July 26
The claimant brothers were disabled adults who suffered from autism, a learning disability, epilepsy and anxiety. Their mother was their main carer, caring for them 24 hours a day including night-time attendance. The claimants had previously attended a day centre where they experienced abuse. As a result, they found it almost impossible to trust anyone outside the family, they could not attend day centres and would not tolerate external carers in the home. The local authority had responsibility for the social care needs of the claimants and the needs of their main carer under the Care Act 2014. The assessment of their needs carried out pursuant to section 9 of the 2014 Act included access to the community by way of family outings and activities and family holidays. From 2011 onwards, the claimants each received a care package that involved direct payments from the local authority which ranged between £108 and £150 a week. In 2014 the claimants were each given an annual payment of £3000 as a “respite budget” to allow them to go on supported holidays and planned trips away. The money was used to finance trips and holidays, in particular three family holidays in Florida, which had a beneficial impact on the claimants’ mental health and which supported their mother as the primary carer. In October 2019 the local authority completed Care Act eligibility assessments for the claimants applying the eligibility criteria set out in regulation 2 of the Care Support (Eligibility) Criteria Regulations 2015. In the assessments, neither holidays nor recreational activities were assessed as “eligible needs”, a departure from previous assessments. The authority determined that it would no longer fund the family holidays of the claimants on the basis that it was no longer including holiday travel and accommodation costs in personal budgets. The claimants brought a claim for judicial review. The judge allowed the claim, quashing the local authority’s decision. The local authority appealed on the grounds that the judge had erred, inter alia, (i) in declaring that the local authority had a power, as a matter of law, to provide financial support for recreation activities and holidays, under section 18 of the 2014 Act; and (ii) in holding that section 19 of the 2014 Act conferred the power to provide financial support for recreation activities and holidays. In particular, the authority contended that the phrase “needs for care and support” in the context of section 9 of the 2014 Act concerned needs to be “looked after”.
On the appeal—
Held, appeal dismissed. The adult’s needs for “care and support” were the basis of the section 9 assessment and the section 18 duty under the Care Act 2014. “Support” began with the identification of the needs and wishes of the particular individual and should be tailored to address the same. The needs under the 2014 Act could no longer be described as “looked after” needs as such a description did not properly reflect the individual nature of the assessment, its recognition of the autonomy of the individual and the tailored and broad nature of the support which could be provided, pursuant to section 1, 9 and 18 of the 2014 Act. Consistently with that emphasis on the autonomy of the individual linked to well-being and support, the intention of the legislation was to broaden the discretion and flexibility of local authorities in their provision of care and support to adults. Regulation 2(2)(i) of the Care Support (Eligibility) Criteria Regulations 2015, in setting out one of the specified outcomes as “making use of necessary facilities or services in the local community including public transport, and recreational facilities or services”, confined the use of “necessary facilities or services in the local community” to such facilities or services in that local community. It did not however confine the provision of “recreational facilities or services” as being so geographically confined. Whilst the provision of recreational activities and holidays for the claimants would meet two of the eligibility criteria set out in regulation 2, namely subparagraphs (g) and (i), it was not possible to use recreational facilities merely by the provision of support to access the facility if the adult in question could not afford to pay for the entry requirements. The needs of the claimants to take part in recreational activities, which included holidays, arose from their physical and mental impairment (regulation 2(1)(a)). The financial support, previously provided by the local authority, was not simply a means of paying for the claimants to take part in such activities and to go on holiday, it was a means of meeting their needs which arose from and were related to the physical and mental disability from which each suffered. Further, the needs of each claimant were specific to each rather than a universal need. The relevant provisions of the 2014 Act did not prohibit the provision of what was termed a “universal need”; rather, it guided the need to be assessed by reference to the eligibility criteria of the adult. It followed that the need for holidays and recreational activities, arising as they did from the claimants’ physical or mental impairment, were eligible needs and could be met by the provision of goods or facilities, in the present case financial support in the form of a direct payment (section 8(1)(d), section 8(2)(c) of the 2014 Act). The claimants’ sole carer could not meet all of their needs for recreation as she was unable to afford entrance fees, transport and other costs. To find, as the local authority did, that the carer could meet all the eligible needs of the claimants was 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. Accordingly, the local authority’s determination that the carer was meeting all of the claimants’ eligible needs was wrong, as it was based upon a restrictive and incorrect interpretation of the relevant needs pursuant to the 2014 Act and the 2015 Regulations. Accordingly, the judge had been correct to hold (i) that the local authority had a power, as a matter of law, to provide financial support for recreational activities and holidays under section 18 and (ii) that section 19 conferred the power to provide financial support for recreational activities and holidays (paras 70–71, 73–76, 78–80, 84, 85).
Andrew Sharland QC and Lee Parkhill (instructed by Suffolk County Council Legal Services) for the local authority.
David Wolfe QC and Catherine Rowlands (instructed by Bindmans LLP) for the claimants.