CSDPA – the mystery duty for disabled children’s social care

by stevebroach

I wrote last week about the positive changes to the SEN framework that I see coming from the new Children and Families Act. One of these changes I called ‘the attempt to deal with social care’. This post seeks to explain that cryptic title with particular reference to the key duty to provide social care to disabled children.

Despite the promise of a joined-up system, when the Children and Families Bill was published it was hopeless on social care. Many organisations working with the Special Educational Consortium and the Every Disabled Child Matters campaign made a massive fuss about this. I tried to help with the fuss by providing legal opinions with Ian Wise QC and Irwin Mitchell solicitors, one of which you can access here if you want the background. The first part of this opinion (paras 3-17) contains legal analysis of the key social care duty in the Chronically Sick and Disabled Persons Act 1970, which is explained in plain(ish) language below.

The result in the final Children and Families Act is the amended section 37(2)(e), which states that an EHC Plan must specify ‘any social care provision which must be made for [the child or young person under 18] by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970…’. This provision must be included in section H1 of the child or young person’s Plan. Furthermore section 37(2)(f) requires Plans to specify ‘any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e).’

So there is clearly now a duty to specify social care provision in EHC Plans – although we don’t yet know what provision must actually be specified. But is there a duty to actually provide the provision? Well, not from the Children and Families Act (CFA). Section 42 of the CFA imposes the duties on Local Authorities and Clinical Commissioning Groups to put in place specified education and health provision in the Plan – but section 42 says nothing about social care provision.

This can only be because Parliament (or more realistically the Ministers and officials in the Department for Education) think that this duty is covered elsewhere. So where is it? Well, as the title of this post suggests, it’s in the CSDPA – or in section 2 of the Chronically Sick and Disabled Persons Act 1970, to set it out in full. Until the Care Act 2014 comes into force, the CSDPA is also the key duty in relation to adult social care – but it will remain in force for children and young people under 18 even once the Care Act is in force next April.

So how does it work? A quick glance at the section shows that it contains a lengthy ‘service list’ – a somewhat outdated list of a wide range of services that a disabled child or adult might need. Often these services are very broadly defined – ‘practical assistance in [the] home’ covers all kinds of domiciliary care including short breaks in the home, while ‘the provision…of lectures, games, outings or other recreational facilities outside [the] home’ covers the full range of community based short breaks. In fact, as was shown in the magisterial judgment of Mrs Justice Black (now Lady Justice Black) in R (JL) v Islington LBC, the CSDPA covers pretty much any specialist service a disabled child might need except residential short breaks (which will have to be the subject of another post).

So when is there a duty to provide these services? Answer – when it is necessary to do so to meet the child’s needs.

How do we know whether it is necessary to provide a service to meet the child’s needs? Answer – by carrying out an assessment under section 17 of the Children Act 1989, a process now governed by the reissued Working Together to Safeguard Children statutory guidance. As the new Code of Practice repeatedly emphasises there is no need for this to be  separate assessment – a Children Act assessment can (and should) be completed as part of the EHC assessment process. The judgment as to whether it is necessary to provide a service for a particular child or young person under the CSDPA must be informed by a lawful Children Act assessment.

And perhaps most importantly – are a Local Authority allowed to take account of their resources in deciding whether it is ‘necessary’ to provide a disabled child with a service? Yes they are, but only in a very specific way. This is complicated – but critically important. As we have seen, a Local Authority can decide what level of need it considers it to be ‘necessary’ to meet. Until the Care Act 2014 comes into force, it does this for adult social care by picking one of the eligibility thresholds set out in the Prioritising Need statutory guidance (first set out in FACS – Fair Access to Care Services) – ie ‘critical’, ‘substantial’, ‘moderate’ or ‘low’ (the Care Act will introduce a national eligibility threshold for adult social care).

However for children’s social care there is no statutory guidance on eligibility thresholds. As such, each Local Authority is entitled to set its own threshold for eligibility for disabled children’s social care, so long as that threshold is rational, reasonable and fair and consistent with the purpose of the Children Act 1989, which is to promote the well-being of children within their families.

From the perspective of children and families, this is the bad news – because some disabled children can lawfully be excluded from entitlement to social care services under the CSDPA. However the good news is that if a Local Authority accepts that a child has eligible needs, it must meet those needs – no matter how much this costs. This is true whether it is providing services itself, commissioning them from a third party or transferring funds to the child’s family by way of a direct payment. As such the ‘deal’ mandated by Parliament is that Local Authorities may only choose to meet the needs of the most severely disabled children, but they must ensure that the needs of children who they do deem eligible are properly met. Local Authorities may choose to meet needs in the most cost-effective way – but if the eligible need requires (say) four hours of support, it would be unlawful to provide or fund only three hours.

So what does the CFA add to this complex picture on disabled children’s social care? In truth, not a huge amount. What changes is that the decision about what (if) any social care services will be provided under the CSDPA 1970 to a child with an EHC Plan now must be recorded and set out in the Plan. This helps with transparency and should give families an increased opportunity to challenge under-provision or non-provision. It is essential to remember that the Tribunal has no jurisdiction to deal with disputes in relation to the health or social care elements of EHC Plans, so any challenge will be by way of a complaint or, in serious and urgent cases, judicial review. Given the amount of smoke and mirrors around about judicial review at the moment I will devote a blog post to how such a challenge would work shortly.

So what about section H2 of the EHC Plan, dealing with any other social care provision which the Local Authority accepts is ‘reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs’? Well, it’s hard to see what this would be – apart from residential short breaks. It is obvious that if provision is ‘reasonably required’ a Local Authority is entitled to take account of how much it costs. As such, any provision which is accepted to be needed once costs are factored into the equation is highly likely to fall within the CSDPA duty, as set out above. Also, in the hard-to-imagine case where a service could not be provided under the CSDPA it would be provided under section 17 of the Children Act 1989 – and there is no right to services for any particular child under this general duty.

So what the CFA has done in practice is shine a spotlight on the CSDPA, which for too long has been the ‘mystery duty’ governing the provision of social care to disabled children. Whether it is appropriate for such vital services to be governed by a statute written 44 years ago and aimed at disabled adults is another matter – I think what we actually need is a new Disabled Children’s Rights Act, but for now I believe we can make the CSDPA work, at least for the more severely disabled children. However children’s rights under the CSDPA will not become a reality unless everyone in the system understands how it is supposed to work – hence this post.

I hope this summary of a complex legal area is helpful. Here are some more resources if you want to delve further into the law in this area:

• The children’s services chapter of Disabled Children: A Legal Handbook has a lot about the CSDPA. Please note the chapter is not up to date but it contains useful background as to how the duty operates. We are working on a second edition of the Handbook at the moment and it should be published in early 2015.
• The judgment of the High Court in R (JL) v Islington LBC has a fantastic summary of how all the key legal duties, including the CSDPA, work in relation to disabled children. It is essential reading for anyone who wants to understand properly the law in this area.
• Why are Local Authorities allowed to take into account their resources when deciding whether it is necessary to meet a person’s needs under the CSDPA? Because the House of Lords decided by the narrowest possible majority (3-2) that they could in R v Gloucestershire CC ex parte Barry. Anyone who manages to read Barry all the way through and understand it will join a very select bunch of social care law geeks.
• Many Local Authorities, in deciding how much funding is required by way of a direct payment to meet a person’s needs under the CSDPA, will use a ‘RAS’ – a Resource Allocation Scheme (or System). In R (KM) v Cambridgshire CC the Supreme Court decided that RASes can be used as a ‘starting point’ to generate an indicative sum for direct payments, but there remains an absolute duty to ensure that the sum finally provided is sufficient to meet a person’s needs. KM is a slightly easier read than Barry and summarises the ratio from the earlier judgment (the ratio is the binding legal findings of the earlier court).

As always, comments and questions welcome below.