A judge has dismissed a judicial review brought by national care provider body Care England against a local authority it said had breached its Care Act duties by setting fees too low.
Care England argued that Essex council had fixed the fees it offered to providers under a new commissioning framework at a level “significantly below their costs of care”.
It said this contravened section 5 of the Care Act, which stipulates local authorities must promote an efficient and effective care market and “have regard” to ensuring its sustainability.
The issue was highlighted last month by a report from the Competition and Markets Authority (CMA) which found care home operators had been charging self-funding residents an average of 41% more than council-funded ones in order to remain solvent.
Source : ‘Care Act breach’ judicial review over provider fees dismissed : Community Care
It’s a common problem these days that people who either have their own direct payment (or hold one, as an authorised person, for a person lacking capacity to request one) are building up an underspend, through not being able to find the staff to meet the assessed need.
In some cases, of course, it will be because the holder or owner of the DP will have an entrenched view about the quality of worker they want to find; and the rate will not be enough to cover the market rate for such a worker, but the DP holder is willing to compromise on the number of hours they were supposed to be being funded for, if they can only find the right worker.
That’s a choice that they can probably take, without offending against any principle of the Care Act that would be held over them. If they take that choice, then they must take responsibility for it.
Source: When and how should relatives be paid through a direct payment? | Community Care