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Limiting Access to Disabled Children's Services is Unlawful

  • Published: 2009-03-16 : Author: Council for Disabled Children
  • Synopsis: Disability charity welcomes legal judgment opening door for more families with disabled children to get services by right.

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Disability charity welcomes legal judgment opening door for more families with disabled children to get services by right. The Council for Disabled Children (CDC) has welcomed a High Court ruling that the use of 'eligibility criteria' by local authorities to limit access to disabled children's services can be unlawful.

Disability charity welcomes legal judgment opening door for more families with disabled children to get services by right.

The Council for Disabled Children (CDC) has welcomed a High Court ruling that the use of 'eligibility criteria' by local authorities to limit access to disabled children's services can be unlawful.

The judgment was made by Mrs Justice Black in the case of JL and LL v Islington London Borough Council [2009] EQHC 458 (Admin). CDC was an interested party in the case, raising their concern about the lack of legal clarity as to whether local authorities are permitted to use banding or other forms of criteria to limit access to services. The judgment cites evidence from CDC that services for disabled children continue to be dependent on postcode rather than need and that there remains a 'lottery of provision'. CDC told the court that in recent years eligibility criteria have tightened, as a result of increasing pressures on social care budgets, so that fewer families receive a service.

The court found in favor of the claimants, JL and LL, a young disabled man and his mother who also has health problems. Their package of services had been reduced by almost half as a result of new eligibility criteria introduced by Islington in 2007. The judge found that these criteria were unlawful because they failed to distinguish between services the council had a duty to provide and those that they had only a power to provide. Islington was also found to have acted unlawfully because they had not shown proper regard to their duties to promote disability equality when setting the criteria.

Christine Lenehan OBE, Director of the Council for Disabled Children and board member of the Every Disabled Child Matters campaign, comments: 'CDC welcomes this judgment because it brings much-needed clarity about the law in this area. We would want to emphasize that Islington should not be singled out for criticism as a result of this judgment. In our experience, all local authorities use eligibility criteria to limit access to disabled children's services. Yet I have never met a local authority officer who could tell me what the legal basis was for their criteria. This situation was bad for local authorities and bad for families, and I'm delighted that we are moving towards a position of clarity.'

Following the judgment, CDC is calling on all local authorities to consider its conclusions and review their eligibility criteria. CDC is also calling on the Department for Children, Schools and Families to issue guidance on the law governing eligibility criteria, to meet what the judge described as a 'pressing need' for a central steer from government.

Christine Lenehan continues:

'What is crystal clear from this judgment is that where local authorities have a statutory duty to provide services, they must do so regardless of cost or any other consideration. Once we have worked through the consequences of the judgment, we will be communicating to families what it means for them. CDC and the Every Disabled Child Matters campaign want to see services available as of right to families, and this judgment takes us a long way further down that road'.

CDC is grateful to Paul Bowen of Doughty Street Chambers and Professor Luke Clements for their legal advice on this area of law, which has greatly assisted its campaigning work.

1. For media inquires, including a copy of the full judgment, please contact Louise Franklin at the Council for Disabled Children. T: 020 7843 6108 M: 07962 335145 E: louise@edcm.org.uk

2. The Council for Disabled Children (CDC) is the voice of the disabled children's sector. It provides a national forum for the discussion and development of policy and practice issues related to services and support for disabled children and young people and those with special educational needs. CDC is based at the National Children's Bureau. For further information visit www.ncb.org.uk/cdc .

3. CDC was joined as an interested party to this case as a result of its expertise in disabled children's services and its understanding of how local authorities operate eligibility criteria. CDC submitted detailed grounds explaining the current position and concerns about the lack of legal clarity, and these grounds were used extensively in the judgment of Mrs Justice Black.

4. JL and LL were represented by Paul Bowen of Doughty Street Chambers, who was instructed by Mitchell Woolf of Scott-Moncrief, Harbour and Sinclair solicitors. The Secretary of State for Children, Schools and Families was the other interested party in the claim.

5. CDC understands the judgment to have the following consequences:

a. Eligibility criteria should not be applied when the duty to provide accommodation under s 20(1) Children Act 1989 arises;

b. Local authorities can apply banding criteria to decide which groups of children they will consider to be eligible for services under s 2 Chronically Sick and Disabled Persons Act 1970, but if a child is in the eligible group they must provide services to meet his or her assessed needs;

c. Eligibility criteria can be used to limit access to services provided under statutory powers, such as s 17 Children Act 1989, but if local authorities operate eligibility criteria in this way they must have due regard for their duties to promote disability equality under s 49A Disability Discrimination Act 1995.

d. Local authorities must do full Initial and Core Assessments of children who may be eligible for services before applying any eligibility criteria they choose to operate

6. As a result of the judgment, CDC believes that all local authorities will have to review their eligibility criteria, not least because most if not all local authorities currently fail to distinguish between the different statutory duties and powers in the criteria they operate. This review should lead to more children being deemed eligible for services, including residential and daytime short break services and other forms of family support.

7. At present, the experience of CDC is that most families are not told which if any statutory powers and duties have been considered in their child's case, they are simply told that they are 'not eligible'.

8. This judgment comes after significant focus by government on improving services for families with disabled children, including £430 million of ring-fenced funding from DCSF as part of the Aiming High for Disabled Children program, the majority of which has been allocated to short breaks. In February 2009, the Department of Health confirmed that £340 million had been allocated to improve health services for disabled children, including short breaks for children with health needs. The government also tabled an amendment to the Children and Young Person's Act 2008 as it passed through Parliament which will require local authorities to provide short break services to meet the needs of families with disabled children in their area. This 'general duty' establishes short breaks as a statutory service for the first time.

9. The judgment goes some way towards delivering the right to short break services that the Every Disabled Child Matters campaign has been calling for since its launch in 2006. CDC hosts the campaign and joins it in calling for all disabled children and their families to have a legal right to the services and support they need.

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