Childcare for disabled children – reasonable adjustments and the right to ordinary lives

by stevebroach

Childcare is a part of ordinary family lives. In the modern economy, parents need and are expected to work to support their families – or in the language of Every Child Matters and section 10 of the Children Act 2004, to make sure their children ‘achieve economic well-being’. There is also copious evidence of the benefits of high quality childcare to children’s social development and learning.

So childcare matters – and as the Equality and Human Rights Commission say (see link above) access to childcare is an issue of equality – both disability equality and gender equality given the uneven distribution of caring responsibilities between women and men. It is therefore profoundly depressing if entirely unsurprising that the recent Parliamentary Inquiry into childcare for disabled children found that so many families with disabled children were simply unable to access any childcare – never mind high quality childcare that would meet their child’s needs and promote their development. The statistics cited in the inquiry report (see p11) speak for themselves. Families with disabled children are 2.5 times more likely to have no parent working for more than 16 hours per week. Only 16% of mothers with disabled children work compared to 61% of all mothers. Over four in ten disabled children are not accessing the free early years childcare to which they are entitled.

This extract from the co-chairs’ foreword sums up the problem:

The Inquiry heard from parent carers and young
people that the current picture is troubling. All
families face childcare challenges, but these
problems increase dramatically for disabled
children and young people. Whilst there are
numerous examples of good practice and
inclusive provision, many parent carers described
being subtly discouraged or simply turned away
by a provider. Some parent carers were offered
fewer than the 15 hours of early education
they are entitled to. Parents who wish to work
succeeded in arranging suitable care often
only after an exhausting battle. Parents can be,
and responses to the Inquiry indicate often
are, charged higher fees than for non-disabled
children, but may receive no extra help when this
happens.

So what does the law have to say about this? Given childcare is an equality issue, the first legal port of call must be the Equality Act 2010. Firstly, the public sector equality duty in section 149 of the Equality Act 2010 requires public bodies to have ‘due regard’ to a number of specified needs in carrying out all their functions. Most relevant here is the need identified in section 149(1)(b) to ‘advance equality of opportunity’ for disabled children in relation to their peers. So Local Authorities must carry out all their childcare functions with that need firmly in mind.

What about the fact that families are ‘subtly discouraged or simply turned away’ by childcare providers? Can they do this? Well in short, no. A childcare provider which simply refuses to take a disabled child on grounds of disability is in breach of the prohibition on direct discrimination under Equality Act 2010 section 13 – and direct discrimination cannot be justified.

What about the more subtle forms of discrimination, where a provider claims it doesn’t have the skills or resources to meet a disabled child’s needs, or pleads “‘elf and safety” concerns? This is where the duty to make reasonable adjustments can be a very powerful legal tool. The reasonable adjustments duty is one of the things which makes equality legislation a game-changer – because it is about not just tackling prejudice and overt discrimination but making the world a better place for disabled people. The duty is in section 20 of the Equality Act 2010, and it requires ‘reasonable steps’ to be taken to remove a number of barriers that disabled people face:

  • Where a policy (described as a ‘provision, criterion or practice’) puts disabled people at a substantial disadvantage compared with non-disabled people, the duty is to take reasonable steps to avoid the disadvantage.
  • Where a physical feature puts disabled people at a substantial disadvantage compared with non-disabled people, the duty is to take reasonable steps to avoid the disadvantage.
  • Where a disabled person needs an ‘auxiliary aid’ to avoid being at a substantial disadvantage compared with non-disabled people, the duty is to take reasonable steps to provide the auxiliary aid.

It is obvious how policies or physical features of the premises of childcare providers might need to change to improve access for disabled children. But what about the duty to take reasonable steps to provide ‘auxiliary aids’? The guidance from the Equality and Human Rights Commission states that this involves ‘providing extra aids and services such as providing extra equipment or providing a different, or additional, service‘ (emphasis added). So in the childcare context providers have to provide any additional service that it is reasonable to expect them to provide for a disabled child in order to comply with their reasonable adjustments duty.

What about cost? It is central to the reasonable adjustment duty that bodies subject to it (here, childcare providers) only have to do what is reasonable. What it is reasonable for a large chain of commercial nurseries to do to improve access for disabled children may well be very different to what it reasonable for a small community nursery in a village hall to do. The cost of the aid, adaptation or additional service is relevant to whether it is ‘reasonable’ to provide it. However – if it is ‘reasonable’ for a provider to make an adjustment then section 20(7) of the Equality Act 2010 imposes a specific ban on transferring the cost of compliance with the duty to the disabled person (or here, their parent). So any additional service provided under the reasonable adjustments duty to a disabled child must be provided free of charge. I simply do not understand in this context how parents of disabled children can routinely be charged higher fees for childcare than parents of non-disabled children, as the Parliamentary Inquiry found.

The Equality Act 2010 doesn’t have to do all the heavy lifting here on its own. The provision of childcare is now largely governed by the Childcare Act 2006, which has a number of helpful things to say relevant to childcare for disabled children:

  • Section 1 requires Local Authorities to improve well-being and reduce inequalities between young children in their area – so work done on planning and commissioning childcare must all be aimed at these goals.
  • Section 3 requires Local Authorities to promote childcare to parents who may otherwise not access it – which will clearly include parents of disabled children.
  • Section 6 imposes a duty on Local Authorities to secure sufficient childcare in their area for parents who wish to work or study in relation to work – so far as is ‘reasonably practicable’, i.e. to the extent that each Local Authority can afford. Importantly, section 6(2) states that in deciding whether childcare is sufficient Local Authorities must have regard to the needs of parents for ‘the provision of childcare which is suitable for disabled children’. To comply with this childcare sufficiency duty, a Local Authority must therefore know how many disabled children in its area may need childcare, the current level of accessible childcare provision and whether this level of provision is sufficient for the identified needs. Yet the Parliamentary Inquiry stated that only 28% of local authorities report having sufficient childcare for disabled children – meaning nearly three-quarters self-reported as being potentially in breach of their statutory duty, depending on whether they had done all that was reasonably practicable to remedy this. I’d suggest parent carer forums and other local groups may want to ask their Local Authority to explain how they have complied with this centrally important duty.
  • Section 8 gives Local Authorities a power to assist any person who provides childcare, including by providing financial assistance. So an adjustment needed by a particular childcare provider to allow a disabled child to access its services goes beyond what is reasonable, then section 8 will allow the Local Authority to meet some or all of the cost.

Finally, no discussion about the care of disabled children is complete without reference to section 2 of the Chronically Sick and Disabled Persons Act 1970. As explained in this previous post, section 2 of the 1970 Act imposes a duty on Local Authorities to provide a wide range of additional services to disabled children where the service is ‘necessary’ to meet the child’s needs. A Local Authority is entitled to take account of its resources when deciding whether it is ‘necessary’ to provide a service to meet a child’s needs – but once it is accepted that the service is necessary then it must be provided no matter what the cost.

Section 2(1)(c) of the 1970 Act requires Local Authorities to provide ‘recreational facilities outside [a disabled child’s] home or assistance to [a disabled child] in taking advantage of educational facilities available to him’. Section 2(1)(a) requires Local Authorities to provide ‘practical assistance for [a disabled child] in his home’. It is therefore plain that additional support with childcare could fall within the duty to provide services to disabled children imposed by section 2 of the 1970 Act – subject to assessment in every case of whether the service is ‘necessary’ to meet the child’s needs. These duties will be supplemented by the new duties to parent carers under the Care Act 2014 – in force from April 2015 and which I will blog about nearer the time.

Finally, information about accessible childcare is centrally important given its scarcity. I have written previously about the Local Offer under the Children and Families Act 2014. Schedule 2 to the SEN and Disability Regulations 2014 sets out the required contents of every Local Offer. Paragraph 15(c) of the Schedule mandates that the Local Offer must include ‘sources of information, advice and support…about childcare for children with special educational needs or a disability’. So parents should no longer have to struggle to find information about accessible childcare in their area – if the Local Offer published by their Local Authority is lawful.

There is lots more that could be said about the law on access to childcare, not least about the duty on the state to promote the right to work for parents with disabled children. However I hope this brief survey shows that in this area, as in far too many others, there is a huge gap between legal rights and families’ realities which we all need to work together to bridge. As with short breaks, there should be a far clearer legal right to childcare for disabled children – but we can piece together this right from the existing law and we need to make it a reality, if necessary through legal challenges in the courts. While claims of discrimination by childcare providers will be heard in the county court, systemic challenges to Local Authority failings can be brought by judicial review – for which legal aid may well be available. If you think you have such a challenge consult a specialist solicitor as soon as possible.

Comments or questions on the law in relation to disabled children’s access to childcare most welcome below.

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