Council adopted ‘restrictive and wrong interpretation’ of Care Act in cutting brothers’ care, finds court

Suffolk wrongly concluded that mother could meet all of her sons' eligible needs, in removing funding for family holidays, says judge

The Royal Courts of Justice
The Royal Courts of Justice (Photo: Gary Brigden)

A council wrongly stopped funding family holidays for two disabled brothers by adopting a “restrictive and wrong” intepretation of the Care Act 2014.

That was the verdict of the Court of Appeal in a judgment last week, in which it rejected an appeal brought by Suffolk County Council against a High Court ruling last year that quashed its 2020 decision ending funding for the holidays for the men, known as BG and KG.

The council, which had financed the holidays since 2013 for the bothers, made the decision on the basis that it no longer included holiday travel and accommodation in personal budgets because they did not constitute care and support needs. It also found that the men’s mother, SQ, was meeting all of their eligible needs, so there was no requirement for the council to provide any funding.

However, in  R (BG & KG) v Suffolk County Council [2022], Lady Justice Nicola Davies agreed with the High Court that the decision was based on a “restrictive and incorrect interpretation” of needs under the Care Act.

Get expert analysis of this case

Community Care Inform Adults users can get expert analysis of this case from our legal editor, Tim Spencer-Lane, who previously headed the Law Commission’s review of adult social care law that was the basis of the Care Act 2014. The analysis is part of a suite of guidance on the Care Act that you can find on Inform. Find out more about subscribing to Inform here.

The ruling came in only the third Care Act case to be considered by the Court of Appeal.

BG, 37, and KG, 38, are both autistic and have learning disabilities and epilepsy; BG is also incontinent and needs support with eating, washing and toileting, while KG has fibromyalgia, causing pain, is incontinent at night and needs support with all aspects of daily living.

Their mother, SQ, is their full-time carer, with support from her husband and two family members. After experiencing abuse at a day centre in the past, BG and KG cannot attend day centres and will not tolerate external carers in the home, meaning all care must be carried out by SQ, with help from the family.

Holiday funding previously approved

In 2011, the council started providing the brothers with direct payments worth between £108 and £150 per week, which it approved for use on family trips, activities and holidays. In 2013, it started providing a “respite budget” – worth £3,000 to each man – specifically to provide for supported holidays.

This funded family holidays to Florida in 2015, 2017 and 2018, which BG and KG enjoyed. In a letter to the council in 2019, a community nurse said they had also provided a break for SQ, as she did not need to carry out chores during the holidays, enabled her to maintain her caring role and had reduced distress for the family.

However, later that year, following an assessment of the brothers, the council concluded that neither holidays nor recreational activities were eligible needs, contrary to the outcome of previous assessments.

End to direct payments

In March 2020, a Suffolk team manager wrote to SQ to say that the council was “no longer including holiday travel & accommodation cost in personal budgets” because a review had “identified that paying customers’ holiday costs (rather then meeting the cost of support that they need to achieve a holiday) is not a Care Act eligible need”.

The manager said that it appeared that SQ was meeting the eligible needs that the brothers had when they were on holiday.

The brothers were subsequently reassessed and, in November 2020, the same team manager wrote to them to say that their direct payments would be ending on the grounds that neither wanted to be cared for by someone outside of the family, which meant no care funding could be provided.

BG and KG challenged the decision successfully in the High Court last year, with Mrs Justice Lang being “unable to find any statutory basis for the restrictive interpretation of needs adopted by the council”.

Care Act goes beyond need to be ‘looked after’

Appealing the decision, Suffolk argued that care and support needs under the Care Act were needs to be “looked after”, drawing on a judge’s comments from the case of  R (Aburas) Southward LBC [2019].  The council said that holidays and recreational activities were not needs to be looked after, as they were universal needs held by everyone.

However, Lady Justice Davies said the concept of “looked-after” needs did not reflect the focus in the Care Act on the “individual nature of the assessment, its recognition of the autonomy of the individual and the tailored and broad nature of the support which can be provided”.

Suffolk’s 2020 assessments had found that BG and KG were unable to achieve eight of the 10 outcomes in the Care Act eligibility regulations, as a result of their impairments, resulting in a significant impact on their wellbeing, meaning they met the eligibility criteria. This included not being able to “[make] use of necessary facilities or services in the local community including public transport, and recreational facilities or services”.

The council claimed that this outcome precluded them from paying for holidays and recreational activities outside of the brothers’ local communities.

However, Lady Justice Davies accepted BG and RG’s position that the outcome only restricted “necessary facilities or services” to the local community, not “recreational facilities or services”.

Paying for holidays ‘a means of meeting needs’

She also rejected Suffolk’s view that meeting a need for recreational facilities meant supporting the person to access them, but not paying for entry.

“I do not accept that it is possible to use recreational facilities merely by the provision of support to access the facility if the adult in question cannot afford to pay for the entry requirements,” she said. “The financial support, previously provided by the appellant, is not simply a means of paying for the respondents to take part in such activities and to go on holiday, it is a means of meeting their needs which arise from and are related to the physical and mental disability from which each suffers. It is a need which cannot be met without financial support from the appellant.”

In doing so, she rejected Suffolk’s finding that SQ could meet all of her sons’ eligible needs, on which basis the authority provided no funding.

“SQ cannot meet all her sons’ needs for recreation as she is unable to afford entrance fees, transport and other costs,” said Lady Justice Davies. “To find, as the appellant did, that SQ as their carer can meet all the eligible needs of the respondents is to ignore a key element of those needs namely the ability to fund the means to access and take part in recreational activities including holidays.”

Her judgment, with which fellow judges Lord Justice Phillips and Lord Justice Baker agreed, quashes Suffolk’s November 2020 decison to end the brothers’ direct payments.

In response to the ruling, a spokesperson for Suffolk County Council said: “The Care Act remains a relatively new piece of legislation and these proceedings were pursued with the aim of securing clarity as to how the Act should be interpreted and applied. Whilst we accept this judgment, we are disappointed. Suffolk County Council remains committed to properly, and fairly, assessing needs to ensure that our limited resources are used to support our residents in a way that is fair. We will carefully consider this judgment and ensure that our practice guidance is updated to reflect this outcome.”

, ,

5 Responses to Council adopted ‘restrictive and wrong interpretation’ of Care Act in cutting brothers’ care, finds court

  1. Friendly Neighbourhood Social worker August 8, 2022 at 9:26 am #

    From my perspective of working in Adult care management is that it is very easy to provide a support plan it is always harder to take the package of care away when a person no longer requires the support that provides.

    I believe that this decision is likely going to have an impact how local authorities make decisions around provision.

    i do feel that this is an issue that will likely need to be addressed by MPs further down the line.

    as a working practitioner working with the care Act i would not necessarily think that paying for a persons accommodation and transport costs would be meeting an eligible need.

  2. Theresa August 8, 2022 at 9:43 am #

    Again.

  3. Tom J August 8, 2022 at 12:00 pm #

    This case is not the only one in the country.

    In reality local authorities cannot meet even 10% of the real needs that are out there however they know that very few people will have the money, will, capacity or energy to go all the way to the Court of Appeal to be heard.

    It is odd that Local Authorities have all of these duties from Government yet no massive budget to fund it; hence they create mass bureaucratic methods to try to stem the tide.

  4. Pete Feldon August 8, 2022 at 2:00 pm #

    Thankfully the Court of Appeal has ruled that eligible needs can be met through the provision of holidays, and that local authorities have the power to do this. Social workers have always identified this as a possible option for meeting needs and can continue to do so.

    There may well be a case to consider about whether holidays in Florida were justified, but the court didn’t consider whether or not the care and support plan was sufficient to meet needs, because this was not put forward by Suffolk as part of the decision to discontinue holidays and other recreational activities. In a previous judicial review (Luke Davey vs Oxfordshire County Council) there was an unsuccessful appeal against the reduction of funding for day trips. In this case the judge concluded: “It is understandable that the Claimant… objected to the updated needs assessment, which has resulted in a substantial reduction in the personal budget he previously enjoyed… The result may impose change or even strictures upon the Claimant which are unwelcome, but that does not of themselves mean that the process has been unlawful.”

    Suffolk perhaps unwisely chose to use a legal hammer to crack this particular nut. There haven’t been many Care Act cases that have gone to judicial review, but where the case has been brought on the application of particular points of law, judicial reviews have often found in favour of the claimant. Local authorities have been more successful in defending decisions that have relied on the use of permitted discretion and professional judgement.

  5. Ann August 9, 2022 at 6:34 pm #

    “SQ cannot meet all her sons’ needs for recreation as she is unable to afford entrance fees, transport and other costs,” said Lady Justice Davies.

    Surely no-one would expect SQ to pay for her sons fees/costs. If Lady JD believes that people have a ‘right’ to be able to afford such things and her sons cannot afford these, does this not point to a need to raise the general benefit payments rather than expect such funding to come out of the Adult Social Care budget?

Leave a Reply