“(1) A local authority must promote the efficient and effective operation of a market in services for meeting care and support needs with a view to ensuring that any person in its area wishing to access services in the market— (a) has a variety of providers to choose from who (taken together) provide a variety of services; (b) has a variety of high quality services to choose from; (c) has sufficient information to make an informed decision about how to meet the needs in question.”
“Level of impact: High Type of impact: Negative Comments: All service users have advanced dementia. Residents would remain in the care home that they are currently residing in however there could be a transfer of the care provider. A transfer to alternative provider will ensure continuity of care, but the change could also have a negative impact on existing residents due to their complexity of need.”
“Brenda’s emotional needs are to be met as Brenda can become upset and unsettled. This requires a lot of patience and reassurance from staff. Staff are to provide Brenda with small comforts when she is experiencing such anguish. This includes taking the time to talk about happy memories and hand holding. Brenda spends a lot of time in her care chair. This chair is to be maintained and cleaned daily with suitable cleaning products to prevent infection. Senior staff are to administer the covert medication agreement in place, as approved by Brenda’s GP. This includes concealing medication in her food. Two support workers are to assist with all transfers, including from hoist to bed and the bed to care chair. Brenda is to be repositioned every 2 hours when in her care chair to prevent the skin breaking down.”
“Aside from feeding at mealtimes and providing fluids, my mother requires two carers for all care including personal care intervention. This is incredibly time consuming for the staff who deliver this care so diligently and patiently. Elaine needs hoisting to move her from her bed, which is carried out multiple times a day to transfer her to the communal lounge to ensure her social and emotional wellbeing is met. My mother cannot do anything for herself and relies solely on the care of the staff for all aspects of her survival. This includes, washing, dressing, toileting, administering medication and fluid intake.”
“The running costs have been higher, and the real terms benefit would therefore be higher with the following additional factors included: avoidance of the overspend against budget…”
“TUPE was considered in the Cabinet reports of October 2024, December 2024 and February 2025. The Council believes that TUPE will apply to the sale of the Homes and the preferred bidder agrees. The Council's higher costs structure and financial constraints make it challenging to operate the Care Homes at break-even. The independent sector's ability to manage costs differently allows them to operate care homes more cost effectively. Costs differences can include (for example) lower overhead costs, the ability to negotiate better terms with suppliers, and the flexibility to adapt to market demands. As to staff, any new or replacement staff would be recruited on the buyer's (usually more cost efficient) terms and conditions. Further, private providers can also have a greater focus on efficiency and profitability, potentially leading to streamlined operations and reduced costs. As I noted to the Scrutiny Panel: "This is why the vast majority of residential care in England is delivered via independent sector organisations."”
“Six private providers/potential operators expressed an interest in potentially acquiring the homes. Of these, one provider has since withdrawn leaving five who are interested in acquiring both homes – officers have received initial bids from all five providers. The next stage is now to evaluate the proposals. This will be by an initial meeting with each supplier whose proposals are considered to be credible. After this, an assessment of various criteria will be undertaken with a view to identifying those suppliers who are likely to be most suitable as purchasers of the businesses. Best and final offers will then be sought from these suppliers and will be evaluated in accordance with pre-determined quality and financial criteria. Evaluation will weight quality greater than price and be subject to minimum quality criteria as part of the design of the best and final offer stage. The quality criteria will take account of bidders’ experience of managing care homes and assess their ability to continue to deliver high quality care services for people with dementia in the future.”
“Families have also been advised that the Council is only progressing talks with providers who are interested in and have a good track record in providing dementia care therefore we do not anticipate any change to the service focus. They have also been advised of the confidential nature of the BAFO bidding process and that a limited amount of information can be shared with them at this time. Additionally, the Council intends to impose a 20-year overage period on the properties and restrict the use of the properties to certain social care services for a period of 5 years from point of sale which further mitigates risk.”
“3) To re-affirm the decision made by cabinet at its meeting on10 December 2024 to progress with the sale and business transfer of Castle Grange and Claremont House as going concerns. 4) That authority be delegated to the Executive Director for Adults and Health, in consultation with the Cabinet Member for Adult Social Care, the Service Director - Finance, and the Service Director – Legal, Governance & Commissioning, to select and finalise negotiations and agree the terms of the freehold transfers and Business Transfer Agreement with a preferred bidder. 5) That pursuant to (4) authority be delegated to the Service Director -Legal, Governance and Commissioning to execute and enter into all necessary documentation to effect the transfer of the care homes as going concerns.”
“(1) The obligation upon the decision-maker is only to take such steps to inform himself as are reasonable. (2) Subject to a Wednesbury challenge, it is for the public body, and not the court to decide upon the manner and intensity of inquiry to be undertaken (R (Khatun) v Newham LBC[2005] QB 37 at paragraph [35], per Laws LJ). (3) The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision (per Neill LJ in R (Bayani) v. Kensington and Chelsea Royal LBC(1990) 22 HLR 406 ). (4) The court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient (per Schiemann J in R (Costello) v Nottingham City Council(1989) 21 HLR 301 ; cited with approval by Laws LJ in (R (Khatun) v Newham LBC (supra) at paragraph [35]). (5) The principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant, but from the Secretary of State's duty so to inform himself as to arrive at a rational conclusion (per Laws LJ in R (London Borough of Southwark) v Secretary of State for Education). (6) The wider the discretion conferred on the Secretary of State, the more important it must be that he has all relevant material to enable him properly to exercise it (R (Venables) v Secretary of State for the Home Department[1998] AC 407 at 466G).”
“There is no principle in law to the effect that before a local authority changes the way it delivers services provided to many people it has to assess the needs of each service user and match those needs to available alternative service providers.”
“(1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. … (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.”
“[77] Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in [R (Baker & Ors) v Secretary of State for Communities and Local Government[2008] EWCA 141 ] (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision. [78] The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.”
“We start by observing that what constitutes ‘due regard’, will depend on the circumstances, particularly, the stage that the decision-making process has reached, and that the nature of the duty to have ‘due regard’ is shaped by the function being exercised, and not the other way round.”
“Sometimes, particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options.”
“That is not to say that a duty to consult invariably requires the provision of information about options which have been rejected. The matter may be made clear, one way or the other, by the terms of the relevant statutory provisions… .To the extent that the issue is left open by the relevant statutory provisions, the question will generally be whether, in the particular context, the provision of such information is necessary in order for the consultees to express meaningful views on the proposal. The case of Vale of Glamorgan Council v Lord Chancellor and Secretary of State for Justice[2011] EWHC 1532 (Admin) is an example of a case where such information was not considered necessary, having regard to the nature and purpose of that particular consultation exercise, which concerned the proposed closure of a specific court. In the present case, on the other hand, it is difficult to see how ordinary members of the public could express an intelligent view on the proposed scheme, so as to participate in a meaningful way in the decision-making process, unless they had an idea of how the loss of income by the local authority might otherwise be replaced or absorbed.”
“If it is alleged that a consultation process is unfair, clear unfairness must be shown. The error must be such that there can be no proper consultation and that “something has gone clearly and radically wrong”: Royal Brompton at [13], approving the formulation by Sullivan J in R(Greenpeace Ltd) v Secretary of State for Trade and Industry[2007] EWHC 311 (Admin) at [62]-[63]. 40. The Council was entitled to consult on the proposals which it had approved for consultation, rather than on something it did not propose: see Bailey and others v London Borough of Brent[2011] EWHC 2572 (Admin) at [90].”
“(i) It is not necessary in all cases where a particular proposal is the subject matter of a consultation to set out alternatives including those that may have been rejected or explain why they have been rejected. (ii) Fairness requires that to be done where it is necessary to allow informed or intelligent responses. That is sometimes the case as Lord Wilson said at paragraph 27 of this speech. (iii) Whether that is necessary, and correspondingly whether the consultation is a fair one, is a broad question in answering which the matters that fall to be considered include the purpose of the consultation, the nature of the proposal being consulted on, and what consultees can be reasonably taken to know about the proposal and its context.”
“If consultees wished to put forward claims that the Council’s proposed action of selling the homes should not be taken by the Council because the cost of running the homes could be mitigated, then it was open to them to do so. There was no reason why that had to be set out as a distinct “option” as a matter of law, and it [i.e. the failure to do so] did not render the consultation exercise unfair or otherwise unlawful.”
“A decision-maker is under no obligation to reconsider a final decision once it has been communicated. If, having received Inclusion’s letter of31 January 2019 , the regulator had written back to say ‘We have made our decision and will not be reconsidering it’, time would run from the date of the earlier decision. A claimant cannot in general start time running again by writing a letter asking the decision-maker to reconsider and then treating the refusal to reconsider as a new decision. But where a decision-maker, in response to a request to reconsider, chooses to conduct an internal review – and, as here, tells the requester that it is holding off publishing its final decision while it gives ‘serious consideration’ to the points made – the position is different. The matter can be tested by asking what would have happened if, having received the regulator’s email of1 February 2019 , Inclusion had issued a judicial review claim. The regulator would, surely, have been entitled to respond that the claim was premature because there was an internal review underway. The internal review could presumably have resulted in a different outcome. The internal review was, on the regulator’s evidence, not complete until8 February 2019 and not communicated until12 February 2019 , when the regulator sent Inclusion the final version of the [regulatory judgement]. In these circumstances, the final [regulatory judgement] was a separate, challengeable decision; and time to challenge it began to run at the earliest on8 February 2019 . The claim form was filed within 3 months of that date.”
“(3) The overview and scrutiny committee must by notice in writing require the authority or executive— (a) to consider the report or recommendations… .”
“(3) No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”
“(2A) The High Court— (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. (2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest. (2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied. … (3C) When considering whether to grant leave to make an application for judicial review, the High Court— (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and (b) must consider that question if the defendant asks it to do so. (3D) If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave. (3E) The court may disregard the requirement in subsection (3D) if it considers that it is appropriate to do so for reasons of exceptional public interest. (3F) If the court grants leave in reliance on subsection (3E), the court must certify that the condition in subsection (3E) is satisfied. … (8) In this section “the conduct complained of” , in relation to an application for judicial review, means the conduct (or alleged conduct) of the Council that the applicant claims justifies the High Court in granting relief.”
“272. The new statutory test modifies the Simplex test in three ways. First, the matter is not simply one of discretion, but rather becomes one of duty provided the statutory criteria are satisfied. This is subject to a discretion vested in the court nevertheless to grant a remedy on grounds of ‘exceptional public interest’. Secondly, the outcome does not inevitably have to be the same; it will suffice if it is merely ‘highly likely’. And thirdly, it does not have to be shown that the outcome would have been exactly the same; it will suffice that it is highly likely that the outcome would not have been “substantially different” for the claimant. 273. It would not be appropriate to give any exhaustive guidance on how these provisions should be applied. Much will depend on the particular facts of the case before the court. Nevertheless, it seems to us that the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is ‘highly likely’ that the outcome would not have been ‘substantially different’ if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law. Furthermore, although there is undoubtedly a difference between the old Simplex test and the new statutory test, ‘the threshold remains a high one’ (see the judgment of Sales LJ, as he then was, in R (Public and Commercial Services Union) v Minister for the Cabinet Office[2017] EWHC 1787 (Admin) ;[2018] ICR 269 , para 89).”
“The section emphatically does not require the court to embark on an exercise where the error is left out of account and the court tries to predict what the public body would have done if the error had not been made. Approaching section 31(2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision-making process that the decision-maker undertook to ascertain whether it is highly likely that the decision that the public body took would not have been substantially different if the error had not occurred.”