The Court of Appeal’s reasoning in BG v Suffolk County Council, on the question of ‘holiday and activities costs, as part of the budget’

Here is an excerpt from the judgment which is not online as yet, so the numbering is different and the facts are re-stated earlier on.

Suffolk’s Grounds of appeal 

  1. Three grounds of appeal are advanced namely that the judge erred: 
  1. In holding that the appellant’s assessment of the respondents’ care needs, conducted in October 2019, were defective, such that they could not be relied upon to defend the 3 March 2020 decision, in circumstances where the respondents had advanced no challenge to the assessment; 
  1. In declaring that the appellant has a power, as a matter of law, to provide financial support for recreation activities and holidays, under section 18 of the CA 2014; and  
  1. In holding that section 19 of the CA 2014 confers the power to provide financial support for recreation activities and holidays. 

The appellant’s submissions 

  1. The appellant raises two issues: 
  1. The extent to which the Administrative Court can, on an application for judicial review, grant relief in relation to decisions that are not challenged and, because of the passage of time, are not challengeable. 
  1. Whether the appellant has the power, pursuant to section 18 or 19 of the CA 2014 to fund foreign holidays and recreation activities for BG and KG. 

Ground 1 

  1. It is the appellant’s case that, as there was no challenge in the judicial review claim form to any decisions other than that of 12 November 2020, this was the only decision which should have been considered by the court.  In its order the court effectively granted relief in relation to the two eligibility needs assessments completed in October 2019 and quashed the appellant’s decision of 3 March 2020.  In the absence of challenge, the court was required to treat the assessments as lawful and effective, its failure to do so amounts to an error or law.  The need for procedural rigour in judicial review proceedings is important. 
  1. The court should have considered only the issue of whether the November 2020 decision was unlawful because it allegedly breached the appellant’s statutory duties under section 18 CA 2014.  In October 2019 the appellant adopted the sequential approach provided by the CA 2014 in assessing the care and support needs of the respondents and identified eight “eligible needs” under the 2015 Regulations.  As neither holidays nor recreational activities were assessed as “eligible needs” in the October 2019 eligibility needs assessment it follows that the appellant had no duty or power to provide support pursuant to section 18 or 19 of the CA 2014.   
  1. The appellant accepts that it has a duty to meet the identified eligible needs (section 18(1) of CA 2014) unless those needs were met (section 18(7) CA 2014).  All of the respondents’ identified eligible needs were being met by a carer, mainly SQ, with occasional assistance from other members of the family.  It is accepted that where a carer is meeting an adult’s eligible needs that carer will have breaks during which the adult in need receives respite care from others.  The respondents were unwilling to be cared for by persons other than their immediate family.  In these circumstances the appellant concluded that it was not required to meet the respondents’ identified eligible needs and therefore it ceased to make direct payments in November 2020. 

Ground 2 

  1. The appellant contends that the court’s analysis focuses exclusively on whether the holidays and recreational activities can amount to “needs for care and support”.  The statutory duty in section 18(1) to meet needs is not triggered by the existence of a “need for care and support” but only by the existence of an “eligible need”.  It is the appellant’s case that holidays and recreation activities are not “needs for care and support” but even if they are, they are not “eligible needs” so no power to provide them pursuant to section 18(1) arises.   
  1. The appellant relies upon its interpretation of para 2(2)(i) of the 2015 Regulations, namely, that recreational activities and services are limited to the local community for the adults being cared for.  Such an outcome provides for the use of such a facility by the adult but not for the cost of admission to the same.  The appellant would pay for the adult’s travel to the facility but not for the entry ticket.   
  1. The appellant submits that the phrase “needs for care and support” in the context of section 9 CA 2014 concerns needs to be “looked after”.  Reliance is placed upon the judgment of Mr Michael Fordham QC (as he then was) in R (Aburas) Southward LBC [2019] EWHC 2754 who in considering relevant needs under the CA 2014 stated: 

“5. I turn to the statutory scheme as it affects Southwark’s functions. I can describe it by asking and answering some key questions. First, what are relevant needs for the purposes of CA14? The answer is that they are ‘looked- after needs’. CA14 is a statutory scheme for the assessing and meeting “needs for care and support”. These are in the nature of needs to be ‘looked-after’. That idea was well-recognised in relation to predecessor legislation concerning needs for “care and attention” and the parties were agreed that the case-law makes clear that the same idea underpins CA14. It was Lady Hale who explained the ‘looked-after needs’ point in R(M) v Slough Borough Council [2008] UKHL 52 [2008] 1 WLR 1808 at §33: 

“… the natural and ordinary meaning of the words ‘care and attention’ in this context is ‘looking after’. Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list.” 

  1. It is the appellant’s case that the need for accommodation is not itself a “need for care and support” (R(GS) v Camden LBC [2017] PTSR 140 at para 29), the need for food is not a need for care and support.  Such needs are universal and are not “looked after” needs to be provided under the CA 2014.  Similarly, the need for holidays and recreational activities are not “looked after” needs but are universal needs. 
  1. There is nothing in the Statutory Guidance which suggests that holidays and other recreational activities can be a “need for care and support” for adults with mental or physical impairments.  The appellant accepts that “support” adds something to “care” however it does not follow that “support” includes the provision of holidays.   
  1. If, contrary to the primary submissions, holidays and recreational activities could be care and support, the appellant contends that such matters are not eligible needs because they do not “arise from or are related to a physical or mental impairment or illness” (regulation 2(1) of the 2015 Regulations).  It is a universal rather than a specific need arising from an adult’s disability.  By contrast, the need for care and support whilst on holiday, for example from a carer who assists the individual and makes sure that they remain safe by ensuring they wear outfits appropriate for the weather would arise from or are related to the respondents’ “physical or mental impairment or illness”.  The appellant would meet such needs as set out in their letter of 3 March 2020.  The respondents’ carer meets all such needs whether the respondents are in the UK or on holiday abroad.   

Ground 3 

  1. The appellant in its unchallenged eligibility needs assessment did not conclude that the respondents had a need for holidays and recreational activities therefore the appellant had no power pursuant to section 19 to fund such matters.  The court’s conclusions in relation to section 19 are legally flawed for the same reasons as its conclusions upon section 18.   

The respondents’ submissions 

Ground 1 

  1. In R v London Borough of Hammersmith and Fulham v Others Ex Parte Burkett and Another [2002] UKHL 23 Lord Steyn at [31] stated that “in public law the emphasis should be on substance rather than form”.  At [43] Lord Steyn stated: 

“At this stage it is necessary to return to the point that the rule of court applies across the board to judicial review applications. If a decision-maker indicates that, subject to hearing further representations, he is provisionally minded to make a decision adverse to a citizen, is it to be said that time runs against the citizen from the moment of the provisional expression of view? That would plainly not be sensible and would involve waste of time and money….” 

  1. R (on the application of Ireneschild) v Lambeth LBC [2007] EWCA Civ 234 concerned a challenge to an adult social care assessment.  The application for judicial review of that assessment provoked a further assessment.  The challenge for judicial review failed on the merits but at [72] Hallett LJ in considering the nature and purpose of the community care assessment noted that process allowed for representations to be made about the assessment following its competition and stated that: 

“…this was not a final determination of an entitlement. It was an assessment prepared as part of an ongoing process which by its very nature was capable of further review.” 

  1. The respondents contend that the appellant did not reach a conclusion in 2019 as to whether KG or BG needed recreational facilities, the October assessments stated that it was “to be discussed”.  Internal discussion resulted in the preliminary indication of 3 March 2020 that henceforth holidays costs would not be met.  That only took effect in practice when, following the further review and assessment process, the appellant on 12 November 2020 informed the respondents that it was cutting their direct payments to zero.  As in Burkett, the respondents were entitled to challenge the 12 November 2020 decision.   
  1. The judge’s focus on the 3 March 2020 letter was permissible but in any event made no difference in substance given the respondents’ permissible and in time challenge following the 12 November 2020 decision.   

Grounds 2 and 3 

  1. The needs of KG and BG did not change in any material way throughout the period covered by the care and support plans commencing in 2011 and from 2013 receiving a respite budget specifically for accessing community and for holidays.  The October 2019 care plans recorded how important excursions and holidays are to each of the respondents and referred to a list of activities they had prepared but it did not consider how they were to be facilitated.   
  1. Recreational activities and holidays for BG and KG meet two of the eligibility criteria set out in regulation 2 of the 2015 Regulations namely: 

“(g) developing and maintaining family or other personal relationships: … 

(i) making use of necessary facilities or services in the local community including public transport, and recreational facilities or services.” 

  1. It is the respondents’ contention that regulation 2(2)(1) can be broken down into: (i) making use of necessary facilities/services in the local area; (ii) making use of recreational facilities; (iii) making use of [recreational] services.  Recreational facilities and services are not confined to the local area. 
  1. Having the use of recreational facilities is not made possible by having support to access the facilities if the person cannot afford facilities themselves.  Support includes financial support.       
  1. As to the appellant’s argument that needs for accommodation, food and holidays are universal needs, there is nothing in the CA 2014 which precludes a local authority from providing universal needs.   
  1. 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.  It can be met, (section 8(1)(d) CA 2014) by the provision of goods or facilities, in this case financial support in the form of a direct payment.     
  1. Further, the appellant has a power under section 19 to meet non-eligible needs to the extent that they are needs for care and support.  Thus, even if KG and BG needed financial support only to meet one of the eligible outcomes, the appellant could still meet that need.   

The Respondent’s Notice 

  1. In the Respondent’s Notice, the respondents contend that the appellant could have exercised powers under section 2, the Chronically Sick and Disabled Persons Act 1970, section 1, the Localism Act 2011 and section 2, the Local Government Act 2000 which provide wide ranging powers to support individuals in the local area. 

Discussion and conclusion 

Grounds of appeal 2 and 3 

  1. The CA 2014 provides for a sequential approach to the provision of social care and support to individuals in need.  Under the Act, councils are required to: 
  1. Carry out a needs assessment (section 9); 
  1. Assess whether the needs for care and support found are “eligible needs” under the 2015 Regulations (section 13); 
  1. Meet the needs identified as eligible needs unless such needs are being met by a carer (section 18(1) and (7)); 
  1. Consider whether to exercise its discretion to meet needs identified in the assessment which are not “eligible needs” (section 19(1)); 
  1. Draw up a care and support plan (section 24-25). 
  1. In 2014, relying upon eligibility assessments and care plans, the appellant made direct payments to KG and BG as a “respite budget” in order to fund recreational activities and a holiday.  The funding enabled the respondents and their mother to take holidays in Florida in 2015, 2017 and 2018.  The holidays and the ability to attend and take part in other recreational activities in the UK had a positive impact on the well-being of each of the respondents as the care plans and eligibility assessments for the years since 2014 attest.   There has been no change in the physical and mental health of either KG or BG such as to undermine the factual basis of these needs assessed pursuant to the CA 2014 and the 2015 Regulations.  What has changed is the approach of the appellant who now seeks to maintain that it was in error in finding that the respondents had an eligible need to attend recreational activities and holidays under the CA 2014 and the 2015 Regulations.   
  1. The general duty of a local authority in exercising a function under the relevant part of the CA 2014 in respect of an individual is to promote that individual’s well-being (section 1(1)).  Pursuant to the CA 2014, an individual’s well-being can relate to: personal dignity (including treatment of the individual with respect) (section 1(2)(a)); physical and mental health and emotional well-being (section 1(2)(b)); control by the individual over day-to-day life including over care and support or support provided to the individual in the way in which it is provided (section 1(2)d)); participation in work or recreation (section 1(2)(e)); social and economic well-being (section 1(f)) and domestic family and personal relationships (section 1(2)(g)).   
  1. In exercising a function under the relevant part of the CA 2014 in respect of an individual, a local authority must have regard to certain matters which include: the importance of beginning with the assumption that the individual is best placed to judge the individual’s well-being (section 1(3)(a)); the individual’s views, wishes, feelings and beliefs (section 1(3)(b)); the importance of preventing or delaying the development of needs for care and support (section 1(3)(c)); the need to ensure that decisions about the individual are made having regard to all the individual circumstances (section 1(3)(d)); the importance of the individual participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information support necessary to enable the individual to participate (section 1(3)(e)).   
  1. Section 1 of the CA 2014 is clear as to the purpose of the statute namely the promotion of an individual’s well-being, within that is recognition of the autonomy of that individual.  This is also reflected in the Statutory Guidance which identifies the broad nature of the concept of well-being, the need by a local authority to consider the particular circumstances of each individual and to recognise that each person’s needs are different and personal to them.  The core purpose of this provision of adult social care and support as set out in the CA 2014 is to help individuals to achieve outcomes which matter to them in the life which they lead.   
  1. Of note is the language used: the adult’s needs for “care and support” are the basis of the s.9 assessment and the s.18 duty.  In my view, “support” begins with the identification of the needs and wishes of the particular individual and, is or should be tailored, to address the same.  Contrast the phrase “care and support” with “care and attention” to be found in predecessor legislation.  It was “care and attention” which was interpreted by Lady Hale in R(M) v Slough Borough Council as referring to “looked-after needs”.  I accept that such a phrase does reflect the concept of “care and attention”.  In my view it does not reflect the development in the approach which local authorities are now to adopt as set out in sections 1, 9 and 18 CA 2014 which recognise the autonomy of the individual and the need for care and support.  In my judgement, the needs under the CA 2014 can no longer be described as “looked-after” needs as such a description does 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 can be provided. 
  1. Further, and consistent with the greater emphasis placed upon the autonomy of the individual linked to well-being and support, I read the intention of the legislation as being to broaden the discretion and flexibility of local authorities in their provision of care and support to adults. 
  1. KG and BG are adults with needs for care and support.  Their needs meet the eligibility criteria recognised in section 13(7) of CA 2014 and are of a nature identified in the 2015 Regulations.  As a result of their needs, and as was consistently found, the respondents were unable to achieve two or more of the outcomes specified in regulation 2(2).  The respondents were unable to achieve these outcomes as they were unable to do so without assistance (regulation 2(3)(a)). 
  1. The change by the appellant in the 2019 assessment was the omission of an eligible need in respect of recreational activities and holidays.  The relevant regulation is regulation 2(2)(i): “making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and …” I read this as confining the use of “necessary facilities or services in the local community” to such facilities or services in that local community.  I do not read the paragraph as confining the provision of “recreational facilities or services” as being so geographically confined.  I note the difference in the provisions set out in regulation 3, “needs which meet the eligibility criteria: carers”.  Regulation 3(2)(vii) states “making use of necessary facilities or services in the local community, including recreational facilities or services; and …”.  It is of note that recreational facilities or services are specifically included as being within the local community.   
  1. I accept the respondents’ contention that the provision of recreational activities and holidays for BG and KG would meet two of the eligibility criteria set out in regulation 2 of the 2015 Regulations namely: (g) developing and maintaining family or other personal relationships; and (i) making use of necessary facilities or services in the local community including public transport and recreational facilities or services.  I do not accept that it is possible to use recreational facilities merely by the provision of support to access the facility if the adult in question cannot afford to pay for the entry requirements.     
  1. As identified in the assessments, the respondents’ well-being is assisted by the taking of holidays, visiting nature reserves and similar activities, which is no doubt the reason why the appellant previously provided financial support for the same.  I accept that the needs of the respondents to take part in recreational activities, which include holidays, arises from their physical and mental impairment (regulation 2(1)(a)).  The financial support, previously provided by the appellant, is not simply a means of paying for the respondents to take part in such activities and to go on holiday, it is a means of meeting their needs which arise from and are related to the physical and mental disability from which each suffers.  It is a need which cannot be met without financial support from the appellant. 
  1. Further, I am satisfied that the needs of each respondent are specific to each rather than a universal need.  I do not interpret the relevant provision of the CA 2014 as prohibiting the provision of what is termed a “universal need”; rather, it guides the need to be assessed by reference to the eligibility criteria of the adult.  It follows, and I so find, that the need for holidays and recreational activities, arising as they do from the respondents’ physical or mental impairment, are eligible needs and can be met by the provision of goods or facilities in this case financial support in the form of a direct payment (section 8(1)(d), section 8(2)(c) CA 2014). 
  1. One purpose of the CA 2014 is to provide support to an individual taking account of all the individual’s circumstances. In considering the circumstances of each of the respondents, account has to be taken of past traumatic events, the result of which is that they will trust only their mother as their carer.  SQ is the means whereby KG and BG are able to access any activities outside the home.   
  1. SQ cannot meet all her sons’ needs for recreation as she is unable to afford entrance fees, transport and other costs.  To find, as the appellant did, that SQ as their carer can meet all the eligible needs of the respondents is 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.   
  1. It was the appellant’s view set out in its decision of 12 November 2020 that SQ was meeting all the respondents’ eligible needs.  This was at the core of the operative decision challenged by the respondents.  For the reasons given, I find that such a determination was wrong.  I find that it was based upon a restrictive and incorrect interpretation of the relevant needs pursuant to the CA 2014 and the 2015 Regulations.  Had the appellant not acted upon this restrictive and wrong interpretation, it would or should have reached different decisions in the assessments in October 2019, the decision set out in the letter of 3 March 2020 and the decision contained in the 12 November 2020 letter.   
  1. Accordingly, and for the reasons given, I am satisfied that Lang J correctly concluded that the appellant has a power, as a matter of law, to provide financial support for recreational activities and holidays under section 18 CA 2014.  It follows that the judge was also correct in holding that section 19 CA 2014 confers the power to provide financial support for recreational activities and holidays.  Accordingly grounds of appeal 2 and 3 are dismissed.   
  1. Given the findings made in respect of grounds of appeal 2 and 3, the issues raised in the Respondent’s Notice do not require determination. 

Ground of appeal 1 

  1. I am satisfied that from October 2019 there was an ongoing process by the appellant to assess the eligible needs of each of the respondents.  It was this process which would provide the basis for the care and support finally determined and notified in the letters of 12 November 2020.  For the reasons given, I am satisfied that the assessments of 2019 and the letters dated 3 March 2020 and 12 November 2020 were based upon an incorrect interpretation of the provisions of the CA 2014 and the 2015 Regulations.  I regard the attempt by the appellant to confine the power of the court to the 12 November 2020 decision as unrealistic in that it failed to reflect the ongoing nature of the process, illustrated by the letter of 3 March 2020, which identified the way forward as obtaining further assessments and care plans.  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.   
  1. The order of the court, which was drafted and agreed by counsel and approved by the court, identifies the order to be quashed as being that of 3 March 2020.  An error has arisen, in that the decision 12 November 2020 is not included in the order which was the clear intention of the judge.  Accordingly, an order is required to be made quashing the decision of 12 November 2020.  

Lord Justice Phillips 

  1. I agree. 

Lord Justice Baker 

  1. I also agree.