R (South West Care Homes Ltd) v Devon County Council  EWHC 2967
Subjects: Equality Act 2010 – s 149 – Due Regard – Closure of Services
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.
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.
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.
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.