Care England, R (on the application of) v Essex County Council

A local authority’s duty to promote an efficient and effective care market is a general public law duty. It does not give care providers an individual right to particular fees. The authority must have regard to market sustainability, but may also consider affordability, value for money, competition and the need to avoid excessive fees. The duty does not prescribe a minimum fee or require every source of provider cost to be addressed. The intensity of the inquiry is generally for the decision-maker. Statutory guidance must ordinarily be followed, subject to departure on admissible grounds, but the court need not resolve the extent of any restriction on substantial deviation where the challenge fails on other grounds.

Care England, a charity and representative body for care-home operators, sought judicial review of Essex County Council’s decision on 22 July 2016 to increase some residential and nursing-care fees. Four grounds were permitted: breach of Care Act 2014 section 5, failure to follow statutory guidance, inadequate consideration, and Wednesbury unreasonableness. The inadequate-consideration ground was accepted to add nothing to the first two. The central issues were whether the Council had complied with its duty to promote an efficient and effective care market, including the duty to have regard to market sustainability, whether it had unlawfully departed from the Secretary of State’s guidance, and whether the fee increase was irrational.

1. Section 5 duty. The claim was dismissed. Section 5(1) imposed a general duty to promote the efficient and effective operation of the care market for the statutory benefit of people seeking care. It conferred no specific right on individual providers to receive particular fees. Promoting efficiency could include avoiding fees that were too high, while sustainability could support avoiding fees that were too low.
2. The Council had to have regard to all seven matters listed in section 5(2), including sustainability. The words “in particular” did not make sustainability the overriding or most weighty consideration. The Council had obtained information through its reports, market experience and provider engagement, and had demonstrably considered sustainability. The court would not prescribe the manner or intensity of the inquiry.
3. Guidance. The Council’s dealings with providers and the New Framework tender exercise supplied evidence that its fee levels were appropriate to deliver agreed care packages at the required quality. Evidence of few closures, particularly few closures for financial reasons, was potentially relevant, although its weight was for the Council. The guidance concerning personal budgets did not materially assist the challenge because it concerned other statutory provisions and there was no evidence that individual needs were not being met.
4. The court rejected the contention that the guidance required fees to equal the estimated figures in the Cost of Care Report. Those figures were based on assumptions and estimates and included profit and returns, rather than establishing a minimum fee below which the market was unsustainable.
5. Irrationality. The court could not determine on judicial review evidence what level of increase was necessary, if any, to satisfy section 5. The Council could balance sustainability against affordability, competing duties, resource limits, value for money and competition. It was not irrational to choose a limited increase addressing the National Living Wage rather than every financial pressure. The application for judicial review was dismissed.

First-instance judicial review. The judgment does not state any prior appellate decision.