Legal update: Disabled children and the law

    Ed Mitchell examines recent court cases involving disabled children to help councils’ and practitioners’ decision-making remain within the law

    Busy practitioners working with disabled children will not welcome the distraction of legal challenges to their work. But one of the best ways to keep the lawyers out of the picture is to keep abreast of what the courts are saying. The key recent cases below will help practitioners ensure their practice remains lawful.

    Flawed care plan

    A 15-year-old girl with learning difficulties and impaired hearing was particularly vulnerable because she was at serious risk of sexual exploitation. The girl’s local council, Barnet, produced a care plan for her. In R (B) v Barnet LBC (November 2009), the High Court quashed the plan because it had a number of legal flaws. It was “largely descriptive with little proper analysis of needs”, had no “realistic plan of action” and “too often [Barnet’s] plan is little more than to arrange an appointment with someone else, to explore options”.

    College transport

    A v N Somerset Council (November 2009) involved a 16-year-old with Williams syndrome (a condition caused by an abnormality in chromosones that is similar to Down’s syndrome). He wanted to attend a particular college for his further education but his council refused to fund taxi transport because, in its opinion, a nearer college was just as suitable. The High Court quashed that refusal and it will have to be reconsidered. The council had focused too much on educational content and not appreciated that the way in which the course was delivered at the boy’s favoured college was better suited to someone with his disability.

    Passing the buck

    “Out of sight, out of mind” is the phrase that best describes the approach of a council criticised by the local government ombudsman in an October 2009 decision. The council was looking after a child who had a statement of special educational needs. It placed him in a children’s home out of county but made no arrangements for his schooling. When the lack of schooling came to light, the council in whose area the child was now living agreed to find a suitable educational placement for him. The placing council then suggested that it was not responsible for funding the placement, but relented after Department for Children Schools and Families guidance and accepted that it was responsible. In all, the child missed about six months’ schooling. The placing council agreed to pay him £2,000 compensation.

    Keeping disputes out of court

    In R (S) v Hampshire CC (October 2009), the High Court strongly criticised a child’s mother and her lawyers for resorting to law rather than using a local authority’s complaints procedures. An 11-year-old child had Asperger’s syndrome and a general anxiety disorder. He stayed at a residential school during term time, returning to his mother for holidays. The local authority concerned refused to provide care services for the mother during holidays. She claimed judicial review of the refusal. The High Court rejected the claim. The mother had made no attempt to resolve her dispute through the authority’s complaints procedure. Her solicitors had been “utterly wrong” to advise her to go straight to court.

    Ed Mitchell is a solicitor and editor of Social Care Law Today

    More legal updates

    This article is published in the 25 March 2010 edition of Community Care under the headline “Decisions affecting disabled children that broke the law”

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