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R (Torbay Quality Care Forum Ltd) v Torbay Council
[2014] EWHC 4321 (Admin)
 
14.30R (Torbay Quality Care Forum Ltd) v Torbay Council [2014] EWHC 4321 (Admin)
In this case, the Council’s fee-setting had been irrational
Facts: the Forum brought a challenge to the level of care home fees that Torbay determined it would pay.
Judgment: Deputy High Court Judge Lambert allowed the application for judicial review on the basis that the mathematical adopted by Torbay had been irrational and because Torbay had no justification for departing from the advice in the non-statutory guidance to disregard third party contributions when assessing the usual cost of care – it had simply disagreed with that advice:
60. R (Bevan and Clarke) v Neath [2012] LGR 728 contains the sage lesson that although amenable to judicial review decisions in relation to the particular statutory duty here involved are generally to be left to the decision maker and the decision maker alone is to decide on the manner and intensity of the inquiry to be undertaken into any relevant factor. The second lesson is that the weight to be given to a relevant factor is for the decision maker and not for the court in the absence of irrationality. This approach is endorsed by the Court of Appeal in R (Members of the Committee of Care North East Northumberland) v Northumberland County Council [2014] PTSR 758 where it is stressed that the Circular contains guidance and is not to be equated with a statutory duty and as would be expected in a case of guidance it does not prescribe any particular methodology which local authorities must adopt in order to have due regard to the actual costs of providing care. When considering the force of a submission that a local authority has taken either insufficient steps to equip itself with relevant information or has generated incorrect information for itself it is plainly important to remember as was stressed by the Court of Appeal that provided some inquiry into the relevant factor to which due regard has to be paid is made by the decision maker then ‘it is generally for the decision maker to decide on the manner and intensity of the inquiry to be undertaken into the relevant factor’: see per Beatson J in R (Bevan and Clarke) v Neath [2012] LGR 728 at paragraph 56. Previous decisions in different statutory contexts will not support the need for any particular form of analysis in the current situation. Some authorities will produce an arithmetical calculation; others may look at a number of comparables. I accept, of course, from Northumberland that carrying out an arithmetical calculation is but one way of having ‘due regard for the actual cost of providing care’ but is not the only legally permissible way. The extent to which judges in other cases have been prepared to delve in great detail into the facts is something which I approach with great caution in this case. The paradigm notion I have adopted is that of Beatson J in Bevan and Clarke as endorsed by Sullivan LJ and Aikens LJ in their specific comments in Northumberland. Borrowing further from Bevan and Clarke I remind myself that in judicial review the court will be particularly circumspect in engaging with the conclusions of the primary decision maker in relation to complex economic and technical questions. The normal setting of fee rates is a matter involving economic and financial assessment and a degree of expertise in how this sector operates. There is also a judgment to be made about the proper allocation of scarce resources: see Supperstone J in R (Care North East) v Northumberland [2013] PTSR 1130 at paragraph 58. It seems to me that this is the type of case where traditional judicial review principles in relation to administrative decisions must be honoured scrupulously. It is not the type of case where the boundaries of judicial review should be rolled back at all, particularly not by a judge at first instance. In the course of assessing the facts in this case I have tried very hard to reach a conclusion which would allow me to say that the intensity of the inquiry here being dealt with by the decision maker was a matter for them and that I should leave well alone. With regret for the consequences, but with no real hesitation as to the principle I must honour I consider that the Claimant’s first ground is well made out. If the decision maker treads the path of economic modelling then it seems to me it cannot proceed with a model that is significantly flawed. I was careful to take into account the fact that one person’s flawed mathematical model might be another person’s best estimate. I took heavily into account the fact that the intensity and nature of the inquiry which is required of the local authority is primarily a matter for the decision maker. But if the local authority chooses to adopt a mathematical model some scrutiny of this is available on general public law principles. Those principles require, it seems to me, that wherever possible the merits of the decision remain with the decision maker. But here the merits of the decision are so fundamentally flawed by adopting the unnecessary weighting which no-one can explain as being necessary that the decision to employ this falls fairly and squarely within the scope of judicial review as being a decision which no reasonable decision taker properly directing themselves on the facts could take. In the end no matter what epithet is used to describe the decision, whether it not adding up or being beyond the bounds of logic or all reasonableness the decision does, it seems to me, fall within that narrow band of decisions which can properly be the subject of judicial review. The deployment of the weighted average makes no sense in the first place and has no reasonable application in the model. There may, perhaps, have been some explanation for this but there is none which I can now scrutinise. The presence of an inexplicable weighting within the mathematical model shows it to be a matter of fact which no reasonable decision taker could properly take into account.
R (Torbay Quality Care Forum Ltd) v Torbay Council
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