BG and KG v Suffolk County Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Lord Justice Phillips,Lord Justice Baker |
| Judgment Date | 26 July 2022 |
| Neutral Citation | [2022] EWCA Civ 1047 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-000005 |
and
[2022] EWCA Civ 1047
Lord Justice Baker
Lady Justice Nicola Davies
and
Lord Justice Phillips
Case No: CA-2022-000005
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Lang J
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Sharland QC and Lee Parkhill (instructed by Suffolk County Council Legal Services) for the Appellant
David Wolfe QC and Catherine Rowlands (instructed by Bindmans LLP) for the Respondents
Hearing dates: 16 June 2022
Approved Judgment
This is an appeal arising from the order of Lang J dated 14 December 2021 in which she allowed the claim for judicial review brought by BG and KG by their mother and litigation friend SQ. Lang J quashed the appellant's decision of 3 March 2020 which determined that the appellant would no longer fund the family holidays of BG and KG upon the basis that the appellant council was no longer including holiday travel and accommodation costs in personal budgets. In her order, Lang J declared that the appellant has the power, as a matter of law, to provide financial support for recreational activity and holidays under section 18 of the Care Act 2014 (“CA 2014”). It was further ordered that the appellant by no later than 31 January 2022 was to prepare a fresh assessment of each of the respondent's needs having regard to the terms of the court's judgment including the fact that it has the power to provide financial support for the BG and KG to access recreation activities and holidays.
The facts
The respondents are two brothers who are disabled adults acting by their mother and litigation friend SQ. The appellant is the local authority with responsibility for the social care needs of the respondents and the needs of their main carer, SQ, under the CA 2014.
BG, born on 10 April 1985, and KG, born on 10 October 1983, have diagnoses of autism and a learning disability. Each suffers from epilepsy and anxiety. BG suffers seizures and incontinence and requires support with eating, washing and toileting. KG has significant sensory needs, he suffers from fibromyalgia which results in pain and on occasion a need for a wheelchair. He is incontinent at night and needs support with all aspects of daily living. The respondents are prescribed extensive medication. They are in receipt of benefits, personal independence payments, employment and support allowance.
SQ is the main carer for her sons, she cares for them 24 hours a day including night-time attendance. The respondents' stepfather and two family members provide additional support. SQ and her husband are in receipt of carer's allowance.
BG and KG had previously attended a day centre where they experienced abuse. As a result, they find it almost impossible to trust anyone outside the family, they cannot attend day centres and will not tolerate external carers in the home.
From 2011 onwards, BG and KG each received a care package that involved direct payments from the appellant which ranged between £108 and £150 a week. The assessment of their needs included access to the community by way of family outings and activities and family holidays. The appellant approved the use of direct payments to meet these needs. From 2013 they also received a respite budget.
In 2014, the respondents were each 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.
In a letter to the appellant dated 19 July 2019, Community Nurse Thomas confirmed that both BG and KG were dependent on their family for support and could not trust outsiders, identifying past difficulties which 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. …
The need to be away from the local area is considerable due to the issues with others comments and behaviours towards them all…
All the breaks away have had a long-term positive effect and meant [SQ] has been able to continue again with her caring role….
The respite “holiday” has therefore a 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.”
On 18 October 2019 a draft support plan was prepared for BG. It 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. 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.
On 18 October 2019 the appellant completed Care Act Eligibility Assessments for KG and BG applying the eligibility criteria set out in regulation 2 of the Care Support (Eligibility) Criteria Regulations 2015 (“the 2015 Regulations”). Eight of the specified outcomes set out in Regulation 2(2)(a) – (i) of the 2015 Regulations were not met and each was assessed as representing an eligible need. Of note is the fact 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. SQ stated that 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 (but not to BG or KG) 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.
….
I have summarised the responsibility for funding around short breaks as follows.
Please note that such costs must be approved by Suffolk County Council as part of [BG]/[KG]'s care and support plan in order to proceed further.
What Suffolk County What Council are responsible for funding
Suffolk County Council are not responsible for funding
Support costs for when BG and KG participate in activities in the community, for example to meet the cost of a carer supporting BG or KG to
• Visit the local library or shops
• Visit a leisure activity or attraction
• Participate in a hobby or interest
Admission cost of carer to accompany BG or KG to an activity with paid for entry where there is no carer free entry concession available and carer support is necessary to allow them to access the activity
“Universal costs” i.e those that are incurred by everyone...
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...me albeit that they drew attention (for completeness) to the observations of the Court of Appeal in R(BG) v Suffolk County Council [2022] EWCA Civ 1047 at para 70 which stressed the greater emphasis on the autonomy of the individual and the need for care and support in the CA 2014 (compare......