BNF v Newport City Council [2026] EWHC 1212 (Admin)

[2026] EWHC 1212 (Admin)Case No AC-2025-CDF-000105
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Cardiff Civil and Family Justice Centre, 2 Park Street, Cardiff, CF10 1ETDate 20/05/2026
Before
HIS HONOUR JUDGE JARMAN KCSitting as a judge of the High CourtBNF(by his litigation friend BRX)
Between
NEWPORT CITY COUNCILDefendant
Mr David Gardner (instructed by Irwin Mitchell LLP) for ClaimantMr Gwydion Hughes (instructed by Law and Standards, Newport CC) for DefendantHearing Hearing dates: 12 May 2026
Approved JudgmentThis judgment was handed down remotely at 11 am on 20 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................HIS HONOUR JUDGE JARMAN KC

HHJ JARMAN KC:

[1]The Claimant is a 57 year old gentleman who needs full time care. He lacks capacity and brings this claim by his sister and litigation friend. It is she who has provided for her brother’s care since 2011 at the home they share with her son. They each have their own substantial health issues. Respite care has been provided for several years at a residential care home called Centrica Lodge in Newport, now owned by the Defendant Council, for short spells totalling 6 weeks. This has not taken place since December 2022. The sister’s evidence is that this stopped as her brother’s dietary and personal care needs were not being met there and that there was a safeguarding issue. No further details are given.[2]It is her case that her brother does not want to go back there and that he became aggressive at that time when he was due to attend. She says that this is no longer an option for respite care, and accordingly, that the Council is in breach of its duty under the Social Services Well-being (Wales) Act 2014 to provide for her brother’s care and support. The Council says that it is making direct payments to cover the costs of respite care at Centrica Lodge, and that that is a sufficient discharge of its duty. There is a subsidiary issue as to whether the Council is in breach by not making provision for hydrotherapy.[3]There is no dispute between the parties as to the law which applies in this case. Section 19(1) of the 2014 Act provides that where it appears that an adult may have needs for care and support, the Council must assess whether the adult has needs for care and support and what steps it should take accordingly. Where a person is assessed to have eligible care needs, and to require care and support in order to meet those need, under section 35 the Council must provide support to meet that need, if certain conditions are met. It is not in dispute in the present case that the Claimant does have such eligible care needs.[4]Under section 54 the Council must provide a care and support plan as to how the eligible needs should be met, and keep it under review. Section 50(1) provides that such needs may be met by way of direct payments provided certain conditions are met. Some of these are set out in The Care and Support (Direct Payments) (Wales) Regulations 2015 are met. It is common ground in this case that those conditions are met.[5]Conditions under that section must also be met for direct payments. One of these is set out in section 50(4)(d)(i), that the Council must be satisfied that the payment is an appropriate way of meeting the eligible needs. Regulation 3 provides that where the Council makes direct payments to a person, the making of the payments displaces the duty or power to provide, directly or indirectly, to meet the needs, or that aspect of the needs, in relation to which the payments are made and for the duration of the period for which payments are made.[6]The opening sections of the 2014 Act set out overarching duties which apply to the Council when exercising its functions thereunder. Section 5(1) imposes a duty to promote the well-being of persons who need care and support. By section 2(2) well-being includes physical and mental health and emotional well-being. Another overarching duty under section 6(2)(a) is to have regard to the individual’s views, wishes and feelings, in so far as is reasonably practicable.[7]Section 145 empowers The Welsh Ministers to issue codes on the discharge of functions under the 2014, and there are relevant codes, which have the status of statutory guidance and must be followed unless there is good reason not to do so.[8]Part 3, Code of Practice (Assessing the Needs of an Individual) provides at [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.”
[9]Part 4, Code of Practice (Meeting Needs) provides at [6]:
“[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.”
[10]And at [139], it is provided that when need is met by way of direct payment, the payments must be sufficient to meet the need:
“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.”
[11]The Court of Appeal in R (BG and KG) v Suffolk County Council [2022] 4 W.L.R. 107, when considering the Care Act 2014 as it applies in England, emphasised at [69] that its purpose is to promote an individual’s well being and that within that is recognition of the autonomy of the individual. Councils must recognisethat each person’s needs are different and personal to them. The core purpose of that Act is to help individuals to achieve outcomes which matter to them in the life which they lead.[12]The Act with which I am concerned was considered by me in R (TJ) v Monmouthshire County Council [2024] EWHC 2594 (Admin), where at [25] I observed that care and support planning and delivery include a duty to have regard to the person’s views, wishes or feelings and that failing to do so would be a fundamental flaw.[13]Mr Gardner, for the claimant, relies on various answers of “no” given by the Claimant when asked by professionals since 2022 whether he would like to go to Centrica Lodge for respite care. This continued to be the case when it was explained to him that the management has changed since he was last there.[14]Mr Hughes, for the Council points out that when this is probed a little further, and he is asked the reasons, he replies that he does not like it there, and that it is noisy. When his solicitor in ongoing Court of Protection proceedings in respect of the Claimant, probed a little deeper, he said that his answer would not be the same if there were activities at Centrica Lodge that he would like, or friends he could make. He would be happy for someone from there to visit.[15]The Council has made a lump sum payment to his sister made up of the daily rate for respite care at Centrica Lodge for a total of six weeks. Her evidence is that she has made extensive enquires about paying for other respite care but has not found any care that can be provided at this rate. It is common ground that what is needed is respite care totalling six weeks, which has been provided for some years. It is clear that she needs this respite care, and it is clear that her brother needs care whilst she has respite. Other options have been explored in the past, but by the time of the hearing it was common ground that the real crux in this case is whether Centrica Lodge is an option.[16]The essence of the case advanced by Mr Gardner is that the Chas not had regard to what the Claimant says about respite, and the way the decision has been made does not comply with section 5 or section 6 of the 2014 Act.[17]Mr Hughes submits that with the right approach to the Claimant, then Centrica Lodge is achievable. In response, Mr Gardener realistically accepts that this may be achievable, but submits that a transition period may take some time and that in the meantime respite care is still needed. Moreover, there is no plan in place for such a transition.[18]I have come to the conclusion that by simply maintaining that Centrica Lodge is the right option for respite care, without a transition plan or other plan for the smooth return of the Claimant to Centrica Lodge, the Council is in breach of the duties set out above and has not promoted the Claimant’s well being in this regard and has not had regard to his wishes and feelings so far as reasonably practicable. How this is done is a matter for the Council and not for this court, but by way of example only, the sort of transition plan to facilitate a smooth return to Centrica Lodge referred to by Mr Gardner, involving perhaps visits to the Claimant by staff there, is one option which may be considered.[19]At the moment, the Claimant is not obtaining the care he needs over the six weeks of respite which his sister needs. It was not suggested, of course, that there should be any form of coercion of the Claimant to attend Centrica Lodge against his wishes. That would clearly be unlawful under the 2014 Act. It may be, as Mr Hughes submits, that the wishes he is presently expressing in this regard are, to use Mr Hughes’ word, “soft” in the sense that he may be coaxed. Mr Hughes recognises that this needs very sensitive handling, but submits that with work, he would be able to attend.[20]I accept those submissions, but the problem is that the Council have undertaken no such work, so that the Claimant’s wishes, even if soft, remain at present that he does not want to attend.[21]Furthermore, on the evidence before me, I accept Mr Gardner’s submission that the daily rate calculation for the direct payment is not sufficient to enable outcomes to be met and this is in breach of the Code of Practice cited above. It was not seriously in dispute before me that the rate is directly related to the Centrica Lodge rate, and if, as I have found, the Claimant does not at present want to go there, there is no other option. His outcome of care during respite is therefore not being met. In written evidence from the Council’s social worker it was suggested that this was all the Council could afford. This was not easy to follow as it must be a matter of allocation of resources. Very properly, Mr Hughes accepts that if there is an eligible need, then it must be met.[22]In my judgment, the Council is in breach of its duty under the 2014 Act and the Code of Practice in not meeting the Claimant’s needs in the ways identified above. A declaration to that effect should be sufficient, and the Council will be expected to give effect to it and to demonstrate that these needs are being met. As indicated above, it is not for this court to determine how those needs should be met. That is a matter for the Council, but at present for the reasons given above I conclude that they are not being met.[23]As for hydrotherapy, this did not loom large in contemporaneous documentation, in the evidence or in submissions. As Mr Hughes points out, it was not a matter that was raised in the pre-action protocol letter. In an email to the Claimant’s social worker in 2023, apparently from his sister, she indicated that she had taken her brother to a gym, where he had been persuaded to go into a shallow pool, which he was proud of as he had a fear of water. He had also been in the jacuzzi there. The email said that these were ideas to go “into the mix” as he loved being at home in his lounge surrounded by all his possessions and that it would take something he was keen on to persuade him to do something else on a regular basis. In one of his answers to the question why he liked being at home, he replied that his sister “spoils me rotten.”[24]A grant was given for a hot tub at home, but in a review dated 22 April 2025 it was indicated that while the Claimant enjoyed this and it helped with back pain, it was expensive to maintain. It is no longer there. Reference was also made to the benefits of his going swimming. There is no medical evidence about this and in the review no particular outcomes were identified. I am not persuaded on the evidence that this does give rise to an eligible need.[25]However, for the reasons I have given, the claim succeeds on the first ground. The parties should file a draft order, agreed as far as possible, within 14 days of hand down of this judgment. Any consequential matters not agreed can be dealt with on the basis of written submissions to be filed within the same time frame.[26]I am very grateful to both counsel for the focussed and helpful submissions in writing and orally.