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Disabled Children and their Legal Rights:Securing Care and Support for Vulnerable Children 28th May 2012Richard Copson
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Charlotte’s Case
• Charlotte is 4 years old; she has been profoundly disabled since birth and suffers from a rare genetic disorder known as Rett’s syndrome;
• she requires 24 hour care; her condition is expected to deteriorate over time and her family have been advised that she may not survive beyond her teenage years;
• she requires help from both Social Services and the Primary Care Trust in order to receive a full care package, consisting of carers, adequate adaptations and appropriate medical equipment; both of which seem reluctant to accept the true level of Charlotte’s care needs;
• this has resulted in endless disputes with both authorities, neither of which will accept their responsibilities towards Charlotte
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The legal issues
• Section 17 Children Act 1989A 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
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The legal issues continued…• Section 2 Chronically Sick and Disabled Persons Act 1970• Services which a local authority can make available to disabled
children:―practical assistance in the home―short breaks― recreational facilities― travel and other assistance―home aids and adaptations ―holidays―educational facilities
• Framework for the Assessment of Children in Need and their Families (Department of Health Guidance)
• National framework for Children and Young People’s Continuing Care (Department of Health Guidance)
• Human rights– Article 3: Prohibition of inhuman and degrading treatment– Article 8: Right to respect for privacy and family life– Article 14: Prohibition of discrimination
• Public law principles• Judicial review
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Human Rights• What are they?• Why are they important?
“ David Cameron declared war on unelected judges yesterday after they put the human rights of paedophiles and rapists before public safety”.
“ The Prime Minister said he was “appalled” that Britain’s 50,000 sex offenders can appeal against being kept on a police register for life”.
Daily Mail, 17 February 2011
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Human Rights continued…
• “It’s hard to see why Mr Cameron finds the judgments in the F case so offensive. Far from suggesting that the Human Rights Act would prevent people being on the Sex Offenders’ Register for life – the way the case is being spun in the media – the case confirms that this can be justified in many cases”.
- James Welch, Legal Director, Liberty, 18 February 2011
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Human Rights continued...European Convention on Human Rights
Which human rights do we look to rely upon?
Of course, it depends on the issues raised and their context but take, forexample:
- community care- healthcare- continuing healthcare- mental capacity and best interests
Human Rights Act 1998:- the interpretation of legislation and laws in a way which is compatible with the
Convention rights;- Section 6- it will be unlawful for a public authority to act in a way which is incompatible with
a Convention right.
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Human Rights continued…- Section 8
- Judicial Remedies
- The court may grant such relief or remedy or make such order within its powers as it considers just and appropriate.
- Damages and the concept of just satisfaction.
Article 3 Prohibition of torture:
- no one shall be subject to torture or to inhuman or degrading treatment or
punishment
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Human Rights continued…Article 8 Right to respect for private and family life:
– everyone has the right to respect for his private and family life, his home and his correspondence;
– there should be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 14Prohibition of discrimination;
- The enjoyment of the rights and freedoms … in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
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Disability Rights• Bringing together the arguments, issues and the law;
• Community Care as a foundation for independent living;
• Section 46 NHS and Community Care Act 1990:• “… Services which a local authority may provide or arrange to
be provided under any of the following provisions:• (a) Parts III of the National Assistance Act 1948;• (b) Section 45 Health Services and public Health Act 1968;• (c) Section 2454 and schedule 20 National Health Service Act
2000• (d) Section 117 Mental Health Act 1983
• CarersA carer’s stand alone right to an assessment of their needs.Section 1 Carers (Recognition and Services) Act 1995Section 1 Carers and Disabled Children Act 2000
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Disability Rights continued
• Housing-Section 47 (3) NHS and Community Care Act 1990:Consideration of the housing needs of disabled children; -Section 3 Chronically Sick and Disabled Persons Act 1970;-Delivering housing adaptations for disabled people; a good practice guide 2006 (Department of Communities and local Government/Department of health);-Adaptations – Disabled Facilities Grant;-Housing and Community Care: LAC (92) 12/DOE circular 10-92
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Disability Rights continued…• Short break provision
Also known as respite- A care service provided for the disabled child rather than
his/her carers.- Short breaks – statutory guidance of how to safeguard and
promote the welfare of disabled children using short breaks (department for children, schools and families).
• Local authority and PCT resources – challenges in an age of budget cuts
• The difference between the assessment of care needs, care planning and the actual provision of services.
R v Gloucestershire County Council ex-parte Barry (1997) 1 CCLR 40
R v Wigan MBC ex-parte Tammadge (1998) 1 CCLR 581
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Disability Rights continued…
• Continuing HealthcareR v North and East Devon Health Authority ex-
parte Coughlan (2000) 2 WLR 622• National Framework for NHS Continuing Healthcare and
NHS Funded Nursing Care in England 2009.• The overlap in Community Care and Healthcare
Services – the need for joint working.
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• Transition
• Post 18 provision of services as an adult.• Section 21 National Assistance Act 1948.
- Provision of residential accommodation for persons aged 18 or over.
• Section 29 National Assistance Act 1948. - Arrangements for promoting the welfare of person aged 18 or
over who are blind, deaf or dumb or suffer from mental disorder of any description and other persons aged 18 or over who are substantially and permanently handicapped by illness, injury or congenital deformity or such other disabilities...
• Section 47 National Health Service and Community Care Act 1990- Duty to assess the potential care needs of people who may require Community Care Services.
• Putting people first; a whole system approach to eligibility for Social Care – guidance on eligibility criteria for adult social care 2010 (Department of Health).
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Challenging Decisions
• Local authority complaints procedure.
• NHS complaints procedure.
• Local Government Ombudsman.
• Health Service Ombudsman.
• Judicial Review.
A remedy of last resort:
R (Cowl) v Plymouth City Council (2001) EWCA Civ 1935.
- Availability of public funding?
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Leo’s Case
• Leo is 3 years old, he has been profoundly disabled since birth and requires constant supervision and medical treatment;
• upon his discharge from hospital he returned home to live with his family;
• in this case the PCT were fully aware of Leo’s care needs and were willing and able to provide a full care package for him;
• however it was the local authority who failed to address his care needs and provide him with adequate adaptations.
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The Way Forward
• Paint a clear picture• Press the issues and arguments• Never underestimate your importance• The law is there for a reason• The state is always accountable• Chin up
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www.pannone.comRichard Copson Disability Rights & Public Law
Unit Pannone LLP [email protected]
EXCELLENCE AND ENERGY IN ALL THAT WE DO
