An influential body representing the adult social care (ASC) sector is seeking legal advice over concerns Kent County Council (KCC) may under-fund its services.
Providers represented by the Kent Integrated Care Alliance (KiCA) are worried that fees they receive annually will be squeezed so KCC can reduce soaring costs.
ASC, which includes domiciliary care, residential home and supported living, currently devours 46.3% of KCC’s entire £1.5bn budget and presents one of its principal financial pressures.
But KiCA members say will be adversely affected by central government hikes in national insurance contributions and the national living wage as well as the new employment rights legislation.
KCC has yet to announce officially what the uplift will be but it accepted it is likely to be less than providers would expect in the coming year.
Conservative KCC opposition members warned the authority could be open to judicial review and cited the precedent set by the council at Stoke-on-Trent which was successfully challenged in court by the sector.
KiCA’s chairperson Ann Taylor pointed at the direction of travel in a message to members on its website.
In early January, Ms Taylor wrote that the KiCA board met with Reform UK KCC cabinet members and officers in what she described as a “very challenging meeting”.
She wrote ASC faces not only funding pressures but a KCC overspend within the current allocation.
Ms Taylor wrote: “Although a very challenging meeting, we asked that KCC provide us with answers to their policy decisions regarding changes in commissioning for the next financial quarter to reduce this overspend.
“We still await the answers to questions, you as providers, have asked us to clarify on your behalf.
“We have now taken legal advice from one of our sponsors and engaged them to advise us on any actions we may need to take to ensure fees and service provision are not compromised or contrary to their obligations under the Care Act.”
Ms Taylor was approached but declined to comment further.
There are 19,781 older people receiving ASC in Kent, representing 55.7% of the total. Around 19% supported by KCC are cared for at home.
More than 20% of older people live in residential or nursing care settings.
KCC has proposed a 2% uplift in domiciliary services and residential care support for those with learning and physical disabilities or those with mental health conditions.
But other areas of need such as older people’s residential care or everyday life activities would receive no uplift. The total rise in funding proposed by the council is just under £10m.
One care business owner said companies were invited just before Christmas to submit tenders, with a deadline of February 9, and decisions about who will be part of the new KCC “framework” arrangement made by July. Contracts would start in January 2027.
The provider, who asked not to be named, said the council must fulfil its obligations under the Care Act 2014 and deliver a sustainable care market.
He said care homes might need an uplift in funding of between six and eight per cent while domiciliary providers may require as much as 10% to cover costs, otherwise many may have to “walk away”.
The provider added: “Everyone can see the council’s position because it all stems from central government but there is little reassurance that these [care] businesses will be viable this time next year.
“We simply do not know what the government will do or how big the train is that is coming down the track to hit us.”
Papers to the KCC adult social care cabinet committee on January 21 acknowledge ASC providers continue to experience rising employment and operating costs.
The conclusion states: “The council recognises the very real pressures facing providers and has engaged, and continues to engage, with the sector to understand the impact of rising employment and operating costs.
“Providers have been clear that full inflationary uplifts would be their preferred position.
“However, it is not affordable for the council to make additional investment in the sector beyond compliance with its statutory duties without materially undermining its ability to meet its wider statutory duties as a council and manage demand across the wider system.”
KCC will argue that in the past it has paid above the national average in terms of increase in fees to external providers.
The papers say the council has discounted “no fee uplifts” across all ASC services, as was a blanket percentage increase.
Senior KCC officials will be aware of possible legal challenges from operators or individuals, and the council will have to be able to show supporting evidence for its proposals.
Legal action could result in costs for both parties and risks reputation damage and possible delay.
The final decision on funding will be made ahead of the KCC budget meeting next month.
Conservative member Andrew Kennedy warned KCC is open to be challenged in court as happened in Staffordshire when a body representing care providers challenged a 1.4% increase in fees.
The claimants successfully claimed that the Stoke-on-Trent council uplift did not cover the actual cost of care provision.
He said: “I am…concerned that the residential care sector is facing an unfair and undue burden to support the administration’s efforts to balance the budget.”
Conservative group leader, Cllr Harry Rayner said: “My concern is the potential impact both in reputational damage to KCC but also the cost of legal action if it is successful; if the court decides the council has not demonstrated sound reasoning for taking the position it has.
“I also feel the sector has been given insufficient time to properly address the new [framework] tendering procedures required by care providers. I fear that legal challenge may well follow.”
Labour councillor Connie Nolan expressed worries that smaller care providers “will be squeezed out” under the new proposals and that older people may deteriorate if moved into a bigger setting.
The Independent Group’s Cllr Oliver Bradshaw asked if any modelling had been carried out on potential closures of care homes. An officer was unable to say if such research had been done but was assured there is sufficient capacity in the market.
The adult social care cabinet member Diane Morton said that the emphasis was on prevention and keeping people in their own homes for longer.
