Suffolk’s appeal about holiday and activities costs, under the Care Act, was dismissed on 26 July 2022

See here https://caselaw.nationalarchives.gov.uk/ewca/civ/2022/1047

CASCAIDr’s view is that councils urgently need to reconsider their policies on this topic, in relation to care planning, budgets and direct payments.

That is because there is a principle at stake here, regarding error of law in interpreting the scope of the Care Act, that goes to the heart of many people’s current budgets. And the Court of Appeal’s decision on that principle, is binding, unless or until appealed, which is only possible with leave from the Supreme Court.

This question clearly matters for the reforms coming in next October, because of the rate at which people with IPBs will progress towards the life time care costs cap being brought in then, if these kinds of costs will sometimes have to make it into their budgets.

The Court at first instance (Lang J) had concluded thus:

“Put simply, if the Claimants’ assessed needs arising from their disabilities includes a need for a holiday or other recreational activities, then the cost of the holiday to the disabled person is a need which can be met under CA 2014.”

On appeal the Court held that Suffolk’s position that holidays were ‘universal’ and in some way excluded from the range of responses to eligible need, was indeed an error of law.

It further found that submissions to the effect that the Claimants’ needs were not eligible needs because the assessments had not identified that specific response as an eligible need – or that if eligible – were being met by a willing and able carer – could not be sustained.

“The needs of the respondents to take part in recreational activities arise from their physical or mental impairment or illness (regulation 2(1)(a) of the 2015 Regulations). There is and will be a significant impact on their well-being as a result of not meeting the specific outcomes. Accordingly this is an eligible need.”

Recreational facilities and services are not linked to only what is in the local area, in the eligibility regulations, so there is no obvious reason justifying the exclusion of holidays costs AWAY from one’s home.

And it goes without saying that the cost for the person caring, if that is the only way the holiday can be of any use, in meeting the needs, must be included as well, though not to what extent. 

Commentary from CASCAIDr

This is a decision that could be said to turn on the previous assessment of the two men involved having been found to have eligible needs which had been met previously by way of a respite budget for a holiday AND weekly activities sums, and in respect of whom there was no plausible evidence to suspect that their needs had lessened.

On top of that, it must be acknowledged that it was a situation where everyone accepted that the men’s mother was the only viable carer, because of trauma in the past. She was not being paid to care, and she wasn’t asking to be paid, formally. She simply said that if she didn’t go with them to the activities or on the holidays, they wouldn’t be able to have their needs met, and she could not afford to go without financial assistance and that they could not afford it either. Those stances had informed care planning and budget setting in the past, until the council hit upon the notion that they had no power to pay for such things under the Care Act, and trained staff to assess according to that view.

However, we do not think it right to marginalise the significance of the case in that way.

The Care Act did its best to make the customer journey towards funding into a more linear one, whilst emphasising it should be done holistically.

The linear structure starts with needs assessment, then progresses through filtration of specific kinds of needs out from the first collection, on through to the making of an eligibility decision under regulations-based criteria, and then ending with care planning and a budget.

It has been made clear by the Guidance and previous case law that one does not ‘assess’ for responses, or service solutions, as if those are ‘the needs’ that one is looking for.

One identifies all potential needs first.

One might filter out or at least put to one side, needs that have nothing to do with care and support, or more to do with some other agency at that point – for the nature of those needs MAY relate to health, benefits, education or housing where other agencies’ functions (or even mandatory duties) may be an answer, for instance.

Needs where the nature of such is ‘on the cusp’ could properly be regarded as in limbo until later because if they could feasibly be seen as within the concept of care or support, on a fair reading of the Care Act, then they might well be provided for, in any event, as incidental to the main response for the more obviously social services needs, either for ‘better value’ reasons, or because of sensible integrated joint working agreements (one fine day).

From the needs left on the table at that point, which will plainly be for care and support, one then identifies whether they arise from physical or mental impairment, and then focuses on deficits by reference to the domains in the regulations and the person’s inability to achieve across those domains as defined, and then on the impact arising.

One does all of this FIRST – all as part of assessment and eligibility decision-making.

A duty to meet the needs arises at that point, unless there is a good reason for stepping back from it – such as an able and willing carer being clear that they can continue to meet some or all of those eligible needs – or the person wishes to meet their own needs, through the spending of their own money, as another example. Or that the duty is not in fact a duty because the person is not ordinarily resident in that council. Or that some other agency is BOUND by its own duty to step up, such as where the NHS has identified a primary health need.

That discussion narrows down the eligible needs to unmet needs. Only then does one go on to care planning, which involves professional judgement and discretion regarding HOW to meet the eligible unmet needs, and none as to WHETHER to meet them.

To do all of this filtration – one does need to take an informed view as to the scope of care and support.

To that end, the principle arising from the Court of Appeal’s decision is that is wrong in law to exclude financial assistance for the consumption cost of holidays or activities from the scope of the Act.

The scope of the Care Act (s8) includes goods and facilities. The Court agreed that support CAN include financial assistance for the cost of what is needed, regardless of whether the money is provided as a direct payment in lieu of a budget from which the council will do the commissioning.

That is now a binding precedent on all local authorities, unless the council gets leave to appeal from the Supreme Court.

This means that councils cannot have a policy that the consumption cost of recreation facilities or services (ie the entrance fee) cannot be funded within a personal budget, or that it should always be seen only as Disability Related Expenditure.

Councils still have room for judgement as to HOW TO MEET A NEED of this nature, and whether it’s necessary to meet the eligible need by financing the cost, and if so to what extent, but the facts of this case show that there will be cases where the only way to do it will be to pay for the consumption cost for a particular person AND their care worker or close relative in the same household.

So staff should be advised NEVER to say NEVER, and council Panels must make decisions worthy of senior professionals, and make those very difficult decisions with articulated reasons for different outcomes. Paragraph 10.86 of the Guidance requires no less. Since there can be a duty, and there is definitely a power under s19, any panel must be seen to consider the ‘best value’ aspects of funding these aspects of needs.

Everything flows from the assessment!

The real significance of this judgment is that it looks BACK at how an error of interpretation and approach flawed the men’s ASSESSMENTS, which had not been specifically challenged.

“The final determination was contained in the letter of 12 November 2020 and was properly identified by the respondents as the primary ground of challenge. In my judgment, the approach of the court in considering the assessments in 2019 and the process thereafter, was not only reflective of the ongoing nature of the same it was a reasonable course to take and accordingly ground 1 of this appeal is dismissed.”

If the sector were to take this on board, it would mean that a large number of assessments done on the basis of a flawed approach, would have to be RE-done.

CASCAIDr – in its advice to people making referrals – and the Ombudsman, in handling complaints about this sort of decision, can only operate on the basis that the law is now tolerably clear. For members of the public, it means that if the assessment is flawed, by a policy that is unlawful, then there is not such a big issue as to the time limit for challenging the care planning outcome in court or by way of complaint.

We think that this decision means that Councils do not have the ethical or legal right to say ‘You will just have to make each individual council comply with this case law’.

Some will, no doubt, and justify that sort of a stance, as merely managing legal risk, as they did with responding to the unlawful charges decision in Norfolk.

That decision was only a High Court judgment. Any second challenge in another case could have gone the other way. But it is not open to take that view with a decision of the Court of Appeal, and we do not think that the LGSCO could stand by and let a council or its Monitoring Officer get away with such a stance.