R (South West Care Homes Ltd) v Devon County Council [2012] EWHC 2967

The C5 operated care and nursing homes. D made a decision to reduce its fees to a level which was likely to
result in the closure of a number of homes. Cs applied for a judicial review of D’s decision.

Facts

Cs operated care and nursing homes. Each of the C's homes had residents who paid fees and residents
whose fees were paid by the defendant local authority, and each has residents who are elderly and/or who
have a disability. The authority to provide residential care to elderly and infirm persons either itself or in
private care homes (which included those operated by the claimants). On 3 April 2012, having conducted
an equality impact assessment (EIA), the authority issued a decision letter setting fees for the financial year
2012-13. The claimants applied for judicial review of that decision, contending that the fees effectively
provided for a nil rate of return on capital which meant that some of the homes would no longer be
financially viable, resulting in unplanned closures and deteriorating conditions and quality of care.

Held

The exercise in which the authority was engaged was of reviewing the usual cost of providing the residential
accommodation that it was obliged to provide.

The claimants submitted that the authority failed to comply with its duty under s 149 of the Equality Act
2010 to have due regard to the need to eliminate discrimination and/or the need to advance equality of
opportunity among elderly and disabled persons. Cs claimed that the EIA was flawed and that D had failed
to carry out a proper consultation. They argued that those affected had not been provided with sufficient
information to enable a proper understanding of the proposal and to make meaningful representations in
relation to it. Cs also argued that D had reached an irrational decision because of specific logical flaws in the
calculation and/or the unreasonableness of its conclusion.

The judge held that the decision was a rational one which was proceeded by a fair consultation, but one
which was arrived at without the necessary due regard to the need to eliminate discrimination against and
to promote equality amongst elderly or disabled residents. Since D's decision had the potential to affect
disabled persons’ right to choose where to live and to have support (rights enshrined in UN and European
Conventions) the EIA was flawed since it had failed to consider the impact on equality if a number of the
homes were forced to close.

Comment

This is an interesting judicial review challenge. What could cynically be described as a commercially
motivated challenge to a decision by a local authority was upheld on equality grounds. The most significant
defect in the authority's EIA was its failure to consider the effect of the closure of care providers. Even
though most if not all homes identified in the report as being at risk of closure were likely to close in any
event, the Court held that should have been a proper consideration of mitigation measures or the
management of such closures when D set its fees.