A high court ruling has raised new concerns about how disabled people will be affected by the combination of three major government reforms of social care, and the funding crisis facing local authorities.
Two disabled children, known as L and P, were seeking a judicial review of a consultation by Warwickshire county council on its proposed “local offer”.
Under the coalition’s Children and Families Act (CFA), each local authority has to set out a local offer, describing the services it provides to disabled children and young people from birth to the age of 25, as well as eligibility criteria, and how to access support, complain or appeal.
The case was the first judicial review to consider council’s duties to disabled children under the CFA reforms brought in last September.
Warwickshire’s local offer included changes to disabled children’s social care and new criteria for accessing assessments and services, and followed its decision to cut nearly £1.8 million from its budget for disabled children’s services.
Mr Justice Mostyn found that Warwickshire’s local offer fell “a considerable distance short of the statutory requirements”, while the council had breached its legal duty to maintain a single register of disabled children in the county.
But he also found that the council had not breached duties to consult with families on its proposed new local offer, or on cuts to funding.
And he said that Warwickshire’s proposal to deny disabled children the automatic right to a social care assessment – instead requiring a family to prove that their child’s needs were very complex in order to secure an assessment – was not unlawful.
Polly Sweeney, from the public law team at solicitors Irwin Mitchell, which is representing L and P, said she hoped the judgment “sends out a message to local authorities that they have to take their new duties [under] the Children and Families Act 2014 seriously”.
But she said she was “very disappointed” with the ruling that disabled children were not automatically entitled to a social care assessment, and was “concerned” that this could leave children across the country in “a vulnerable position without access to proper assessments”.
Irwin Mitchell plans to appeal the finding that the council consulted properly on its proposals to limit access to social care.
Sue Bott, director of policy and development for Disability Rights UK, said the ruling appeared to be a backwards step, after the positive content of much of the CFA.
She said the intention within the CFA to provide personalised support for disabled children and their families would “fall down if there are not sufficient resources”.
She said: “The judgment on first reading does seem to raise more questions than it answers.
“If the court is saying you have to have a register, how can you have a register unless you assess people?”
She added: “What it does demonstrate is that local authorities have been very slow to react to the CFA and the need to have a local offer in place passed a lot of them by.”
She said this “bodes ill” for the implementation of the Care Act from April and the closure of the Independent Living Fund at the end of June, on top of the CFA.
She said: “I think it does raise huge concerns because as we know there is not enough money in the system.
“It makes a mockery of the changes. The [Care Act and the CFA] are full of good intentions but they have got to be adequately funded. Disabled people will only benefit if the money is there.”
A Warwickshire county council spokeswoman said: “In a case heard last week, the court judgment found in favour of the council on three out of five grounds cited by the claimant against the council’s decision-making process around redesign of services for disabled children and young people.
“The principal ground of challenge was that the council was under a common-law obligation to consult before deciding to make a cut in a budget for services for vulnerable people.
“This was not a view held by the court and we are pleased with this judgment confirming that our processes are lawful and proper.
“The court also dismissed two other grounds raised by the claimant concerning an obligation on the local authority to carry out social care assessments of any disabled child and inadequate consultation about local offer of care and support for children and young people.
“On two issues the court did support the complainant, concerning the development of the council’s proposed local offer for children with special educational needs and disabilities and the absence of a voluntary disability register.
“The council has already taken steps to ensure these issues are addressed by 31 March 2015.
“The judge agreed that Warwickshire was in a similar position to other local authorities in that more work is required on its local offer and we are already working closely with families to make improvements to the support available to these children and young people.
“We will also be putting in place arrangements for a children’s disability register where parents, if they wish, can register their child.”
6 February 2015