M, R (on the application of) v Suffolk County Council

Regulation 7 of the Community Care Services for Carers and Children's Services (Direct Payments) (England) Regulations 2003 limits direct payments for residential accommodation. It does not necessarily prevent a payment relating to only part of a composite fee charged by a boarding school.

The relevant question is one of fair categorisation. Fees may be apportioned between education, social or practical care, and basic residence. The regulation prohibits payment of the residential-accommodation element, but does not by itself prohibit payment for education or assessed care needs. The statutory scheme also supports parental choice as to how assessed needs are met, subject to other lawful limits and the authority's duty to safeguard and promote the child's welfare.

The claimant was a nearly 17-year-old disabled child with significant learning, communication and behavioural difficulties. Her father, who was her sole carer, received direct payments under an assessment made by Suffolk County Council.

The child attended a boarding school during term time. The father sought to use an appropriate proportion of the payments towards the school's composite fees, which included education, social and practical care, and residence. The council stopped direct payments during term time, contending that regulation 7(3) prohibited payments towards residential accommodation.

The central issue was whether regulation 7(3) made it unlawful to make any payment towards the school fees, or whether the fees could be apportioned according to the services provided.

1. Construction of regulation 7. Regulation 7 of the Community Care Services for Carers and Children's Services (Direct Payments) (England) Regulations 2003 uses ordinary English words in context. Its purpose is to limit the period for which direct payments may fund residential accommodation, rather than to prohibit every payment connected with a residential setting.
2. Composite school fees. The proper approach was to categorise the provision for which the fees were paid. The fees could reasonably be divided between education, social and practical care, and basic residence. Regulation 7(3) prohibited payment of the proportion fairly attributable to residential accommodation. It did not prohibit payment of the proportion attributable to assessed social and practical care. The educational element was governed by a separate statutory scheme.
3. Choice and welfare. The statutory scheme was intended to give parents choice as to how identified and assessed needs were met. That principle was subject to other statutory provisions and to the council's obligation under regulation 4(3)(b) to be satisfied that the child's welfare would be safeguarded and promoted. Whether the proposed arrangement best met the child's needs remained a separate issue on which the council could reconsider its decision.
4. Disposition. The council was not precluded by regulation 7 from making direct payments connected with the child's social and practical care during term time merely because she attended a boarding school. The council agreed to reconsider its decision in light of that conclusion. A declaration was made in those terms, and the claimant received an order for costs, subject to assessment if not agreed.