Care & Support for Disabled

Children

– A brief legal guide

Kidz up North 21st November 2013

www.pannone.com

Care & support-A brief guide to the law

• Securing care & support for disabled children

Children Act 1989

• Section 17

A general duty of every local authority to:

• Safeguard and promote the welfare of children within their area who are in need and;

• Promote the upbringing of such children by their families by providing a range and level of service appropriate to those children’s needs.

Children Act 1989

• Section 27

A duty on agencies to cooperate in the assessment, planning and provision of services for children in need.

Duty upon:

• Any local authority.• Any local education authority.• Any local housing authority.• Any health authority.

Children Act 1989

• Schedule 2, paragraph 3

Assessment of a child in need can be undertaken at the same time as any other assessment including assessments under:

• The Chronically Sick and Disabled Persons Act 1970.• The Education Act 1996.• The Disabled Persons (Services, Consultation and Representation)

Act 1986.

Children Act 2004

• Section 10 Local authority duty to promote inter- agency cooperation to improve the welfare of children.

Working Together to Safeguard Children

• HM Government Guidance March 2013.• Principles underpinning the assessment framework.

• Are child centred:• Are routed in child development:• Are focused on action and outcomes for children:• Ensure equality of opportunity:• Involve children and families:• Build on strengths as well as identify difficulties:• Are integrated in approach:• Are a continuing process not an event:• Lead to action, including the provision and review of services:• Are transparent and open to challenge.

Working Together to Safeguard Children

• The effective assessment of the need for early help.

• The provision of early help services.• Local Safeguarding Children Boards.• The development of good practice,

procedures, training and information sharing.

Working Together to Safeguard Children

• Timescales for assessment:

• Within one working day of a referral – assess response required.• Within a maximum of seven working days from referral – initial

assessment.• Within a maximum of 45 working days from referral – completion

of an assessment of need.

• The importance of a child centred approach.

Community Care services

• Section 2 Chronically Sick and Disabled Persons Act 1970

Services which a local authority can make available to disabled children, including:

• Practical assistance in the home. • Short breaks.• Recreational facilities.• Travel and other assistance.• Home aids and adaptations.• Holidays.• Educational facilities.

Carers services

• Section 1 Carers (Recognition and Services)Act 1995

• Section 1 Carers & Disabled Children Act 2000.

• A Carer’s stand alone right to an assessment of their needs.

Housing issues

• A duty to rehouse children in need?• The overlap between duties under the

Children Act 1989 and housing/homelessness duties.

• R (on the application of AT, AG and HG) v Islington LBC [2013] EWHC107 (Admin).

Continuing Care

• What is continuing care?

A continuing care package will be required when a child or young person has needs arising from disability, accident or illness but can not be met by existing universal specialist services alone (Department of Health guidance).

• National Framework for Children and Young People’s Continuing Care (Department of Health guidance 25th March 2010)

• Checklist and the Decision Support Tool.• The overlap with Services under the Children Act.

Human rights

• European Convention on Human Rights 1953.• Human Rights Act 1998.

• Section 6

It is unlawful for a public authority to act in a way which is incompatible with a Convention right

• Section 8

Judicial remedies: In relation to any act or proposed act of a public authority which the court finds is, or would be, unlawful, it may grant relief or remedy as it considers just and appropriate.

Narrative: the concept of just satisfaction and compensation.

Human rights

• Article 2: The right to life.• Article 3: The prohibition of inhuman and degrading

treatment.• Article 5: The prohibition of deprivation of liberty

without lawful authority.• Article 8: The right to respect for privacy and

family life.• Article 14: The prohibition of discrimination.

Future Changes

• Children and Families Bill 2011

Department of Education statement 12th November 2013:

“The Children and Families Bill takes forward to the Coalition Government’s commitments to improve services for vulnerable children and support strong families. It underpins wider reforms to ensure that all children and young people can succeed, no matter what their background.”

Continued

Proposed changes:

• Improvements to the adoption system.• The introduction of a Virtual School

Head (VSH).• Reform of the family justice system.• Improvements to access to childcare.• Improvements to the Office of the

Children’s Commissioner.• The Introduction of shared parental

leave and flexible working.• Transformation of the special

educational needs and care system.

Changes to the Special Educational Needs and Care System • Extension of the SEN system to replace SEN

statements with a new birth to 25 education, health and care plan.

• Personal Budgets to be offered to families.• Improvements to cooperation between all services

that support children and their families – local authorities and health authorities working together.

• See the document Support and Aspiration: A New Approach to Special Educational Needs and Disability May 2012.

Difficult times

• Securing services in an age of budget cuts.• The key procedures – assessment, planning,

budgeting and service provision. • The balance between resources and needs.

• R v Gloucestershire County Council ex parte Barry (1997) 1CCLR40.

• R v Wigan MBC ex parte Tammadge (1998) 1CCLR581.

Challenging decisions

• Local authority complaints procedure.• NHS complaints procedure.• Local Government Ombudsman.• Health Service Ombudsman.• Judicial Review.

- A remedy of last resort.

Legal Aid

• Significant changes in April 2013.• The loss of legal aid in relation to welfare benefits,

debt, clinical negligence and some areas of family law.• The retention of protection for vulnerable children via:

• Community Care Law.• Public Law• Education Law• Equalities Law

The way forward

• Paint a clear picture.• Press the issues and arguments.• Always obtain key documentation.• Never underestimate your importance.• The law is there for a reason.• Chin up.

Richard Copson

Disability Rights and Public Law Unit

Pannone LLP

telephone: 0161 909 4966

email: richard.copson@pannone.co.uk

123 Deansgate, Manchester, M3 2BU

www.pannone.com