CARE HOME FEES

June 10th, 2024 by James Goudie KC in Social Care

R (CARE NORTH EAST NORTHUMBERLAND) v NORTHUMBERLAND COUNTY COUNCIL (2024) EWHC 1370 (Admin) is about weekly fees paid by a local authority to care home operators. The Claimant is an unincorporated association of whom 24 of Northumberland’s 70 care home operators are members. The case features the interrelationship between the following: (1) a local authority’s general statutory duty of promoting diversity and quality in the provision of services (Care Act 2014 s.5) and applicable Statutory Guidance (2014 Act s.78); (2) central Government’s statutory power to pay conditional local authority grants; (3) provisions within an agreement (“the 2021 Agreement”) between a local authority and a care home operator; and (4) basic public law duties including legally sufficient enquiry and legally adequate reasons. This case also features an important distinction between fee level sufficient (a) to cover inflationary cost increases and (b) to sustain the efficient and effective operation of a care home market. The 2021 Act Agreement was a contract between the Defendant (“the Council”) and each relevant care home operator. It is an SP Contract Arrangement as described in the Statutory Guidance. It addresses the relationship between the Council and the care home operator, as to placements of individuals in care homes. It came into effect on 1 April 2021 and governed by a three-year relationship. It included an annual fee revision. The weekly fees had two elements. Element A was staffing costs. Element B was non-staffing costs.

By s.5(1) of the 2014 Act, Parliament imposed the general duty on a local authority to “promote the efficient and effective operation of a market in services for meeting care and support needs with a view to ensuring that any person in its area wishing to access services in the market has “three things: (a) “a variety of providers to choose from who (taken together) provide a variety of services”; (b) “a variety of high quality services to choose from”; and (c) “sufficient information to make an informed decision about how to meet the needs in question”. As a general duty (or target duty), this does not confer individual rights, but it is nevertheless capable of enforcement in an individual case.

By s.5(2)(d) of the 2014 Act, Parliament required a local authority, in performing that general s.5(1) duty to “have regard … in particular” to “the importance of ensuring the sustainability of the market”, both “in circumstances where it is operating effectively”, and also “in circumstances where it is not”. This mandatory relevancy has been described as the “sustainability factor”.

In the context of local authority care home placements and fee rates, notwithstanding that these rates are included within contracts between the local authority and the care home provider, conventional grounds for judicial review apply to a decision about fee increases, where sufficiency to sustain the efficient and effective operation of a care home market is legally relevant. This is a public function. Parliament has imposed important statutory duties, in the general duty (s.5(1)) and the mandatory relevancy of the sustainability factor (s.5(1)(d)). Parliament has provided (s.78) for Statutory Guidance for local authorities to follow (absent good reason for departure). That Statutory Guidance itself recognises SP Contract Arrangements, and decisions about fee levels in SP Contract Arrangements, as an important means of implementing and discharging the statutory duties. Fordham J said, at para 38:-
“There is then this question. How does the content of the provisions within an SP Contract Arrangement fit alongside the contextual shape of the conventional grounds for judicial review. The principled position is this:

(i) The contextual application of conventional judicial review grounds can be informed by the contents of an SP Contract Arrangement. This cuts both ways, where the agreement makes express provision for the local authority’s decision-making approach is settling care home fees. First, the judicial review court may need to ensure that conventional judicial review standards – contextually applied – do not go beyond an express provision for the local authority’s decision-making approach. Secondly, the judicial review court may need to ensure that conventional judicial review standards – contextually applied – do not fall short of an express provision for the local authority’s decision-making approach. No more; but no less…

(ii) If a local authority chose a policy or a strategy or a scheme or even write letters, if it gave clear and unambiguous and qualified representations as to what it would do, these would inform the conventional grounds for judicial review. Public law recognises the difference that a promise can make, through the principles of legitimate expectation…”

Fordham J said, at para 52:-
“In my judgment, a claim for judicial review which asks a judicial review Court to quash a decision as to local authority fees, decided as an allocation of local authority resources in the run up to a budget for a new financial year, should be challenged with (a) high degree of promptness and (b) a request for heavy expedition. Then, if the local authority slows down the process – because of its position in a letter of response or because it insists on a long time for a response or because it insists on a separate permission stage at which it fails to administer a clean knock-out blow – it brings any problems on itself if the proceedings are delayed. The rule of law applies to budget related decisions. The Administrative Court has mechanisms for expedited cases. Permission for judicial review can be refused in relation to some remedies and not others.”

None of the grounds of challenge succeeded.

 

TREE PRESERVATION

June 7th, 2024 by James Goudie KC in Planning and Environmental

In R ( WELLINGBOROUGH WALKS ACTION GROUP ) v NORTH NORTHAMPTONSHIRE COUNCIL ( 2024 ) EWHC 1225 ( Admin ) the Claimant challenged the Council’s failure to prevent a developer from felling protected trees. The Claimant sought to quash the Council’s decision that the felling was “ necessary to implement a planning permission “, and therefore within the exception in the Town and Country Planning ( Tree Preservation ) ( England ) Regulations at Regulation 14 ( a ) ( vii ) to the general rule, in Regulation 12, that consent would be required to cut down a protected tree. The Court held that the developer who had held the protected trees in preparation for the construction of an access road to a major development could not rely on the exception. Regulation 14 ( a ) ( vii ) provided an exception only where the felling was necessary for the development. The developer had not complied with a planning condition requiring it, before the access road was begun, to submit a plan identifying all existing trees and what measures would be employed to protect those that would be retained. The wording of the exception connoted nothing more nor less than the concept of it being necessary , as an immediate requirement, to undertake work to protected trees to make it possible to carry out development for which planning permission had been granted or was deemed to be granted.

The overall statutory scheme was one where Tree Preservation Orders are complementary to planning control. A key task when considering how the exception applies is to understand what was permitted by the planning permission. To the extent that what was permitted necessarily involved the loss of trees the exception will apply. To the extent that the planning permission could be carried out in a way that did not necessitate the loss of trees the exception is not available it is a key step in the analysis properly to construe the permission.

 

OPEN SPACE

June 7th, 2024 by James Goudie KC in Land, Goods and Services

In R ( WILKINSON ) v ENFIELD LBC ( 2024 ) EWHC 1193 ( Admin ) it is held that the Council was entitled, under Section 123 of the Local Government Act 1972 ( LGA 1972 ), to grant a 25 year lease of part of a park in its area to a professional football club, and to do so freed from a trust for enjoyment by the public under Section 164 of the Public Health Act 1875 ( the1875 Act ). The Council had a wide power under Section 123 of LGA 1972. However, for land forming part of an open space it had to fulfil the requirements of Section 123 ( 2A ) before it could lawfully dispose of such land under Section 123 ( 1 ). Conversely, having fulfilled those requirements, it could, as a result of Section 123 ( 2 B ), dispose of such land freed from any trust arising solely by virtue of the land being held in trust for the enjoyment of the public under Section 164 of the 1875 Act.

 

ENFORCEMENT NOTICE

June 5th, 2024 by James Goudie KC in Planning and Environmental

Section 285 of the Town and Country Planning Act 1990 relates to the validity of enforcement and other notices. In BARKING & DAGENHAM LBC v Aziz ( 2024 ) EWHC 1212 ( Admin ) Fordham J holds that even though an enforcement notice has been registered it is still open for a finding to be made that a defendant could not reasonably have been expected to know that the enforcement  notice had not been issued.

 

LICENCE CONDITIONS

June 5th, 2024 by James Goudie KC in Housing

In NEWCASTLE CITY COUNCIL v ABDALLAH ( 2024 ) UKUT 140 ( LC ) the Upper Tribunal ( Lands Chamber ) rules that Section 233 of the Local Government Act 1972, on service of notices by local authorities, applies to aa authority’s request for information to be provided in compliance with licence conditions under the Housing Act 2004.

 

ELIGIBILITY FOR HOUSING ASSISTANCE

June 5th, 2024 by James Goudie KC in Housing

In FERTRE V VALE OF WHITE HORSE DC ( 2024 ) EWHC 1234 ( KB ) the Court refuses the authority’s application to strike out an appeal against its decision that an EU national was not eligible for housing assistance. She had made a second application, based on changed circumstances. She had conceded that she was no longer homeless. She had not abandoned her appeal. It was not an abuse of process. It was not academic. If there had been error of law during the initial application the applicant would have the enduring benefit of a determination of threshold eligibility for assistance. Also there was a public interest in the point in issue.

The points of principle are that ( 1 ) the mere fact of making a fresh application does not automatically or impliedly constitute the abandonment of a prior application subject to an extant appeal; A successful fresh application might render the appeal pointless, and liable to be struck out as academic, but it could not, without some clear expression of interest or unequivocal conduct, amount to an abandonment of the appeal; ( 3 ) When there is a change of circumstances the Court has to consider whether the appeal has become academic; ( 4 ) A risk of future homelessness could be a sufficient interest such that an appeal is not academic; and ( 5 ) a point in issue can be of considerable public importance with broader ramifications where the legal issues are of wider significance affecting most income-related welfare benefits which could affect a large cohort of EU nationals.

 

PLANNING CONTROL POWERS

May 28th, 2024 by James Goudie KC in Planning and Environmental

Where the land meets the sea, the planning control powers conferred on LPAs by TCPA 1990 extend to the foreshore, but do not extend below the mean low water mark. So held by Holgate J in R ( PARKES ) v DORSET COUNTY COUNCIL ( 2024 ) EWHC 1253 ( Admin ).

 

LIABILITY FOR NEGLIGENT OMISSION

May 23rd, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

GREAT LAKES REINSURANCE v RAV ( 2024 ) UKPC 11 revisits when there is a duty of care in the tort of negligence with respect to an omission to confer a benefit. Restrictive principles going beyond foreseeability and proximity must be applied : para 20. One of the recognized exceptional principles must be established : para 21. Liability may be based on a relevant ASSUMPTION OF RESPONSIBILITY, referring to N v POOLE BOROUGH COUNCIL ( 2020 ) AC 780, and to HXA v SURREY COUNTY COUNCIL, YXA v WOLVERHAMPTON CITY COUNCIL ( 2024 ) 1 WLR 335, where claims for failing to protect children from abuse were struck out for lack of any assumption of responsibility.

 

FAIRNESS

May 22nd, 2024 by James Goudie KC in Decision making and Contracts

In ESCOBAR v SSHD ( “)”$ ) EWHC 1097 ( Admin ) it is held that whereas an administrative decision cannot have legal effect unless and until it has been communicated to the individual in question, a decision could have effect where notification had been provided, but the individual, for whatever reason, had not read it.

 

AGGREGATION of DWELLINGS in MULTIPLE OCCUPATION

May 22nd, 2024 by James Goudie KC in Council Tax and Rates

In R ( HOWARD GARDENS MANCO LTD ) v FORMELA OSBORNE ( LISTING OFFICER ) ( 2024 ) EWHC 1112 ( Admin ) it is held that a council tax listing officer’s decision pursuant to the Local Government Finance Act 1992 to list each en suite bedroom in shared student accommodation flats in Cardiff separately, rather than to treat them as a single dwelling, was lawful. She had followed the Valuation Office Agency policy on aggregation of dwellings in multiple occupation, and had provided reasons justifying a departure from it.