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Claimants win legal challenge over decisions by council to withdraw funding for holidays and cease direct payments used for outings and recreational activities

Suffolk County Council was wrong to end payments for holidays and visits for two disabled adults, Mrs Justice Lang has ruled in the High Court.

The case of BG & Anor, R (On the Application Of) v Suffolk County Council [2021] EWHC 3368 (Admin) was brought by brothers BG and KG by their mother and litigation friend SQ.

They sought judicial review of Suffolk’s decisions, under the Care Act 2014 and the Care and Support (Eligibility Criteria) Regulations 2015, to withdraw funding for holidays and cease direct payments used for the brothers’ outings and recreational activities.

The brothers both have diagnoses of autism and learning disabilities, while KG also has epilepsy and a heart condition.  

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SQ is the main carer for both and is up every night attending to their needs, the judge said.

From 2011 onwards, KG and BG each received a care package that involved direct payments, including for family outings and holidays. Suffolk approved the use of their direct payments to meet these needs. 

In March 2020, a Suffolk manager wrote to both to say the council would no longer fund holidays.

The letter said: “Suffolk County Council is no longer including holiday travel and accommodation cost in personal budgets.

“This is because, as part of a wider review of how direct payments are used throughout the county, it has been identified that paying customers’ holiday costs (rather than 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 budget to meet the council’s statutory functions.”

In November 2020, the manager told both brothers that following negotiations their direct payments in relation to outings and recreational activities would be withdrawn.

The brothers argued six grounds on which they said Suffolk erred in law. They said it had been wrong to conclude that it could not, as a matter of law, continue to provide financial support for recreational activities and holidays, under section 18 CA 2014; had fettered its discretion by not considering whether it should continue to provide financial support for recreational activities and holidays, under section 19 CA 2014 and failed to exercise or consider exercising its discretionary powers under section 19 CA 2014 to continue to provide support for recreational activities and holidays.

These three grounds succeeded, but a further three did not. These were that Suffolk failed to make inquiries of the claimants’ medical practitioners as to the effect of withdrawing support for recreational activities and holidays, acted irrationally and failed to give reasons for the refusal to fund leisure and respite for the claimants’ carers.  

Lang J said: “I am unable to find any statutory basis for the restrictive interpretation of needs adopted by the council.”

She said the ordinary meaning to the terms ‘care’ and ‘support’ meant “the council did err in law in concluding that it had no power, as a matter of law, to provide financial support for recreational activities and holidays, under section 18 CA 2014”.

There had been a direct payment to each of £148.09 per week assessed as the cost of supporting the community access and activities and £3,000 a year for supported holidays and day trips out.

“There is no plausible evidence that there has been a diminution of these needs, nor any reduction in the benefits to their well-being from such activities,” the judge said.

She went on: “The evidence indicates that, from at least 2018 onwards, managers in the council began to adopt a restrictive approach to the provision of services…the claimants’ Care Act eligibility assessments were deliberately drafted so as to reflect the council’s restrictive stance on eligible needs, with the focus on any need for care, and the exclusion of financial support for goods and facilities, in this case, the cost of accessing recreational facilities. 

“In my judgment, the council’s erroneous interpretation of its powers under the CA 2014 tainted the eligibility assessments by leading to a misguided exclusion of aspects of the claimants’ needs.  The council then failed to consider whether financial support should be offered to meet those needs.”

This finding meant the argument about fettered discretion was also made out, Lang J said.

The judge also said Suffolk ought to have considered whether or not to exercise its powers under section 19 CA 2014 before reaching its decision to cease all direct payments.

Commenting on the case, Catherine Rowlands and Lee Parkhill of Cornerstone Chambers - who respectively appeared for the claimants and for Suffolk - said: “In an important judgment relating to the powers and duties of a local authority under the Care Act 2014, Lang J has decided that Suffolk County Council were wrong in law to decide that they did not have power to assist two disabled men to have holidays and use recreational facilities.”

Mark Smulian

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