A successful judicial review of a council’s approach to funding respite
The Administrative Court held that Newport City Council was in breach of its duties under the Social Services and Well‑being (Wales) Act 2014 and the Codes of Practice in the way it sought to meet BNF’s respite care needs through direct payments tied to Centrica Lodge, but rejected a separate hydrotherapy ground.
Factual and procedural setting
BNF is a 57‑year‑old man lacking capacity whose sister has provided full‑time care at home since 2011, with historic respite of six weeks per year at Centrica Lodge (now council‑run) ceasing in December 2022 amidst concerns about his dietary and personal care and an unspecified safeguarding issue. His sister’s position was that BNF no longer wished to attend Centrica Lodge, had become aggressive when expected to go there, and that Centrica Lodge was no longer a viable option, such that the authority was now in breach of its duty to meet his eligible respite needs.
The Council accepted the existence of eligible needs and relied on section 50 SSWb(W)A 2014 and the Direct Payments Regulations, arguing that a lump‑sum direct payment, calculated by reference to Centrica Lodge’s daily rate for six weeks’ respite, was a sufficient discharge of its duty. It was common ground that the statutory conditions for making direct payments were met and that the duty to meet eligible needs could, in principle, be displaced by direct payments under regulation 3.
The judge set out the undisputed statutory scheme: sections 19, 35 and 54 of the 2014 Act on assessment, eligible needs and care and support planning; section 5 on the duty to promote well‑being (including physical, mental and emotional well‑being); and section 6(2)(a) requiring regard to the individual’s views, wishes and feelings as far as reasonably practicable.
The Court also relied on the Welsh Ministers’ Codes of Practice under section 145, including Part 3 on assessing needs (emphasising conversations that maximise control and enable individuals to identify personal outcomes) and Part 4 on meeting needs, which requires an outcome‑based approach aligned with well‑being and what matters to the person.
Part 4 paragraph 139 of the Code was central: it requires that the value of a direct payment be equivalent to the reasonable cost of securing required care and support and “sufficient to enable the outcomes to be met”.
The judge drew on R (BG and KG) v Suffolk CC as authority for the centrality of autonomy and personal outcomes in adult social care legislation, and on his own earlier decision in R (TJ) v Monmouthshire CC emphasising that failure to have regard to a person’s views, wishes or feelings is a fundamental flaw in care and support planning.
Evidence about BNF’s wishes and the respite option
Professionals had repeatedly asked BNF since 2022 whether he wanted to go to Centrica Lodge for respite; he consistently answered “no”, even after being told that the management had changed. When probed, he explained that he did not like it there and found it noisy, but in Court of Protection enquiries he indicated his view might differ if there were activities he liked or potential friends there and that he would be content for staff from Centrica Lodge to visit him.
The Council’s stance in these public law proceedings was that, with the “right approach,” a return to Centrica Lodge was achievable, whereas the claimant accepted that some transition work might potentially make this realistic but complained that there was no transitional plan and that in the meantime his respite need remained unmet. By the time of the hearing it was common ground that the “real crux” was whether Centrica Lodge was a genuine option, given the direct payment had been calculated solely by reference to its rate and the sister’s evidence that no other respite could be found at that price.
Interaction with Court of Protection proceedings
Judge Jarman noted that BNF had a solicitor in ongoing Court of Protection proceedings and that some of the more nuanced evidence about his “soft” wishes and the possibility of him attending Centrica Lodge if certain conditions were in place emerged from that forum. Despite this, the Administrative Court dealt with the public law challenge to the local authority’s discharge of its statutory duties and its approach to respite and direct payments while the Court of Protection process was still on foot.
In effect, the High Court proceeded on the basis of the existing Court of Protection evidence about BNF’s wishes, but treated the central question—whether the local authority’s fixation on Centrica Lodge, without a transition plan and with a rate that made no alternative provision viable, lawfully discharged its 2014 Act obligations—as a public law issue squarely within the Administrative Court’s remit. This meant the Court of Protection proceedings were not allowed to “soak up” or delay determination of the vires and lawfulness of the local authority’s care‑planning decisions.
Breach of duties: failure to plan and to respect wishes
The judge concluded that simply insisting Centrica Lodge was the right option for respite, in circumstances where BNF was currently unwilling to go there and the authority had done no work to address his concerns or support a safe, phased return, was incompatible with the section 5 and 6 duties. In particular, the Council had not promoted his well‑being in relation to respite nor had it had regard to his wishes and feelings “so far as reasonably practicable,” because it had not developed any transition plan to make the proposed respite service acceptable to him.
While the Court accepted the submission that BNF’s expressed wishes might be “soft” and potentially amenable to coaxing, it held that this theoretical malleability could not cure the authority’s failure to do any of the necessary sensitive work to evaluate or support a return. The judge was clear that any coercion would be unlawful under the 2014 Act, and stressed that, at present, the claimant was simply not receiving the respite‑period care he needed during the six weeks when his sister required a break.
Direct payments and sufficiency of funding
On the direct payments issue, the Court agreed with the claimant that the daily rate used to calculate the lump sum was not sufficient to enable the outcomes to be met, contrary to paragraph 139 of the Code. Since the rate was directly pegged to Centrica Lodge and the judge had found that BNF did not presently want to go there and no alternative provision was available at that price, the practical effect was that there was “no other option” and his respite‑care outcome was not being achieved.
Evidence from the Council’s social worker suggested that this was all the authority could afford, but the judge found this unconvincing, observing that affordability was a question of resource allocation rather than an absolute cap and recording that the Council properly accepted that eligible needs, once identified, must be met. On that basis, the judge held that both the approach to respite (lack of transition planning) and the insufficiency of the direct payment meant that the Council was in breach of its 2014 Act and Code of Practice duties.
Relief and the hydrotherapy ground
The claim succeeded on the first ground and the Court granted declaratory relief that Newport City Council was in breach of its duties in not meeting BNF’s needs for respite care in the ways identified in the judgment. The judge emphasised that it was not for the court to prescribe how needs must be met; rather, the declaration would require the authority to demonstrate that it had put in place arrangements that genuinely met his eligible needs in accordance with the statutory scheme and Codes.
The hydrotherapy complaint failed: the judge noted its limited prominence in contemporaneous documents, the absence of any pre‑action reference, the lack of medical evidence or clearly articulated outcomes linked to hydrotherapy or swimming, and concluded that hydrotherapy did not amount to an agreed response to an eligible need on the evidence. The parties were directed to attempt an agreed draft order within 14 days, with any consequential matters to be resolved on written submissions.
Commentary
BNF is an example of a case in which the Court of Protection’s limited jurisdiction when there is no deprivation of liberty issue, is exposed, and the underlying matter litigated in the Administrative Court.
The Court of Protection proceedings were on foot and a judge in that Court can only choose from options that are on the table from the authority. But here, the local authority was not putting forward lawful, workable respite options for BNF and his sister; that impasse over options led directly to the judicial review claim.
On that factual footing, the Administrative Court took jurisdiction to decide whether the council was in breach of its statutory duty to meet an accepted eligible need for 42 days’ respite a year, and whether it could lawfully rely on direct payments calculated solely by reference to Centrica Lodge, notwithstanding BNF’s present unwillingness to attend and the absence of any transition plan.
Why the Administrative Court’s intervention mattered
The Administrative Court confirmed
- That the duty to meet eligible needs under section 35 SSWb(W)A 2014 is not linked to resources and had been breached in failing to meet the 42‑day respite need.
- That before adopting direct payments into a care and support plan under section 50 (now 49A) and the Code, a local authority must be positively satisfied that direct payments are an appropriate mechanism and that the rate is sufficient to meet the eligible care needs and outcomes.
- The person‑centred, outcomes‑focused nature of care planning under the 2014 Act, includes giving proper regard to the person’s wishes, feelings and well‑being, which in this case meant the Council could not simply insist on Centrica Lodge without any transition plan while leaving the respite need unmet.
The net effect is that the Administrative Court unlocked the CoP impasse by making it clear that: (a) there was an unmet, non‑resource‑contingent duty to provide 42 days’ respite; and (b) the council’s “Centrica‑Lodge‑or‑nothing” approach, coupled with an inadequate direct payment, was unlawful, so the authority had to revisit care planning on a lawful, person‑centred basis before its care plan could be evaluated by reference to Best Interests.
We think that the outcome would very likely be the same under the English Care Act 2014, both on judicial review and before the Local Government and Social Care Ombudsman (LGSCO).
Translating the Welsh duties into Care Act terms
The Welsh Social Services and Well‑being Act duties applied in BNF map closely onto Part 1 of the Care Act: duties to assess, determine eligible needs, prepare and review a care and support plan, and then meet eligible needs, framed by overarching well‑being and person‑centred planning requirements.
The key Welsh holding was that the authority breached its duty by:
- Failing to promote well‑being and to have proper regard to BNF’s wishes and feelings about respite, in circumstances where he did not currently want to return to the named respite unit and no transition plan existed; and
- Setting a direct payment at a rate pegged to a single respite placement, when that placement was not presently viable for him, so that the payment was insufficient to secure any lawful respite provision and therefore did not meet his outcomes.
Both those strands are mirrored in the Care Act’s well‑being duty, the person‑centred planning requirements, and the guidance on setting a personal budget/direct payment at a level “sufficient to meet the needs” identified in the plan.
Likely outcome on judicial review in England
On analogous English facts (adult with eligible respite needs, historic respite at a particular unit, now unwilling to attend, and a direct payment set at that unit’s rate but insufficient to buy alternatives), there is a strong argument that an English Administrative Court would also find unlawfulness on classic public law grounds:
- Failure properly to have regard to the individual’s views, wishes and outcomes: The BNF court was clear that ignoring, or not working with, the person’s stated wish not to attend the existing unit, and doing no transitional work, was a “fundamental flaw.” English case law on the Care Act similarly stresses the centrality of autonomy and personal outcomes in adult social care planning, and a public law challenge could invoke that line of authority.
- Failure to meet an accepted eligible need (respite) in practice: In BNF, everyone accepted there was an eligible need for six weeks’ respite but, in reality, the authority was delivering no respite at all; the court had little difficulty finding that the duty to meet needs had been breached. Ombudsman material and policy guidance in England treat failure to deliver agreed respite – even where there are market difficulties – as fault because councils still retain the statutory responsibility to find an alternative.
- Irrationality / failure to comply with statutory guidance on sufficiency of funding: The Welsh Code expressly required direct payments to be sufficient to achieve outcomes; the judge found the rate, tied solely to Centrica Lodge, failed that test because no other provision was available at that price and the placement itself was not presently usable. Care Act guidance in England uses essentially the same concept (personal budgets/direct payments must reflect the reasonable cost of securing the assessed provision), so a court could reach the same conclusion if the only available options cost more than the budget, and the authority simply said “this is all we can afford.”
English courts do defer to professional judgment in budget‑setting and planning (as in Davey), but BNF is not about marginal disagreements over style or quantum; it is about a conceded eligible need that is not being met at all, a rate that in practice buys no service, and a rigid insistence on a specific placement despite clear evidence it is currently unusable without a transition plan. On those facts, even allowing for deference, the combination of non‑delivery, failure to respect wishes and a facially inadequate budget would present a strong judicial review.
Ombudsman decisions and commentary already treat this pattern as maladministration:
- The LGSCO has upheld complaints where councils allowed respite services to lapse or disappear (because a provider withdrew) without identifying and arranging alternatives, emphasising that it is the council – not the provider – which retains the statutory duty to meet needs.
- The Ombudsman has also criticised councils that restrict respite on purely cost grounds, noting that they “cannot restrict the support they provide based purely on cost” when there are assessed
A recent example is a Wirral complaint – https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/25-002-493
Transposing those principles onto a BNF‑type fact pattern, an Ombudsman in England would be very likely to:
- Find fault where a council continued to say that a particular unit was the only option, despite the person’s expressed unwillingness to attend and without any considered, person‑centred transition plan; and
- Find further fault where a direct payment was set at a level that made it impossible in practice to secure any suitable replacement respite, especially if officers suggested “this is all we can afford,” rather than demonstrating how the budget reasonably reflected the cost of meeting the assessed respite outcomes.[18][19]
Remedies would probably include an apology, a time‑and‑trouble payment, possibly additional payments for missed respite, and recommendations to reassess, re‑plan and set a realistic budget/direct payment, in line with the duty to meet eligible needs and the person‑centred requirements in the Care Act guidance.
Conclusions
So, while the statutory language differs slightly, the structural duties and guidance under the English Care Act are close enough that a JR or Ombudsman complaint on BNF‑type facts ought, in principle, to produce the same core conclusions: that an authority cannot (a) leave respite needs unmet while clinging to an unacceptable/unusable service without transition planning, or (b) set a direct payment at an artificial rate that cannot purchase any suitable respite and then rely on “resources” to justify this.