Supportways Community Services Ltd v Hampshire County Council 8th December 2005

The first judicial review of the relationship between a Supporting People Purchaser and the Provider led the court’s granting an order to enforce the terms of the review intended to move providers from the interim contract stage to steady state.

A signed interim contract between an SP provider who has had THB for the tenants’ housing related support, and an ‘Excellent’ Authority doing the SP payments, was up for renewal at the end of the Interim Contract period. The termination clause in the contract was expressed so as to bring about termination upon a review being completed by the purchaser (it being assumed that after that, there would either be no renewal or renewal on different terms).

The judge held that there was a contractual right to a review, and that the review had to be carried out in accordance with Hampshire’s own policy, because Excellent CPA authorities are allowed to arrange the review with the maximum amount of discretion, under grant conditions from central government. In procedural terms that policy had allowed for representations to be made regarding continuation of a service that would otherwise appear to be not cost-effective, or covering things that were not eligible for grant. In the case of Supportways, the review led to the termination of the contract and the offer of a continuing contract at a very significant reduction of the fees. Supportways’ proprietor had ticked the ‘generic’ box in relation to the client group and services to be supplied, prior to the move to SP, which had implications for the test applied for purposes of cost-effectiveness.

Hampshire was found as a matter of evidence to have failed to follow its own procedural framework for the review, which meant that although the original contract was terminated, the judge thought it right to order the authority to re-do the review properly, so that the amount it might offer the provider to continue to provide the service might be reconsidered, and not merely capped according to Hampshire’s fall-back position on upper limits to the price for generic clients.

Whether this was seen as a public law remedy or a private law remedy under contract did not matter, because in either jurisdiction, the right thing to do was to order Hampshire to have another go at the review. This has the potential to lead to an identical outcome, second time around, but that is inherent in the nature of judicial review and the virtually unfettered discretion authorities are given to review efficacy according to their own criteria.

The costs were split between the parties because although the provider was the ‘winner’ in a conventional sense, it had sought an order that the authority pay at the same rate as under the old contract from the date of termination up to the current time, and the provider did not succeed in getting any such order. This case was posted on the K-web by the claimants’ consultant, but was removed. It is available on the following free link, in its entirety. http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2005/3101.html&query=supportways&method=all If anyone knows of a case where the clients have continued to receive the services despite the SP provider’s refusal to enter into a steady state contract on the terms offered, and where the SP purchasers have not sought to put in alternative services into the clients’ tenanted accommodation, but not paid for the services being provided, please email belinda@careandhealthlaw.com

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