1. Steve Broach Barrister Monckton Chambers
Bromley Parent Voice Annual Conference Short breaks and childcare – what does the law say? 7 October 2016
Steve Broach
Barrister
Monckton Chambers
This presentation is intended for general information and should not be relied upon in relation to any individual case.

2. Some basics Domestic law Case Law – what does ‘precedent’ mean?
Acts of Parliament – eg Children Act 1989
Difference between powers and duties
Regulations – eg SEN and Disability Regulations
Rules, Directions, Orders etc
Case Law – what does ‘precedent’ mean?
Guidance
Statutory
Non-statutory

3. Duties not to discriminate
Equality Act 2010
Direct discrimination
Indirect discrimination
Discrimination arising from disability
Failure to make reasonable adjustments
Human rights
Article 14 ECHR
Requires another ECHR right – eg Article 8
Brings in other international law principles, eg children’s best interests

4. Challenging Cuts – PSED
Section 149 of the Equality Act 2010
Requires public bodies to have ‘due regard’ to a series of specified needs when carrying out their functions.
Includes needs to eliminate discrimination and advance equality of opportunity
Bracking – two key issues:
Proper understanding of impact of the decision on disabled children and families
Specific regard to the needs specified in section 149

5. Challenging Cuts – Consultation
Moseley v LB Haringey – Supreme Court
Context – consultation on local Council Tax reduction scheme
Approved principles from Coughlan – consultation must:
Take place at formative stage
Allow adequate time for responses
Provide sufficient information to consultees
Involve proper consideration of responses prior to decision

6. Children Act 1989
Children Act 1989 section 17 / Working Together to Safeguard Children (2015)
Support for children ‘in need’
Duty to carry out some form of assessment for all children in need (see handout re Warwickshire case)
Timescale – maximum of 45 working days
Immediate response in urgent cases
Requirement for child in need plan
Link to Chronically Sick & Disabled Persons Act 1970 s 2

7. CSDPA 1970 Chronically Sick and Disabled Persons Act (CSDPA) 1970 s 2
Duty to provide extensive list of services where necessary to meet needs
LA can take account of resources when deciding whether ‘necessary’ (not just desirable) to provide service
BUT once accepted to be necessary to provide service, must provide sufficient service to meet need

8. CSDPA 1970 The CSDPA service list (s 2(6))
Practical assistance in the home
Recreational facilities, or assistance in obtaining
Assistance in taking advance of available educational facilities
Transport to any social care services
Adaptations to home or additional home facilities
Holidays
Meals
Telephone, inc special equipment to use one

9. CSDPA 1970
CSDPA 1970 s 2(4): ‘(4) 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.’

10. Short Breaks Relevant statutory duties
CSDPA 1970 s 2 – home-based (s 2(1)(a)) and community-based (s 2(1)(c))
CA 1989 s 17 and schedule 2, para 6(1)(c)
Provide services ‘to assist individuals who provide care for such children to continue to do so, or to do so more effectively, by giving them breaks from caring’.
Breaks for Carers of Disabled Children Regulations 2011
CA 2004 s 11 – safeguarding and promotion of children’s welfare in carrying out functions
CFA 2014 s 19 – ‘best possible outcomes’

11. Short Breaks Breaks for Carers of Disabled Children Regs
Reg 3 – must have regard to needs of carers who would be able to provide care for their disabled child more effectively if breaks from caring were given to them to allow them to—
undertake education, training or any regular leisure activity,
meet the needs of other children in the family more effectively, or
carry out day to day tasks which they must perform in order to run their household.

12. Short Breaks Breaks for Carers of Disabled Children Regs
Reg 4 – a local authority must provide, so far as is reasonably practicable, a range of services which is sufficient to assist carers to continue to provide care or to do so more effectively
Includes daytime and overnight care, leisure activites and weekend and holiday services
Reg 5 – ‘short breaks services statement’
range of services, any eligibility criteria and ‘how the range of services is designed to meet the needs of carers in their area’.

13. Short Breaks Residential short breaks
Only important social care service incapable of being provided under CSDPA s 2.
If family are in ‘actual crisis’ then may be a specific duty to provide breaks under Children Act 1989 s 20
Otherwise ‘general duty’ under Children Act 1989 s 17 – no individual right, but LAs must act rationally, reasonably and fairly.

14. Duties to parent carers
Section 97 – parent carers’ needs assessments
In force 1 April 2015
Inserts new sections 17ZD-ZF into CA 1989
Requires PCNA to be carried out either on request or where appearance of need (s 17ZD(3))
Must have regard to well-being of parent carer and need to safeguard and promote welfare of disabled child (s 17ZD(10))
May be combined with other assessments (s 17ZE(3))
cf new ‘Young Carers Assessments’

15. Duties to parent carers
Is there a new duty to provide services to parent carers?
Section 17ZF requires ‘consideration’ of PCNA
In particular:
Does the parent carer have needs for support in relation to their caring role?
Does the disabled child have needs for support?
Could those needs be satisfied by services provided under section 17?
Must then decide ‘whether or not to provide any such services in relation to the parent carer or the disabled child’

16. Duties to parent carers
Problems with PCNAs
Overlap with existing carers’ assessment duties
Overlap with duty to conduct ‘holistic’ assessment of disabled children under CA 1989 s 17
Only general duty to provide services under section 17 – including to family members, s 17(3)
No link to CSDPA 1970 s 2 – the specific duty to provide services to disabled children...

17. Personal Budgets Already available in health and social care
C&F Act extends to education
Two key issues
whether a ‘direct payment’ will be available – section 49:
Personal Budget information must be provided (although Regulations exempt services which cannot be disaggregated)
Direct Payment may be available
How much money will be offered…

18. Personal Budgets Relevant regulations:
Special Educational Needs (Personal Budgets) Regulations 2014
Community Care, Services for Carers and Children’s Services (Direct Payments) Regulations 2009 (replaced for adults by those made under the Care Act 2014)
National Health Service (Direct Payments) Regulations 2013
National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) (No. 3) Regulations 2014

19. Personal Budgets In essence…
SEN – no DPs if to do so would cause adverse impact on other CYP with EHC Plans or making the DP would be an inefficient use of the LA resources – Reg 6 of the SEN PB Regs & CoP at 9.123
Social care – direct payment must be made unless limited exceptions, primarily related to capacity of parent to manage money, apply
Health – power but currently no duty to make DP for any health service (inc to child’s representative)

20. Personal Budgets
Level of personal budget / direct payment must be set at the reasonable cost of securing the necessary services
CoP at 9.102; ‘The final allocation of funding budget must be sufficient to secure the agreed provision…’
CoP at 9.106; ‘Local authorities must consider each request for a personal budget on its own individual merits’.
Resource Allocation Schemes can only give ‘indicative’ amount
See R (KM) v Cambridgeshire CC

21. EHC Plans
Section 37(2) CFA 2014 re social care – EHC Plans must include:
For under 18s, any social care provision which must be made as a result of section 2 of the Chronically Sick and Disabled Persons Act (CSDPA)1970 (H1)
Any other social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs (H2)
No new duty to provide.

22. Childcare duties
Parliamentary inquiry into childcare for disabled children:
Families with disabled children are 2.5 times more likely to have no parent working for more than 16 hours per week.
Only 16% of mothers with disabled children work compared to 61% of all mothers.
Over four in ten disabled children are not accessing the free early years childcare to which they are entitled.

23. Childcare duties Childcare Act 2006
Section 1 - LAs to improve well-being and reduce inequalities between young children in their area
Section 3 – LAs to promote childcare to parents who may otherwise not access it

24. Childcare duties Childcare Act 2006
Section 6 – duty on Local Authorities to secure sufficient childcare in their area for parents who wish to work or study in relation to work – so far as is ‘reasonably practicable
section 6(2) – in deciding whether childcare is sufficient LAs must have regard to the needs of parents for ‘the provision of childcare which is suitable for disabled children’.
Applies to disabled children up to 18

25. Childcare duties Childcare Act 2006
Section 8 – power to assist any person who provides childcare, including by providing financial assistance.

26. Childcare duties CSDPA 1970
Requires services to be provided where necessary to meet a child’s needs
Services include
‘Practical assistance’ in the home
‘Recreational facilities’ outside the home
Can CSDPA duty be discharged through the provision of ‘childcare’?

27. Childcare duties Local Offer
Paragraph 15(c) of schedule 2 to the SEN and Disability Regulations 2015 – the Local Offer must include ‘sources of information, advice and support…about childcare for children with special educational needs or a disability’.

28. Childcare duties Reasonable adjustment duties
Sections of the Equality Act 2010
Applies both to the LA and to childcare providers
Reasonable adjustments to policies and physical features and through provision of auxiliary aids and services
Adjustments cannot be charged for

29. Care Act – Transition
Sections – transition to adult care and support
Assessments of children – ss58-59
Assessments of children’s carers – ss60-61
Power to provide services to carers – s62
Assessments of young carers – ss63-64
Continuity of services – s66

30. Care Act – Transition Assessments of children – ss58-59
Requirement for ‘child’s needs assessment’
Where LA satisfied child likely to have needs for care and support post 18 (no set age)
Must assess when satisfied that it would be of significant benefit to the child to do so
Consent condition (no consent required if abuse or neglect)
Detailed requirements in section 59

31. Care Act – Transition Assessments of child’s carers – ss60-61
Requirement for ‘child’s carer’s assessment’
Where LA satisfied carer of child likely to have needs for care and support post 18 (no set age)
Must assess when satisfied that it would be of significant benefit to the carer to do so and if the carer consents
Detailed requirements in section 61
Must consider whether carer willing and able to continue providing care

32. Care Act – Transition Assessments of young carers – ss63-64
Requirement for ‘young carer’s assessment’
Where young carer likely to have needs for support after they turn 18
Must assess when satisfied that it would be of significant benefit to the young carer to do so and if the young carer consents (unless risk of abuse or neglect)
Detailed requirements in section 64

33. Care Act – Transition Continuity of services – s66
New section 17ZH inserted into Children Act 1989
Must continue to provide services post-18 until Care Act assessment(s) completed
New section 17ZI
Must continue to provide services where EHC Plan no longer maintained until Care Act assessment completed
New section 2A inserted into CSDPA 1970
Same as section 17ZH above (services must continue)

34. Can ‘rights’ help protect resources?
R (DAT and BNM) v West Berkshire Council [2016] EWHC 1876 (Admin)
West Berkshire faced with unprecedented funding pressures in 2016/17
Decided to cut funding to voluntary sector providers of short breaks by 52%
Claim for judicial review brought by two disabled children acting through their mothers, funded by legal aid.

35. Can ‘rights’ help protect resources?
R (DAT and BNM) v West Berkshire Council [2016] EWHC 1876 (Admin)
Court held that decision to cut funding was unlawful as a result of
failure to consider the relevant legal duties, including Regs 3 and 4 of the 2011 Regulations
Misdirection as to requirements of PSED
Decision quashed

36. Looking Forward Further budget cuts anticipated in 2017/18
Councils will at least need to show proper consideration of the legal framework
Real concern over implementation of new SEN and disability framework in Children and Families Act 2014
Short breaks limited to children with new ‘Education, Health and Care Plans’...
No change anticipated to legal framework around short breaks

37. Dispute resolution Tribunal (if appeal right exists) Formal complaint
Social care and health pilots – effective remedy?
Formal complaint
Children Act complaints process
NHS complaints process
Ombudsmen (LGO / PHSO)
Judicial review
Disabled CYP will often be eligible for legal aid
Specialist advice required asap

38. Steve Broach Monckton Chambers email sbroach@monckton.com
twitter @stevebroach
blog rightsinreality.wordpress.com