2011 01 Adult Care

Tuesday 1 February 2011

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LW’s (acting by her mother JB)_Application [2010] NIQB 62 (McCloskey J): The Court granted declarations that the Belfast Health and Social Care Trust had acted unlawfully in failing to provide the applicant with adequate and suitable (i) domiciliary services, (ii) residential placements. As far as concerned the provision of domiciliary services, the Trust had failed to provide the services it had itself assessed the applicant as needing, under section 2 of the Chronically Sick and Disabled Persons (Northern Ireland) Act 1978 (materially identical to section 2 of the CSDPA 1970). Even if the Trust’s duty of provision had not been absolute, but a duty to take reasonable steps there was “no evidence of reasonable, conscientious and sustained efforts by the Trust” but there had been protracted delay: therefore, the Trust was in breach of duty. As far as concerned the provision of residential placements, the Court held that, once the Trust had assessed the applicant as requiring particular residential provision, a duty to provide it had arisen, under Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972. On the facts, there was “no convincing evidence of reasonable efforts by the Trust to discharge its continuing statutory duty to the Applicant”. It was not sufficient for the Trust to point out that the only appropriate residential facility was full with a waiting list. The Trust was in breach of duty. Click here for the transcript.

R (Forest Care Home Limited) v Pembrokeshire CC [2010] EWHC 3514 Admin (Hickinbottom J): (1) the Council had been under a public law duty to communicate its decision setting a fee rate for the provision of residential accommodation for the years 2010-11; (2) in setting its fee rate, the Council had acted irrationally, by mis-applying the “Laing 2004 Wales model” for calculating fair care home fees in a number of respects, including by mis-calculating the level of capital assets on which a reasonable rate of return needed to be provided for and by failing to consider local staffing levels; (3) in the circumstances of this case, the Council had not acted unlawfully in public law or in breach of contract by preventing the Claimant from obtaining third party contributions topping up the fees beyond the level that the Council had agreed to pay. Click here for the transcript.

Amberley (UK) Limited v West Sussex CC [2011] EWCA Civ 11 (Mummery, Richards, Aikens LJJ): a contractual term that “The level of fees is subject to review as costs increase. No fee level is stated here as a standard, due to the reviews” could not be interpreted as giving the care home providers a unilateral right to increase the fees payable and require the local authority (or residents) to pay them. Contracts would not be readily interpreted so as to convey unilateral powers of that kind on one party. The clause concerned merely provided that the parties could agree increased fees and so vary the contract. It was however common ground that the care home provider had an implied right to determine the contract on reasonable notice, for any reason (including a failure to agree revised fees). Click here for the transcript.

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