Torbay Quality Care Forum Ltd, R (On the Application Of) v Torbay Council

Local authorities setting the usual cost of care must have due regard to the actual costs of providing care, but the guidance does not prescribe a particular methodology. Judicial review does not ordinarily permit the court to reassess complex economic judgments or substitute its own view. However, where an authority chooses a mathematical model, the model must be logically coherent and free from significant, inexplicable error. A local authority must also follow relevant guidance unless it identifies and articulates a good reason for departing from it. Taking private fees and third-party contributions into account in the cost analysis, contrary to the express terms of the guidance, may constitute a significant public law error.

The claimant, an association of independent care-home operators, sought judicial review of Torbay Council’s decision of 5 February 2014 setting the usual cost of residential care for 2014–2015.

The challenge concerned two issues. First, the claimant alleged that the staffing-ratio calculations in the council’s mathematical model were irrationally and materially wrong. Secondly, it alleged that the council had unlawfully taken account of private fees, third-party top-ups and other income streams when assessing the cost of care. The council relied on the flexibility allowed by the guidance and on the need to make an economic assessment within its specialist judgment.

1. Judicial review approach. The court adopted the principles requiring the decision-maker to ask the right questions, take account of material considerations, exclude immaterial considerations, and reach a reasoned and rational decision. Decisions concerning the manner and intensity of inquiry, and the weight given to relevant factors, ordinarily belong to the local authority. The court must be particularly cautious before reviewing complex economic and technical assessments.
2. Mathematical model. The authority was entitled to choose a mathematical model, and the court was not required to substitute the claimant’s preferred calculation. Nevertheless, the model contained an inexplicable weighted average which produced a materially deficient staffing figure. The weighting had no reasonable application and no satisfactory explanation. A decision-maker adopting economic modelling cannot rely on a model so fundamentally flawed that no reasonable decision-maker could properly take it into account.
3. Private income streams. The guidance required the authority to set a usual cost sufficient to meet assessed care needs without relying on resident or third-party contributions. The authority’s approach treated private fees and related income as part of the revenue available to care homes. That failed to give proper effect to the guidance and did not amount to due regard to actual costs. The reasoning in South Tyneside Care Home Owners Association and Others v South Tyneside Council was persuasive on the similar facts.
4. Relief. The court declined to withhold relief under section 31(6) of the Senior Courts Act 1981. The delay was not undue and the administrative inconvenience was not exceptional. The council’s decision was quashed and remitted for further consideration and redetermination of the applicable rate.

First-instance judicial review proceedings. The judgment does not state any earlier appellate decision in this litigation.