Three in 10 councils risk legal challenge over short breaks

Twenty-eight per cent of local authorities could face legal challenges over the criteria for short breaks for disabled children

Twenty-eight per cent of local authorities in England could face legal challenges over the criteria used to asses disabled children’s eligibility for short break respite care, according to a survey by Every Disabled Child Matters.

Out of the 60 councils that responded to EDCM’s survey – 10% were at risk because they only provided parents with a list of local services, each with individual criteria. Another 10% were at risk for placing blanket exclusions on some groups of disabled children. Eight per cent of councils said they did not provide public information about eligibility criteria, while 10% placed a cap on the number of hours of short breaks disabled children are able to access.

EDCM identified all of these areas as bad practice that could put councils at risk of legal challenge. Maximum caps on service provision or on sums of money are unlawful and all children in need must have equal access to services.

The survey was carried out to determine local authority readiness for the Short Break Duty applicable from April 2011.

Christine Lenehan, director of the Council for Disabled Children, said that while many local authorities were at risk, it was not necessarily their fault because there has been no guidance on the matter.

“Historically, in times of tightened budgets, local areas have restricted their eligibility criteria for short breaks. Local authorities need to be provided with guidance on how to produce eligibility criteria to help them navigate the legal maze surrounding this issue. We recommend the Department for Education should include this clarification in the guidance they create on the delivery of the duty to provide short breaks.”

The charity also pointed out that many local authorities could run into trouble for creating their own definition of disability for the purpose of settling eligibility criteria. It is often done because the Children Act 1989 uses inappropriate language and does not reflect the legal definition of disability. However, EDCM advised councils to use the legal definition in the Equality Act 2010 instead.

Another potential pitfall is basing eligibility on the severity of the child’s impairment alone. Local authorities, EDCM stated, should always take into account parenting capacity and environmental factors.

EDCM also stressed it is important that children are not seen as being in fixed bands. A minority of local authorities said they placed age limits on the services provided – for instance, only children over the age of five being entitled to short breaks. These areas assumed that under-five’s were taken care of by the early years service , but EDCM said councils have a duty to assess the needs of all disabled children aged 0-18.

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