The court found that if a person’s needs arising from their disabilities could be met through going on a holiday, then the cost of it could be met under Care Act provisions – Photo: Christy Lawrance
It will come as no surprise to readers that a legal decision about meeting needs by funding a holiday is being appealed.
B, R (on the application of) v Suffolk County Council allowed that it was possible to meet needs by funding a holiday, which must be causing consternation among budget-minders in local authorities.
Holiday support costs have been accepted as disability-related expenditure for many years after the Cornwall case in 2009, but neither support costs nor the holiday cost for the client have been widely accepted as part of the package itself.
Those who can remember the excitement of the personalisation movement (before austerity hit) might well say “So what?” to news of this decision, because they were sure that personal budgets (whether managed or as direct payments) could be spent on whatever the person wanted as long as the budget sum was not exceeded.
Fifteen years on, many will rue ever having fallen for that one, because by now councils are bound to have reclaimed at least some funds for non-use or, worse, misuse of the budget.
Even the much-vaunted flexibility through a direct payment turned out to be only a small freedom – to use the money to meet one’s assessed eligible needs, with choice only as to timing and manner, not overall hours or rate, nor the choice to leave some of those needs completely unmet while blowing the rest on deficits that subjectively mattered “more”.
Needs not unwarranted luxury
The Suffolk case means, however, that recreational activities, trips and holidays can be framed as means to meet eligible needs for care and support rather than as unwarranted luxury desires.
Naturally, it helps if the activities conceivably address or prevent longer-term issues, by, for example, staving off social isolation, loneliness, depression or chronic anxiety.
In the Suffolk case, two autistic and physically disabled brothers were being cared for by their mother on a round-the-clock basis. Their history was accepted to have rendered them unable to tolerate external carers in their home nor trust anyone outside the family.
Holidays and recreational activities had previously been seen as a key form of respite for the family concerned, and were thus already deemed essential to the wellbeing of the two claimants.
Their 2011 council-assessed care packages (including direct payments) permitted them to have access to the community by enabling such things
as family outings, various activities and holidays.
Physical and mental health and emotional welfare via the unmet need for some form of participation in recreation had been overlooked
After 2013, their respite budget also covered such needs. Then the budget was cut on the purported basis that things such as travel, accommodation and entrance fees to attractions could not count as Care Act services for meeting needs.
Rather than even trying to articulate how those needs may have lessened, Suffolk erred in law by deciding that the concept of support (under the Care Act 2014) could no longer include the funding of recreational activities.
The council had adopted an overly narrow, rigid interpretation of the legislative framework, the court held. Suffolk had tailored the two brothers’ needs assessment to be consistent with the council’s restrictive reading of the scope of the Care Act 2014.
The care provided by the mother was framed as the brothers’ only identified need. As she was still able and willing to continue caring for them – despite the sharp loss of previously given state support and her evident exhaustion – it was argued that the council’s statutory obligations under section 18(7) of the 2014 act had therefore been fully met.
The court found “the claimants’ Care Act eligibility assessments were deliberately drafted so as to reflect the council’s restrictive stance on eligible needs, with the focus on any need for care, and the exclusion of financial support for goods and facilities, in this case, the cost of accessing recreational facilities”.
Mrs Justice Lang was “unable to find any statutory basis for the restrictive interpretation of needs adopted by the council”.
The cut was made in spite of in-house professionals’ recommendations, who stressed the brothers’ desire to access recreational activities in the community and highlighting the benefits for wellbeing as a consequence of participation.
Physical and mental health and emotional welfare, via the unmet need for some form of participation in recreation, in addition to their domestic, family and personal relationships, had been overlooked by senior management.
Mrs Justice Lang found that the council “ought to have considered whether or not to exercise its powers under s19 of the Care Act 2014 before reaching its decision to cease all direct payments to the claimants”.
Interestingly, the local authority still seemed to suggest that the support needed “to achieve” a holiday (rather than pay for it) could be deemed
eligible for council funding as “a Care Act eligible need”.
Such thinking may be grounded in the contention that certain costs universal to everyone are not supposed to be funded under the Care Act. Whereas this feels instinctively correct for food, rent and other daily living expenses, the cost of items such as food and eating out, travel or entrance tickets will often be the key components of any respite-led experience.
It does seem clear that there is no right to purely financial support in the Care Act for ordinary living expenses. There is a right to a direct payment (money in lieu of some other means of meeting a need) and there are key passages that explain that “support” must mean something other than “care”.
A budget can be converted into cash via a direct payment arrangement, provided the conditions for this are met, but that is only because direct payments are the cash-based option, instead of the service (or other thing) being provided.
There is case law confirming that the one thing the NHS Act 2006 did not permit was the provision of general monetary support in cash. The Harrison case made it clear in 2009 that the definition of “services” within the NHS legislation did not cover the concept of financial assistance or cash: separate legislation specifically providing for the provision of personal health budgets was therefore required.
The old Chronically Sick and Disabled Persons Act 1970 referred to “assistance to take a holiday”. This has not been replicated in the Care Act, but the broader words “goods” and “facilities” have been added. This is surely significant.
A need, not a choice
The holiday cost was asserted to be outside the concept of care and support and outwith the broader concept of “facilities” under section 8.
The decision in Suffolk holds that the funding needed for a holiday can be seen as support if it is to pay for a response to an assessed eligible need. Support has been found to connote something in the way of looking after someone, rather than financially subsidising a person’s choices.
The need for care and support arises from the person’s inability to achieve within a given eligibility domain. A holiday does not look after a person but the price of access to such a thing might be a “facility” for meeting a need, even though a holiday is a mainstream pleasure as well.
Participation in recreation is specifically mentioned within the Care and Support (Eligibility Criteria) Regulations (2014), as are such matters as social and economic wellbeing, emotional and psychological welfare, and the promotion of familial and personal relationships within the wellbeing function itself.
The court agreed that if the professional view was that the claimants’ assessed needs (arising from their disabilities) could be met through a holiday or other recreational activities, then the cost of the holiday to the disabled person is a need that can be met under the 2014 Care Act.
It is worth noting that the high court exercised its discretion in Suffolk to waive the three-month time limit for a claim. Mr Justice Mostyn had stressed that there were “clearly arguable points of law which these seriously impaired claimants should be entitled as a matter of justice to place before the court”.
The state has a human rights-based duty to promote and protect family life, and the Care Act reflects that by including “domestic, family and personal relationships” in the features of the wellbeing duty.
The underpinning principles of human dignity and the right to achieve and enjoy some level of individual autonomy are referenced through the Suffolk judgment.
Article 19 of the Convention on the Rights of Persons with Disabilities, although non-binding, reminds states of their obligations to support “full inclusion and participation in the community” so as to alleviate or prevent isolation or segregation.
Various NGOs in the UK have reiterated the seriousness of the difficulties experienced by many carers, particularly given the “additional financial burdens that families with a disabled member… may face”.
However, the Suffolk appeal could well see the Court of Appeal adopting the approach taken in scarcity of resource cases such as McDonald (2011). The local authority’s approach was found to have been carried out in the pursuit of a legitimate aim, namely the protection of “the economic well-being of the state and the interests of other care users”.
It could be that Care Act functions come to be seen not so much as the means for ensuring that the state meets the needs of vulnerable individuals (taking account of standards in a civilised society) but as about offering some form of visible “assessment of priorities in the context of the allocation of limited state resources” to lend some semblance of fairness and equity to the system.
The number of judicial reviews about rights to care and support has markedly decreased in recent years. Suffolk is perhaps best viewed as a useful reminder that an error of law contention can often be much more powerful and effective than one that is grounded only in irrationality or even a breach of human rights.
- Editor’s note 26 July 2022: Suffolk County Council was unsuccessful in its appeal.
Cases in this report
BG and Anor, R (on the application of) v Suffolk County council [2021] EWHC 3368 (Admin). https://www.bailii.org/ew/cases/EWHC/Admin/2021/3368.html
B, R (on the application of) v Cornwall County Council & Anor [2009] EWHC 491 (Admin). http://www.bailii.org/ew/cases/EWHC/Admin/2009/491.html
Harrison, R (on the application of) v Secretary of State for Health & Ors [2009] EWHC 574 (Admin). http://www.bailii.org/ew/cases/EWHC/Admin/ 2009/574.html
McDonald, R (on the application of) v Royal Borough of Kensington and Chelsea [2011] UKSC 33. http://www.bailii.org/uk/cases/UKSC/2011/33.html
Many ways to meet needs.
Because a person’s needs are specific to them, there are many ways in which these needs can be met.
The intention behind the legislation is to encourage this diversity, rather than point to a service or solution that may be neither what is best nor what the person wants.
Statutory guidance to the Care Act 2014 (2015, section 10.10)
