Welcome break? Holidays and recreation as eligible needs under the Care Act 2014

In R (BG and KG) v Suffolk County Council the Court of Appeal has upheld the High Court decision that the Care Act 2014 (CA 2014) empowers a local authority to pay for holidays and other recreational activities for people who are in need of care and support, where there is an eligible need. In doing so, the judgment does more than any previous case to advance self-determination and agency in the CA 2014 and infuse its provisions with a sense of personhood. The case concerned adult brothers, BG and KG, who have autism, learning disabilities, anxiety and physical conditions including epilepsy. BG and KG require 24-hour care which is provided on an unpaid basis by their mother, SQ, with assistance from other family members. The brothers are unable to trust other carers as a result of abuse they previously experienced when attending a day centre. From 2011, Suffolk County Council (‘SCC’) provided direct payments of between £108-150 per week to both BG and KG. SCC approved the use of these to fund family outings, activities and breaks as it had assessed the brothers as having eligible needs for recreation and holidays. From 2014, SCC also provided an annual ‘respite budget’ of £3000 to each brother which they used to finance trips and holidays including family holidays in Florida in 2015, 2017 and 2018. A community nurse described these breaks as having a therapeutic value, allowing all the family to feel less distress, as well as enabling SQ to continue her caring role. In 2020, SCC advised the family that it would be ending both the direct payments and the respite budgets. In respect of the direct payments, SCC stated that as all the brothers’ support needs were being fulfilled by their family, there were no eligible unmet needs that it could lawfully meet. The respite budget was no longer to be paid for the same reason, and on the basis that holiday costs were not an eligible need under the CA 2014. In relation to all the payments, SCC stated that as the eligibility criteria under the CA 2014 require needs to arise from ‘a physical or mental impairment’ (Care and Support (Eligibility Criteria) Regulations 2014, r 2(1)(a)), it was not empowered to fund the ‘universal’ costs connected to leisure activities that would be incurred by anyone undertaking that activity. It stated, for example, that it was not responsible for paying costs such as holiday travel or accommodation, or an entrance ticket to an attraction, but only costs