1 / 54

Disabled Children – Key Legal Issues

Disabled Children – Key Legal Issues. HPCI Seminar June 2013 Steve Broach Barrister Doughty Street Chambers. 1. Issues to Cover. Social Care / Health Education including School Transport Transition to Adulthood Equality Act 2010 Children and Families Bill – the new system. 2.

annot
Download Presentation

Disabled Children – Key Legal Issues

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Disabled Children – Key Legal Issues HPCI Seminar June 2013 Steve Broach Barrister Doughty Street Chambers 1

  2. Issues to Cover • Social Care / Health • Education including School Transport • Transition to Adulthood • Equality Act 2010 • Children and Families Bill – the new system 2

  3. Sources of Law • International Conventions – ECHR / CRC / UNCRPD • Central importance of Art 8 ECHR • Hierarchy of domestic law • Statute • Regulations / Orders / Rules • Guidance – statutory / non-statutory (LASSA 1970) • Duties and powers • ‘Specific’ duties owed to individuals (CSDPA 1970 s 2) • ‘General’ or ‘target’ duties owed to groups (CA 1989 s 17) • Powers – CA 1989 s 20(4) • Routes to redress – complaint, Tribunal appeal or JR? • Alt remedies to JR must be ‘convenient and effective’; Lord Bingham in Kay v Lambeth [2006] UKHL 10 3

  4. Consultation / Engagement 3 general points: • May be duty to consult if otherwise abuse of process, and if consultation done has to be ‘proper’ (Coughlan): • Formative stage • Sufficient information • Sufficient time • Proper consideration 2) Public Sector Equality Duty – Equality Act 2010 s 149 – ‘due regard’ requires having the relevant information 3) Children’s rights to participate – Article 12 UNCRC

  5. Social Care Duties - Children Duty to Assess No express assessment duty, but implied – R (G) v Barnet Low threshold for assessment – the child is or may be ‘in need’, which includes all disabled children Very wide definition of ‘disabled’ for purposes of ‘in need’ – s 17(11), any mental disorder and any substantial and permanent physical disability 5

  6. Social Care Duties - Children Duty to Assess (cont) New statutory guidance Working Together to Safeguard Children in force from 15 April 2013 – must be followed ‘unless exceptional reasons apply’. Decision on whether to assess in one working day Assessment to be completed within a maximum of 45 working days (quicker in urgent cases) ‘For children who need additional help, every day matters’. Assessments must be ‘holistic in approach, addressing the child’s needs within their family and wider community’ – see R (AB & SB) v Nottingham 6

  7. Social Care Duties - Children Duty to Provide Services CA 1989 s 17 On its own is a ‘target’ duty (R (G) v Barnet) but Assessment Framework requires (at 4.1): Decision on whether intervention required ‘to secure the wellbeing of the child’; and A ‘realistic plan of action, including services to be provided’ Can provide Direct Payments (CA 1989 s 17A) – must meet reasonable cost of securing necessary service. 7

  8. Social Care Duties - Children Duty to Provide Services (2) CSDPA 1970 s 2 Is a specific duty which arises when an LA judges it to be ‘necessary’ to provide services Resources can inform whether it is ‘necessary’ to provide services, but once judged necessary, services must be provided – Barry; Savva 8

  9. (3) Social Care Duties Short Breaks duty - CYPA 2008 s 25 CA 1989 Schedule 2, Para 6 amended to require LAs to: Assist individuals who provide care for [disabled] children to continue to do so, or to do so more effectively, by giving them breaks from caring. New regulations and guidance to support this duty – in force April 2011 – requires ‘short breaks services statement’ setting out range of services from 1st October 2011. Does not change existing duties to ‘assess, decide and provide’. 9

  10. Social Care Duties - Children Duty to accommodate (3) CA 1989 s 20(1) Specific duty to accommodate when qualifying criteria are met – R (G) v Southwark Can arise in relation to residential short breaks – issue is whether there is an ‘actual crisis’ – R (JL) v Islington Also applies to full-time residential placements – R (O) v East Riding; R (O) v Hammersmith and Fulham May become increasingly important because eligibility criteria cannot be applied 10

  11. Social Care Duties - Children Eligibility Criteria • Yes re CA 1989 s 17 / CSDPA 1970 s 2 (with care) • No re CA 1989 s 20(1) • Must not: • Limit amount of provision to be made to eligible children, only ‘pool’ who are eligible; • Prescribe a fixed maximum amount of support • Be used instead of assessment • Ignore the disability equality duty R (JL) v Islington LBC 11

  12. Social Care Duties - Adults Duty to assess NHS and Community Care Act 1990 s 47 Very low threshold – ‘appearance of need’ (Penfold) Must involve disabled person and carers in assessment – Community Care Assessment Directions 2004 12

  13. Social Care Duties - Adults Duty to provide services Eligibility criteria found in statutory guidance (FACS – now Prioritising Need) Sets four bands – ‘critical’, ‘substantial’, ‘moderate’ and ‘low’ LA can take account of resources in setting bands BUT once need (not person) assessed as eligible, need must be met in full 13

  14. Social Care Duties - Adults Resource Allocation Scheme RAS = process by which needs are converted into an ‘indicative’ financial sum R (Savva) v Kensington and Chelsea – individual budget unlawful because no reasons given. R (KM) v Cambridgeshire CC– Supreme Court held that £85k budget lawful even though no proper reasons provided DPs must meet reasonable cost of securing necessary services – Health and Social Care Act 2001 s 57 14

  15. Social Care Duties - Adults Charging LAs can (and do) charge service users both for residential care and domiciliary care (care at home) Different schemes for each: • Residential care charging set out in CRAG (Charging For Residential Accommodation Guidance) • Domiciliary care charging under HASSASSAA 1983 s 17 and Fairer Charging guidance • Cannot reduce income below Income Support + 25% • Some capital amounts will be disregarded 15

  16. Social Care / Health Cross-Over General duties • Duties on NHS bodies to ensure involvement of service users in planning and development of services (NHSA 2006 s 242(2)) • Duties on NHS bodies and LAs to co-operate: • NHSA 2006 s 82 • CA 2004 s 10 16

  17. Social Care / Health Cross-Over Fundamental health duties • NHSA 2006 s 1(1) – duty on SoS to secure provision of a ‘comprehensive health service’ free of charge • NHSA 2006 s 3 – duties on clinical commissioning groups (CCGs) to provide range of services including preventative and aftercare services. New NHS Commissioning Board Duties on GPs to refer, inc to LAs for social care input Duties to assess – despite no explicit duty 17

  18. Social Care / Health Cross-Over NHS Constitution • Health bodies including CCGs must ‘have regard’ to the constitution; Health Act 2009 s 2 • Section 2 of the Constitution; ‘You have the right to access NHS services. You will not be refused access on unreasonable grounds.’ • ‘You have the right to expect your local NHS to assess the health requirements of the local community and to commission and put in place the services to meet those needs as considered necessary.’ 18

  19. Social Care / Health Cross-Over Continuing Care • For adults there is ‘either/or’ position – if ‘primary’ health need then CCG must meet all health needs • Most disabled children will receive services from LA and (if required) CCG but see R (D) v Haringey LBC & Haringey PCT (no nursing care by LAs) • National Framework and Decision Support Tool • CC Pathway – assessment, decision making and arrangement of provision – v tight timeframe • Health DPs only in pilot areas but may be able to transfer funding to LAs (particularly in child cases) 19

  20. Social Care / Health Cross-Over Mental health after-care duty Mental Health Act 1983 s 117 • Services must be provided to people detained for treatment under ‘section 3’ (of the MHA 1983) until no longer necessary • Joint duty on LA and CCG • Section 117 services must be provided free – excluded from charging 20

  21. Education – The Basics SEN – ‘a learning difficulty calling for special educational provision’ (EA 1996 s 312(1)) ‘Special educational provision’ - provision which is additional to, or otherwise different from, educational provision made generally for children of the relevant age in local schools (EA 1996 s 312(4)) ‘Learning difficulty’ - a significantly greater difficulty in learning than the majority of children of a child’s age or a disability which affects the child’s ability to make use of educational facilities in the child’s area (EA 1996 s 312(2))

  22. Education – Duty to Assess Duty arises when it is more likely than not to be necessary for the LEA to determine the child’s special education provision by making a statement (EA 1996 s 323) Principles broadly similar to ‘children in need’ assessments (and can be done at the same time) Referrals: Parents / School / Another agency Re-assessment s 328 (parents) / s 329A (schools) Decision within 6 weeks: SEN CoP at 7:26

  23. Education – Duty to Make and Implement Statement LEAs must decide (on advice) whether to issue a Statement within 10 weeks of agreeing to assess (SEN CoP at 7:86) Decision – whether necessary in light of assessment for LEA to determine child’s special educational provision (EA 1996 s 324(1)) See SEN CoP at 8:11 for factors to be taken into account Proposed Statement must then be issued within 2 weeks, final Statement within further 8 weeks

  24. Education – Duty to Make and Implement Statement Relevant provisions of the SEN CoP include: a. Statements should be ‘clear’ and ‘unambiguous’ (8.31); b. Part 2 should describe all the child’s learning difficulties (8.32 – emphasis as original); Part 3 must specify the special educational provision to meet identified needs in Part 2 (8.33); Part 3 should detail appropriate provision to meet each identified need (8.36); e. Part 3 provision should normally be quantified (8.37)

  25. Education – Tribunal Appeals Parents have right to appeal to First Tier Tribunal (Special Educational Needs and Disability) on specific decisions, including: Refusal to assess Refusal to make a Statement Contents of Parts 2, 3 and 4 of the Statement Refusal to re-assess Decision to cease to maintain a Statement Refusal to amend statement post Annual Review (NEW) Any other challenges must be by way of JR

  26. Education – School Transport • LEAs must arrange free suitable home-to-school travel arrangements for eligible children of compulsory school age for whom no, or no suitable, free travel arrangements have been provided • Distance from school • Unable to walk • LEAs may still provide school transport for non-eligible children but can charge • Duty to provide transport for children with Statements if attending nearest suitable school • LEAs (or Tribunal) can agree to name a parent’s preferred school on basis that parent funds / arranges transport

  27. Education – Exclusions Statutory guidance (Exclusion from maintained schools, Academies and pupil referral units in England - A guide for those with legal responsibilities in relation to exclusion) against excluding children with SEN/ disabled children But exclusion rate still 8 times higher... Permanent exclusions can be appealed to the Independent Review Panel (lost reinstatement power). Claims of disability discrimination can go to First Tier Tribunal (now including permanent exclusion)

  28. Key Education Duties SSEN Where a child has SEN which require an LA to ‘determine’ this provision through a SSEN, there is an absolute duty on the LA to ‘arrange’ the provision – Education Act 1996 s 324(5)(a)(i) This includes therapies which meet educational needs – including speech and language therapy No best endeavours defence – Sedley LJ in R (N) v North Tyneside BC (IPSEA intervening) [2010] EWCA Civ 135 28

  29. Key Education Duties Children out of education Local authorities must make arrangements for the provision of ‘suitable education at school or otherwise’ for children who ‘may not for any period receive suitable education’; Education Act 1996 s 19 Absolute duty, no resource qualification – Tandy Must be suitable for child’s individual needs; R (KS) v Croydon (2010); R (B) v Barnet (2009) 29

  30. Transition / Mental Capacity Transition - process (not event) of moving on from childhood to adulthood – and from children’s to adult services Often very poorly managed – ‘cliff edge’ / ‘black hole’ No reason in law why this should be the case: Clear duties to ensure effective transition Some of the fundamental duties remain the same – for instance s 2 CSDPA 1970 30

  31. Transition / Mental Capacity Young person’s wishes and feelings must be respected: CD v Anglesey – transition plan ‘substantially contrary’ to YP’s wishes and feelings V important recent case – ZH (Tanzania) – children’s best interests must be ‘a primary consideration’ Since 2004 – NSF for Children – multi-agency transition group to ensure needs of all disabled children, including most complex, are met. 31

  32. Transition Education Should generally be lead agency • SEN transition planning – year 9 annual review, transition plan • Learning Difficulty Assessments – s 139A LSA 2000 • Duty or power, depending on circumstances 32

  33. Transition S 139A – Learning Difficulty Assessments Alloway v Bromley [2008]: ‘[These statutory provisions] in my judgment, require the following: (1) an assessment of (a) the subject's educational and training needs and (b) of the provision required to meet them; (2) a written report of that assessment. In my judgment, the assessment of the provision to meet those needs should not be merely a set of recommendations as to what would in theory, or ideally, be required, but should identify what can actually (and realistically) be provided. To assess and report on merely theoretic provision would not, in my judgment, be provision which was “required to meet” the needs identified for the purposes of the section.’ 33

  34. Transition S 139A Guidance Titled: ‘SECTION 139A LEARNING DIFFICULTY ASSESSMENTS GUIDANCE FOR LOCAL AUTHORITIES’ Key points • Local authorities are responsible for ensuring that high quality and timely LDAs take place. Early identification of those requiring a LDA is essential to allow time for the commissioning of any necessary provision and support to take place. • Having determined that a young person requires a LDA a local authority must continue to support the young person up to the age of 25 if they stay in further education or training. • Local authorities must use the evidence from the LDA to make consistent, effective and robust decisions that will support the young person to move towards positive outcomes. • The LDA report must be specific about the level of need required and the support and learning provision required to meet needs. 34

  35. Transition Social Care • All duties founded on assessment – NHSCCA 1990 s 47 for adults • Primary duty to provide support – CSDPA 1970 s 2 • Directors of Adult SS must ensure ‘adequate arrangements’ in place for transition – statutory guidance • Personalisation – DPs, RAS, IBs etc – all lawful as ‘starting points’ (Savva) but duty remains to meet eligible assessed needs • Duties to DYP ‘leaving care’ – inc s 20 accomm: • Personal Advisor • Needs assessment leading to Pathway Plan 35

  36. Transition Duties to DYP ‘leaving care’ • Any young person accommodated under CA 1989 s 20 for more than 13 weeks, a day of which is after their 16th birthday, becomes a ‘former relevant child’ when the turn 18 • Former relevant children are entitled to: • A personal adviser • A pathway assessment leading to a pathway plan • Support (potentially including accommodation) under CA 1989 s 23C • These duties last until 21, or up to at least 25 if the young person remains in education or training • Access cannot be limited by eligibility criteria 36

  37. Transition Health • Duties for children and adults are fundamentally the same • Many therapeutic services delivered through SSEN • Health transition plan – at least good practice • Continuing care – re-assessment against adult framework at 17 • Children – assumed almost always multi-agency involvement • Adults – no social care involvement if ‘primary health need’ (Coughlan) • Can’t charge for NHS services 37

  38. Mental Capacity Act Became law in 2005 Applies in almost every respect from a YP’s 16th birthday - Chapter 12 of MCA Code of Practice; ‘How does the Act apply to children and young people?’ Only three exceptions: Only 18+ can make a Lasting Power of Attorney (LPA) Only 18+ can make an advance decision to refuse medical treatment The Court may only make a statutory will for a person aged 18 + 38

  39. Mental Capacity Act Definition of incapacity – MCA 2005 s 2(1): A person lacks capacity in relation to a matter if, at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of the mind or brain ‘Matter-specific’ approach to capacity - Time- and situation-specific 39

  40. Mental Capacity Act Four-part test for whether P has capacity to make a specific decision: Can P understand the relevant information? Can P retain that information? Can P use the information? Can P communicate the decision – by any means? 40

  41. Mental Capacity Act Principles: MCA 2005 s 1 • Presumption of capacity • No incapacity unless all practicable steps taken • Right to make unwise decisions • If capacity lacking, all acts or decisions must be in P’s best interests – have to identify the best interests (not a range) • Least restrictive alternative 41

  42. Mental Capacity Act Criminal offences MCA 2005 s 5 – general defence of act done in connection with care of treatment of person believed to lack capacity Specific offences: Ill-treatment and wilful neglect – MCA 2005 s 44 42

  43. Mental Capacity Act What the Code of Practice says… People carrying out acts in connection with the care or treatment of a young person aged 16–17 who lacks capacity to consent within section 2(1) will generally have protection from liability (section 5), as long as the person carrying out the act: - has taken reasonable steps to establish that the young person lacks capacity - reasonably believes that the young person lacks capacity and that the act is in the young person’s best interests, and - follows the Act’s principles. When assessing the young person’s best interests (see chapter 5), the person providing care or treatment must consult those involved in the young person’s care and anyone interested in their welfare – if it is practical and appropriate to do so. This may include the young person’s parents. Care should be taken not to unlawfully breach the young person’s right to confidentiality. 43

  44. Mental Capacity Act Rights to advocates IMCA – Independent Mental Capacity Advocates • Cannot take decisions for P • Work with P and represent his views 44

  45. Mental Capacity Act Rights for families to participate in best interests decisions: Helpful tool for families to use to persuade public authorities that they must be involved in best interests decision-making: www.irwinmitchell.com/MCAletter 45

  46. Mental Capacity Act Court of Protection Hears applications concerning the ‘property and affairs’ or ‘welfare’ of incapacitated people Challenges to failures to comply with public law duties still go to the High Court via JR May: • Make issue-specific Declaration of best interests • Appoint a ‘Deputy’ to take decisions for P – relatively rare 46

  47. Mental Capacity Act Deprivations of Liberty Specific Code of Practice and Schedule to the Act Arises from the ‘Bournewood gap’ – HL v UK • Safeguards required to ensure compliance with Art 5 ECHR Designed to protect people from being unlawfully deprived of their liberty – see Neary v Hillingdon Does not apply to families trying to protect young people – A Local Authority v A (A Child) [2010] 47

  48. Equality Act • Replaced most relevant provisions of DDA 1995 from 1st October 2010 • Disability now a ‘protected characteristic’ – EA 2010 s (materially the same as DDA definition) – further detail in Schedule 1 • Prohibited conduct: • Direct discrimination – s 13 (includes by association) • Combined discrimination – s 14 (not in force) • Discrimination arising from disability – s 15 • Indirect discrimination – s 19 • Failure to make reasonable adjustments – ss20-22 • Harassment and victimisation 48

  49. Equality Act Discrimination arising from disability No need for any ‘comparator’ Discrimination if: P knows or ought to know that a person is disabled P treats the disabled person unfavourably ‘because of something arising in consequence of’ his disability; and P cannot show that the treatment is a ‘proportionate means of achieving a legitimate aim’ 49

  50. Equality Act Reasonable adjustments Duty is anticipatory, continuing and evolving Three elements: Provision, criterion or practice – take reasonable steps to avoid disadvantage Physical feature – take reasonable steps to avoid disadvantage Auxiliary aid or service – take reasonable steps to provide 50

More Related