rightsinreality

Thoughts on the crossroads of law, politics and society – for when a tweet isn't enough. This blog contains general information and commentary on legal matters. It is not intended to provide legal advice. This blog discusses the law in England, unless otherwise stated.

Tag: Care Act

All the key ‘sufficiency’ duties for disabled children and young people

When looking a public bodies’ proposals to cut funding, one of the key legal questions which arises is whether there is a ‘sufficiency’ duty in the relevant area. I thought it might be helpful if I set out all the key sufficiency duties for disabled children and young people in one place, so here goes:

  1. Education and care provision for disabled children and young peoplesection 27 of the Children and Families Act 2004 states that as well as keeping education and care provision under review, local authorities must ‘consider the extent to which the provision…is sufficient to meet the educational needs, training needs and social care needs of the children and young people concerned’. In considering this local authorities have to consult with (amongst others) children, young people and parents. Section 27 is therefore likely to be important in any case involving cuts to education or care services for children and young people.
  2. Adult social care servicessection 5 of the Care Act 2014 is often described as the ‘market shaping’ duty on local authorities. However as well as generally promoting an effective market in services, every local authority must ‘also have regard to the need to ensure that sufficient services are available for meeting the needs for care and support of adults in its area and the needs for support of carers in its area.’
  3. Short breaksregulation 4 of the Breaks for Carers of Disabled Children Regulations 2011 requires local authorities to provide ‘so far as is reasonably practicable, a range of services which is sufficient to assist carers to continue to provide care or to do so more effectively.’ This is a key duty in relation to the provision of short breaks.
  4. Childcaresection 6 of the Childcare Act 2006 mandates that local authorities must provide ‘secure, so far as is reasonably practicable, that the provision of childcare (whether or not by them) is sufficient to meet the requirements of parents in their area who require childcare in order to enable them to [work or study]’. This requirement extends up to 18 in relation to childcare for disabled children.
  5. Children’s Centressection 5A of the Childcare Act 2006 states that childcare arrangements must ‘must, so far as is reasonably practicable, include arrangements for sufficient provision of children’s centres to meet local need.’ These have to be physical centres, as per the definition in sub-section 4. This is why it would be very unlikely to be lawful for a local authority to decide to close all its children’s centres.

It is obvious that all of these duties are subject to important qualifications. The first two duties listed above are ‘regard’ duties, which require local authorities to ‘think about’ the need for sufficiency rather than actually achieve sufficiency. The final three duties are focused more on outcomes, but are qualified by reference to reasonable practicability. This means that local authorities can take account of their own resources when deciding what level of provision to make. However in my view it is clear that when contemplating cuts in these areas local authorities must understand the level of demand for a particular service and assess the extent to which the remaining service will be sufficient to meet local needs if the cut is to be made lawfully. Very often in my experience this fundamental requirement of lawful decision making is not met. Those who have concerns about cuts in their area which may breach one or more of these sufficiency duties will need to get advice ASAP.

No doubt there are other important sufficiency duties for disabled children and young people than those listed above – suggestions for other duties to include in this post are welcome using the comments below.

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Mendip House – not ‘safeguarding’ failures but rights violations

This week I have been mostly cheering on families challenging the closure of an NHS short break unit in Hertfordshire, watching with a combination of awe and anger as George Julian live tweeted Richard Handley’s inquest* and feeling sickened and disgusted by the reports of the Safeguarding Adults Review of Mendip House, the former National Autistic Society (NAS) service in Somerset. Not the happiest week. This blog post is about the last of these three horror shows. The NAS position statement is here.

I’ve read lots of the commentary this week at the #MendipHouse hashtag on twitter. The most powerful comment for me was that by Neil Crowther: ‘When Panorama exposed Winterbourne View a human rights expert described the treatment filmed as ‘torture’. The treatment described here in a residential home run by [NAS] is also torture, inhuman and degrading treatment and must be labelled as such.’ Only judges and treaty bodies get to decide that human rights have been breached, but like Neil I struggle to see how the kind of treatment of the residents at Mendip House described in the Safeguarding Adults Review** can be anything other than inhuman and degrading – and thereby prohibited by Article 3 of the European Convention on Human Rights. I also share the concern Neil expressed in a later tweet about the radio silence from the ‘mainstream’ human rights bodies on this issue – feeding the unfortunate impression that violations of disabled people’s rights are not ‘real’ human rights violations.

The only positive contribution I may have to the discussion is to flag section 73 of the Care Act 2014, which makes clear that voluntary and private sector providers of state-funded adult social care are now covered by the Human Rights Act 1998. This means that a resident of a private or voluntary sector care home (or a recipient of domiciliary care) can bring a claim that their human rights are being or have been violated in exactly the same way as if they were in a state-run institution (see below for more on ‘institutions’ in this context). Although the Care Act only applies to adult social care, in my view it is very likely that the courts would now take the same approach in relation to children’s social care and NHS-funded care for both children and adults, in order to avoid unlawful discrimination contrary to Article 14 ECHR. However until this is tested in court the position is unclear. Equally, until the first voluntary or private sector provider is successfully sued using section 73 of the Care Act, I’d imagine this very important extension of disabled people’s rights will continue to be little known and poorly understood.

A number of really important questions seem to me to arise from what happened at Mendip House. The first is whether charities should be running services at all. In my view the only justification for a national charity running services that can only benefit a handful of individuals is that these services act as an exemplar of what can be provided to all. As such my view is that every service run by a charity should have an ‘outstanding’ rating. Charities should sell off services rated only ‘good’ or below to the private sector or non-profit companies; if the service isn’t ‘outstanding’ it can’t be an exemplar. Of course what was going on at Mendip House was about as far from ‘outstanding’ care as it’s possible to get, as the NAS recognised by closing the service.

Secondly, should charities be running these kinds of services? Dr Oliver Lewis of Doughty Street Chambers and Leeds University published a powerful thread on twitter suggesting that ‘institutional’ care breaches Article 19 of the UN Convention on the Rights of Persons with Disabilities on independent living and community inclusion. Oliver linked to the UN Committee’s General Comment on Article 19 from last year, which stated that assessments that disabled people were ‘unable’ to live outside institutional settings were ‘contrary to article 19’ and that independent living means ‘life settings outside institutions of all kinds’. While I would completely sign up to the programme of deinstitutionalisation called for by the UN Committee in its recent concluding observations on the UK, I’m not convinced that this means that there can be no charity-run residential care. Residential care provision can be (although admittedly rarely is) run wholly in keeping with the letter and spirit of Article 19, promoting genuine community inclusion. Equally I agree with Mark Neary that some of what passes for ‘independent living’ in this country is as alienating and segregating as the worst of residential care. What seems to me to be the greatest priority is ensuring that disabled people have ‘choices equal to others’ about where they live, in the language of Article 19. So (1) there ought to be a duty on local authorities to develop the widest possible range of community support services, and (2) local authorities and NHS bodies should be prevented from taking the cost of residential care into account when developing community support packages – precisely as we called for in #LBBill.

Thirdly, what’s the point of the big disability charities? On this one I am in complete agreement with Polly Neate, the chief executive of Shelter, who tweeted the following: ‘I think if local and activist-led groups and larger charities with more capacity join forces around an issue, there’s more potential to achieve change than traditional Westminster/Whitehall public affairs and so-called “insider” influencing’. But the prerequisite for this must be that the big charities have ‘clean hands’ – the least of it being that if things go badly wrong there is a prompt, complete and up-front public apology.

I’ll end on by returning to an earlier theme – that abuse such as that uncovered at Mendip House needs to be part of the mainstream human rights discourse. There are brilliant disabled activists, family members, academics and lawyers speaking more and more publicly about disabled people’s human rights. They need the full support of the major human rights organisations to make sure abuse like this is not framed as merely a ‘safeguarding’ failure but as human rights violations.

*Help fund George’s work here: https://chuffed.org/project/richard-handleys-inquest

**See in particular table 1 on pp5-6 of the report which goes through blow by blow the allegations in relation to individual residents.

Law Commission consults on review of children’s social care law – please respond

The Law Commission is consulting until 31 October 2016 on its next programme of law reform. One of the issues it is considering reviewing is children’s social care.

There will be competition for what goes into the Commission’s next programme. If, like me, you think children’s social care law is badly in need of an overhaul then please respond to the consultation before the end of next month – see the end of the final link above. One option would be to respond to say – ‘yes please, the current law is a mess’. However I’m sure the Commission would be assisted by slightly fuller responses. Here are some outline thoughts on the issues raised by the Commission in its consultation.

Firstly, the Commission must be right that many of the factors which required new legislation on care for adults in the Care Act 2014 also apply equally to children’s social care. As previously for adults, the law in relation to children’s social care is piecemeal and patchy. Although it centres around Part 3 of the Children Act 1989, the 1989 Act has been repeatedly and confusingly amended in the intervening years and there are other important statutes, not least the Chronically Sick and Disabled Persons Act (CSDPA) 1970 for disabled children. There must be a compelling case for a simpler, more streamlined scheme for children as for adults.

Secondly, it is noteworthy that the first two specific issues identified by the Commission concern disabled children. This reflects in my view the fact that the current statutory scheme works particularly badly for disabled children. It is very difficult if not impossible for families and professionals to understand the links between the CSDPA 1970, the Children Act 1989 and the Children and Families Act 2014. The way social care law operates (or fails to operate) for disabled children therefore seems to me to be particularly ripe for review.

I will post my full response to the Commission nearer the time, but I hope the above is helpful as a starter for 10. Please do respond to the consultation and spread the word to others who may be interested. The Commission has an excellent track record of getting its proposals into law and so this is likely to be a worthwhile investment of time.

 

A new right to short breaks – but only in Scotland

I’m heading back from the fantastic International Short Breaks Association conference in Edinburgh, where I spoke about Aiming High for Disabled Children and the short breaks duty in England. This gave me a chance to look at the (relatively) new Carers (Scotland) Act 2016, which will apply from 2017-18. Although some aspects of the Scottish legislation are familiar from the English scheme (for example the requirement to publish a short breaks services statement), there are of course important differences.

The most striking difference to my mind is that in Scotland there will shortly be an enforceable right to services (potentially including short breaks) for some unpaid carers of disabled children, not just disabled adults as under the Care Act 2014 in England. This is because the Scottish Act applies to ‘carers’, who are defined simply in section 1 as ‘an individual who provides or intends to provide care for another individual ‘. There are then two exceptions, the first being ‘professional’ carers. The second exception is that the definition does not apply ‘in the case of a cared-for person under 18 years old, to the extent that the care is or would be provided by virtue of the person’s age’. It seems to me that applying this exception is likely to create practical difficulties – is the parent or other relative support a disabled child by reason of her disability, her age or both? Regulations should shed light on how this test is expected to work in practice.

Although the test may be problematic, the principle of extending a meaningful right to support to unpaid carers of disabled children in Scotland must be welcome. The high point of the English legislation in this respect is the duty under section 17ZD-ZF of the Children Act 1989 to carry out a ‘parent carer’s needs assessment’ (‘PCNA’), but as blogged previously these sections do not create any right to support.  The English short breaks duty and accompanying regulations are focussed on the commissioning of short breaks by local authorities and do not confer any individual rights.

The right to support (including short breaks) in the Scottish Act stems from section 24, which states that subject to certain criteria local authorities ‘must provide support to the carer to meet the carer’s eligible needs’. Eligibility is to be determined by reference to local eligibility criteria, although the Act contains a power for Ministers to make national criteria through regulations which would override local criteria. I can imagine some interesting discussions about whether that power ought to be used.

Section 25(1) of the Scottish Act states ‘A local authority, in determining which support to provide to a carer under section 24(4), must consider in particular whether the support should take the form of or include a break from caring’. As such there must be specific consideration of whether short breaks need to be provided in every package of support for carers with eligible needs. It may well be in many cases that the carer’s eligible needs can only reasonably be met through the provision of some sort of short break.

Much of the detail of the scheme under the new Scottish Act has been left to regulations, which are still forthcoming. I very much hope colleagues in Scotland are able to push for the most rigorous scheme that will provide an example in England and elsewhere.

One final reflection – the Care Act 2014 in England applies to disabled adults and their carers. The Scottish Act applies to carers of both disabled children and adults – but not to disabled people themselves. Is it naïve to think that we might be able to have a single joined up scheme covering disabled people of all ages and those who provide them with care? This seems particularly important when a short break must be a positive and rights-respecting service for the disabled person, not just a chance for a break for their carer.

There is a lot more in the Scottish Act than I have covered in these initial reflections. I should also stress that I am an English lawyer and am not familiar with the wider scheme in Scotland in which this Act sits. Any comments by those with more expertise will be very welcome.

Using the law to recover the cost of care which the state fails to provide

A recent case has shed some light on one of the most difficult problems that some disabled people and families may face – how to recover the cost of care which should have been provided by the state.

A typical scenario might go like this. An assessment shows that a disabled child or adult has eligible needs. There may even be a care plan put in place or other agreement on the services or funding required to meet those needs. Then nothing happens – and so the disabled person or their family is left paying for care which the state has accepted it ought to provide.

There are a number of options in this situation. For example, a complaint can be made through the local authority complaints process and ultimately to the local government or health Ombudsman, which could recommend compensation for maladministration. These recommendations are almost always followed by public bodies. Alternatively, if the local authority is asked to refund the monies and refuses, that decision could be challenged by way of judicial review on the usual public law grounds, including rationality and reasonableness. This is particularly likely to be appropriate where there are other ‘live’ issues with the care package. The sums involved would need to be significant to justify a stand-alone judicial review to recover past care costs.*

A recent case however shines a spotlight on a third option – an ordinary civil claim for ‘restitution’. The case in question is Richards v Worcestershire CC and South Worcestershire CCG and the judgment at [2016] EWHC 1954 (Ch) concerned the defendants’ application to ‘strike out’ the claim.

The value of the claim was significant, amounting to over £644,000. This reflected the costs of care for Mr Richards after his discharge from hospital in 2004. Mr Richards had been detained under the Mental Health Act 1983 and so was entitled to ‘after care’ support under section 117 of the 1983 Act. Importantly, the judgment records (at [18]) that Mr Richards was ‘not challenging the defendants’ assessment of his needs and or their decisions as to what after-care services should be provided. His case…is rather that the defendants failed to provide the services that they considered should be supplied’.

The Judge did not have to concern himself with the factual issues in Mr Richard’s case, because the defendants’ application was to strike the claim out on the basis that it was ‘not properly the subject of private law proceedings’ (at [20]). The first issue the Judge had to resolve was whether it was possible in principle for Mr Richards to bring a restitutionary claim. He decided this in Mr Richards favour, firstly on the basis that the 1983 Act did not exclude any such claim at common law. It would seem that the same analysis would apply to any of the other statutes which give rise to an entitlement to community care services, for example Care Act 2014.

The Judge also considered that Mr Richards may be able to make out a claim for unjust enrichment. The Judge recorded that ‘failure to perform a public law duty has never of itself been held to be an unjust factor for the purposes of a claim in unjust enrichment or a sufficient basis for any other restitutionary claim’ (see [36]). However it was seriously arguable that the defendants had been enriched at Mr Richards’ expense and no argument was put forward that Mr Richard’s case that the monies had been paid by ‘mistake’ could not succeed.

The second issue was whether Mr Richards was entitled to pursue an ordinary civil claim (under Part 7 of the Civil Procedure Rules) or if he needed to bring his claim by judicial review. In short, the Judge held that Mr Richards was entitled to bring a civil claim for the reasons set out at [50] in the judgment. This is potentially helpful in future cases as there is a much less strict time limit for ordinary civil claims than for judicial review.

The defendants’ application was dismissed and Mr Richards’ claim will now proceed to trial unless it now settles, which my uninformed guess says is likely.

In terms of the factors which would seem to be needed to mount a successful claim of this type, the first requirement would be a clear breach of statutory duty to provide support by the public body. It would seem unlikely that another breach of statutory duty, for example a failure to complete an assessment, would be sufficient, even if this led indirectly to expenditure on care. The claimant would then need to show the presence of an ‘unjust factor’ such as a mistake – or convince the court that the common law should be extended so that failure to perform a public law duty alone would be sufficient.

None of this is likely to be straightforward and disabled people and families will of course need specialist advice on the facts of their individual case. It may however be helpful to consider a civil claim as part of the set of legal options where a local authority or NHS body is simply refusing to cover the costs occasioned by a breach of one of their duties.

Thoughts on the above and / or examples (anonymised as appropriate) of how costs of care have been recovered in other cases are most welcome via the comments below.

*Moreover it is not possible to bring a claim for restitution alone via judicial review (see Civil Procedure Rules r 54.3(2)).

Challenging local cuts – some key legal questions

Following the political choices set out in the recent Spending Review, it would seem inevitable that local authorities are going to need to make cuts to important services next year, including those provided to children and disabled people. Recent Kings Fund analysis shows that the 2% precept on council tax is a totally inadequate solution to the funding crisis for adult social care. No-one seems to be talking about what the Spending Review means for children’s social care, which wasn’t even mentioned on the Department for Education press release – but it is unlikely to be good news.

The issue now is not whether there should be cuts, but whether the cuts which have to be made are lawful, both in terms of their effect on services and those who use them and the process by which the decisions were made. As Mr Justice Blake said in R (Rahman) v Birmingham City Council (para 46) in relation to the ‘public sector equality duty’ (PSED) found in section 149 of the Equality Act 2010:

Even where the context of decision making is financial resources in a tight budget, that does not excuse compliance with the PSEDs and indeed there is much to be said for the proposition that even in the straightened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater.

In rather an Alice in Wonderland way, Parliament has continued to impose new duties on local authorities at the same time as central government has taken their funding away to comply with them. However this means that councils need to take the hard decisions that will be made in their budgets for 2016-17 and beyond with a crystal clear understanding of their legal obligations. Although there may come a time where a local authority is unable to set a budget which allows it to meet all its legal duties, I doubt we are there yet.

Councils are currently working up and consulting on their budgets for 2016-17, so now is the time when residents and local groups may want to ask some of these legal questions:

Will the council be able to meet all its ‘specific’ statutory duties owed to individual residents? For example:

  1. The duty to meet all ‘eligible’ needs for disabled adults and their carers under the Care Act 2014
  2. The duty to meet ‘eligible’ needs for disabled children under section 2 of the Chronically Sick and Disabled Persons Act 1970
  3. The duty to provide free suitable home to school travel arrangements for all ‘eligible’ disabled children under section 508B of the Education Act 1996
  4. The duty to secure special education provision in education, health and care plans for disabled children and young people in section 42 of the Children and Families Act 2014
  5. The duty to provide advocacy to disabled people and carers during the care and support assessment and planning process under section 67 of the Care Act 2014.

Will the council be able to meet its ‘sufficiency’ duties to have a sufficient level of particular services to meet local needs? For example:

  1. Childcare, including childcare for disabled children up to the age of 18, under section 6 of the Childcare Act 2006
  2. Short breaks for disabled children under regulation 4 of the Breaks for Carers of Disabled Children Regulations 2011
  3. Education and care services for disabled children, under section 27(2) of the Children and Families Act 2014
  4. Children’s centres, under section 5A of the Childcare Act 2006
  5. Services for disabled adults and their carers, under the ‘market shaping’ duty in section 5 of the Care Act 2014

Has the council had ‘due regard’ to the needs specified in the PSED (see above) – for example the need to advance equality of opportunity for disabled people (children and adults)?

Will the proposed cuts give rise to unlawful discrimination between different groups, contrary either to the Equality Act 2010 or Article 14 of the European Convention on Human Rights?

Has the council had regard to the need to safeguard and promote the welfare of children under section 11 of the Children Act 2004?

Has the council treated children’s best interests as a primary consideration in its decision making, as required by Article 3 of the UN Convention on the Rights of the Child?*

Has there been ‘fair’ consultation on the proposals? In particular (quotes are from the leading consultation case of ex parte Coughlan:

  1. Has consultation taken place at a ‘formative stage’, i.e. sufficiently early in the decision making to influence the outcome?
  2. Have consultees been provided with ‘sufficient reasons for any proposal to permit of intelligent consideration and response’ – i.e. do residents know what cuts are being proposed and why?
  3. Have consultees had ‘adequate time’ for consideration and response?
  4. Once the consultation has finished, has ‘the product of consultation’ been ‘conscientiously taken into account’ in the final decision.

Several of these legal principles – for example consultation, non-discrimination and the PSED – apply equally to NHS bodies such as clinical commissioning groups who may also be contemplating cuts to valued services.

If residents and local groups are not getting answers to these questions, or are unhappy with the answers coming back, then the next step may be to consult a specialist solicitor who can advise on whether there may be a challenge via judicial review. It is essential that any challenge to financial decision making is brought extremely promptly – so advice should be obtained before any final decision is made if possible, or otherwise straight after the decision.

It is also important to bear in mind that not all councils are equal – particularly given the increased focus on councils raising revenue from their own areas. Residents and local groups may want to ask questions about what level of reserves their particular council holds – particularly ‘free’ or unallocated reserves. Although spending reserves is obviously only a short term solution, it may be possible to use reserves to mitigate some of the cuts and help with transition to alternative forms of provision.

It is unlikely that legal challenge alone is going to be sufficient where cuts are proposed – there also needs to be political pressure. There are a number of guides for local groups on how to campaign, including campaigning against cuts or to save services. I really like this one from the Every Disabled Child Matters campaign.

Local politics will still come down to local priorities, although the choices will get harder than ever. In the light of the duties above, the law requires councils to give significant priority to services for children and disabled people. It is hoped that the decision by Hampshire not to cut its short breaks budget for 2016-17 is therefore one that other local authorities will follow to the extent they can.

*We can save detailed arguments about whether and why the UN CRC has to be followed when it is not directly incorporated into English law for any case that goes to court.

The difference #LBBill will make

I am re-posting here the post I wrote for Justice for LB, explaining why I think #LBBill is so important as part of the campaign for disability rights. I would be very grateful if everyone who agrees could take five minutes to contact their MP and ask them to support the Bill. It will take multiple contacts from campaign supporters to persuade MPs that this is an important issue.

It is such a thrill to see the map of the UK turning green as Justice for LB supporters contact their MPs to ask them to support #LBBill, the proposed new law to reinforce disabled people’s right to live in the community with choices equal to others.

Getting the Bill to this stage has involved the collective wisdom of a huge number of passionate and committed people. We have had input on the content of the Bill from disabled people’s organisations, individual disabled people, families, carers, friends and allies. The text of the second draft of the Bill is much improved from its first draft, with a stronger rights focus including implementation of the right to independent living in Article 19 of the UN Disability Convention.

There are some ideas in the bill that can be traced back to one individual, like Mark Neary’s original idea that all placements made by the state should be subject to approval, which is reflected in Clause 5. Others have emerged from the free-flowing discussion, debate and dialogue that has characterised the process so far.

We had hoped to have more time to debate Draft 2, it’s my fault we don’t, because I’d thought the ballot for private members’ bills was in July, whereas in fact it is on 4 June. This is the kind of mistake that would get a professional campaigner fired, but as we are all volunteers and no-one’s in charge I’ll probably get away with it. Apologies nonetheless.

So the key action now is to get as many MPs as possible informed about and supportive of the Bill, so that when we know the outcome of the ballot we have the best chance of getting a high-ranking MP to sponsor the Bill (see the #LBBill process post for a more detailed explanation of this).

One of the question supporters are likely to be asked by MPs and their staff is what difference would #LBBill make, and in particular, wasn’t this all dealt with last year in the Care Act 2014? The short answer to these questions is, a huge difference, and no. A more compelling answer to the difference question has been given by Sara Ryan in an amazing post as part of this Week 10 of #107days.

So I’ll take the lawyer’s question, which is why the Care Act isn’t enough.

I’ll be the first to agree that the Care Act is a step forward. The well-being duty in Section 1 has the potential to transform the approach to how social care is provided to disabled people. However, the Care Act is an act about social care, it says nothing about the NHS services that many disabled people need. It also falls far short of implementing a right to independent living.

In particular the Care Act doesn’t do any of these things which #LBBill would do:

  1. Require the state to ensure that all disabled people can live in their community, with choices equal to others and the support necessary to ensure their full inclusion and participation in the community (Clause 1)
  2. Expressly reject any idea of capping expenditure on care at home at the level of the cost of residential care (Clause 2). This is likely already to be unlawful but it is known that this practice goes on and it should be outlawed.
  3. Require the state to secure in every area a sufficient supply of community support, and to make sure disabled people are employed to plan and commission these services (Clause 3)
  4. Ensure that the most appropriate living arrangement is made for every disabled person who needs state help, which will generally be the arrangement they choose (Clause 4)
  5. Require appropriate approval of all living arrangements made by the state (Clause 5)
  6. Require reporting on all living arrangements made by the state, to create the disinfecting effect of sunlight which is so badly lacking at present (Clause 6)
  7. Make the Mental Capacity Act 2005 more respectful of the rights of disabled people and their carers, as a prelude to proper systemic reform of the MCA (Clause 7)
  8. Take people with learning disabilities and autism out of the scope of the civil sections of the Mental Health Act 1983 (Clause 8)
  9. Ensure the provision of appropriate community mental health services to people with autism and learning disabilities (Clause 9)
  10. Abolish the use of secret ‘panels’ and require disabled people and those around them to be properly involved in all decisions made about them (Clause 10)

So, none of #LBBill duplicates anything that is in the Care Act, or other existing legislation. It’s all new and it’s all what the community of #JusticeforLB supporters has said is needed if the law is to properly reflect and respect disabled people’s human rights.

With the government expected to announce today its intention to repeal the Human Rights Act and replace it with a British Bill of Rights, let’s get our politicians thinking about the rights disabled people and their families have said they want and need to be enshrined in law. Please keep pushing so that every MP knows about #LBBill and knows how much it matters in advance of the ballot.

Amendments to the key duty for disabled children’s social care

At one level this is an extremely geeky post – covering the amendments to various social care duties for disabled children’s social care now the Children and Families Act 2014 and the Care Act 2014 are both in force. However it serves an important purpose, which is to highlight how far we are from a single coherent scheme to make sure the education, health and care needs of every disabled child are properly met. Some of the changes made are also potentially important, including a new duty to provide information on services to disabled children.

This post concerns the attractively named Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015. This is ‘secondary’ legislation, being law made by the Minister – in this case the Secretary of State for Education.

Its purpose is to make changes to the various Acts of Parliament which are affected by the new schemes introduced by the Children and Families Act 2014 and the Care Act 2014. You might ask how a Government Minister gets to change the wording of an Act of Parliament – surely that’s a job for, well, Parliament. The answer to this lies in section 136 of the Children and Families Act 2014 and section 123 of the Care Act 2014. Through these sections Parliament has allowed the Secretary of State to make an Order changing other Acts of Parliament as a consequence of the two Acts passed in 2014.

Any boy has she done so. The Order makes amendments to 39 different Acts of Parliament on my count. These include the Opticians Act 1989 and the Water Industry Act 1991 which need not concern us – but on any scale it’s a huge number of changes. There is a very helpful summary of all the changes in the Explanatory Memorandum published with the Order for those who want the complete picture.

To see the changes themselves you need to look at the Schedule to the Order. Many of the amendments concern restricting previous legislation solely to Wales. However there are important changes made through the Order to section 2 of the Chronically Sick and Disabled Persons Act 1970 – which I am constantly banging on about because it is the key duty to provide disabled children with social care services. These changes apply to England and Wales and are found from paragraph 19 of the Schedule.

What the Order does is insert new sub-sections into section 2 of the CSDPA 1970 – see para 21 of the Schedule. Sub-section 4 now reads:

Where a local authority have functions under Part 3 of the Children Act 1989 in relation to a disabled child and the child is ordinarily resident in their area, they must, in exercise of those functions, make any arrangements within subsection (6) that they are satisfied it is necessary for them to make in order to meet the needs of the child.

So the key duty to provide disabled children with social care services is now in section 2(4) of the CSDPA 1970 (as amended). It seems to me that this works in the same way as the previous duty in section 2(1) – the local authority must assess the child’s needs under section 17 of the Children Act 1989 and the Working Together statutory guidance, and then decide whether it is ‘necessary’ to provide any of the specified list of services.

The list of services is now found in sub-section 6. Some of the wording has been tidied up but it is in practice the same as the previous list – and so covers every type of conceivable social care service apart from residential short breaks. To emphasise – there is an individual right to these services for every disabled child where after an assessment the local authority accepts that it it is necessary to meet their needs by providing them.

It is also very helpful that the new 2015 version of the Working Together guidance says at p18 that:

When undertaking an assessment of a disabled child, the local authority must also consider whether it is necessary to provide support under section 2 of the Chronically Sick and Disabled Persons Act (CSDPA) 1970. Where a local authority is satisfied that the identified services and assistance can be provided under section 2 of the CSDPA, and it is necessary in order to meet a disabled child’s needs, it must arrange to provide that support.

This shows the link between the duty to assess under the Children Act 1989 and the duty to provide services under the CSDPA 1970 in the clearest possible terms.

The Order also creates a new right to information about the services for disabled children under CSDPA 1970 section 1(5) – see para 20 of the Schedule. This seems to be a kind of tailored ‘local offer’ for individual children which could be very important. The Explanatory Memorandum says nothing about the purpose of this amendment – it simply seems to have been made to reflect the existing duty in relation to disabled adults. However any new right to information for disabled children must be welcomed – and interestingly the right is for the child to be informed, not the parent. I look forward to a host of new accessible information on available services for disabled children from every local authority.

There may well be some other important amendments – for example the carer’s assessment duty under section 6 of the Carers and Disabled Children Act 2000 has been amended to apply only to Wales, as there are new provisions for parent carer’s needs assessments in England. However as far as I can tell there is nothing of substance changed – nor should there be in an Order intended to make only consequential amendments.

To return to where this post started – in no rational world would we need to amend 39 Acts of Parliament when we have introduced two new Acts that are supposed to ensure proper support is provided to disabled children and adults. However what the Order highlights most clearly is that social care for disabled children falls through the gap between the two 2014 Acts – which is why this support is still being provided under an Act passed for disabled adults in 1970. Perhaps this will be remedied in the next Parliament.

Easier read – Disabled people’s rights if the Independent Living Fund closes

I’m very grateful to Anne Collis at Barod for taking the time to turn my long post about the closure of the Independent Living Fund into easier words.

This is about England. Scotland and Wales have different rules.

The Government says they are closing the Independent Living Fund on 30 June 2015.

Disabled people are still campaigning to #SaveILF. Two disabled people have complained to the United Nations Disability Committee. But the Government has not yet changed its plans.

This is what the Government plans to do in England if the Independent Living Fund closes.

The Government will give extra money to local councils. But:

  • They are giving less money than the Independent Living Fund spent
  • The local council does not have to spend the extra money on support for disabled people

Many people are very worried and angry about this.

  • The Independent Living Fund supports 18,000 disabled people. This is a lot of people.
  • How can local councils give them good support and make budget cuts?

There are elections in May. Only the Green party has said they will save the Independent Living Fund.

So we need to plan for 1 July 2015.

Disabled people need to know their legal rights.

Anyone getting money from the Independent Living Fund needs to plan for 1 July 2015.

From 1 July 2015, people who get support from the local council and the Independent Living Fund will get all their support from the local council.

By law, people should still get enough support.

But I think people may need to challenge their local council to get this support.

The Care Act 2014 is a law. Everyone must do what a law says.

Chapter 23 (from paragraph 26) of the Care Act guidance says what happens when the Independent Living Fund closes. There is also an Easy Read version of the guidance.

The Care Act 2014 says that local councils must meet all a disabled person’s “eligible needs” when the Independent Living Fund closes.

This means local councils must know each person’s “eligible needs” before 1 July 2015.

The Care Act has rules to work out someone’s “eligible needs”.

“Eligible needs” are needs that the local council must meet.

Local councils must make plans so people do not have problems with support while the Independent Living Fund is being closed

You may have “eligible needs” if you need support so you can:

  • Be safe at home
  • Keep your home in a fit state
  • Make and keep friendships
  • Get involved in work, training, learning or volunteering
  • Use community services
  • Care for a child (if you have a child)

Section 18 of the Care Act 2014 just says the local council must “meet needs”.

Some local councils may think this means they can put someone into a care home if this is cheaper than support to live at home.

The guidance (paragraph 10.27) says local councils can balance what someone wants with how much money the local council has.

But the guidance also says local councils are not allowed set a maximum amount they will pay for support to live at home.

Paragraph 11.7 says local councils must at all times respect how someone wants their needs met.

It says local councils cannot assume people must move into a care home just because it is the cheapest option.

The Human Rights Act 1998 means:

  • people cannot be treated in an inhuman way
  • people have a right to a family life

The Courts may also look at the UN Convention on the Rights of Persons with Disabilities.

This says disabled people must be able to choose where they live, just like people who are not disabled.

I think that it would be against the Human Rights Act to make a disabled person go and live in a care home when the Independent Living Fund closes.

So if a local council says someone must go into a care home, they may be breaking the law.

The Care Act says local councils must “promote that individual’s well-being”.

The Care Act has a list of what “well-being” means.

The list sounds as if people cannot be forced into a care home.

But the Courts will have to decide if the local council can force someone into a care home despite what the Care Act says.

The Care Act guidance (paragraph 11.26) says someone cannot get direct payments if the local council could arrange the same support and achieve the same outcomes but cheaper.

The Care Act says what must happen when the Independent Living Fund is being closed:

  • Someone from the Independent Living Fund and someone from the local council should come to see you
  • The local council must do a full assessment, using the Care Act rules

Just doing a visit is not the same as doing a full assessment.

I hope we can still #Save ILF.

  • Tom Shakespeare spoke on Radio 4’s A Point of View. He said why we need to #SaveILF.
  • The Independent Living Strategy group are about to launch a survey about independent living.
  • Kate Belgrave and Ros Wynne-Jones made a film with disabled people saying why we need to keep the Independent Living Fund.

The Independent Living Fund helped disabled people to be independent. Will the Care Act do the same thing?

If the Independent Living Fund closes, I think a lot of people may need to go to Court to get their rights.

Here are some lawyers who may be able to help you go to court. They can tell you about legal aid to pay for the costs of going to court.

I hope this post helps you to plan for 1 July 2015.

We must not let local councils act as if disabled people do not have human rights.

Please add your comments on how your local council is getting ready for 1 July 2015 and any worries or questions you have.

#SaveILF

What’s the point of a parent carer’s needs assessment?

In all the excitement of Care Act Day, it is important not to lose sight of the fact that important provisions of the Children and Families Act 2014 for parent carers of disabled children and young carers also come into force today (1 April 2015).

I plan to blog about the duties to young carers contained in both the Children and Families Act and Care Act shortly. However this post aims to answer a simple question which I have been asked a number of times – what’s the point of the new parent carer’s needs assessment (PCNA) introduced by section 97 of the Children and Families Act?

One thing is crystal clear – there is no new right to services for parent carers of disabled children, as there is for family carers of disabled adults under the Care Act. What we have for parent carers of disabled children is a new assessment duty – and one that should lead to a better informed decision about the holistic package of support that disabled children and their families need.

Section 97 inserts three new sections into the Children Act 1989 with effect from today (1 April):

  1. Section 17ZD is the assessment duty. It requires that a local authority must carry out a PCNA where it appears to the authority that the parent carer may have needs for support or the authority receive a request from the parent carer to assess, and the local authority are satisfied that the disabled child and family are eligible for support under section 17 itself. Given the broad definition of ‘disabled‘ children in need under section 17(10)(c) and (11) and the fact that support can be provided for any family member of a disabled child under section 17(3), this second requirement is unlikely to prove a problem. Nor is there any requirement for parent carers to be providing a particular level or intensity of care; any parent carer who requests a PCNA is entitled to one – indeed as with the Care Act assessment duty local authorities must proactively seek out parent carers who may have needs for support and offer them an assessment (a point reinforced by sub-section 14). The only exception to the duty to assess is if a ‘care-related assessment’ has already been carried out and the needs have not changed – unlikely given the dynamics of family life generally and particularly with disabled children.
  2.  Section 17ZE, which supplements the assessment duty by:
    1. Making clear that providing care includes providing practical or emotional support (sub-section 2);
    2. Allowing for the PCNA to be combined with any other assessment of the parent carer or disabled child (sub-section 3). However in my view this should only be done with the agreement of all concerned, including the disabled child where they are capable of giving or withholding consent;
    3. Allowing for regulations to be made to supplement the duty (sub-section 4). However as at 1 April 2015 no such regulations have been made.
  3. Section 17ZF, which is titled ‘Consideration of parent carers’ needs assessments‘. This is the ‘so what?’ duty – having done the PCNA, what are the local authority supposed to do with it? The answer is that they must ‘consider the assessment and decide‘:
    1. Whether the parent carer has needs for support in relation to the care which he or she provides or intends to provide;
    2. Whether the disabled child cared for has needs for support;
    3. If A and / or B applies, whether those needs could be satisfied by services which the authority may provide under section 17; and
    4. If yes, whether or not to provide any such services in relation to the parent carer or the disabled child (emphasis added)

So the high point of the PCNA duty is a duty to decide whether or not to provide services to meet the needs identified through the assessment. This falls some way short of the duty to meet eligible needs created by section 20 of the Care Act for family carers of disabled adults.

Importantly however, in carrying out every PCNA the local authority must have regard to the well-being of the parent carer and the need to safeguard and promote the welfare of the disabled child cared for and any other child for whom the parent carer has parental responsibility; section 17ZD(10). ‘Well-being’ here has the same meaning as under the Care Act and so is very broad. This should mean at least that the ‘holistic’ assessment of disabled children required by the Working Together statutory guidance is strengthened by a specific assessment of the needs of their primary carer(s). 

There are however a number of further problems with PCNAs:

  1. The most obvious problem is that they are only available for parent carers. Luke Clements has described this as the ‘grandparent problem‘ (see p53). In order to ensure that non-parent family carers still have a right to an assessment, section 1 of the Carers (Recognition and Services) Act 1995 is remaining in force. As Prof Clements notes, ‘The 1995 Act creates a higher assessment threshold for carers than does the Children & Families Act 2014, section 97 (ie the ‘regular / substantial care’ requirement and the obligation on the carer to request an assessment)‘. This ‘solution’ is therefore messy at best.
  2. A second fundamental problem is the complete absence of read-across between the PCNA duties and the key duty to provide disabled children with social care services, which is found in section 2 of the Chronically Sick and Disabled Persons Act 1970. This may not be a problem in law, as the case law is clear that local authorities discharge their duties under the CSDPA 1970 by carrying out their functions under section 17 of the Children Act 1989. However it will almost certainly be a problem in practice, as local authorities will be well aware that the section 17 duty is owed generally to children ‘in need’ and does not give rise to an individual right to services for a particular child or family – so said the majority in the House of Lords in the Barnet case. So we may see local authorities wrongly assuming that neither the PCNA or a child ‘in need’ assessment for a disabled child can lead to services as of right to the child. Any misapprehension to this effect needs to be corrected urgently. It is true that services under the CSDPA 1970 can only be provided to the child not the parent – but as we have seen one of the functions of the PCNA is to determine what level of support should be provided to the child.
  3. There are now far too many social care assessment duties for disabled children, young people and their family carers. At the last count we have:
    1. The implied duty to assess disabled children as children ‘in need’ under section 17 of the Children Act 1989, as governed by the Working Together statutory guidance;
    2. The duty to carry out an assessment of education, health and care needs under section 36 of the Children and Families Act 2014 – the route in to an EHC Plan;
    3. The PCNA duty in section 17ZD of the Children Act 1989;
    4. The duty to assess all family carers in section 1 of the Carers Act 1995; and
    5. The Care Act transition assessment duties for both disabled young people and carers – which will be the subject of a later post.

This may not even be a complete list – for example it seems the parent carer’s assessment duty in section 6 of the Carers and Disabled Children Act 2000 is still in force, although this would appear to have been made redundant by the advent of PCNAs. Such a lengthy list of assessment duties doesn’t seem to me to be a sensible approach to making sure the needs of disabled children and families are met in a streamlined way.

So at best there is only a qualified welcome to PCNAs. They are far from pointless as they should inform the service provision decision for the disabled child in their family context. However their impact will depend to a great extent on whether local authorities comply with the spirit not just the letter of the new obligations – which is a central theme across all the new reforms.

Comments on emerging practice re PCNAs welcome below.

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