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: Legislation

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

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.

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).

Can local authorities lawfully close all their children’s centres?

This post is prompted by recent reports that some local authorities are considering closing all their children’s centres in this round of cuts. See by way of example this recent article by Polly Toynbee.

There is of course a ‘sufficiency’ duty in relation to children’s centres, found in section 5A of the Childcare Act 2006 (inserted by an amendment in 2009). Sub-section 1 of section 5A states that:

‘Arrangements made by an English local authority under section 3(2) must, so far as is reasonably practicable, include arrangements for sufficient provision of children’s centres to meet local need’.

Section 3(2) (to which section 5A(1) refers) says that ‘The authority must make arrangements to secure that early childhood services in their area are provided in an integrated manner which is calculated to (a) facilitate access to those services, and (b) maximise the benefit of those services to parents, prospective parents and young children’.

A ‘children’s centre’ is defined in section 5A(4) as ‘a place, or a group of places (a) which is managed by or on behalf of, or under arrangements made with, an English local authority, with a view to securing that early childhood services in their area are made available in an integrated manner, (b) through which each of the early childhood services is made available, and (c) at which activities for young children are provided, whether by way of early years provision or otherwise’.

Despite the overly complex drafting, it seems clear that there is a duty on English local authorities to have sufficient children’s centres, being places managed for or on behalf of a local authority to provide integrated early childhood services and activities for young children. These centres must physically exist, i.e. not simply be ‘virtual’ centres (a network of services without a physical centre).

The duty in section 5A(1) is though subject to an important qualification. The duty must be carried out ‘so far as is reasonably practicable’. This begs the question – can a local authority which intends to close all its children’s centres say that it is not ‘reasonably practicable’ for it to operate any centres?

It may well be that this question is tested in court. My provisional answer to it is ‘yes in principle’ – but the authority would need to have:

  1. Understood the local need for such centres
  2. Considered what level of provision would be sufficient to meet that need
  3. Analysed to what extent it is reasonably practicable for it to make that provision, given the reduction in its overall resources and other pressures on its budget
  4. Complied with its wider public law obligations, for example the public sector equality duty in section 149 of the Equality Act 2010 and the duty to have regard to the need to safeguard and promote the welfare of children in section 11 of the Children Act 2004. These duties are considered in my general blog post on legal issues relating to cuts.

It may be that local authorities could find a way through this process such that it would be lawful to reduce their level of children’s centres to zero, though I have my doubts. It would seem to require a local authority to justify why the other pressures on its budget are such that it cannot afford to operate even a single children’s centre. If the local authority is spending anything above the minimum required to meet its statutory duties in other areas (for example, collecting the bins) this may prove difficult. It is important that the wording is ‘so far as is reasonably practical’ – emphasising that the local authority should go as far as it reasonably can to provide sufficient children’s centres to meet local need.

The law requires local authorities to have regard to the need to safeguard and promote children’s welfare when tough spending decisions are made. What is clear is that a local authority which simply says ‘we are closing our children’s centres because our budget has been reduced’ will not have complied with the required process and would in my view be vulnerable to legal challenge.

If the section 5A(1) duty simply required the provision of ‘sufficient’ children’s centres then it is obvious that the answer to the question in the title of the post would be ‘no’. However Parliament has chosen to qualify the duty by reference to ‘reasonable practicability’. We may well see how the courts treat this qualification relatively shortly after local authority budgets are set for the next financial year, if decisions to close all their children’s centres are indeed taken by some local authorities. I hope though for the sake of the children and families affected that this question never needs to be answered by the courts.

System change for disabled children – the Local Offer and SEND reforms one year on

We are now one year on from implementation of the SEN and disability reforms introduced by Part 3 of the Children and Families Act 2014 (‘CFA’). To no-one’s surprise the picture on progress is at best mixed. Introducing wholesale system change at a time when local authority budgets have been reduced by 40% over the past five years was never going to be straightforward. As the report on the pathfinder programme was only published this July I imagine we will need to wait a while before any official evidence on progress made under the CFA.

At an individual level I continue to hear utterly depressing accounts of the new Education, Health and Care Plan (‘EHC Plan’) process resulting in absolutely no benefit for children and families. Plans are being issued with no outcomes or outcomes drafted in the blandest terms, social care sections simply saying ‘not known to social care’ and no engagement at all from health. This survey by Special Needs Jungle should help show how widespread are these problems. While there may well be excellent EHC Plans being issued, flagrantly unlawful ones are certainly far from unique.

The Department for Education has just issued new advice to confirm that local authorities are being given longer to complete the transfer process and produce EHC Plans – as introduced by secondary legislation. The main change is that the maximum time for a transfer review for the move from a statement to an EHC Plan has been extended from 14 to 18 weeks. As I suggested this as an urgent action the new government needed to take, I obviously welcome this as a sensible move. However it remains to be seen whether local authorities will now be able to carry out proper EHC assessments and take new advice in every transfer case unless all parties including the parents agree that previous advice is sufficient, as the regulations require; see IPSEA’s summary of the transfer process.

The focus for this post though is one of the key system level reforms introduced by the CFA 2014 – the ‘Local Offer’, as required by section 30 CFA. I’ve written previously about the delays in introducing a lawful Local Offer in many areas. However since that time a number of local areas now have Local Offers which are highly compliant with the statutory requirements and as a result provide a valuable guide to local provision for children, young people and families. Other local areas, shall we say, haven’t done this.

The next question is whether these Local Offers can fulfill their second purpose – ‘To make provision more responsive to local needs and aspirations’ (see the SEND Code of Practice at para 4.2). The mechanism to achieve this is the requirement for local authorities to publish comments on the Local Offer. This requirement is imposed by regulation 56 of the SEN and Disability Regulations 2014.

Regulation 56 imposes a positive duty on local authorities to ‘seek’ comments on its Local Offer from children, young people and parents. Importantly, comments should be sought not just on the Local Offer itself (e.g. is it searchable, is all the information accurate) but also on ‘the content of its local offer, including the quality of the provision that is included and any provision that is not included’. These comments must then be taken into account when the local authority carries out its review of the sufficiency of provision in its area, as required by section 27 CFA.

Why is this particularly relevant now? Because regulation 56 requires that local authorities must publish the comments they receive on their Local Offers ‘at least annually’, on an anonymised basis. Given that Part 3 CFA and the regulations came into force on 1 September 2014, that means every local authority should now have published its first set of Local Offer comments ‘on its website, with the local offer’.

If you are a child, young person or parent who has made a comment on your Local Offer, then now would be the time to check that it is up in lights. If it isn’t, then you may want to highlight to officers and Members that publication is overdue.

If you haven’t yet commented on your Local Offer but have something to say about ‘the quality of the provision that is included and any provision that is not included’, please do comment. It seems to me that effective use of the Local Offer comments facility is the best tool we have to hold local authorities to account in the services and support provided to children, young people and families.

Two important points to note on the Local Offer comment facility. Firstly, it must not be used as a way to make complaints about ‘services provided to a particular individual’. The local authority and NHS complaints process exist for this purpose. Secondly, a local authority is not required to publish any comment which it ‘considers to be vexatious’. The term ‘vexatious’ is not defined in the regulations; under the general legal approach a vexatious comment would be one where the purpose is purely to annoy the local authority and its officers. This is plainly a high bar and means that the vast majority of comments which relate to services generally, including highly negative comments, should be published.

I would be keen to hear about experiences of using the Local Offer comments facility – whether you could find out how to make a comment on your Local Offer easily, whether your local authority sought your comments as the regulations require whether your comment has been published and whether you have seen any difference as a result. Please leave any feedback on these issues below.

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.

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.

Five legal priorities for disabled children and the new government

With the Conservatives winning a majority in last week’s General Election it would seem there is unlikely to be any radical change in law or policy affecting disabled children from the last Government. The focus must surely be delivery of the reforms introduced by the Children and Families Act 2014. With that in mind here are five suggestions for urgent action by the new Minister (most likely the old Minister, Edward Timpson MP) and his colleagues in Health:

  1. Extend the timeframe for transfer from statements and Learning Difficulty Assessments (LDAs) to Education, Health and Care Plans (EHC Plans). It was never going to be possible to transfer all children and young people with statements / LDAs over to EHC Plans by April 2018 unless the transfer process was going to be a sham. And in many areas that seems to be exactly what has happened – no proper transfer review, simply a rebadging of statements as Plans often led by the school with minimal Local Authority input. The Minister should now consult on a sensible extension of the timetable for transfer, predicated on every Local Authority ensuring that a proper transfer review takes place in every case, involving social care and health as required.
  2. Extend the timeframe for carrying out EHC assessments. I anticipate this one may be controversial – but it seems to me very difficult for a local authority to ensure that in every case a proper EHC assessment is carried out with input from social care and health and for the process to be completed within 20 weeks. In my view the Minister should consult widely on whether a slightly longer timeframe should be allowed, again with an absolute expectation that the assessment process will be carried out properly in every case. It seems to me that a proper assessment leading to a lawful Plan is more important than a quick assessment and ropey Plan – but I understand that families may think speed and quality are equally important.
  3. Sort out the confusion in relation to social care assessments. For disabled children who do not qualify for an EHC assessment, the key assessment duty remains section 17 of the Children Act 1989. However the courts have had to read the duty to assess into the Children Act, and there is nothing in section 17 which specifies the form or type of assessment required. Answers to questions like who has to carry out the assessment, what issues it must cover and the timescale are left to guidance, currently Working Together to Safeguard Children. However the High Court in R (L and P) v Warwickshire has held that not all disabled children are entitled to a social work assessment under Working Together. Yet Working Together gives no steer as to which children are entitled to a ‘full’ assessment, and which children can be assessed via ‘Early Help’. It would greatly assist if the Minister were to consult on guidance specific to disabled children which would clarify this critical point.
  4. Make the Local Offer real for social care. The Local Offer under section 30 of the Children and Families Act 2014 has the potential to create a baseline entitlement for all disabled children and families, but only if there are actually services available for families to access under it. One important step which could be taken by the Minister to help achieve this would be to issue guidance requiring every Local Authority to have a minimum short break entitlement with no or very minimal assessment and eligibility criteria. This would obviously be additional to the support available to children who hit eligibility criteria for support under the CSDPA 1970. Guidance currently describes this kind of offer of unassessed short breaks as good practice, but if it were to be mandatory then the Local Offer in social care would start to have some real value.
  5. Reissue the National Framework for Children and Young People’s Continuing Care. It is vital that disabled children with complex health needs get a package of care and support that is properly co-ordinated and centred on their needs in their family context. The National Framework is supposed to achieve this, but it is badly out of date and does not reflect the reforms introduced by the Health and Social Care Act 2012. For example, the Framework still refers to ‘Primary Care Trusts’ which have been abolished and replaced by Clinical Commissioning Groups. It also does not reflect the vital role of NHS England in commissioning packages of care for children with the most complex needs. The National Framework therefore needs to be reissued urgently, and when this is done its status must be clarified; CCGs and Local Authorities need to know whether they are expected to follow it or the question will be left to the courts to decide.

I am not suggesting that any of these measures, either individually or taken together, will lead to the kind of radical transformation in education, care and support that disabled children and their families need and deserve. However they seem to me to be the kind of practical steps that the Minister can take to help the system introduced last year work more effectively.

Comments on these ideas and other ideas for priority action most welcome below.

#LBBill draft two published

On the eve of the general election, the Justice for LB campaign published draft two of #LBBill. The proposed new law in LB’s memory is intended to promote disabled people’s right to live in their community with choices equal to others. Thanks to the hundreds if not thousands of people who gave feedback on draft one and to all everyone who has worked on draft two.

The purpose of this post is to flag the materials published with draft two of the Bill and invite comment and feedback. Changes can still be made and a further draft can be produced if needed. We would also welcome your support for the Bill – you can sign up as a supporter here if you have not yet done so.

The new materials are:

For more background, please see the Bill website and my earlier posts on this blog.

We look forward to your thoughts and comments and hopefully your support. Once we have new MPs we will be lobbying them all to support the Bill, including through adopting it if they are chosen in the Private Members Bill ballot in July.

#JusticeforLB

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.

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