Disabled children’s right to a holiday (where ‘necessary’)
As an important aside to my last post on disabled children’s social care – there is a little-known duty on Local Authorities under the CSDPA 1970 to help disabled children and their families take holidays. Read on for more…
As set out in my last post, section 2 of the CSDPA 1970 contains a ‘service list’ of the types of services and support which Local Authorities must provide if the criteria are met. One of the specified items in the list is ‘facilitating the taking of holidays’ by the disabled child or adult.
What does that mean? Well, ‘facilitating’ means ‘helping to make happen’ in plain English. So there is a duty on Local Authorities to help make sure (some – see below) disabled children get holidays. That doesn’t mean the Local Authority necessarily has to pay for the holiday itself – it might ‘facilitate’ the holiday (as was helpfully suggested by Natasha on Twitter earlier) by supporting the family to access a grant from a charity to pay for the holiday. However it would not be enough in my view for the Local Authority just to hand over some application forms for a grant – this is not what ‘facilitate’ means, it means that the Local Authority should actually make sure the holiday happens. The most straightforward way for a Local Authority to do this would be to provide funds to the child’s parents to pay for some or all of the holiday by way of a direct payment.
Three other big questions:
- Which disabled children are entitled to help to get a holiday? Answer – all those children for whom the Local Authority accepts a holiday is ‘necessary’ to meet their needs and who would not get one without the support of the Local Authority. See the discussion on my last post for how that question is to be answered – in short, after a lawful Children Act assessment and taking account of the Local Authority’s resources. However if the Local Authority accepts that it is necessary for the child to have a holiday then this must be ‘facilitated’. Importantly, since 1990 an annual week’s holiday has been accepted to be ‘one of the necessities which made life worth living’. A Local Authority would have to take this into account when deciding whether it is ‘necessary’ to facilitate a holiday for a particular disabled child.
- Who can the Local Authority pay for or help find funds to pay for to go on the the holiday? Answer – the child and any member of their family who the Local Authority accepts it would promote the child’s welfare to have come on the holiday with them. This is because Local Authorities discharge their CSDPA duties to children by carrying out their functions under the Children Act 1989 (trust me on this – or if you don’t trust me, read the Court of Appeal’s judgment in Spink which says this in a fairly tortuous way). Under section 17(3) of the Children Act 1989, Local Authorities may provide services support to any member of the family of a child ‘in need’, which includes all disabled children.
- What costs should the Local Authority ‘facilitate’? The helpful answer to this from the perspective of children and families is that the Local Authority may have to fund or arrange funding for the basic cost of the holiday, not just the additional disability-related expenses. This was decided by the High Court in R v North Yorkshire CC ex parte Hargreaves (no 2) (can’t find the full transcript of the judgment free of charge but this media report has the highlights).
All this is a bit late for the current summer holidays – but I’m sure lots of disabled children and their families would like a holiday at half term or Christmas – or a disabled child or young person might like an adventure with their mates or on their own…
And by the way – exactly the same duty applies to disabled adults, at least until next April when the Care Act 2014 comes into force.
I’d welcome comments below with the experiences of people who have asked for help with holidays under the CSDPA or who work for Local Authorities and may have considered such requests.