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Councils can provide financial support under Care Act for recreational activities and holidays: Court of Appeal

A local authority has a power, as a matter of law, to provide financial support for recreational activities and holidays under section 18 of the Care Act 2014, the Court of Appeal has ruled.

The case of BG & Anor, R (On the Application Of) v Suffolk County Council [2022] EWCA Civ 1047 (Lady Justice Nicola Davies, Lord Justice Baker and Lord Justice Phillips) concerned two brothers BG and KG aged in their forties, who both have autism, learning disabilities and other serious medical conditions.

Their mother SQ is their main carer with support from other family members.

After experiencing abuse at a day centre the brothers will not attend these or tolerate external carers at home.

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From 2011 onwards, BG and KG each received a care package from Suffolk County Council that involved direct payments between £108 and £150 a week including for access to the community by way of family outings, activities and holidays.

From 2013 they also received an annual payment of £3,000 as a respite budget to allow them to go on supported holidays and planned trips away.

But in March 2020 a Suffolk team manager told SQ of changes to the care budget including that the 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 country, it has been identified that paying customers' holiday costs (rather then meeting the cost of support that they need to achieve a holiday) is not a Care Act eligible need.”

SQ appealed and in December 2021 Lang J allowed a claim for judicial review and quashed Suffolk’s decision.

Lang J declared Suffolk had the power to provide financial support for recreational activity and holidays under section 18 of the Care Act 2014 and was directed to prepare a fresh assessment of BG and KG’s needs having regard to the court's judgment.

Suffolk argued 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 said holidays and recreation activities were not ‘needs for care and support’ and even if they were did not constitute ‘eligible needs’ so there was no power to provide them.

Nicola Davies LJ said: “I accept that the needs of the respondents to take part in recreational activities, which include holidays, arises from their physical and mental impairment.

“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.”

The judge said she was satisfied BG and KG’s needs were specific rather than universal and meeting such needs was not prohibited by the Care Act 2014 .

She said: “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”.

SQ could not meet all her sons' needs for recreation and could not afford entrance fees, transport and other costs yet was the only carer the brothers would trust outside the home.

Dismissing Suffolk’s appeal, Nicola Davies LJ said: “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.”

Suffolk also argued that the  Administrative Court should not have granted relief in relation to decisions that, because of the passage of time, are not challengeable;

Nicola Davies LJ said this referred to three assessments, the most recent in November 2020, and all three “were based upon an incorrect interpretation of the provisions of the Care Act 2014 and the 2015 Regulations.

"I regard the attempt by [Suffolk] 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,” she concluded.

Commenting on the case, David Wolfe QC from Matrix and Catherine Rowlands from Cornerstone Barristers - who acted for the two men involved - said: “The court explained that the Act brought a new focus on the autonomy of the individual away from the previous statutory focus on ‘looked after needs’, and broadened the discretion and flexibility of local authorities in their provision of care and support to adults.”

Mark Smulian

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