Case Comment – BG & KG (by their mother & litigation friend, SQ) and Suffolk County Council [2022] EWCA Civ 1042
This case commentary will explore a recent case involving a decision taken by a local council to stop funding holidays and recreational activities for two brothers with autism, a learning disability and epilepsy. This commentary will outline the facts of the case, the legal framework, the Court’s decision and how this ruling will impact individuals and local authorities when the issue of funding holidays arises.
Spoiler alert – the ruling in this case is unlikely to be a golden bullet to getting holidays paid for within Local Authority care packages, but the Court of Appeal has provided some stern reminders as to the fact that the Care Act 2014 has changed how support packages should be provided. There should now be less emphasis on providing a service, with more emphasis on ensuring that the person’s needs are met in flexible and creative ways, which may, or may not, include funding holidays.
This case concerns two brothers in their 30s. They both have autism, a learning disability and epilepsy. They have a number of other physical health problems and they needed to be supported and cared for 24 hours a day. Sadly, they did not get a huge amount of opportunity to socialise with friends following a terrible experience of abuse at a day centre, resulting in them finding it very difficult to trust anyone anymore. They did not have paid staff providing them with any care to meet their needs at home, or to go out and about.
This meant that their care was provided solely by their mother, who had very little time to herself as a result. Respite packages would have meant that she could have had some much-needed time to re-charge herself, knowing that her boys were being properly cared for and supported in her absence. However, because they couldn’t trust anyone else, this respite sadly was not an option for the family.
Like most of us after COVID restrictions reduced, they all were in desperate need of a break. They wanted to go on holiday to enjoy themselves and also for their mother to have a well-deserved break. However, sadly for the brothers, their mother understandably could not afford to fund this cost on a small benefits package. She was also unable to afford the cost of entrance fees to events and fun things happening in the community, meaning that she was limited in her ability to properly look after her boys and ensure that their mental wellbeing was in good shape.
Suffolk County Council was the local authority responsible for commissioning a package of care to meet the needs of the brothers and from around 2011, this financial package of support consisted of direct payments being made to them to fund weekly activities such as going to cafés and taking pictures in the community, as well as an annual payment for respite to pay for holidays abroad. The annual payment had been used to fund family trips to Florida in 2015, 2017 and 2018. At the time, it was considered that using the money in this way had a direct beneficial impact on the brothers’ mental health and there was no issue with their mother supporting them as their primary carer and going on holiday with them.
A re-assessment under the Care Act 2014 was completed in October 2019. In a dramatic change from previous assessments, holidays and recreational activities were no longer assessed as an eligible need for the brothers. Consequently, there would be no funds to allow them to go on holiday, or to use for other recreational activities. However, the assessment did note that without their mother’s support, neither of the brothers would be able to access any types of activities outside the family home, including all the fun things they liked to do and attending important medical appointments. It was also noted that without their mother’s support, there would be a significant impact on their wellbeing. But still the decision to exclude payments for holidays and recreational activities was made. It seemed somewhat illogical given the circumstances, and it seemed to be based upon a blanket policy.
Because the impact of the decision was overwhelmingly detrimental to her and her sons – no support for trips out of the house, no support to access medical appointments and no funding for the very much needed holiday; the brothers’ mother issued an application for judicial review. At first instance, a judge agreed with her and the claim was successful which meant that the local authority was ordered to fund holidays and activities in the community. Suffolk County Council appealed this decision to the Court of Appeal. However, they were unsuccessful and the outcome remained that they should make payments for holidays and recreational activities and that their policy was unlawful.
In the appeal, the Court provided some useful guidance around how the relevant parts of the Care Act 2014 (‘the 2014 Act’) and the accompanying regulations and statutory guidance that should be applied in similar situations.
The Court started with section 1 of the 2014 Act, which makes it clear that there is a general duty on the local authority to promote an individual’s well-being. Wellbeing is then defined widely in section 1(2). Section 18 sets out the specifics of the duty on local authorities to meet needs for care and support, with section 19 setting out the power of the local authority in this regard.
The court also referred itself to the Care and Support Statutory Guidance (‘the Guidance’), which makes clear at paragraph 1.7 that “…well-being covers an intentionally broad range of the aspects of a person’s life and will encompass a wide variety of specific considerations depending on the individual”. Paragraph 1.8 of the Guidance goes on to make it clear that a local authority can promote a person’s wellbeing in many different ways and how this happens will depend on the person’s circumstances, including their wishes, needs and goals, and how this will impact on their wellbeing. It is also stated that “there is no set approach – a local authority should consider each case on its own merits, consider what the person wants to achieve, and how the action which the local authority is taking may affect the well-being of the individual”.
The person-specific nature of the Care Act is further explained in paragraphs 1.9 and 1.10 of the Guidance, where it is stated that “the [Care] Act therefore signifies a shift from existing duties on local authorities to provide particular services, to the concept of meeting needs” and “the concept of meeting needs recognises 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”. Paragraph 1.11 also concludes by stating that “local authorities should adopt a flexible approach that allows for a focus on which aspects of well-being matter most to the individual concerned”.
Paragraph 10.10 of the Guidance is also considered by the Court, where it is said that “Meeting needs is an important concept under the [Care] Act and moves away from the previous terminology of providing services…the concept of meeting needs is intended to be broader than a duty to provide or arrange a particular service. Because a person’s needs are specific to them, there are many ways in which their 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”.
What is absolutely clear from the legal framework is that local authorities must consider and provide care in a person-centred way. So, based upon the 2014 Act and the Guidance, it does not appear appropriate for local authorities to seek to rely upon blanket policies as Suffolk County Council tried to do here.
The Court of Appeal upheld the decision made by the judge that looked at this first. At paragraph 66, the Court of Appeal concluded that the evidence showed that going on holiday and accessing recreational activities had a positive impact on the wellbeing of the brothers. It was also concluded that there had been no change in their physical and mental health such as to undermine the factual basis of the previous assessments. Indeed, the court was clear “what has changed is the approach of the appellant [local authority]”. At paragraph 71, the court notes that the intention of the legislation is to “broaden the discretion and flexibility of local authorities in their provision of care and support to adults”. The change in approach was probably down to the increasing pressure from central government to make sweeping cuts. Luckily, at present, the judiciary can continue to hold government funded bodies to account and remind local authorities of their duties to individuals.
The Court of Appeal accepted that the brother’s well-being was promoted by going on holiday and accessing recreational activities. As such, this was an eligible need for the purposes of the 2014 Act. The Court was also clear that without financial support from the local authority, it was not possible for their mother to meet their needs in this regard. At paragraph 78 of the judgment, it is stated that “SQ cannot meet all her sons’ needs for recreation as she is unable to afford entrance fees, transport and other costs. To find, as the appellant [local authority] did, that SQ as their carer can meet all the eligible needs of [BG & KG] 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”.
Ultimately, it was concluded that Suffolk County Council had a responsibility, as a matter of law, to provide financial support for recreational activities and holidays under section 18 of the 2014 Act, with section 19 of the 2014 Act conferring power on the local authority to provide such financial support. It followed, therefore, that the local authority’s decision to exclude payments for such services was unlawful and the decision had to be made again, applying the legal framework properly.
Based upon the specific facts of this case, the decision of the Court of Appeal was clearly the right one. However, it should not be considered authoritative for all situations and should therefore be treated with some caution. It does not indicate that public bodies always need to fund holidays. What is clear from the facts of this case is that the need for a holiday was a specific need of these two brothers; without this financial support, their mother would have much greater difficulty in supporting them, and this would have been likely to have had a detrimental effect on their mental wellbeing.
There is a key message from this case for public bodies and in particular local authorities with responsibility for assessing and meeting needs under the Care Act 2014– the Care Act 2014 has changed how support packages should be provided. There should now be less emphasis on providing a service, with more emphasis on ensuring that the person’s needs are met in flexible and creative ways. For example we have heard of one person’s need to mix with friends and to have hot meals being met with vouchers to fund their lunches at their local pub. With this in mind, local authorities would do well to avoid blanket policies around what will be funded, as having these in place means that they are unlikely to meet their duties under the Care Act 2014. It will be important to look at each person individually, and consider how best to meet their needs in a meaningful way both for them and their families and friends.
From the individual’s perspective, this case is important as it highlights duties placed on local authorities under the Care Act 2014. However, as mentioned above, it does not mean that a holiday will automatically be funded. It will be important to look at the person’s individual needs and consider how best to meet those. If the person is unsure, advice from a solicitor should be sought.
Ultimately though, it shows that the judiciary will not shy way from finding decisions made by local authorities to be unlawful and that challenges can and should be made where it looks like public bodies have over, or under-stepped the mark. If you have concerns of a similar nature for your loved one, early legal advice should be sought.
Ashfords LLP has a specialist team who can advise on matters related to community care and the Court of Protection. Please contact us on 0117 321 8038 for a free, non-obligation chat.
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