Duty Of Care
By Rebecca Whippy
On 10 July families of special needs and disabled children protested outside County Hall in Lewes with regard to the threatened closure by East Sussex County Council (ESCC) of after-school, holiday and overnight provision facilities. These have historically been provided for children that attend special educational schools in the area, but are now said to be no longer affordable.
The ensuing meeting of the full county council saw councillors in heated debate. Feelings ran high as the onus on the council to make sure the figures add up ran up against its duty of care to those that are the most vulnerable in the community.
So what are the obligations of the local authority with regard to these families?
The obligations under primary legalisation with regard to those that have a disability can be found in a number of different statutes. Briefly put, they require a county council to ensure that such children can access educational support and social care.
s2 of the Chronically Sick and Disabled Persons Act 1970 (CSPDA 1970)
States that a local authority should meet the needs of a disabled person by making arrangements for:
• practical assistance in the home;
• obtaining a radio, TV, library or similar recreational facilities;
• the provision of lectures, games, outings or other recreational facilities away from home or assistance in taking advantage of educational facilities that are available;
• help travelling to and from home for certain purposes;
• adaptions to a home to secure safety, comfort and convenience, facilitating holidays;
• provision of meals at home or elsewhere;
• the provision of a telephone and any special equipment necessary to enable the use of a telephone.
The above provisions are a legal entitlement (not a luxury) to those people assessed as needing them.
So how does the local authority judge whether a child needs any of the above services?
The gateway to provision under CSPDA 1970 is meeting the criteria of being a child ‘in need’ under the Children’s Act 1989. By virtue of having a disability, the law says a child is automatically ‘in need’.
The legal definition of disability is out of date but, thankfully, very broad. It encompasses if a child is:
‘blind, deaf or dumb, suffers from a mental disorder of any kind, is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed’.
Clearly a significant proportion of children would come under the lawful definition of ‘disabled’ or otherwise ‘in need’ – perhaps more than many local authorities are aware.
If you have a child that meets these criteria, but has not been assessed by East Sussex Social Care, especially if he or she has been a victim of the cuts to after-school, Saturday and respite clubs in the county, I would recommend that you take legal advice.
• Embrace East Sussex offer an affordable law service to those families in such a position and can be contacted on 01323 404775.
• Rebecca Whippy (ACILEx) is a Legal Professional and CEO of disabled children’s charity Embrace East Sussex, based in Eastbourne.
We hope you have enjoyed reading this article. The future of our volunteer led, non-profit publication would be far more secure with the aid of a small donation. It only takes a minute and we would be very grateful.