2012 10 Adult Care

Thursday 1 November 2012

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R (Members of the Committee of Care North East Newcastle) v Newcastle CC [2012] EWHC 2655 Admin (HHJ Gosnell): the local authority’s decision to fix care home “usual rates” was unlawful because (i) it had no rational basis for its view that an inflationary increase of 3% (staff costs) and 5% (other costs) was appropriate, having “plucked out of the air” these figures, (ii) it had no rational basis for the imposition of efficiency savings of 2% and in fact this contradicted the evidence about possible efficiency savings, (iii) it had decided to include a return on equity of either 0% or 5%, or somewhere in between these figures, without giving any real consideration to the effect that this would have on the sustainability of care home provision locally and that did not appear to be a reasoned choice that took into account actual costs of care, and in fact was irrational, (iv) its consultation had been inadequate - there had not been any genuine attempt to ascertain relevant information about actual costs, consider it and pass it on to decision-makers. It was also unlawful to refuse to make placements with providers who refused to agree the new usual rates. Click here for the judgment.

R (Members of the Committee of Care North East Newcastle) v Newcastle CC [2012] EWHC 2655 Admin (HHJ Gosnell): the local authority’s decision to fix care home “usual rates” was unlawful because (i) it had no rational basis for its view that an inflationary increase of 3% (staff costs) and 5% (other costs) was appropriate, having “plucked out of the air” these figures, (ii) it had no rational basis for the imposition of efficiency savings of 2% and in fact this contradicted the evidence about possible efficiency savings, (iii) it had decided to include a return on equity of either 0% or 5%, or somewhere in between these figures, without giving any real consideration to the effect that this would have on the sustainability of care home provision locally and that did not appear to be a reasoned choice that took into account actual costs of care, and in fact was irrational, (iv) its consultation had been inadequate - there had not been any genuine attempt to ascertain relevant information about actual costs, consider it and pass it on to decision-makers. It was also unlawful to refuse to make placements with providers who refused to agree the new usual rates. Click here for the judgment.

R (Sunderland City Council) v South Tyneside Council [2012] EWCA Civ 1232(Lloyd, Richards, Elias LJJ): the two councils could not agree which of them would be responsible for providing accommodation and other after-care services, pursuant to section 117 of the Mental Health Act 1983, for a young woman presently in a mental hospital but about to be discharged. Before being admitted for treatment, the young woman had lived in a hall of residence in Sunderland's area. In 2009 she was moved on a voluntary basis to a hospital in South Tyneside's area where she remained for two years before being compulsorily admitted to a hospital in Sunderland's area. While she had been in South Tyneside, her place in the hall of residence in Sunderland had been ended. The Court of Appeal held that South Tyneside was the authority responsible for her after-care because that was the area in which the young woman had had her last non-compulsory residence, even though it was in a hospital (on a voluntary basis), in particular once her Sunderland accommodation had ended, whilst she was in that South Tyneside hospital. Treating a person as not having had a residence in any particular area should be a last resort. In assessing where, for section 117 purposes, a person was resident before their compulsory admission, the Court of Appeal found most useful the test in Mohamed v Hammersmith and Fulham London Borough Council [2001] UKHL 57:

"It is clear that words like 'ordinary residence' and 'normal residence' may take their precise meaning from the context of the legislation in which they appear but it seems to me that the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides. That therefore is the question to be asked and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. If a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation. In a sense it is 'shelter' but it is also where he resides. Where he is given interim accommodation by a local housing authority even more clearly is that the place where for the time being he is normally resident. The fact that it is provided subject to statutory duty does not, contrary to the appellant authority's argument, prevent it from being such."

Click here for the judgment.

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