Page 8 - Community Living 35-4

legal: holiday costs
Holiday costs as a Care Act need

A council was wrong to decide it did not have the power to assist two disabled men to go on
holiday. The courts rejected its restrictive approach in favour of a wider interpretation of care
and support under the 2014 Care Act, reports Belinda Schwehr

t will come as no surprise to readers clock basis. Their history was accepted to The court found “the claimants’ Care
that a legal decision about meeting have rendered them unable to tolerate Act eligibility assessments were
Ineeds by funding a holiday is external carers in their home nor trust deliberately drafted so as to reflect the
being appealed. anyone outside the family. council’s restrictive stance on eligible
B, R (on the application of) v Suffolk Holidays and recreational activities had needs, with the focus on any need for
County Council allowed that it was previously been seen as a key form of care, and the exclusion of financial
possible to meet needs by funding a respite for the family concerned, and support for goods and facilities, in
holiday, which must be causing were thus already deemed essential to this case, the cost of accessing
consternation among budget-minders in the wellbeing of the two claimants. recreational facilities”.
local authorities. Their 2011 council-assessed care Mrs Justice Lang was “unable to find
Holiday support costs have been packages (including direct payments) any statutory basis for the restrictive
accepted as disability-related expenditure permitted them to have access to the interpretation of needs adopted by
for many years after the Cornwall case in community by enabling such things the council”.
2009, but neither support costs nor the as family outings, various activities The cut was made in spite of in-house
holiday cost for the client have been widely and holidays. professionals’ recommendations, who
accepted as part of the package itself. stressed the brothers’ desire to access
Those who can remember the recreational activities in the community
excitement of the personalisation Physical and mental health and highlighting the benefits for wellbeing
movement (before austerity hit) might and emotional welfare via the as a consequence of participation.
well say “So what?” to news of this Physical and mental health and
decision, because they were sure that unmet need for some form of emotional welfare, via the unmet need for
personal budgets (whether managed or participation in recreation had some form of participation in recreation,
as direct payments) could be spent on in addition to their domestic, family and
whatever the person wanted as long as been overlooked personal relationships, had been
the budget sum was not exceeded. overlooked by senior management.
Fifteen years on, many will rue ever Mrs Justice Lang found that the council
having fallen for that one, because by now After 2013, their respite budget also “ought to have considered whether or
councils are bound to have reclaimed at covered such needs. Then the budget was not to exercise its powers under s19 of
least some funds for non-use or, worse, cut on the purported basis that things such the Care Act 2014 before reaching its
misuse of the budget. as travel, accommodation and entrance decision to cease all direct payments to
Even the much-vaunted flexibility fees to attractions could not count as Care the claimants”.
through a direct payment turned out to be Act services for meeting needs. Interestingly, the local authority still
only a small freedom – to use the money Rather than even trying to articulate seemed to suggest that the support
to meet one’s assessed eligible needs, how those needs may have lessened, needed “to achieve” a holiday (rather
with choice only as to timing and manner, Suffolk erred in law by deciding that the than pay for it) could be deemed
not overall hours or rate, nor the choice to concept of support (under the Care Act eligible for council funding as “a Care Act
leave some of those needs completely 2014) could no longer include the funding eligible need”.
unmet while blowing the rest on deficits of recreational activities. Such thinking may be grounded in the
that subjectively mattered “more”. The council had adopted an overly contention that certain costs universal to
narrow, rigid interpretation of the everyone are not supposed to be funded
Needs not unwarranted luxury legislative framework, the court held. under the Care Act. Whereas this feels
The Suffolk case means, however, that Suffolk had tailored the two brothers’ instinctively correct for food, rent and
recreational activities, trips and holidays needs assessment to be consistent with other daily living expenses, the cost of
can be framed as means to meet eligible the council’s restrictive reading of the items such as food and eating out, travel
needs for care and support rather than as scope of the Care Act 2014. or entrance tickets will often be the key
unwarranted luxury desires. The care provided by the mother was components of any respite-led experience.
Naturally, it helps if the activities framed as the brothers’ only identified It does seem clear that there is no right
conceivably address or prevent longer- need. As she was still able and willing to to purely financial support in the Care Act
term issues, by, for example, staving off continue caring for them – despite the for ordinary living expenses. There is a
social isolation, loneliness, depression or sharp loss of previously given state right to a direct payment (money in lieu of
chronic anxiety. support and her evident exhaustion – it some other means of meeting a need)
In the Suffolk case, two autistic and was argued that the council’s statutory and there are key passages that explain
physically disabled brothers were being obligations under section 18(7) of the that “support” must mean something
cared for by their mother on a round-the- 2014 act had therefore been fully met. other than “care”.

8 Vol 35 No 4 | Summer 2022 Community Living www.cl-initiatives.co.uk