14.19R (Birmingham Care Consortium) v Birmingham CC [2002] EWHC 2188 (Admin), (2002) 5 CCLR 600
Care home providers had not established that the rates on offer were unfair, especially when the local authority was able to secure adequate provision at those rates
Facts: a consortium of care home owners sought a judicial review of the rates offered by Birmingham for care home provision, claiming that the rates fell short of matching the true cost of providing care.
Judgment: Stanley Burnton J held that there was evidence that Birmingham remained able to secure suitable placements at the rates offered and the claimant had not established that those rates were less than fair and would be bound to lead to a failure to provide long-term care to those in need:
32. Out of deference to the arguments put before me, however, I mention some general considerations. First, this case concerns the affordability of social services provided by the local authority. Absent a statutory duty compelling the expenditure in issue at the amount contended for, questions of affordability and of the allocation of resources are for the democratically elected executive and legislature, not for the courts. Secondly, affordability is in general a highly relevant consideration to be taken into account by any local authority in making its decisions on rates to be offered to service providers, subject to the local authority being able to meet its duties at the rates it offers. As Auld J said in R v Newcastle-upon-Tyne City Council ex p Dixon (20 October 1993, unreported but cited in the Cleveland Care Homes Association case):
‘… where a local authority has a statutory duty to provide services and to fund them in part or in whole out of monies provided by its taxpayers it must balance two duties one against the other. On the one hand it must provide the statutory services required of it; on the other, it has a fiduciary duty to those paying for them not to waste their money. It must fairly balance those duties one against the other.’
Thirdly, the court should be slow to intervene where, as in the present case, there has been a long process of consultation and the local authority and the service providers are, in effect, engaged in a contractual negotiation with the local authority. Lastly, the extension offered in the letter of 19 June 2002 was for a relatively short period and was expressly indicated to be an interim proposal: see the first and second bullet points on the first page, and penultimate sentence. I should have been reluctant to impeach that offer on the basis of alleged long-term effects of the rate offered for a period of nine months.