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

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.

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.”