Luke Clements

Direct payments and disabled children with the ‘wrong impairments’.

A parent complained that a local authority commissioned ‘Early Help’ service (for ‘short break’ sessions) was unsuitable for her son.  She complained that the Council had offered no alternative and that her son had to be dragged from the car to get him into the short breaks centre which was distressing for him and for her.[1]  She asked for a direct payment so that she could purchase something more appropriate.  

The authority accepted that her son’s impairment meant that he was ‘disabled’ for the purposes of the Children Act 1989, section 17(11), but said he was not sufficiently disabled to warrant an assessment by the Disabled Children’s Team.

It said it had a graduated approach to services as follows:

• Level 1 (universal help);
• Level 2/3 (early help);
• Level 4 – statutory intervention.

Level 4 was only available for ‘a child in need of protection’ or one that had complex care needs and disabilities which requires specialist services.  It stated that only children at Level 4 were eligible for direct payments.

In finding maladministration the Local Government Ombudsman[2] simply noted that the son was ‘entitled to direct payments under the 1989 Act regime because he is disabled’ (para 30).  This is a welcome confirmation of the law (see however postscript at the end of this note).

Although to lawyers (and the ombudsman) this may seem to be simple statement of what the law says – for many families (and front-line Children’s Services workers) – it will be a revelation.  Our research[3] suggests that many (probably most) Children’s Services departments operate similar policies.  They take the view that only certain disabled children – ie children with the ‘right impairments’ – are eligible for the range of support services (including direct payments) reserved for disabled children under the Children Act 1989 and the Chronically Sick and Disabled Persons Act 1970.  This is – as the ombudsman held – simply wrong.  A disabled child’s need for support depends on their needs and not on which Children’s Services team assesses them. 

Front line workers in many social children’s services departments think that support – such as ‘short breaks’ / ‘respite care’ provided to disabled children and their families under their ‘Early Help’ scheme is not a Children Act 1989 service – and so not one for which direct payments can be made.  That is not so.  If a disabled child and/or their family is assessed as needing support of this kind – eg short breaks’ / ‘respite care’ etc. – that  support is provided under the 1989 / 1970 Acts and as such section 17A of the 1989 Act (and its associated regulations[4]) provide that there is a right to a direct payment rather than a commissioned service.

In our 2021 research we drew attention to two similar ombudsman cases.   

1. A 2021 ombudsman report[5] concerned a parent experiencing considerable difficulties caring for her son who had genetic and developmental conditions, learning difficulties, Pathological Demand Avoidance (PDA) and autism.  She requested that the authority undertake a Parent Carer Needs Assessment (PCNA) – ie to assess her needs for support / breaks etc arising out of her caring responsibilities.  Parents of disabled children have a statutory right to a PCNA (Children Act 1989 s17ZD).

This was not done because the authority’s Disabled Children’s Team considered that her son did not meet its the threshold for an assessment.  As a result of the ombudsman’s investigation the council accepted that it was at fault, and in addition to paying compensation it confirmed that it would complete a PCNA and if this concluded that the parent was ‘eligible for support, begin that support without delay’. 

2. A 2018 LGO report[6] concerned a child with significant mental health needs and in relation to whom there was professional acceptance that respite care was ‘needed to prevent a family breakdown’.   This support was the refused, however, because the child’s  impairment was not sufficiently severe to enable a service to be approved by the Council’s Child Health and Disability Team. 

In finding maladministration the Ombudsman noted that ‘Regardless of which team provided the care, the Council assessed the need and was under a duty to provide [the child] with respite’.

Subsequent to the 2021 research further ombudsman reports have demonstrated that policies of this kind are pervasive.  A report concerning a complaint against West Sussex County Council[7] noted that the authority had refused to assess a young person (although it accepted he was ‘disabled’ for the purposes of the Children Act 1989) because it considered that he had the ‘wrong’ type of disabilities.  His mother had requested a direct payment to enable his needs to be met, but was told that this was not possible because his impairments did not match the requirements of its Child Disability Team. In finding maladministration the ombudsman was concerned that the council was ‘gatekeeping’ access to its services: that the existence of such a specialist team could not be used as a reason for refusing assessments for a requested outcome such as a direct payment.

A report on a complaint against Cheshire West & Chester Council[8] concerned a parent’s request that her disabled child be assessed by the Children with Disabilities (CWD) team. The council decided that the child did not meet this team’s criteria and it also decided that the child’s needs did not meet its threshold for ‘Early Help’ or social work intervention – without explaining why.  The ombudsman’s report notes that ‘It is for the Council to identify the appropriate team to carry out the assessment’ but the council failed to explain to the parent that the ‘assessment process would be the same whether or not it was carried out by the CWD team’.

 

Why do so many councils have such policies?

There appear to be a number of reasons why children’s services authorities have such policies, including:

• The absence of central government guidance that spells out what local authorities should and should not do.  As the 2021 research concludes, ‘Working Together 2018’ (the key Department for Education guidance concerning ‘children in need’) is unfit for purpose when it comes to addressing the nature and scope of councils duties to disabled children and their families.  It – in effect – simply states that this is a local issue for which authorities should develop local policies.
• The impact of austerity economics and in consequence most councils are seeking to ‘gatekeep’, ration support services and to create administrative barriers to those seeking their legal entitlements. 
• The failure of the Coalition Government’s ‘localism’ programme.  Most councils are not willing or able to develop truly local policies: policies that comply with their legal obligations and ones that result from open discussions with the full range of disabled young people, their families and their independent support groups.  Instead, authorities tend to look around and copy policies that other authorities are using.  In relation to ‘local assessment protocols for children in need’ the 2021 research demonstrated that most are remarkably similar (if not identical).  The research concluded that in consequence there was, therefore, a pressing need for the Department for Education to grasp the nettle and issue legal and fair guidance to correct the widespread failure.

 

Postscript 

As noted above, the recent ombudsman’s report arose because the young person’s respite support was considered inappropriate by his mother: he had to be dragged from the car to get him into the respite centre – causing him and her distress.

Although the ombudsman held that the family was entitled to direct payments to pay for alternative support – the ombudsman was not prepared to say that the respite centre was unsuitable.  The council stated that the disabled young person ‘settled well once inside’ the centre and on this basis the ombudsman declined to recommend compensation for the family’s expenses incurred in arranging for alternative provision.  In the ombudsman’s opinion there was a service available to the disabled young person (ie the respite centre).

 

Let’s unpick this troubling statement.

An explicit statutory purpose of ‘short breaks’ support is to ‘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’ (Children Act 1989, Schedule 2 Part 1 para 6).

There is no dispute that the family considered that the short breaks centre to be unsuitable: from the mother’s perspective she had the distress of dragging her son from the car and witnessing the staff stopping him from leaving.  Regardless of whether this was an ordeal from which the disabled young person recovered – it was uncontested that this was an experience that severely impacted on the mother’s well-being.  It was certainly not a service that gave her a break (as defined by Schedule 2 Part 1 para 6 of the 1989 Act). 

The Council is under a statutory duty to approach the assessment of a parent’s ‘well-being’ (when deciding what appropriate support arrangements are required) by having regard to ‘the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being’ (see Children Act 1989 s17ZD(11) and Care Act 2014 s1(3)).  The parent in this case made it abundantly clear that her experience of the service was severely undermining her ‘mental health and emotional well-being’ (ie Care Act 2014 s1(2)) and there is no evidence that in the ombudsman’s report that this ‘default position’ (ie that the parent is the best judge of what is appropriate for her) was considered – let alone that any evidence to rebut this presumption was available.

What – one wonders – is the point of having such a statutory presumption if it is ignored by the ombudsman in cases such as this?

 

Posted 26 March 2022