By James Simons-
Suffolk Council wrongly stopped funding family holidays for two disabled brothers by adopting a “restrictive and wrong” interpretation of the Care Act 2014.
A ruling by the High Court against Suffolk County Council that quashed its 2020 decision ending funding for the holidays for the men, known as BG and KG was supported by the Court Of Appeal which ruled that it had misunderstood the statutory law of how the Care Act 2014 should be applied, and that its misinterpretation of the law had led to it incorrectly denying autistic brothers funded holidays.
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The council which had financed the holidays since 2013 for the bothers made the erroneous decision to stop the funding on the flawed grounds that the provision no longer included holiday travel and accommodation in personal budgets because they did not constitute care and support needs. The council also concluded that the men’s mother was meeting all of their eligible needs so there was no requirement for the council to provide any funding.
The council appeared to have redefined what constituted meeting the needs of the individuals by substituting holidays for visits to the park, zoo and recreational activities, despite clear guidelines to provide holidays for the brothers.
Representatives of the brothers contested the decision by highlighting an error of law on the part of the council in ruling out holidays, fettered discretion, in refusing to even consider holidays, and a failure to make the requisite inquiries into the issue of holidays and recreation.
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Under the Care Act, the general duty of a local authority in exercising a function under this in the case of an individual is to promote that individual’s well-being. It includes social and economic well-being and domestic, family and personal relationships.
Well-being covers an intentionally broad range of the aspects of a person’s life and encompasses a wide variety of specific considerations depending on the individual. In the case of the autistic brothers, this included holidays because of the break it provided for them away from an environment of tension which many times have included abuse.
Local authorities are expected to begin with the assumption that the individual is best-placed to judge the individual’s well-being; and that everyone’s needs are different and personal to them. Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into.
Suffolk Council told The Eye Of Media.Com they did not have enough clarity as to whether they had the power to make direct payments with respect to recreation to the extent that included holidays, adding that ”sometimes we have to do these things to understand more about how the law is interpreted. The Care Act is relatively new and we didn’t believe we had the powers to make the payments being demanded of us”.
Respite Budget
In 2014, both children were given an annual yearly payment of £3,000 as a “respite budget” to allow them to go on supported holidays and planned trips away. This sum was in each of the respondent’s care plans from 2015. The money was used to finance trips and holidays which Lang J found had a beneficial impact on their mental health and which supported SQ as the primary carer. The monies funded family holidays in Florida in 2015, 2017 and 2018 which BG and KG enjoyed.
A letter to the appellant dated 19 July 2019 from Community Nurse Thomas confirmed that both brothers were dependent on their family for support and could not trust outsiders. Past challenges each had experienced with previous placements and carers. Nurse Thomas explained that conventional respite care with carers coming into the home or the respondents spending time away from home in respite settings was not an option because of the respondents’ condition.
She stated: “As neither [BG] or [KG] can have a break at this time without [SQ] they need to go away, on what to others is perceived as a holiday, for [SQ] it is a change of ordinary life, a chance for some of the chores and tasks she does at home to be taken away or shared with her husband. Meals are out so no cooking, no washing up and having to plan the different meals that are needed.
Respite holidays are considered to be therapeutic value in terms of allowing all to feel less distress, to use it as a positive reinforcement to help with the need to change the negativity that has been present throughout their life as positive.”
In October 2019 a draft support plan was prepared for BG which recommended a reduced direct payment of £108 per week, no one-off respite payment was recommended. The plan stated that respite was “to be discussed”. Within the draft plan it was noted that BG enjoys nature activities such as walking, wildlife and picture taking outside of the local area.
It stated that he enjoyed visiting historical places of interest such as castles, bird sanctuaries and National Trust places. It also noted that, due to BG’s negative experience at the day centre and his anxiety, he needed someone with him in order to access the community. He was no longer able to access cafes where he had previously relaxed and met people.
The court found that neither holidays nor recreational activities were assessed as “eligible needs”, a departure from previous assessments. Within each assessment it was noted that without SQ’s support neither BG nor KG could access anything outside the home including medical appointments.
It was stated that if either respondent did not receive full support from his mother there would be a significant impact on his well-being. The assessments were not sent to herself or to BG and KG until 22 November 2020.
On 3 March 2020 Sara Eden, a team manager employed by the appellant, wrote to SQ informing her of a “replacement care budget and how it can be used”. The phrase was used by the appellant to describe non-residential care services, or a personal budget given to purchase non-residential care, intended to allow carer to take time to attend to their own needs away from the caring role.
The letter stated: “Whilst I appreciate that historically, there has been a one off payment of £6,000 – £3,000 for [BG] and £3,000 for [KG] which has covered the cost of your family holiday to Florida, as referenced in the letter you received from Nicola Roper dated 19 April 2018, Suffolk County Council is no longer including holiday travel & accommodation cost in personal budgets.
This is because, as part of a wider review of how direct payments are used throughout the country, it has been 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 council can only use the Adult and Community Services (ACS) budget to meet the council’s statutory functions.
It is my view that whilst [KG] and [BG] may have eligible support needs under the Care Act when on holiday, for example support to make sure [BG/KG] wear outfits appropriate to the weather, it would appear that your are meeting these needs as the main carer of [BG] and [KG]; therefore there are no identified eligible, unmet needs under the Care Act that the Local Authority have a duty to meet through the provision of care and support.
If that is not the case, do please let me know and I will arrange an assessment conversation with you to look into this further. If you wanted to look into short breaks for [BG] and [KG] where you, as main carer, will not be meeting their eligible needs for care and support, for example engaging a care agency to support them instead, Suffolk County Council would be responsible for funding such support’.
Restrictive
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.
Both the children were autistic with learning disabilities and epilepsy; BG is also incontinent and needs support with eating, washing and toileting, whilst KG has fibromyalgia, causing pain, and needs support with all aspects of daily living.
Their mother, who is their full-time carer and receives support from her husband and two family members cannot attend day centres and will not tolerate external carers in the home due to abuse she has suffered in the past.
In 2011, the council began 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.
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”.
Interpretation Of Care Act
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 case law. 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”.
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 decision 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.”
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