Page 9 - Community Living 35-4

legal: holiday costs

A budget can be converted into cash via relationships” in the features of the
a direct payment arrangement, provided Many ways to meet needs wellbeing duty.
the conditions for this are met, but that is The underpinning principles of human
only because direct payments are the Because a person’s needs are specific dignity and the right to achieve and enjoy
cash-based option, instead of the service to them, there are many ways in some level of individual autonomy are
(or other thing) being provided. which these needs can be met. referenced through the Suffolk judgment.
There is case law confirming that the The intention behind the legislation Article 19 of the Convention on the
one thing the NHS Act 2006 did not is to encourage this diversity, rather Rights of Persons with Disabilities,
permit was the provision of general than point to a service or solution that although non-binding, reminds states of
monetary support in cash. The Harrison may be neither what is best nor what their obligations to support “full inclusion
case made it clear in 2009 that the the person wants. and participation in the community” so as
definition of “services” within the NHS to alleviate or prevent isolation or
legislation did not cover the concept of Statutory guidance to the Care Act segregation.
financial assistance or cash: separate 2014 (2015, section 10.10) Various NGOs in the UK have reiterated
legislation specifically providing for the the seriousness of the difficulties
provision of personal health budgets was experienced by many carers, particularly
therefore required. Participation in recreation is specifically given the “additional financial burdens
The old Chronically Sick and Disabled mentioned within the Care and Support that families with a disabled member…
Persons Act 1970 referred to “assistance (Eligibility Criteria) Regulations (2014), as may face”.
to take a holiday”. This has not been are such matters as social and economic However, the Suffolk appeal could well
replicated in the Care Act, but the broader wellbeing, emotional and psychological see the Court of Appeal adopting the
words “goods” and “facilities” have been welfare, and the promotion of familial and approach taken in scarcity of resource
added. This is surely significant. personal relationships within the cases such as McDonald (2011). The local
wellbeing function itself. authority’s approach was found to have
A need, not a choice The court agreed that if the professional been carried out in the pursuit of a
The holiday cost was asserted to be view was that the claimants’ assessed legitimate aim, namely the protection of
outside the concept of care and support needs (arising from their disabilities) “the economic well-being of the state and
and outwith the broader concept of could be met through a holiday or other the interests of other care users”.
“facilities” under section 8. recreational activities, then the cost of the It could be that Care Act functions come
The decision in Suffolk holds that the holiday to the disabled person is a need to be seen not so much as the means for
funding needed for a holiday can be seen that can be met under the 2014 Care Act. ensuring that the state meets the needs
as support if it is to pay for a response to It is worth noting that the high court of vulnerable individuals (taking account
an assessed eligible need. Support has exercised its discretion in Suffolk to waive of standards in a civilised society) but as
been found to connote something in the the three-month time limit for a claim. about offering some form of visible
way of looking after someone, rather than Mr Justice Mostyn had stressed that there “assessment of priorities in the context of
financially subsidising a person’s choices. were “clearly arguable points of law which the allocation of limited state resources”
The need for care and support arises these seriously impaired claimants should to lend some semblance of fairness and
from the person’s inability to achieve be entitled as a matter of justice to place equity to the system.
within a given eligibility domain. A holiday before the court”. The number of judicial reviews about
does not look after a person but the price The state has a human rights-based rights to care and support has markedly
of access to such a thing might be a duty to promote and protect family life, decreased in recent years. Suffolk is
“facility” for meeting a need, even though and the Care Act reflects that by including perhaps best viewed as a useful reminder
a holiday is a mainstream pleasure as well. “domestic, family and personal that an error of law contention can often
be much more powerful and effective
than one that is grounded only in
irrationality or even a breach of
human rights. n
Cases in this report
BG and Anor, R (on the application of) v Suffolk
County council [2021] EWHC 3368 (Admin).
https://www.bailii.org/ew/cases/EWHC/
Admin/2021/3368.html
B, R (on the application of) v Cornwall County
Council & Anor [2009] EWHC 491 (Admin).
http://www.bailii.org/ew/cases/EWHC/
Admin/2009/491.html
Harrison, R (on the application of) v Secretary of
State for Health & Ors [2009] EWHC 574 (Admin).
http://www.bailii.org/ew/cases/EWHC/Admin/
2009/574.html
Christy Lawrance The court found that if a person’s needs arising from their disabilities could be met through going Borough of Kensington and Chelsea [2011]
McDonald, R (on the application of) v Royal
UKSC 33. http://www.bailii.org/uk/cases/
on a holiday, then the cost of it could be met under Care Act provisions
UKSC/2011/33.html
www.cl-initiatives.co.uk Community Living Vol 35 No 4 | Summer 2022 9