BG (by his mother and litigation friend SQ) v Suffolk County Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 14 December 2021 |
| Neutral Citation | [2021] EWHC 3368 (Admin) |
| Docket Number | Case No: CO/476/2021 |
| Court | Queen's Bench Division (Administrative Court) |
The Queen on the application of
[2021] EWHC 3368 (Admin)
Mrs Justice Lang DBE
Case No: CO/476/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Catherine Rowlands (instructed by Bindmans LLP) for the Claimants
Lee Parkhill (instructed by Legal Services) for the Defendant
Hearing date: 9 November 2021
Approved Judgment
The Claimants seek judicial review of the Defendant's decisions, made pursuant to the Care Act 2014 (“CA 2014”) and the Care and Support (Eligibility Criteria) Regulations 2015 (“the 2015 Regulations”), to withdraw funding for holidays (notified on 3 March 2020); and to cease the direct payments which were being used for the Claimants' outings and recreational activities (notified on 12 November 2020).
The Claimants are two brothers, who are disabled adults, acting by their mother and litigation friend, SQ. The Defendant (“the Council”) is the local authority with responsibility for the social care needs of the Claimants, and the needs of their main carer, SQ, under the CA 2014.
On 22 March 2021, Mostyn J. granted the Claimants permission to apply for judicial review on grounds 1 to 5, and 7, but refused permission on Ground 6 (failure to give adequate reasons).
In its Summary Grounds of Resistance, the Council submitted that the claim, which was filed on 11 February 2021, was out of time, as the decisions under challenge were made on 3 March 2020. Mostyn J. rejected that submission for the following reasons:
“It is clear to me that the March 2020 decision was reissued, but in materially altered terms in November 2020, and that the latter decision should count as a new decision. Therefore the claim is not out of time. If I am wrong about that, time should be extended given the ongoing nature of the discussions and the clearly arguable points of law which these seriously impaired claimants should be entitled as a matter of justice to place before the court.”
In my view, a further reason for extending time is that the dispute over funding is ongoing, and so it would be open to the Claimants to file a fresh claim in respect of the same issues if this claim was time-barred.
Facts
BG was born on 10 April 1985 and is now 36. He has a diagnosis of autism and he has a learning disability. He displays considerable anxiety. He requires support with eating, washing and toileting. He has epilepsy and has seizures during both the day and night. He is incontinent during the night. He is prescribed extensive medication. BG is in receipt of benefits (Personal Independence Payments and Employment and Support Allowance).
KG was born on 10 October 1983 and is now 38. He also has a diagnosis of autism and he has a learning disability. He has epilepsy and a heart condition. KG displays significant anxieties and preoccupations. He has significant sensory needs, and he also has fibromyalgia which means he can be in pain and require a wheelchair when his mobility is poor. He needs support with all aspects of daily living. He is incontinent at night. He is prescribed extensive medication. KG is in receipt of benefits (Personal Independence Payments and Employment and Support Allowance).
SQ is the main carer for both Claimants. SQ's “Task Log” for September 2021 demonstrates that she is caring for the Claimants 24 hours a day, and is up every night attending to their needs. The Claimants' stepfather, and their sister and brother-in-law sometimes provide additional support, but they have other responsibilities and demands on their time.
In the past, the Claimants attended a day centre, called The Bridge Project, where they experienced abuse. Now they find it almost impossible to trust anyone outside the family, and so they cannot attend day centres and will not tolerate external carers in the home.
From 2011 onwards, KG and BG each received a care package that involved direct payments. The Council included access to the community by way of family outings and activities, and family holidays, in the assessment of their needs, and approved the use of their direct payments to meet these needs. From 2013, they also received a respite budget specifically for that purpose. As Mr Parkhill did not accept that the Council had approved the use of direct payments for these purposes, it is necessary to set out the evidence which has led me to these conclusions. I shall also draw upon the evidence of past assessments in considering the Council's submission that it had no duty to support the Claimants to participate in family outings, activities and holidays, because these were not assessed as part of the Claimants' eligible needs.
KG's ACS 1 Support Plan, dated 23 October 2014, stated that he had “a direct payment in place allowing him with support to access the community activities and to go on trip, London yesterday as mum is able to save the direct payment for such outings”. Following SQ's request for a respite budget so that she could take KG on a supported holiday and planned trips away, it was agreed that a one-off yearly payment of £3,000 would be requested. In addition, the current arrangements were to continue, namely, a direct payment of £150 per week plus the cost of attending The Bridge Project.
BG's ACS Support Plan, dated 27 October 2014, made similar provision, namely, a direct payment of £150 per week plus the cost of attending The Bridge Project. It stated: “[BG] also has a direct payment in place allowing him to access the community with support. This payment is managed by his mother/main carer who will sometimes save from this payment allowing [BG] to travel which he enjoys”. It was agreed that a “one-off respite budget” in the sum of £3,000 would be applied for, offering holiday possibilities.
By 2015, the placements at The Bridge Project had broken down and KG and BG were no longer attending.
KG's ACS Care and Support Plan Review, dated 10 November 2015, recommended an increase in direct payments to £190 per week, with a respite budget of £3,000 per annum. Under the heading “Who and what is important to the person”, it stated:
“[KG's] Autism and anxieties affect him in a way that means he will only agree to support from his Mother when accessing the community. Both KG and his brother are supported throughout the week to experience activities such as walks in quiet environments to lakes, parks, London … and bird reserves etc. They like to travel on trains to do this. [SQ] enjoys photography, she will take photographs of places they visit and [KG] enjoys editing them when back home.”
Under the heading “Meeting the Customer's Needs” it was recorded that “[KG's] anxiety means he is unable to face community involvement without his Mother's support” and that he had no other carers. It then went on to say:
“What will the customer need to buy with their personal budget to meet their needs and outcomes and to reduce/manage risk (that are not being met in another way)?
1. Continue experiencing community activities and develop confidence with a goal to attending services independently.
2. Opportunity to have respite time away with family.”
In order to achieve these outcomes and meet these needs, the recommendation was for an increase in weekly direct payments for item 1, and a one-off direct payment for item 2.
BG's ACS Care and Support Plan Review, dated 16 November 2015, recommended an increase in direct payments to £200 per week, with a respite budget of £3,000 per annum. Under the heading “what is important to the customer”, the Plan recorded that, following the breakdown in the placement, BG had lost his trust in other people and fully relied on his mother to support him to access the community. It went on to say that BG loved being out in nature, and the family regularly visit Minsmere Nature Reserve, the beach, Lackford Lakes, Zoos etc. BG liked to take photographs. He had been on holiday to Iceland and enjoyed it very much, and he was planning to visit Monterey Bay next year and had already done a lot of research into the local wildlife.
Under the heading “What does the person want to achieve and what are their personal outcomes?” the Plan identified “Access the community” and stated that, following the breakdown of his placement, “[it] is important for [BG] that he continues to access the community so that he can make new experiences and can re-build his confidence and trust.” The Plan also identified “Gain greater independence as a goal” and stated “[t]he long term plan is for mother to introduce [BG] … to activities with support where he may eventually feel comfortable enough to attend independently …”
Under the heading “Meeting the Customer's Needs”, the Plan repeated the assessment of needs and outcomes, and the recommended provision to achieve them, which is set out at paragraph 15 above, in respect of KG.
Norfolk and Suffolk NHS Foundation Trust drew up a Care Plan for KG, dated 10 March 2017. Among other matters it stated:
“Summary of assessment/formulation
…. [KG] has had the opportunity for outside activities due to the direct payments he receives. The money was used to fund trips to various nature spots where [KG] enjoyed taking photos and exploring the areas, these places have been beneficial in helping him calm. This has been the subject of a problem with ACS and is the contributory factor in the current distress…..”
“Management Plan
….
[KG] has direct payments money and respite money to give him opportunities to go to places that help keep him calm. The respite money is used to allow the family to have a break. Health recommend that this should continue ….”
The...
To continue reading
Request your trial
-
BG and KG v Suffolk County Council
...Lord Justice Phillips Case No: CA-2022-000005 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE ADMINISTRATIVE COURT Lang J [2021] EWHC 3368 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Andrew Sharland QC and Lee Parkhill (instructed by Suffolk County Council Legal Serv......
-
SM v Secretary of State for Work and Pensions (UHC)
...for the person being cared for which he cannot or should not be expected to do for himself”. In R (BG) v Suffolk County Council [2021] EWHC 3368 (Admin) Lang J held that, in the context of the Care Act 2014, “the natural and ordinary meaning of the word “care” is the provision of personal s......
-
R (P) v London Borough of Croydon
...willing and able” to provide support – a matter which had not properly been considered: see R (BG and KG) v Suffolk County Council [2021] EWHC 3368 (Admin) at paragraphs 84 and 142. Whilst the Defendant had now agreed to carry out a carer's assessment, which was welcome, and which disposed......
-
BG and KG v Suffolk County Council
...Lord Justice Phillips Case No: CA-2022-000005 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE ADMINISTRATIVE COURT Lang J [2021] EWHC 3368 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Andrew Sharland QC and Lee Parkhill (instructed by Suffolk County Council Legal Serv......