BNF v Newport City Council

A Welsh local authority must meet an adult’s eligible care and support needs in a way that promotes well-being and has regard, so far as reasonably practicable, to the person’s views, wishes and feelings. Where an existing respite placement is unacceptable to the person, maintaining it as the sole option without a transition or alternative plan may breach those duties. Direct payments must be sufficient to secure the required care and support and meet the person’s outcomes. The authority cannot coerce attendance at a placement. The court determines legality, but the authority decides how needs should be met. An asserted therapy will not constitute an eligible need without sufficient evidence linking it to identified outcomes.

The claimant, who lacked capacity and required full-time care, challenged Newport City Council’s arrangements for six weeks of annual respite care. The Council made direct payments calculated by reference to the cost of respite at Centrica Lodge, but the claimant did not presently wish to return there following earlier difficulties. The claimant also alleged that the Council should provide hydrotherapy. The issues were whether the Council had complied with its duties under the Social Services Well-being (Wales) Act 2014 and the applicable statutory guidance, and whether hydrotherapy formed part of an eligible care need.

1. Respite care. The Council breached its duties under sections 5, 6 and 54 of the Social Services Well-being (Wales) Act 2014. It had simply maintained that Centrica Lodge was the correct option without preparing a transition plan or other plan for a smooth return. The Council had therefore failed, so far as reasonably practicable, to have regard to the claimant’s wishes and feelings and had not promoted his well-being.
2. The claimant’s present wishes remained that he did not want to attend Centrica Lodge, even if those wishes might be capable of changing through sensitive work. The Council had undertaken no such work. Coercing attendance against his wishes would be unlawful.
3. The direct payment was insufficient. Under section 50 and regulation 3 of the Care and Support (Direct Payments) (Wales) Regulations 2015, payments must displace the authority’s direct duty only in relation to needs actually met by the payments. The Code of Practice required the payment to be sufficient to secure care and support at a reasonable standard and to meet the claimant’s outcomes. The payment, tied to the Centrica Lodge rate, did not do so.
4. The court declared that the Council was in breach of its statutory duties and the Code of Practice. It was for the Council, rather than the court, to determine how the claimant’s needs should be met.
5. Hydrotherapy. The evidence did not establish an eligible need. There was no medical evidence and no particular outcomes had been identified in the relevant review.