Local authority decisions on level of fees they will pay for residential care under National Assistance Act 1948 (pre-Care Act 2014)

Friday 10 November 2017

Torbay Council v Torbay Quality Care Forum Limited [2017] EWCA Civ 1605, 19 October 2017

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Torbay Council v Torbay Quality Care Forum Limited [2017] EWCA Civ 1605, 19 October 2017

This case concerned care costs for residential care homes and Local authorities' powers and duties. In summary the Court of Appeal held by a majority that there was nothing in the applicable guidance that precluded a local authority from taking account of certain revenue streams (namely private fees, top-up payments and support from the NHS) when making the evaluative judgment of what it would expect to pay for residential care for the elderly.

This case considered the law that applied before the Care Act 2014 came into force on 1 April 2015.

Facts: Torbay Council appealed the decision in R. (on the application of Torbay Quality Care Forum Ltd) v Torbay Council [2014] EWHC 4321 (Admin); that, when calculating the "usual cost" of providing care and accommodation for care home residents, it was required to disregard income streams other than the fees paid by it. The National Assistance Act 1948 (Choice of Accommodation) Directions 1992 and Local Authority Circular LAC (2004) 20 required a local authority to identify what it would usually expect to pay for accommodation for someone with the individual's assessed needs (the "usual cost").

The issue for the Court of Appeal was whether, when calculating the “usual cost”, Torbay Council could take account of the following facts, (1) other residents were paying privately for their accommodation and associated care; (2) other residents were selecting enhanced services for which they or a third party paid a top-up and (3) other residents had additional financial support from the NHS.

The Court of Appeal allowed Torbay Council’s appeal by a majority with Lord Justice Beatson dissenting. The court held that there was nothing in the National Assistance Act 1948 (Choice of Accommodation) Directions 1992 or Local Authority Circular LAC (2004) 20 guidance which precluded Torbay Council from taking account of the three revenue streams identified when making an evaluative judgment of what it would expect to pay for residential care for the elderly. The court held that the focus of the guidance in the Local Authority Circular LAC (2004) 20 was squarely on what Torbay Council would expect to pay, with no reference to trying to evaluate an average or usual cost to a care home of providing the service. Furthermore, there was no express requirement in the National Assistance Act 1948 (Choice of Accommodation) Directions 1992 or Local Authority Circular LAC (2004) 20 guidance to ignore revenues from privately paying residents. Moreover, the actual costs of providing the care were but one of a number of factors to which due regard had to be paid, under the guidance in the Local Authority Circular LAC (2004) 20, in arriving at the "usual cost". The weight to be given to that factor was a matter for the local authority and acknowledged a difference between what a local authority paid and the actual fees of a care home. In a dissenting judgment, Lord Justice Beatson held that the language of the guidance in the Local Authority Circular LAC (2004) 20 as a whole, and in particular that of para.2.5.4, precluded using additional income sources to set a "usual cost" that was necessarily insufficient to meet the assessed care needs.

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