A new High Court ruling means that councils have to completely re-evaluate their eligibility criteria for disabled children’s services. By pupil barrister Steve Broach and Every Disabled Child Matters campaign officer Louise Franklin
All councils operate different eligibility criteria to determine access to disabled children’s services. It has not been clear what the legal basis was for these criteria. Now, thanks to a High Court ruling, they are all potentially unlawful.
The case, JL and LL v Islington, involved a boy with autism and his mother, whose support package was halved after new eligibility criteria were introduced by Islington. The judge, Mrs Justice Black, found for the claimants, who were represented by Doughty Street Chambers, and quashed Islington’s eligibility criteria.
Firstly, the criteria failed to distinguish between services provided under a legal duty and those which the council had a power to provide. As with most councils, Islington’s eligibility criteria did not reflect the legal basis for providing services. Councils will now have to be clear about which legal duty or power they are operating under.
For instance, the judge ruled that short breaks could fall within section 20(1) Children Act 1989, which triggers an absolute duty to provide the service. Councils will also need to consider the often-forgotten Chronically Sick and Disabled Persons Act 1970, section 2 of which creates a wide-ranging duty to provide support.
Secondly, the judgment found that Islington had breached its duties under section 49A of the Disability Discrimination Act 1995. This duty was inserted into the DDA in 2005 and requires public bodies to have due regard to the need to eliminate discrimination and promote equality of opportunity.
Following the judgment, any council operating eligibility criteria will have to show how the criteria fit with this duty in order to be acting lawfully.
Children in need assessments
Thirdly, the judgment emphasised the need for councils to conduct proper “children in need” assessments of disabled children before applying any eligibility criteria. This had not happened in the Islington case, and nor does it generally happen. Many families are simply told that their child is not eligible for services on the basis of their diagnosis. That approach is now clearly unlawful.
Every council will need to consider the impact of JL and LL v Islington on how they provide services for disabled children. So too will the government because the judgment strongly recommends that central guidance is needed. We expect the judgment will increase the number of disabled children who can access the support they need by right.
Steve Broach is a pupil barrister at Doughty Street Chambers, and was previously campaign manager for Every Disabled Child Matters. Louise Franklin is senior campaign officer for Every Disabled Child Matters
Published in the 26 March 2009 edition of Community Care under the headline Eligibility Rules Quashed