rightsinreality

Thoughts on the crossroads of law, politics and society – for when 140 characters just won't do. 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: Human Rights

Time to fight the removal of children’s rights through the Children and Social Work Bill

There are bad ideas. There are really bad ideas. And then there’s clauses 29-33 of the Children and Social Work Bill 2016.

This handful of clauses, if approved by Parliament, will allow the Secretary of State to exempt local authorities in England from the requirements of children’s social care legislation in the guise of ‘test[ing] different ways of working’. At a stroke the Secretary of State could say that Durham doesn’t have to meet disabled children’s needs under section 2 of the Chronically Sick and Disabled Persons Act 1970, Doncaster can forget about parent carers’ needs assessments or Dudley can ignore the duties owed to young carers. In the alternative, the Secretary of State could modify the way in which these requirements apply rather than exempt them entirely, just to increase the overall level of confusion.

I’m struggling to know where to start in explaining why this would be a bad idea. But here goes…This post is written from the perspective of the impact on disabled children, but similar concerns will apply across all children ‘in need’. For example, the clauses would seem to allow the Secretary of State to disapply every single requirement of the care planning regulations for looked-after children.

The law on support for disabled children, young people and families is already a mess. It derives from a patchwork of legislation enacted over the past decades, with duties and powers piled one on top of the other. The only saving grace is that it is the same mess everywhere – wherever a disabled child lives in England, their legal entitlements are the same.

If these clauses go through, even that saving grace will be lost. Rights and entitlements will vary across the country, depending on which exemptions or modifications the Secretary of State has granted to a particular local authority. This reduces rather than increases the transparency that is so badly needed if families are to enforce their rights.

What’s more, I simply do not understand why a local authority would need to be exempt from any of the baseline statutory duties governing support for disabled children in order to innovate or test different ways of working. The legislation governing children’s welfare creates a safety net which should never be removed or undermined in this way. Any specific amendments to the statutory scheme should require express and explicit Parliamentary approval, not the Secretary of State’s say-so.

All of the above is true at any time. However the statutory safety net is even more important at a time like this, when many local authorities feel constrained to cut services to the bone to balance their budgets.

The Bill comes back to the House of Lords for Report stage on 18 October – details of the Bill’s progress are on the excellent Parliament website. A coalition of individuals and organisations has come together to oppose these clauses under the banner of Together for Children. Please sign up to show your support – and please see this excellent article from Sara Ogilvie from Liberty for some of the wider concerns.

Hopefully the Lords will ensure that clauses 29-33 are removed from the Bill. However if they do not and they reach the statute book, it seems to me that there is a real issue here under Article 14 of the European Convention on Human Rights, given that disabled adults will continue to have the benefit of coherent legislation in the form of the Care Act 2014 whereas the patchwork of disabled children’s law will simply acquire more holes. It is very hard to see how this differential treatment can be justified, given that the needs of a 17 year old disabled child will be very similar to those of that young adult at 19.

Final point – all this shows how urgently we need the Law Commission to review children’s social care law

New case law updates on disabled children’s rights

Quick post (first for some time) to flag the new case law updates published by the Council for Disabled Children with its Summer Digest. These will hopefully be of interest to disabled young people, families and professionals.

The first covers two Upper Tribunal appeals brought by Hillingdon and Buckinghamshire. Both appeals considered the appeal rights for young people (aged 16-25) and the approach to be taken where a young person lacks capacity to bring their own appeal. The Buckinghamshire decision gives important guidance on the meaning of ‘education’ for young people.

The second is about another important Upper Tribunal decision (this time in an appeal by Staffordshire) which gives clarity about school transport entitlements for young people. It is important for young people and families to note the conclusion that the Tribunal cannot resolve disputes in relation to school transport and that the correct remedy is judicial review.

The third concerns a successful human rights claim against Kent in the context of care proceedings. The judgment suggests that serious failures to comply with the duties owed to disabled children under the Children Act 1989 may result in breaches of the Human Rights Act 1998, which may in turn lead to damages being awarded.

All three updates are themselves summarised in the main CDC Digest (see p14 onwards).

Disabled Children: A Legal Handbook – second edition now available

I’m thrilled / relieved to say that the second edition of Disabled Children: A Legal Handbook is now available online.

Legal Action Group published the first edition in 2010. It is astonishing how much of the text has had to be rewritten some five years later. We have had a wholly new SEN scheme under the Children and Families Act 2014, major changes to social care for disabled young people and those in transition to adulthood under the Care Act 2014 and a massive reorganisation of the health service under the Health and Social Care Act 2012. All this change has basically made the first edition a museum piece.

As well as covering these headline Acts and the relevant regulations and guidance as best we can, we also have some fantastic new content for the second edition. Camilla Parker has produced the definitive guide to decision making and issues in relation to capacity and competence. Polly Sweeney has given us an incredibly useful resource by way of a chapter on all the forms of remedies available to disabled children, young people and families (as well as updating the Education chapter). Rebekah Carrier led on major improvements to the Housing chapter, including new content on how to help make sure families get a home which is suitable for their needs.

We also had the benefit of excellent input from Martha Spurrier who updated the Health chapter and Louise Price who updated the Equality and Non-Discrimination chapter.

The co-authors remain myself, Prof Luke Clements and Dr Janet Read. If (when) people discover we’ve got anything wrong, it’s our fault.

The law affecting disabled children, young people and families is excessively and unnecessarily complex. The complexity has been made worse by the new legislation, which sits on top of old law dating back at least until 1970. We have done our best to make the book as accessible as possible while accurately stating the law. We hope the extensive cross-referencing will help non-lawyers find their way around the text.

As with the first edition, all the chapters of the book will again be published online free of charge by the Council for Disabled Children – I’ll confirm when the downloads are available. I hope anyone who would print the whole thing out would consider buying the book instead (!)

Above all, I hope the book continues to make a contribution to ensuring that disabled children, young people and families get the services and support to which they are entitled by law.

Final thought – as I tweeted earlier, we are very proud to have part of the Justice Quilt on the cover (see image above). I hope anyone who buys the book will also sign up to show their support for the Justice for LB campaign as they continue to struggle to get justice from the system.

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.

Talk to Housing and Support Alliance Independent Living conference

Absolutely cracking conference put on by the Housing and Support Alliance today. Real unity in the room that we need to fight for the right to independent living in these challenging times.

My slot was given the title ‘Rights are more important now than ever’. This is roughly what I said:

What’s the point of people with learning disabilities having legal rights? Some people (including I suspect some lawyers) don’t think that this area of law is ‘real law’. On this view, local authorities and NHS bodies should just be left to get on with providing whatever support they think they can afford, perhaps subject to inspections from official bodies to make sure things don’t get too bad.

But in the 21st century as a society we don’t think that’s good enough. Instead most of us sign up to a view that everyone, including disabled people, has fundamental rights that have to be respected.

We have these rights because we are human – that’s why they are called human rights. So when councils put disabled people in places where they are not free to leave and they are subject to continuous supervision and control (watched all the time), this is a deprivation of their liberty, the same as it would be for everyone else. It needs to be properly justified and approved by law to stop there being a breach of Article 5 of the ECHR, the right to liberty.

But we also recognise in the 21st century that if we just have one set of rights for everyone we won’t ensure that everyone’s rights are properly respected. So we reflect the fact that different groups have different needs and set out their rights – women, children and finally and most recently disabled people.

So Ian’s right* – we are part of the civil rights movement. And Gary’s right* – we need to save the Human Rights Act. I think it’s striking that two of the people fronting the Act for the Act campaign are Jan Sutton and Mark Neary. Jan is a disabled women who used the Human Rights Act to get a package of care which meant she could live with dignity. Mark, as I imagine everyone here knows, can speak to the power of the Human Rights Act in helping get his son Steven home. So the Human Rights Act is fundamental to realising disabled people’s human rights.

We now have the UN Convention on the Rights of Persons with Disabilities (the CRPD). This is our Bill of Rights. It is a full package of rights, which if respected in every case would mean true independent living and community inclusion for every disabled person. Although it is still not part of our law, in the same way that the European Convention on Human Rights is through the Human Rights Act, the courts are giving the CRPD ever greater weight – for example, in helping find unlawful discrimination against disabled children in hospital who lose their disability benefits after 84 days.

If people think about the CRPD, they generally think about Article 19 – described as the right to independent living. But Article 19 is actually headed ‘living independently and being included in the community’. And that’s what it’s about – real inclusion, meaning ordinary lives, and the kind of love and relationships Sara** was talking about.

And then we have the next set of rights, those given by Parliament in specific acts like the Care Act 2014. These rights can move around and change in the details, but the basics endure.

For example the right for disabled people to have their eligible social care needs met in full regardless of the cost carries on from the old scheme to the Care Act 2014. However – if there are two ways of genuinely meeting the person’s needs the state can meet needs in the most cost-effective way; we see straight away how disputes arise.

But the basics aren’t enough. So there’s a right to personal care – but what about as Sally and Laura*** say, when your personal care gets ‘done’ by someone you don’t know, who only has 15 minutes with you and doesn’t have the time to get to know you or show you respect. Is that rights-respecting care? Of course not – either under the Care Act or the Human Rights Act.

So rights are always ‘important’, in the sense that if the law requires something to be done it must be done. Law trumps everything – even (surprise surprise) local authority policies.

But why might it be thought that rights are more important now than ever? The answer is obvious; because disabled people are under sustained attack from government policies that cut the specific fund to support independent living, undermine entitlements to social security, reduce access to legal aid and make it virtually impossible for councils to comply with their statutory duties through reducing their budgets.

And if it’s hard for councils now, we know that after the next spending review later this month it will almost certainly get worse. The Local Government Association say that with the expected cuts there will be:

  • Legal challenges because councils aren’t meeting their Care Act duties
  • Less dignified care
  • More unmet need

So rights matter because they are a way of fighting back. They give content to our shouts where people are living impoverished non-lives, as Sara said. If there is a legal duty to provide – for example – the personal care a disabled person needs to lead a dignified life, then the state can be made to provide it.

Tom**** seems to be saying we have to accept the cuts. I say no – we have to enforce the law. Isn’t it interesting that Tom says – rightly – that where you live is going to make a massive difference to the support you get. But yet the law of England is the law of England…

Should people keep paying for their support with their freedom – definitely not? Should the number of people getting state support be reducing, as Tom showed? Definitely not – there has been no legal change that would allow this. Indeed councils aren’t allowed any more to have only care for ‘critical’ needs. If anything eligibility criteria should be getting more generous rather than reducing.

We can’t fund fewer people or give them less support because the law doesn’t allow it. Indeed there is an open question as to whether Elaine McDonald’s case would be decided differently now the Care Act is in force. Would the Care Act well-being duty allow for the provision of incontinence pads in cases such as this.

With respect to Tom, it shouldn’t be a choice between libraries and social care. There are duties to have both. If the government wants to change that, they need to ask Parliament to change the law.

Until they do, surely soon we will see legal challenges by local authorities on the basis they haven’t been given enough money to comply with their legal duties? Indeed we already have – two councils took the government to court to get more funding to implement the Care Act, and it seemed the government backed down and provided the funding once the court granted permission for the claim to proceed.

The legal route to achieve this is judicial review – and the essential point I want to make in this short talk is that legal aid is still available to bring judicial review challenges. If commissioners are becoming a ‘hard to reach group’, sending them a pre-action letter before a judicial review often gets their attention.

So what should disabled people, families and allies do if their rights aren’t being respected? There are lots of options – contact their MP, start a petition, chain themselves to the council railings. I’m not discounting any of these – but I would say that one of the first things to do is get specialist legal advice. If you search ‘rightsinreality solicitors’ you will get a list of some of the solicitors with disability expertise who have legal aid contracts and can advise disabled people and family members. There are issues about financial eligibility – having too much money to get legal aid – but it is always worth checking this out with a specialist solicitor, don’t just use the online calculator.

I’ve never known someone with a legal problem take advice too early, because a good solicitor will always say if there are other things to do than go to court. But I’ve known plenty of people take advice too late, when much of the damage caused when rights aren’t respected has already been done.

It’s also vital to remember that for every case that goes to court there will be a hundred if not hundreds that get set sorted out well before, with a better package of support.

At the same time we need to improve and strengthen the legal framework. That is the point of the #LBBill which has been crowdsourced by the incredible Justice for LB campaign, with disabled people, family members and allies across the country. It would:

  • make the right to independent living in Article 19 of the CRPD part of English law;
  • stop there being caps on the cost of care;
  • require the state to respect people’s wishes as to where they live;
  • ensure that there is enough community support available; and
  • sort out problems with the Mental Health Act and Mental Capacity Act.

Many of these ideas can be read in to the existing law – and we need to push back when people deny that these rights exist. It is vital, as Sally says, that we don’t pretend everything is ok.

But #LBBill would make everything clear and put the rights in one place. We will have another go at getting the Bill into Parliament when the ballot for private members’ bills happens next summer. We are also very encouraged that the Law Commission is considering some of our ideas in its new scheme for managing deprivations of liberty.

We are less encouraged by the Department’s recent response to the No right ignored consultation. Issuing guidance isn’t going to do the job.

I want to end on some striking research which was covered yesterday by the brilliant team at Community Care. It concerns the new right to advocacy under the Care Act 2014, which is absolutely essential if that Act is going to make any real difference to people’s lives. Yet we learn that advocacy referrals are ‘way below’ expected levels; Reading council expected to provide 4,000 hours of Care Act advocacy this year, yet six months in they’ve only provided 170 hours. And this is a council that says it is actively promoting the new right. So we have to keep pushing to make these rights real.

My final conclusion is this. It is unacceptable for Parliament to pass laws and the government to sign treaties creating new rights, and then for funding to be cut to make it impossible for local bodies to realise them. This is the challenge for the next few years – and I believe rising to that challenge means using the law to enforce the extensive rights disabled people now have. If we bring the cases to show the law isn’t being respected then the funding we need must follow – that’s what the rule of law requires.

If government wants to reduce support for disabled people they need to get Parliament to change the law and face the consequences at the next election. We can’t let them get away with doing it by stealth through ever increasing cuts to budgets.

*Ian Birrell and Gary Bourlet co-chaired the conference (brilliantly). Ian is a journalist and Gary is from People First England (and judging by the mood of the conference a future Labour leader)

** Dr Sara Ryan gave an earlier keynote talk challenging the term ‘independent living’ being applied to ‘state supported non-lives’

***Laura Broughton and Sally Warren from Paradigm gave an earlier talk challenging people not to pretend things are as good as they can be

**** Tom Noon, Chairman of Cordis Bright, spoke powerfully about the present realities in relation to both housing and support

No voice heard, all rights ignored?

The train to the Housing and Support Alliance annual conference on independent living and people with learning disabilities seems an appropriate time to set out some thoughts on the Government’s response to the No voice unheard, no right ignored green paper.

‘Not best pleased’ would be one way to summarise the reaction from ‘stakeholders’ (ugh) to the response. Another way would involve plenty of expletives. The title of this post, without the question mark, was the pithy summary from @socialworkops on Twitter.

To understand the frustration it’s important to remember the context for the Green Paper. The former Minister, Norman Lamb MP, had reached a view that all the concordats and agreements in the world were not going to be enough and that legislation was required to give new hard-edged legal rights. There was plenty of room to debate what those rights should be (I had my tuppence here) but the principle seemed clear – new legislation was needed.

However after the General Election Mr Lamb was no longer Minister and the new government seems rather less enthusiastic about legislating in this area. The response was delayed and when it finally arrived it could be summarised (fairly?) as ‘issue some guidance and kick the rest into the long grass’. Or in the language of the consultation, the proposals ‘should be seen as part of an ongoing and evolving dialogue’ (p6, para 7). Let us know when you’re ready to stop talking and actually do something.

Another part of the frustration, as Rob Grieg puts very well here, is that we’ve had very good strategies and guidance for learning disability for years in the form of Valuing People and Valuing People Now. We don’t need another strategy or more guidance, we need some real action to deliver these shared goals.

So does the response meet the two tests in its title? In terms of voices heard, Chris Hatton has done some excellent comparisons between the Valuing People Now consultation and this consultation. Chris shows that the Department has heard from far fewer disabled people this time round – which is unacceptable as government should be getting better over time at engaging with the people their policies affect, not worse. As Chris says, when properly analysed ‘The numbers of people responding to the NVUNRI consultation start to look perilously small’.

And on the second test – well, it’s pretty clear that the Minister’s vision of new hard-edged rights has been ignored. In legal terms, guidance can be very important. It all depends on its legal force – some guidance must be followed by decision makers in the absence of a considered decision that there is good reason not to do so, other guidance (‘have regard’ guidance) is just something that decision makers must take into account.

However it’s surprising (to put it mildly) that the Department doesn’t appear to know yet which laws it will use to issue the guidance here. See para 8, p6; ‘we will rapidly determine the most appropriate powers under which to act to have the best and strongest effect’. Again, let us know when you’ve made your mind up.

So whether the guidance is likely to be legally important depends on what the Department eventually decide in relation to the powers they will use to issue it. But what about its practical effect? Experience suggests that the likely fate of more guidance is to end up on more shelves. I’m not saying for a moment that if Parliament passes new laws they are automatically followed (hello, Care Act 2014) but the chances of cultural change must be must higher when there is new primarily legislation, not merely further guidance. Surely? Please let this be true or we are wasting a lot of money on those MPs…

Also, guidance cannot create new legal rights and duties – it can only reflect existing law. So if (as we are told at p14, para 41) there was ‘strong support for proposals about NHS commissioners sharing duties to promote individual wellbeing in the Care Act 2104 with local authorities’, why not get on and legislate for this now?

It is also concerning that even phase 1 of the proposals (which includes the new guidance) will take place ‘during the current financial year (2015/16) and into 2016/17’ (p9, para 15). So we may have to wait quite a while even to see the guidance. The grass for the guidance may not be long, but it could certainly use a trim.

There are some more interesting ideas in phase 2, including the named social worker proposal (*cough* funding *cough*) and the idea of extending Care and Treatment Review principles to local authority-led placements. However there is no timeframe for this phase. We are told at para 16, p9 that ‘This phase will involve further consultation with stakeholders, with any resulting legislation to be introduced as soon as parliamentary time allows’. So not only will there be more consultation (why?), but the real mischief here is that there is no legislative slot allocated for any Bill in the Parliamentary timetable. Doesn’t look from this like there is any chance of new legislation until the end of next year at the earliest – hope I’m wrong.

Phase 3 is described as ‘more radical solutions’, however the summary only lists two:

  • ‘monitor implementation of the new service model for commissioners of health and social care services, and of CTRs on care planning, admissions, transfers and discharges and consider the need for further legislative proposals in response to review of impact’. I’ve read this three times and I’m still not sure I understand what it means.
  • ‘further consideration in principle of whether and how the Mental Health Act should apply to people with learning disabilities and/or autism and if this remains appropriate’. I know this is a controversial issue but surely the point of the Green Paper consultation was to allow the Department to reach a view on the principle here, subject to further consultation on the detail? As I read this it essentially means ‘no change’. Note also (p21, para 81) that ‘some stakeholders, especially individuals, their families and supporters, and the voluntary and community sector were keen on the principle that some sort of change was needed’ (emphasis added). No voice unheard?

So that’s the government response. I’d contrast it to the coherent package of new rights that we have set out in the second draft of #LBBill, with input from a wide range of disabled people, families, professionals and allies. Of course a key difference is that #LBBill is trying to improve the legal framework so disabled people can realise their right to independent living and community inclusion generally, and the Green Paper response is trying to fix one part of the problem for one specific group of disabled people (supposedly ‘the people who need most help’, see the response at p12, para 31). Even if I fundamentally disagree with the second approach, it is still terrible to see the opportunity to strengthen the rights of this group lost.

Two slivers of light:

  1. New guidance won’t necessarily be useless. It all depends what it says and even more importantly what statutory force it has. Let’s hope it is strong and clear guidance with the greatest possible legal force.
  2. The Law Commission are working up proposals for a new scheme to replace the Deprivation of Liberty Safeguards which may yet result in legislation that contains some of the #LBBill ideas. Given the Department’s response, there’s now a huge amount riding on the Law Commission’s draft Bill due in 2016.

Other than that, looks like it’s back to the private members’ bill ballot for #LBBill in summer 2016.

I can’t let this piece end without highlighting something said in the Minister’s foreword to the response (p4). Towards the end of his piece, the Minister (Alistair Burt MP) says; ‘As a country, a key measure of our success will be how we care for the weakest and most vulnerable in our communities’. There are so many things wrong with this sentence it’s hard to know where to begin – so I’ll just suggest that if anything makes people with learning disabilities ‘weak’ and ‘vulnerable’ it’s government policies and state actions, from cutting social security and legal aid to detaining people without lawful authority. It’s hard to see how any real change can come from a position where disabled people are perceived as weak and vulnerable victims needing to be saved.

In defence of Article 5 and the right to liberty – North Yorks CC v MAG

This post is about a judgment of the Court of Protection which shows the continued force of Article 5 of the European Convention on Human Rights in protecting disabled people’s fundamental rights.

Article 5 protects the right to liberty. As most people reading this blog will be aware, the Supreme Court handed down a judgment known as ‘Cheshire West’ last year which made clear that disabled people have the same right to liberty as the rest of the population. As a result, if a person is subject to continuous supervision and control and is not free to leave their accommodation, there will be a deprivation of liberty which has to be approved and justified to avoid a breach of Article 5.

The problem comes with the tortuous way the relevant authorities have decided to manage the requirement to approve deprivations of liberty for disabled people. For example the ‘deprivation of liberty safeguards’ (DoLS) are almost universally disliked. The recent Law Commission consultation on a new system said there was a ‘compelling case’ for replacing them, not least because they are ‘perceived to be overly technical and legalised’ and ‘not meaningful for disabled people and their families or carers’ (para 2.41).

One of the most welcome aspects of the Law Commission’s proposals for a replacement system is the focus on disabled people’s wider human rights, in particular the rights protected by Article 8 ECHR – the right to respect for private life, family life and the home. Article 8 is the space where considerations of vital issues like human dignity often come into play. However Article 8 is a ‘qualified’ right – which means that considerations like the financial resources of the state are relevant when the courts consider how far public bodies have to go to make Article 8 rights real. This is a major reason why Mrs McDonald’s challenge to the decision that her nighttime care should be replaced with incontinence pads failed in the European Court of Human Rights – once the local authority got the process right and completed the required reassessment, the court was not prepared to find a breach of Article 8 because it is generally up to the state how public funds are allocated.

Article 5 ECHR is different however. The right to liberty is absolute – it can only be interfered with for the reasons set out in Article 5. The state is not entitled to deprive a person of their liberty simply because it would cost less than to meet their needs in a less restrictive way.

The difference this makes is played out in North Yorkshire County Council v MAG and others [2015] EWCOP 64, a judgment handed down this summer (13 July 2015). The issue in the case was whether the Court of Protection should authorise the deprivation of liberty which resulted from the care arrangements for a 34 year old severely disabled man, MAG. The judgment makes clear that:

  • MAG had been in his accommodation for around 9 years, since 2006
  • The property was too small for him to use his wheelchair indoors, so he had to move around by crawling and pulling himself along the floor
  • Because the property only had one bedroom it was too small for sleep-in staff, who would have been less intrusive for MAG
  • The property had no outside space, so when MAG was not taken out he was confined indoors

The local authority appears to have accepted that a move would be desirable for MAG (see para 16 of the judgment), but the Judge characterised its case as follows (para 12): ‘this case has been before the court for four years during which time it has been required by the Official Solicitor to identify alternative options which it says its search has proved are simply not available’. On this basis the local authority sought final declarations, including approval of the resulting deprivation of liberty for MAG.

Importantly in my view, the Judge visited MAG in the property. His findings from the visit were recorded at para 20 of the judgment:

20 The problem is that MAG’s flat, at which I visited him on 20 February 2015, is so small that his wheelchair cannot be used indoors. The corridor leading from the bedroom to the lounge and kitchen is too narrow to move a wheelchair into those rooms. He moves around the flat on his bottom and using his hands and knees. This has resulted in him sustaining painful bursitis in both knees and he has calluses to his knees and ankles. Ms Hutchinson [learning disability nurse and best interests assessor] advised that MAG’s current property does not meet his needs and that he should be able to live in a property which ensures he can live a life with dignity and comfort and which does not cause him physical or emotional harm.

Also importantly, MAG’s living arrangements were ‘supported living’, which falls outside the scope of the DoLS. As such, the only way the local authority could avoid a breach of Article 5 was to have the deprivation of liberty authorised by the Court of Protection, see para 21.

The local authority’s position was clearly set out at paras 22-23 of the judgment:

22 NYCC accepts that the current placement involves a deprivation of liberty and that there is no immediate alternative residential option. It seeks the authorisation of the court for MAG’s continued deprivation of liberty on the basis that it is justified as a result of his condition which renders the restrictions proportionate and necessary. NYCC says that the issues raised by the expert, Christine Hutchinson, and the Official Solicitor relate to whether the outcome could be achieved in a less restrictive manner but that there are no less restrictive options available. Where it has been possible to make adjustments to achieve a less restrictive outcome, such as time spent in the community, this has been done.

23 NYCC says that on the basis that the position is clear and the court does not have the jurisdiction to require it to find another property which would not ordinarily be available to MAG, all steps that he could take if he did not lack capacity, have been taken by it. The accommodation at the Tenancy and his care package which mean that he is not permitted to leave unaccompanied and is under continuous supervision and control, have the effect of depriving MAG of his liberty. The outcome cannot be achieved in a less restrictive way and the restrictions in place are necessary and proportionate. On that basis the deprivation of liberty should be authorised by the court.

So the local authority’s case was clear – there’s nothing else available, so the Court should authorise MAG being deprived of his liberty in his accommodation notwithstanding its flaws.

The Official Solicitor, representing MAG, did not accept this. His first argument was recorded by the Judge as follows (para 28): ‘The Official Solicitor makes the point that the reference in Re MN to the ability of the Court of Protection to explore the care plan put forward by a public authority and the inability of the Court to compel a public authority to agree to a care plan which it is not willing to implement does not apply when the issue is the right to liberty under Article 5. I accept that analysis.’

This is really important – because the general rule (being confirmed by the Court of Appeal in Re MN) is that the Court of Protection cannot require a public authority to act in a particular way. The Judge here accepted the Official Solicitor’s submission that this rule does not apply when what is at stake is the right to liberty under Article 5.

The Official Solicitor’s position was that the ‘narrow corridors, lack of outdoor space, lack of privacy and lack of a wheelchair (when his needed repair and no replacement was made available) amount to a disproportionate deprivation of liberty in this case’ (para 33).

The Judge made two important findings at paras 35-36:

35 I accept the Official Solicitor’s submission that the authorities in this case were not willing to initiate a search for alternative accommodation unless and until the Court decided that it was in MAG’s best interests to move in spite of the fact that the Commissioners had decided in 2013 that it was in his best interests to move to a less restrictive environment.

36 I accept that there was culpable delay on the part of NYCC in finding a less restrictive property…

The Judge’s final decision was relatively short and for ease of reference I set it out in full below:

Decision
37 On behalf of MAG the Official Solicitor outlines the decision I have to make as being whether the interim authorisation ought to be continued in light of what he characterises as the overly restrictive intensity of MAG’s deprivation of liberty. NYCC and the CCG require the authority of the Court lawfully to deprive MAG of his liberty in order to act compatibly with Article 5. There is no dispute that there is a deprivation of liberty in this case.

38 I accept the Official Solicitor’s submission that the central issue is not whether MAG’s confinement is properly justified by the fact that no alternative accommodation is available. It is whether, as set out in the closing submissions on behalf of MAG, ‘…the persistence of his unsoundness of mind justifies the validity of his continued deprivation of liberty: Re X [2014]
EWCOP 25 , para 14; KC v Poland (Application no. 31199/12), para 70. In this regard it is crucial to note the Strasbourg Court’s view in Stanev v Bulgaria (2012) 55 EHRR 22 para 153:“… the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty.”’

39 I accept the submission on behalf of MAG that it is the authority’s failure in its attitude towards the search for less restrictive accommodation which has caused significant delay and lengthened these proceedings. I am urged by the Official Solicitor not to authorise this deprivation of liberty because it is unwarranted because the intensity of the measures and in particular those which result from the environmental features of the property are not justified and proportionate. MAG
has remained at the Tenancy for nine years and been subject to a deprivation of liberty there. He has no choice but to mobilise on his hands and knees which has caused physical problems including Bursitis and a recurring fungal infection in his thigh. He does not have access to suitable outdoor space and sleeping night support is not possible in the absence of a second bedroom. The only private space he has is his own bedroom.

40 On behalf of the CCG I am urged not to refuse the authorisation on the basis that if I do so there will be a lack of clarity about MAG’s position and that of NYCC in relation to its property search. In response it is argued on behalf of MAG that not to continue the interim authorisation will result in a substantive breach of Article 5 which will ensure that proactive steps are taken by the statutory authorities to locate a less restrictive living environment.

41 I have considered the submissions of the parties and in this case I have the benefit of having seen MAG at the Tenancy. As I have indicated already, I accept the submissions of the Official Solicitor in relation to the issues with the current accommodation and on that basis I consider that I cannot endorse a care regime which risks breaching MAG’s right to liberty. This may be all that is available at present but I am not satisfied that NYCC has taken the steps necessary to ensure
that there is no breach of its obligations. I am aware of the steps which have been taken recently. However, MAG’s needs were identified by the assessment in 2006. It is clear that the Tenancy does not meet those needs and that should have been clear when the property was identified by GC in 2006. In 2013 the Commissioners accepted a move would be in MAG’s best interests and would be less restrictive. This is a question of MAG’s liberty and I do not accept that I can
authorise the deprivation of that liberty on the basis that nothing else is available. He has been in this unsatisfactory situation for a prolonged period. NYCC has been extremely slow to accept its responsibilities in relation to rehousing him. These proceedings started in 2011 and it was not until 2 August 2013 that it accepted it owed a duty in this respect.

42 Refusing the authorisation sought means that NYCC must take the steps necessary to ensure that there is no breach. In all the circumstances, I am not satisfied that I should make the declaration sought by the local authority and I will not authorise the deprivation of liberty in its current form.

Some observations:

  1. The Judge (in my view correctly) highlighted what was said in the Stanev case, that ‘the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty’.
  2. As such the real issue was not, as the local authority (and CCG) said, the fact that there was nothing else available. The issue was whether the deprivation of liberty caused by MAG’s living arrangements could be justified.
  3. The ‘failure’ in the local authority’s ‘attitude’ in searching for less restrictive accommodation was clearly central to the Judge’s decision – see para 39.
  4. The Official Solicitor expressly argued that the effect of the Court refusing to authorise the deprivation of liberty would be to ‘ensure that proactive steps are taken by the statutory authorities to locate a less restrictive living environment’ – in other words to force them to move MAG as quickly as possible to bring the breach of Article 5 to an end (see para 40).
  5. The Judge’s ultimate conclusion (para 41) was as follows: ‘I consider that I cannot endorse a care regime which risks breaching MAG’s right to liberty. This may be all that is available at present but I am not satisfied that NYCC has taken the steps necessary to ensure that there is no breach of its obligations.’
  6. The Judge agreed with the Official Solicitor (para 42) that ‘Refusing the authorisation sought means that NYCC must take the steps necessary to ensure that there is no breach’.

In my view the approach of the Court in this case is not without its problems. Giving such weight to the local authority’s failure to move MAG raises the question of how much effort is required before the Court would authorise a deprivation of liberty in arrangements which were less than suitable for the disabled person.

However what this case does is show that Article 5 offers real protections for disabled people, the effect of which can go beyond the qualified requirements of Article 8. It is important that whatever new scheme ultimately replaces the DoLS recognises this – something that no doubt the Law Commission have well in mind.

Kids Company – a symptom of system failure for children in need

Charities deliver some of the most innovative and highest quality services to children and families. But we can’t have charities taking on the responsibility for ensuring children’s needs are met – for the simple reason that it’s 2015, not 1890.

That responsibility must sit with statutory bodies, in particular local authority children’s services and the local NHS in the form of the new clinical commissioning groups. Yet the reality is that these bodies are overwhelmed and are unable to meet a fraction of the needs of the children for whom they are responsible. My colleagues who wrote this letter to the Guardian are plainly right that it is ‘pure fantasy’ that with the closure of Kids Company the statutory bodies will suddenly be able to meet these children’s needs.

It’s now 25 years since the Children Act 1989 (‘CA 1989’) came into force. It would therefore be reasonable to assume that we would have a secure legal duty which would require the state to ensure that the additional needs of children are met. Yet this simply isn’t the case; in fact, the majority of children who require extra help do not have an enforceable right to this help.

Part III of the CA 1989 is headed ‘Local authority support for children and families’. It begins with section 17, titled ‘Provision of services for children in need, their families and others’.

So to understand what section 17 does we need to know who ‘children in need’ are – and the definition is in sub-section 10. There are three sub-groups of children in need. One of these groups is ‘disabled’ children. The other two groups are:

  • children who are ‘unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision…of services by a local authority under this Part’; and
  • children whose ‘health or development is likely to be significantly impaired, or further impaired, without the provision…of such services’.

So children are ‘in need’, in short, if they need additional help from their local authority to safeguard or promote their welfare. This is a low threshold and most if not all of the children previously helped by Kids Company would meet it.

So far so good. The problem arises when we look at what it is said local authorities must do for children in need. Sub-section 17(1) reads:

It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children’s needs.

So local authorities have to provide ‘a range and level of services’ for children in need. But does this give an individual child a right to a service? By a majority of 3-2 the House of Lords in R (G) v Barnet said not. At para 91, Lord Hope held that section 17(1) ‘sets out duties of a general character which are intended to be for the benefit of children in need in the local social services authority’s area in general’. The contrast here is with a ‘specific’ duty, which is owed to individuals and gives those individuals an enforceable legal right to whatever it is that the duty mandates.

So the position is clear. Following the Barnet case, although there is a duty to assess the needs of children in need there is ‘not…a duty to provide the assessed services’ for any individual child; see Lord Justice Munby in R (VC) v Newcastle at para 21.

In the Barnet case, Lord Nicholls (who was in the minority) said that the majority’s interpretation of section 17 made it ‘a poor sort of additional general duty’ (para 28). I would go further; the absence of a specific right to services means the statutory scheme for children in need is not fit for purpose.

What does this mean in practice? It means that local authorities must have services and support available for children in need generally in their area. Some children in need must be able to access those services and support. The decision as to which children are supported must be made rationally, reasonably and fairly. However local authorities will be entitled to refuse to meet the assessed needs of some children in need, including on resource grounds.

Section 17 is not the end of the legal story in relation to the children previously helped by Kids Company. For example:

  • ‘Disabled’ children (including children with learning disabilities and mental health conditions) have a specific right to services under section 2 of the Chronically Sick and Disabled Persons Act 1970, which I have written about here and here.
  • Children who do not have a parental figure who can provide them with suitable accommodation and / or care must be accommodated by the local authority under section 20 of the Children Act 1989. These children then become ‘looked after’ by the local authority in the same way as children in care and have a specific right to services and support to safeguard and promote their welfare. The resource consequences of this must be why, more than six years after the landmark Southwark judgment, we still see local authorities trying to avoid their duties under section 20 by reference to less onerous statutory obligations.
  • Where a child is suffering or is likely to suffer ‘significant harm’ then the local authority must investigate under section 47 of the CA 1989 and take appropriate action, which may include steps to take the child into care.
  • Section 11 of the Children Act 2004 requires local authorities to have regard to the need to safeguard and promote children’s welfare in everything they do. This duty can easily be breached when decisions are taken which affect children, for example Westminster’s decision to accommodate a homeless family in Milton Keynes.
  • There may be human rights obligations to provide support to children. Both Article 3 (right to freedom from inhuman and degrading treatment) and Article 8 (right to respect for family and private life) of the European Convention on Human Rights may require services to be provided to secure a child’s welfare – and these rights are embedded in English law through the Human Right Act 1998. Moreover the Supreme Court has recently emphasised the importance of the obligation in Article 3 of the UN Convention on the Rights of the Child to treat children’s best interests as a primary consideration in decisions affecting them – see my posts on the benefit cap case and Mathieson (the ‘DLA takeaway’ case) for more on this developing area.

All of these sources of legal obligations on local authorities are important. But none of them make up for the lack of a clear enforceable right to support for all children in need. Take Article 3 of the UN CRC as an example; a local authority considering whether to provide services to a child in need must take that child’s best interests as a starting point (‘primary consideration’) but may ultimately decide that other considerations (i.e. its budget) mean that services will not be provided. Is that really good enough as a legal scheme to protect children’s basic rights?

Many of the children helped by Kids Company will have complex mental health needs, some with formal diagnoses and others without. Yet the legal duties in relation to the provision of child and adolescent mental health services (CAMHS) are even less clear than those on local authorities in relation to children in need. This timeline from Young Minds sets out a host of reports, strategies and task groups to improve CAMHS services. Yet the reality is cuts to funding coupled with the absence of any clear legal rights for children and young people to access mental health services. NHS bodies provide CAMHS services under the NHS Act 2006 (as amended by the Health and Social Care Act 2012 to put the focus on clinical commissioning groups in relation to the provision of services) and the Mental Health Act 1983 and local authority input is underpinned by the Children Acts. None of this legislation creates any rights for an individual child to access CAMHS services.

There has been plenty written in recent weeks about the closure of Kids Company. The most clear-sighted article I’ve read was Zoe Williams’ Guardian interview with Camilla Batmanghelidjh. However for me the most telling part of the article was not anything said by Ms Batmanghelidjh but the comments of Mike Gee, the charity’s safeguarding manager. Zoe Williams’ summary of Mr Gee’s position is that ‘Kids Company didn’t have an adversarial relationship with the statutory services, but that those services were under so much pressure that they couldn’t afford to recognise the intensity of the need many children were in’. For anyone who has represented children in need and their families struggling to get support from a local authority this will have a huge ring of truth.

Despite the absence of the kind of specific duty that would give proper protection to all children in need, this article still suggests blatantly unlawful practice by public authorities. It is said that:

  • Statutory services ‘couldn’t treat those without a significant mental-health diagnosis’. This isn’t a legal eligibility criteria for support either from local authorities or the NHS.
  • Statutory services ‘wouldn’t recognise the illegal ones (trafficked and migrant children) as even real’. Trafficked and migrant children cannot lawfully be excluded from support on the basis of their immigration status. Indeed a prime purpose of the section 17 duty is to provide support to children and families who cannot access mainstream housing or other services by reason of immigration problems – see the Court of Appeal’s judgment in Birmingham CC v Clue.
  • ‘Without criticising Camhs, the window for statutory help – ill enough for a diagnosis, but not so ill that your behaviour is unacceptable – seems rather narrow’. If that were the window then CAMHS should surely be criticised – but it isn’t. CAMHS is a tiered service (graded 1-4), and children and young people with greater levels of need should be helped at a higher tier. Nor should there be any need for a formal diagnosis for low level support.

It is blindingly obvious that local authorities and NHS bodies don’t have the resources required to meet the needs of the children who were previously supported by Kids Company. What is perhaps more surprising is that the law doesn’t require them to do so. Without a proper framework of rights for these children to access the services and support they need from the state it is impossible to see how the services they require will ever be effectively resourced. And as a society we will continue to outsource the responsibility for meeting the needs of our children to charities, with all the risk this entails.

The rights of siblings of disabled children

This post considers the rights of an often-neglected group of children – siblings of disabled children (also known as ‘brothers and sisters’ off Planet Social Care). Given there are 700,000 disabled children, that’s an awful lot of siblings whose interests are being neglected.

I’d been meaning to write this post for a while as the issue comes up regularly when I speak to parent forums, but it went to the top of the list after I saw this powerful article from Saba Salman, focusing on adult siblings (who have new rights as carers under the Care Act 2014). For this post I’ll use the shorthand ‘siblings’ to mean a child who is the brother or sister of at least one disabled child.

The starting point is of course that siblings have the same rights to access universal and mainstream services as all other children – schools, playgroups, children’s centres and so on. Siblings also have the right to access these services without discrimination ‘by association’ – meaning they cannot be discriminated against because of their connection to a disabled child. There is an example of this in government guidance:

Sonali is refused a place at her local playgroup because the management committee knows that her younger brother has cerebral palsy. They operate a policy of automatically offering places to siblings and they are concerned that looking after her brother would take too much time. This is direct discrimination against Sonali because of her association with her brother.

However, it appears that discrimination by association only covers instances of direct discrimination and harassment – for example, the Court of Appeal has held that there is no entitlement to reasonable adjustments by association with a disabled person.

What about entitlements to additional support for siblings, over and above the services available to other children? There are two potential routes to access this support – the ‘child in need’ route and the young carers’ route. Both routes are linked and are considered in turn below.

Firstly in relation to the child ‘in need’ route, it is important to bear in mind that under section 17(3) of the Children Act 1989 services can be provided to any member of a child in need’s family, if it is provided with a view to safeguarding or promoting the welfare of the child in need. As all disabled children are children in need*, a local authority may therefore provide any services it wishes to a disabled child’s sibling(s) where these would safeguard or promote the disabled child’s welfare. An example might be to fund a regular activity session for the sibling to help reduce tension where the relationship between the sibling and the disabled child is deteriorating.

Secondly, siblings may themselves be children in need – not least because of the impact of them of the needs of their disabled brother or sister (or more accurately perhaps the lack of support their disabled brother or sister receives). Assuming the sibling is not themselves disabled* then they would need to meet the tests in section 17(10)(a) or (b) to qualify as ‘in need’. These are that:

a. he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; or

b. his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services.

Either or both of these tests may well be met where, for example, a sibling is living with a child with autism in unsuitable or overcrowded accommodation and is unable to study or play as a result. In many cases, the only way in which the local authority will be able rationally to determine whether either of these tests is met is to carry out an assessment under the Working Together statutory guidance.

So many (most?) siblings of disabled children will be entitled to a child in need assessment in their own right to determine whether they are ‘in need’ and if so what if any services the local authority ought to provide to them. That decision will have to be taken rationally, reasonably and fairly and with all the relevant information considered, including of course the child’s own views. There is however no absolute right to support under section 17 of the Children Act 1989 – by contrast to the Chronically Sick and Disabled Persons Act 1970 which imposes the key duty to support disabled children.

The second route to additional support for siblings is the new set of rights given to young carers under section 94 of the Children and Families Act 2014. Section 94 inserts new sections 17ZA-17ZC (bear with me…) into the Children Act 1989. These create a new right to a ‘young carers’ needs assessment’ which has significant parallels with the parent carers’ needs assessment about which I have previously blogged.

To make sense of this new right (since April 2015) we first need to understand who is a ‘young carer’. The definition is very broad – it is a person under 18 who provides or intends to provide care for another person and is not doing so under a contract or as voluntary work.** This would clearly include a sibling who provides any level of care to a disabled child. It is also important to note that ‘care’ includes the provision of practical or emotional support (section 17ZB(5)). So any sibling who does any practical tasks for their disabled brother or sister or who provides them with any emotional support is a ‘young carer’.

The duty on local authorities is to ‘assess whether a young carer within their area has needs for support and, if so, what those needs are’ (section 17ZA(1)). The bar for when a local authority must carry out such an assessment is set very low – either the appearance of need for support or a request for an assessment from a young carer or a parent of a young carer is sufficient to trigger the duty to assess.

Importantly, section 17ZA(7) reads as follows: ‘A young carer’s needs assessment must include an assessment of whether it is appropriate for the young carer to provide, or continue to provide, care for the person in question, in the light of the young carer’s needs for support, other needs and wishes.’

This seems to me to be an absolutely central consideration. I am very uncomfortable about any assumption that a child should be providing care for another person. There is certainly no legal requirement on a sibling to provide care – although I recognise that the practical reality is that many siblings who provide care may feel they have little choice. Section 17ZA(7) should make sure that any child providing care is actively choosing to do so and is properly supported in the caring role.

There are a number of links between the young carers’ needs assessment and the child in need assessment of the disabled child. Firstly, these assessments can be combined if both children agree (section 17ZB(7)). 

Secondly, the point of a young carers’ needs assessment is to determine whether services should be provided to the young carer under section 17 of the Children Act 1989 – this presumably being a reference to the power under section 17(3) discussed above, although this still requires the services to safeguard or promote the disabled child’s welfare.

There is also a power for a young carers needs assessment of a sibling to be done at the same time as any other assessment of the sibling – which would include a child in need assessment (section 17ZB(6)). So it would seem to make sense to request a combined young carers assessment to look at the siblings care related needs and child in need assessment to look at wider needs. The local authority would need to have good reason to refuse a request to take this joined up approach.

Regulations have been made which expand on the young carers’ needs assessment duty. Regulation 2 sets out general requirements of the assessment process, starting with the principle that the assessment should be ‘appropriate and proportionate to the needs and circumstances of the young carer’. Regulation 3 mandates the training and expertise required of those carrying out assessments.

Regulation 4 is particularly important, because it sets out a startlingly long list of decisions the local authority must make at the conclusion of the assessment process. This includes determining ‘whether any of the young carer’s needs for support could be prevented by providing services to (i) the person cared for, or another member of the young carer’s family’ (Regulation 4(2)(e)). Further, regulation 4(2)(h) requires the decision to be taken at the conclusion of a young carer’s needs assessment as to whether the sibling is a child ‘in need’ themselves. Any lawful assessment will need to result in decisions in relation to all the matters specified in regulation 4, which must of course then be shared in writing with the sibling and their parent(s) (section 17ZA(10)). 

So the scheme under the Children Act 1989 (as amended) clearly provides for careful consideration by local authorities of the additional needs of siblings, particularly where they meet the low threshold to be treated as ‘young carers’. However even siblings who are not involved at all in the care of their disabled brother or sister may still have a right to assessment and may potentially receive services as a child ‘in need’. The Children Act therefore reflects the positive obligation in Article 8 of the European Convention on Human Rights to provide support to enable family life to continue for families with disabled children. Indeed in certain cases Article 8 and the relevant international conventions may create the duty to provide such support following an assessment.

I hope this review of a typically complex area of social welfare law is some help for families looking for additional support. Any comments welcome, including where people have tried to access support for siblings using either of these legal routes.

For support and advice generally for siblings of disabled children (and adults), check out the website for the excellent charity Sibs – and their Youngsibs website for siblings themselves.

* see Children Act 1989 section 17(10)(c) and (11) for the very broad definition of ‘disabled’.

** Children Act 1989 section 17ZA(3) and 17ZB(3). A local authority may choose to treat ‘professional’ child carers as young carers, see section 17ZB(4) – but I find it hard to imagine when it would exercise this power.

Mathieson v SSWP – another Supreme Court win for disability rights

I had the privilege to act for the Mathieson family in the Upper Tribunal and the Supreme Court. This blog post has been approved by Mr Mathieson and his solicitor, Mitchell Woolf at Scott-Moncrieff and Associates. This post is dedicated to Cameron’s memory as a little boy who has left a great legacy for other families with severely disabled children. 

The Supreme Court’s judgment yesterday in Mathieson is an example of the state running far behind the way society now responds to childhood disability.

The issue for the Supreme Court was whether the rule which suspends payment of Disability Living Allowance (DLA) to disabled children once they have been in hospital for 84 days breached the human rights of Cameron Mathieson. Cameron was a severely disabled boy (aged 3 at the time his DLA was suspended) who had both extremely complex needs and the most loving family a little boy could wish for. As the judgment records, the suspension of Cameron’s DLA had a very significant impact on the family’s finances – and indeed on Cameron himself, in that for example fewer family visits could be arranged to him in hospital once DLA was suspended.

The family challenged the suspension of Cameron’s DLA through a lengthy legal appeal. They lost in the First-Tier Tribunal, in the Upper Tribunal and in the Court of Appeal. Cameron sadly passed away during the Tribunal process but to their immense credit his parents continued the fight, in large part to benefit other families.

At each stage prior to the Supreme Court, the Tribunal or Court accepted the Secretary of State’s argument that allowing DLA to continue would be ‘double provision’, because all children’s disability-related needs are met for them in hospital by the NHS. However the Supreme Court comprehensively and unanimously rejected this argument.

The leading judgment by Lord Wilson shows full acceptance of the modern reality of paediatric care, being that families and NHS professionals are partners in the care of sick disabled children in hospital. Essential evidence was produced by the charities Contact a Family and The Children’s Trust to show that in almost every case the level of parental care stays the same or goes up when a disabled child is admitted to hospital. The Citizens Advice Bureau at Great Ormond Street Hospital gave stark evidence that if parents seek to leave their children at GOSH then hospital social workers are informed – because parents are required to attend hospital and ‘take an active part in [the child]’s medical management’.

Lord Wilson recorded that the government simply could not answer this evidence. At para 37 he stated: ‘…there is nothing before the court to indicate that…the Secretary of State has asked himself: are benefits nowadays overlapping to an extent which justifies the suspension of a child’s DLA following his 84th day in hospital?’.

So the Supreme Court found that the rule discriminated against Cameron contrary to Article 14 of the European Convention on Human Rights. Because the rule is set out only in secondary legislation (as opposed to an Act of Parliament) the Secretary of State acted unlawfully under section 6 of the Human Rights Act 1998 in following it and suspending Cameron’s benefits. The family will therefore be entitled to a back payment of the sums they should have received. All this is summarised much more elegantly by Lord Wilson in para 48 of his judgment.

What does this mean for other families? As Lord Wilson noted at para 49, ‘Decisions founded on human rights are essentially individual’. So while the rule remains, the question will need to be asked in every case where a disabled child has been in hospital for 84 days whether it would breach his or her human rights to suspend payment of his DLA. Where his or her family are continuing to provide a high level of care to the child it would seem that the answer to this must inevitably be yes and the benefit must continue. As Lord Wilson noted (also para 49), ‘the court’s decision will no doubt enable many other disabled children to establish an equal entitlement [to Cameron]’.

At present it will be necessary for other families to appeal to the First-Tier Tribunal to challenge any suspension decision made under the existing rule. Evidence will need to be presented to show that the family continue to be actively involved in the child’s care in hospital. However it is to be hoped that the Secretary of State will respond quickly and either scrap the rule or at least modify it significantly to take full account of the Supreme Court’s judgment so that such appeals become unnecessary.

This still however leaves other important questions unanswered. The most obvious is the position of 16 and 17 year olds, who are children for the purposes of national and international law but who are treated as adults under the benefit rules, so lose payment of their DLA after just 28 days in hospital. Equally, what about disabled young people over 18, whose families continue to provide them with significant support but who also lose their DLA after 28 days in hospital? It is likely that these questions will need to be answered through further litigation unless the Secretary of State does the right thing and scraps these rules entirely.

Any Supreme Court judgment has wider implications, and there are at least three I want to highlight from the judgment in Mathieson:

  1. The Justices have taken a very liberal approach to the vexed question of what constitutes a ‘status’ for the purpose of Article 14 ECHR. All five Justices concluded that Cameron has a relevant ‘status’ as a sick disabled child in hospital, as opposed to disabled child cared for at home – see eg Lord Wilson at paras 19-23. It is particularly helpful for future cases that Lord Wilson strongly suggests at para 23 that different levels of impairment can amount to a difference in ‘status’.
  2. Mathieson is the latest in a line of recent Supreme Court judgments, most notably in the Benefit Cap case, where the international human rights conventions have played a significant role. At para 41, Lord Wilson found that the Secretary of State was in breach of his international law obligation to treat disabled children’s best interests as a primary consideration – this obligation being imposed by Article 3(1) of the UN Convention on the Rights of the Child and Article 7(2) of the UN Convention on the Rights of Persons with Disabilities. This then assisted the court in finding a breach of Article 14 ECHR, because of the requirement to read the ECHR in harmony with the principles of international law (see Neulinger v Switzerland and Lord Wilson in Mathieson at para 44). There is therefore a growing trend in the Supreme Court (if not yet in the Court of Appeal) towards giving significant weight to relevant international instruments in deciding human rights cases.
  3. There is a significant run of cases which state that the appellate courts should defer to the expertise of specialist tribunals. Lord Wilson considered those cases in his judgment at paras 45-48; while accepting the principle, he held that the Upper Tribunal had made errors of law in its decision such that its decision did not need to be followed (by contrast to Obrey v Secretary of State for Work and Pensions).

One further issue did not get any consideration in the judgment, which is the relevance of the right to respect for family and private life contained in Article 8 ECHR to the decision to suspend payment of Cameron’s DLA. Because it was accepted by the Secretary of State that the decision fell within the scope of Article 1 of the First Protocol to the ECHR (the right to peaceful enjoyment of ‘possessions’, which includes state benefits), Lord Wilson did not find it necessary to consider the arguments addressed to Article 8. It may be that those arguments take on more significance in another case where (unlike DLA) the benefit is paid not to the child but the parent.

On a practical level, Cameron’s case is an excellent example of strategic litigation in action. The potential to challenge the 84 day rule through an appeal relying on the Human Rights Act was identified in discussions between the charities and lawyers. Cameron’s family received pro bono assistance from the estimable Mitchell Woolf at Scott-Moncrieff and Associates in the First-Tier Tribunal. Some exceptional legal aid funding was obtained in the Upper Tribunal and standard legal aid funded the appeal in the Court of Appeal and the Supreme Court. Throughout the appeal the charities gave fantastic support on social and mainstream media as part of their Stop The DLA Takeaway campaign. In my view Cameron’s case provides an excellent example of how litigation can form an important part of a wider campaign to bring about social change – and hopefully one that can be followed in other areas. The key message is that lawyers and campaigning charities need to work closely together from the outset.

All these implications will play out in future cases. At present we have a further example of the Supreme Court taking disabled people’s rights seriously and applying rigorous scrutiny to the state’s justification for its policies. We should all welcome the fact that we live in a society where the highest court is both willing and able to tackle injustice in state decision making such as that present in Cameron’s case. Given the direction of travel it is likely that a number of other such challenges relating to disabled people’s human rights will continue to come before the highest court.

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