We advised a local authority on the lawful introduction of a banding framework for over 1,500 residential care placements, guiding the council from initial legal risk assessment through to live implementation.

At a glance:

• Client: Local authority.
• Sector: Local government / adult social care.
• Services: Care Act compliance, commissioning and procurement, public law.
• Jurisdiction: England and Wales.
• The challenge: A council sought to introduce a banding approach to over 1,500 residential care placements commissioned on a spot basis, to ensure value and consistency and limit unwarranted variation - without cutting costs.
• The outcome: Browne Jacobson supported the council through the full lifecycle of a significant transformation project - from initial legal risk assessment through to the resolution of specific provider challenges arising on implementation.
• Lead contacts: James Arrowsmith and Hannah Collins.

The challenge

The council's commissioning team was seeking to introduce a banding approach to all current and new residential placements. The framework was, designed to support assessors in evaluating the intensity of support required across Care Act domains, and to inform banding, placement suitability and staffing model - with an expected impact on over 1,500 residential care placements commissioned on a spot basis. 

The project was not aimed at cutting costs but, consistent with many councils, the client wished to ensure both value and consistency across all placements, and to limit unwarranted variation. However, introducing a pricing tool of this nature raised complex intersecting legal questions - spanning Care Act compliance, public law risk, procurement obligations and existing provider relationships - all of which needed to be carefully managed to protect the council and safeguard continuity of care for service users.

Why they came to Browne Jacobson

This instruction represented a sustained, collaborative piece of work between Browne Jacobson and the council's commissioning and legal teams. The team's ability to advise on the complex, intersecting questions of Care Act law, public law, procurement and commercial arrangements that a project of this kind raises made Browne Jacobson a natural fit for an instruction that spanned multiple legal disciplines.

Our approach

The instruction has proceeded in three substantive stages, each addressing a distinct legal question as the project has developed.

Stage 1: Initial legal framework 

The initial advice concluded that the introduction of a structured pricing tool of this kind is a lawful approach to management of care costs within the local market. The advice addressed key strategic considerations. Care Act compliance, including compliance with guidance as to transparency, consideration of the local market, overview advice as to the practicability to transitioning current plans and budgets was needed at this stage, to consider the legal basis of the transition and requirements for a successful outcome. Advice on commissioning, procurement and contract considerations dealt with the impact on provider relationships, and the necessary steps to adapt existing arrangements, lawfully, to the new basis. Finally, an advice on public law risk was undertaken to support consideration of legal hazards on the route to implementation, potential impact on the  project, and opportunities to mitigate in support of a successful outcome. 

Stage 2: Implementation planning

Further specific work was undertaken in relation to implementation of the approach to existing and new individual assessments, including the scope to tolerate variation during the transition period. As the initial advice established that this could be achieved, the further advice went into more detail as to legal and practical requirements to successfully navigate the transition in a way that remained person centred and ensured continuity of high quality care for service users. This included work to support social worker understanding as to the legal basis of the approach, and how it ought to be approached in a way that would appropriately balance consistency and value with personalisation. 

Stage 3: Ongoing support

Browne Jacobson has provided ongoing support in relation to queries arising in the course of the work. This has included advice in response to provider queries connected with charging for self-funders, drawing both on care law and guidance and consideration of the CMA guidance on care home fees. We have advised on a range of other questions arising in connection with care, which touch on the project, including further advice on direct payments and transitioning of supplier payments from a net to gross basis.

Key challenges and how we overcame them

The central legal challenge was navigating the tension between the council's legitimate aim of achieving consistency and value across over 1,500 spot-commissioned placements and the strict requirements governing how local authorities may lawfully manage care costs - requirements that are not straightforward to satisfy at scale. The team's early identification of public law risk proved essential: by mapping legal hazards before any operational changes were made, the council was able to structure the transition on a sound legal footing and address potential vulnerabilities proactively rather than reactively.

A further challenge lay in applying the framework to over 1,500 existing placements - each with an individual assessment and care plan - whilst maintaining a person-centred approach and ensuring continuity of care. The team worked closely with the council to define the permissible scope for variation during transition and to equip social workers with a clear understanding of the legal basis for the approach, enabling them to balance consistency with personalisation in real-time assessments. Provider pushback also required careful management, particularly in relation to self-funder charging, where the team drew on both care law and CMA guidance on care home fees to support the council's position.

The outcome and impact 

This instruction represents a sustained, collaborative piece of work between Browne Jacobson and the council's commissioning and legal teams, covering the full lifecycle of a significant transformation project - from the initial legal risk assessment of the concept, through practical guidance on lawful use in individual assessments, to the resolution of specific provider challenges arising on implementation.

It demonstrates the team's ability to advise on complex intersecting questions of Care Act law, public law, procurement, and commercial arrangements, including the intersection with law and guidance applicable to private sector providers. It also reflects our commitment to work alongside clients in a practical, ongoing way as issues arise in real time.

The legal questions addressed - including the relationship between pricing tools and personal budget sufficiency, the limits of the exceptions process, deferred payment arrangements, and provider rate challenges - are live issues for a significant number of local authorities across England currently undertaking similar programmes.