High Court Social Care judgment: duty to provide support and direct payments
An interesting High Court judgment[1] that concerns local authorities’ duties under the Social Services and Well-being (Wales) Act 2014 – including the duty to meet need and to ensure that the daily rate calculation for a direct payment is sufficient to meet the individual’s assessed needs. The judgment also raises a legal question: one that I ought to be able to answer, but on which I’d welcome some wise counsel.
The case was brought by the sister (and unpaid carer) of a ‘57 year old gentleman’ who is in need of full time care. It was accepted by Newport City Council that he had a need for short spells of respite care, totalling 6 weeks a year. This care had not been provided for over three years, because he had become unhappy with the respite care facility that he had previously attended. Due to his cognitive impairments the reasons for his refusal to return to the facility were unclear, but his unwillingness was plain – ‘he became aggressive … when he was due to attend’. He continued to refuse to attend even when it was explained to him that the management of the facility had changed since he was last there.
The Council was unable to locate a suitable alternative facility and so decided to make a lump sum direct payment to the sister, at a rate that was equivalent to the cost it had been paying at the respite care facility.
The judge noted that the legal obligations in the 2014 Act on the Council were not in dispute. It had a duty to assess his needs for care and support (section 19(1)); a duty to meet his eligible needs (section 35); a duty to provide a care and support plan as to how the eligible needs should be met (section 54); and a duty to keep it under review (section 54). The Council was permitted to meet eligible needs by way of a direct payment if (among other things) it was satisfied that this was an appropriate way of meeting the need.[2]
The judge further noted, that in performing these duties the Council was under a duty to promote the disabled person’s ‘well-being’ and (in so far as is reasonably practicable) to have regard to his views, wishes and feelings.[3] The Court considered that the following extracts from the relevant Codes of Practice were of relevance in this context, namely:
Part 3, Code of Practice (Assessing the Needs of an Individual) para 11
… At the core of this is a conversation about promoting independence and development by maximising people’s control over their day to day lives and helping address difficulties or problems which are stopping them achieving this. It is essential that people are enabled to identify their own personal outcomes, and how they can achieve those outcomes.
Part 4, Code of Practice (Meeting Needs) para 6
The… determination of eligibility must support a move away from the deficit model of care (‘what is wrong?’) to an emphasis on strengths, capacity and capabilities (‘what can I do? / how can I get help?’). The approach to determining eligibility must be an outcome-based approach to eligibility that relates closely to the national outcomes framework. The starting point is the meaning of well-being as set out in Part 2 of the Act and the local authority must determine whether the provision of care and support… will assist the person to meet their personal outcomes within that framework of well-being. The local authority must be clear about what matters to the person, and what the person themselves can do to maximise their own well-being.
And at para 139 of the Part 4 Code:
A local authority must ensure the value of a direct payment made is equivalent to its estimate of the reasonable cost of securing the care and support required, subject to any contribution or reimbursement the recipient is required to make. The value must be sufficient to enable the recipient, or their representative, to secure the care and support required to a standard the local authority considers reasonable. While there is no limit on the maximum or minimum amount of a direct payment, it must be sufficient to enable the outcomes to be met.
The Court accepted the sister’s evidence that, despite extensive enquires to source alternative respite care she had been unsuccessful – as none of the potential providers were prepared to accept the Council’s direct payment rate. The Council’s social worker had suggested that this was ‘all the Council could afford’ – a proposition that the Council’s barrister accepted was untenable: that ‘if there is an eligible need, then it must be met’.
The Council’s barrister argued that the Claimant might be persuaded/coaxed into returning to the respite facility over time. The Court accepted that this was a possibility but that the ‘Claimant does not at present want to go there, there is no other option’ and the Council had not taken any such steps over the intervening years.
The judgment, accordingly, held (para 21) that the daily rate calculation for the direct payment was not sufficient to enable the Claimant’s outcomes to be met and that the Council was in breach of its duties to meet his needs: a ‘declaration to that effect’ was made.
A legal question
The dispute at the centre of this case arose before the relevant provisions of the Health and Social Care (Wales) Act 2025 came into force. The Act (among much else) amends the direct payment provisions in Social Services and Well-being (Wales) Act 2014.[4]
It appears that the main Social Care Direct Payment changes came into force on 1st January 2026. These (among other things) insert a new regulation making power as ‘section 49A’, which replaces the previous regulatory power that was located in section 50 of the 2014 Act. So far as I can ascertain, the previous regulations (made under the now defunct section 50), namely the Care and Support (Direct Payments) (Wales) Regulations 2015 – have not been repealed or amended and no new regulations have been made under the new section 49A. Likewise, so far as I can ascertain, the Part 4, Code of Practice (Meeting Needs) has not been updated to reflect the new legislative scheme. My understanding (although I may well be mistaken) is that when an enabling power, such as the power to make regulations, is repealed then the regulations made under that power automatically lapse (unless the provisions were made pursuant to more than one enabling power, and only one of these has been repealed).[5] I’d be mightily obliged if any expert on these issues could shed light on this question.
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[1] R (BNF) v Newport City Council [2026] EWHC 1212 (Admin) 20 May 2025.
[2] Under section 50(4)(d)(i)) of the 2014 Act prior to the amendments made by section 20 Health and Social Care (Wales) Act 2025 coming into force, now under section 50(3)(d)(i) – see the final paragraph of this posting.
[3] 2014 Act, section 6(2)(a) – and as noted in R (TJ) v Monmouthshire County Council [2024] EWHC 2594 (Admin), para 25 there is a duty to have regard to the person’s views, wishes or feelings and that failing to do so would be a fundamental flaw.
[4] For an overview of the Act’s provisions see the Explanatory Notes which can be accessed by clicking here.
[5] See for example the Department of Health and the Department for Work and Pensions response to the request by the Statutory Instruments Joint Committee 17 October 2012, at https://publications.parliament.uk/pa/jt201314/jtselect/jtstatin/6/607.htm.
Photograph of Pont Borth by Richard Jones -@lluniaurich
Posted 25 June 2026