact on residents.
3. Ground 3 succeeded. The Council’s past consultation practice generated a legitimate expectation of consultation: [1985] AC 374. Lawful consultation required proposals to remain formative, sufficient reasons for an intelligent response, adequate time, and conscientious consideration of responses: [2001] 1 QB 213. The February meeting contained no genuine invitation to advise, no identified consultation process, no adequate mechanism for wider participation and insufficient time. The essence of consultation was a genuine invitation to give advice and genuine receipt of that advice: [1986] 1 WLR 1.
4. The court rejected the argument that consultation would have made no difference. The Council would have had to show that the decision would inevitably have been the same: [2006] 1 WLR 3315; [1990] IRLR 344.
5. The claim succeeded to that limited extent. The decision was not quashed because the financial year had ended, the consequences for third parties and administration would be substantial, and the claim had become stale. A declaration was granted that the Council had unlawfully failed to consult. The Council was ordered to pay half the claimants’ costs, subject to detailed assessment, with an interim payment of £40,000.