This was a challenge by the claimant (M) to the decision made by Suffolk County Council that it was precluded from making direct payments to M by regulation 7 of the Community Care Services for Carers and Children’s Services (Direct Payments) England Regulations 2003 (the Regulations). This provision states that direct payments “shall not be made in respect of the provision of residential accommodation for any person for a period in excess of a prescribed period.”
M was a 16 year old child with Downs Syndrome, severe learning disabilities, speech impediment and communication difficulties. M lived with her father in respect of whom there was a residence order. Her mother was permitted contact via a contact order. M was assessed as a ‘child in need’ under s17 Children Act 1989. In relation to M’s education a decision was made following an assessment, that she should attend the local school and receive 24 hour assistance at home. M’s sole carer was her father who worked full time. He decided not to comply with Suffolk’s decision for M to go to the local school and receive care at home and arranged for her to attend the S boarding school. M’s father received a direct payment to pay for care services in respect of M and a proportion of the school fees were paid from this direct payment. His case was that as a single parent it was necessary for him to make arrangements for M to attend the S boarding school because he was unable to work and support M adequately with the amount of support given by direct payments. M’s father and family paid for the basic residence and education fees at the school, whilst the direct payment covered social and practical care aspects of her time at the school during term time. Suffolk did not accept that enrolling M in this school was what best promoted her welfare and it disagreed that social and practical care could not be provided at M’s own home. In response to the action of M’s father, Suffolk continued to make the payments to M but under the provisions of s17 of the Children’s Act since in its view, to continue to make direct payments under regulation 7 of the Regulations, was unlawful.
The primary legislation behind the Regulations is s57 Health and Social Care Act 2001 which authorises a local authority to make payments to ‘prescribed persons’ to secure community care services which would otherwise be provided by the local authority and s17A Children Act 1989 which introduced the concept of direct payments to children and those who care for children. The 2001 Act states that such regulations may provide that direct payments shall not be made in respect of the provision of residential accommodation for a period in excess of the prescribed period under regulation 7. The Children Act 1989 authorises responsible authorities to make direct payments to persons with parental responsibility for a disabled child and essentially mirrors the provisions of s57 of the 2001 Act. Section 57 and 17A both describe a ‘prescribed person’ as a person capable of managing a direct payment by himself or with assistance as may be available. In relation to s17A the responsible authority must be satisfied that the welfare of the child will be safeguarded and promoted by means of the direct payment. Direct Payment Guidance published by the Department of Health sets out the purpose of a direct payment “to help people who want to manage their own support to improve their quality of life.”
The question for the court was whether regulation 7 rendered it unlawful for Suffolk to make any payment towards the fees of the S boarding school on the basis that it would be a direct payment for the provision of residential accommodation. The answer to the question centred on the construction of the regulation. It appeared that its structure and purpose was that when someone had needs and the assessment was that the needs should be met by the provision of residential accommodation, the period over which the accommodation was provided was limited and capped by the prescribed period set out in the regulation. Direct payments were not intended to provide long term residential accommodation for adults or children. A suggested solution by the court to the issue in question was that Suffolk could assess what it would pay if M’s father was to adopt its plan as to what the best course would be to promote his daughter’s welfare but would acknowledge that, provided the money was applied in meeting the relevant needs, he could spend the money as he saw fit. This would enable M’s father to pay towards the care element of the fees paid to the school.
The court held that Suffolk, in deciding that it was prevented from making a direct payment in respect of residential accommodation beyond the prescribed period had incorrectly interpreted regulation 7. The correct interpretation was to ask what proportion of the fees were categorised as a ‘provision of residential accommodation’ and then to ask what was being provided in return for the fees paid. This could be divided across education, social and practical care and basic residence. It would therefore be possible to identify what proportion of the payment related to accommodation and education. This approach supports one of the purposes of the provisions of the 1989 Act and the Regulations, which is that when a need has been identified and a child is assessed as requiring assistance to meet that need, the parent/s should be given the choice as to how that need should be met. There was no reason why a fair and proper apportionment of the fees in respect of S boarding school could not be made so that what was prohibited was the payment of the proportion of those fees which related to the provision of residential accommodation.
A Declaration was made by the court that Suffolk was not precluded by regulation 7 from making direct payments in connection with the social and practical care of M, by reason of the fact that she was at S boarding school.