A ‘What’s New’ post contributed by Priya Bahri of the Disability Law Service.
Autistic children and care assessments – the problem of local authority eligibility criteria’s.
The Disability Law Service is a legal charity that represents disabled adults and children and their carers in need of legal advice in the fields of Community Care, Employment, Discrimination and Welfare Benefits.
The Community Care team has become aware that some autistic children are being denied an assessment from their local authority’s Children with Disabilities’ team due to unlawful policies. The team is aware of three local authorities that have such an unlawful policy in place.
The problem with local authority Policies
The general problem with local authority policies of this kind is that their ‘eligibility criteria for an assessment’ often exclude autistic children unless they also have another disability or health issue.
An example of a policy from one of the local authorities is: –
The 0-25 service provides a service to children who have a: –
- Severe physical or learning disability or sensory impairment;
- Profound multiple disability;
- Children with complex and severe health needs including chronic or life limiting illnesses;
- Children attending special schools with a moderate learning disability;
Children with autism who also meet one of the above criteria.
The problem with this policy is that it excludes autistic children who attend mainstream schools or special schools, but who do not have a moderate learning disability.
Why is this policy unlawful?
The Children Act 1989 requires local authorities to provide services designed: –
- To minimise the effect on disabled children within their area of their disabilities’;
- To give such children the opportunity to lead lives which are as normal as possible.
The authority’s duty is to safeguard and promote the welfare of children within their area who are in need and to provide a range and level of services appropriate to those children’s needs.
Autism is a protected disability under section 6 of the Equality Act 2010. Autistic children will be protected under the Equality Act definition if their condition has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.
A policy that excludes children who are autistic from appropriate care is a form of direct discrimination as the authority is treating them less favourably than those with other disabilities’.
Additionally, this policy states that a child must have autism, as well as an associated condition to be considered for their services which is indirect discrimination.
Moreover, local authorities are to have regard to the need to eliminate discrimination as well as the need to promote equality between children with autism, and children with other disabilities (or between children with autism and non-disabled children).
The community care team at the Disability Law Service is working on a case involving a young person with autism who also has difficulty regulating his emotions and becomes frustrated and angry due to his complex needs and limited support. He lives with his mother and four other siblings, one of whom has a mental health condition.
He requires 1:1 support in getting ready for school while his mother helps her four other children get ready. He also requires help to destimulate after school to help him manage his behaviour towards his mother and siblings.
He was refused an assessment from the local authority specialist disabilities team because he did not meet their criteria, and instead had a Child and Families assessment where the outcome was early help support to provide information services in the community that specialise in autism. This was not sufficient to meet his needs and despite a further assessment by the same team the package of support proposed is still insufficient to meet his requirements for daily personal care, and support with activities.
If a child is not eligible for an assessment by the Children with Disabilities’ team, then local authorities may decide to refer the child to a different team within Children’s services. The problem with this is that the resources may not be the same, the eligibility criteria may be different, the assessing social worker may not have appropriate expertise and the necessary support may not be available – ie home care services, play schemes, short breaks, and social work support.
There is a real need for an assessment by the specialist disabilities team as without a lawful assessment that identifies the needs of an autistic child, there is a risk of significant harm if a child’s needs are not being met.
Although an autistic child may not have one of the specified additional conditions, they may have a significant autism related need which could be identified through an assessment by the specialist disabilities’ team within local authorities. Although people on the autistic spectrum share certain characteristics, they are highly individual in their needs and preferences and therefore the condition affects everyone differently.
We are concerned that other local authorities may be discriminating against autistic children in similar ways. We are also concerned about the impact unlawful policies may have on autistic children.
The Disability Law Service is campaigning to bring about a change in the way local authorities assess and care manage the needs of autistic children so that they have the same opportunity to receive support on an equal basis to all other disabled young people. We believe that this must involve (among other things) the right to be assessed by social workers with Children with Disabilities’ expertise.
If you are aware of policies that exclude autistic children then please contact us on the details below. Telephone – 0207 791 9800, Email – firstname.lastname@example.org
 Children Act 1989 Schedule 2 para 6.
 Children Act 1989 section 17.
 Children Act 1989 section 17(11).
 Mental Health Act 1983 section 1.
 Upper Tribunal decision in X v The Governing Body of a School  UKUT 7 (AAC) ELR 133
 Equality Act 2010 section 13(1).
 Equality Act 2010 section 19(1).
 Equality Act 2010 section 149.