Social Care News

23rd December 2010

Vital care home services saved by landmark legal ruling

A Welsh council is being forced to recalculate the fees it pays to four care homes in Pembrokeshire after a landmark legal ruling.

At the High Court in Cardiff, a judge said that the way the fees paid by Pembrokeshire County Council were worked out was both “irrational” and “unlawful”.

It emerged that that council had not adhered to the legal guidance issued by the Welsh Assembly Government.

The council was also criticised because it did not have a strategic plan in relation to providing social care services.

The judgement came at the end of a Judicial Review in December 2010 secured by the homes’ owners who claimed the council were guilty of “chronically underpaying” the fees.

Interim costs of £85,000 were awarded against the council.

Experts say the judgement sets an important precedent for service users and care homes across Wales whose services may be at risk as a result of underfunding by their local authority.

During the case, the council admitted it had made mistakes in the way it worked out the fees which they set at £390 per week for the residents of independently run care homes.

They were also criticised by the Judge for a lack of written records or documentation relating to the meetings when the decisions were taken.

The Judge quashed the council decision to set the fee level at £390 per week and directed them to re-take the decision about the fees for 2010-11, by 31 January 2011. 

The Council will now have to take account of the judge’s rulings on the process used by the council to determine the amount they were originally prepared to pay to Pembrokeshire Care Homes.

Among the key issues in the case were:

1. Whether the Council could pay care homes less than the true cost of providing the care and accommodation

2. Whether smaller homes should be supported financially if their services were needed, even though they cost more to run than larger homes

3. Whether the Council could decide to reduce the standard of care required, in order to save money

4. What factors need to be taken into account, and how much needs to be recorded, when the Council makes a decision about fees

5. How much of that detail must be made available to care homes and even residents (or their representatives)

The four homes at the centre of the hearing were Pen-coed, in Saundersfoot, Langton Hall, in Fishguard, Woodfield Care Home, in Narberth and Woodland Lodge, in Tenby.

All of them have received excellent ratings from the care homes regulator, Care and Social Services Inspectorate Wales (CSSIW).

Closure would have meant the 86 elderly and frail residents having to move elsewhere.

The judge has now ordered the council to re-set the fees before the end of January using the Welsh Assembly Government’s official commissioning guidance

The judgement came as a huge relief to Mike Davies and Sue Mason, the directors of the four homes.

Mr Davies said: “Our over-riding concern from the outset has been the need to provide high quality, sustainable services for the people for whom we provide care.

“The judgement has therefore come as a huge relief for all concerned, most importantly for the residents of the four homes involved in this case and the dedicated staff who look after them.

“We would like to thank the relatives of our clients and members of the community who have shown immense support. It was greatly appreciated and helped sustain us throughout this difficult and time-consuming legal process.

“When the council come to consider resetting the fees by the end January, we hope that they are set at a level that enables the homes to carry out essential repairs and to plan for the future, safeguarding high quality care homes for the people of Pembrokeshire.

“In the meantime, we will continue to work hard over Christmas and the New Year to provide the best possible care for our residents whose welfare is paramount.”

The judgement was welcomed by Care Forum Wales, the social care sector’s main representative body in Wales.

Senior Policy Officer Barry Latham said: “We are pleased that the judge has ordered the council to retake its decisions about fees for 2010-11.

“This must come as a great relief to the residents and their relatives who have been extremely concerned about the impact which the closure of the homes would have had on their well-being and ability to keep in touch with their friends and relatives.

“Hopefully, the council will now set a realistic fee that will enable the homes to meet all their legal obligations, maintain and improve services for the residents and attract and retain good staff.”

It also sets an important precedent for service users across Wales whose services may be at risk as a result of underfunding by their local authority.

“It is a matter of great regret that the owners of the care homes have had to resort to judicial review proceedings to resolve this matter which they tried unsuccessfully to resolve by negotiation. In the end they felt that this was the only course open to them to protect their residents from the threat of closure of the homes.

“The Pembrokeshire judgement sets an important precedent with regard to the approach which other Authorities in Wales adopt to fee setting. It is now clear that it is no longer acceptable for authorities to adopt an arbitrary approach to determining the amount they are prepared to pay for care services.

“The Welsh Assembly Government issued statutory guidance in 2003, which it updated and expanded in 2010, and yet local authorities all over Wales have largely ignored the guidance.

“The judgement makes it quite clear that this can no longer continue and councils must do what the Government has said they must do.

“At a time when there is an ever increasing need to provide high quality, cost effective services, we firmly believe that the independent sector is an important partner for local authorities and we hope that the sector can now move forward with a partnership rather than confrontational approach.”

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