Monday 12 December 2011

Challenging cuts to services: using the law

Steve Broach is a barrister at Doughty Street Chambers. Before coming to the bar, he was campaign manager for the Every Disabled Child Matters campaign. He previously worked for the National Autistic Society and TreeHouse, the national charity for autism education (now called Ambitious About Autism).  On top of all that, he is a totally fantastic chap and a real autism and disability hero, who most definitely has his underpants on over his trousers ;-)

I am reproducing here an article he wrote in the UK’s Law Society Gazette, entitled ‘How the law can be used to fight cuts to services for disabled people’.  The piece is long, so will be covered over 3 blogposts.  It will look at: introduction, legal duties and best interests (part 1); consultation and human rights (part 2); disability equality duty and conclusion (part 3).

Disabled children and disabled adults need significant support from public bodies to help them lead ordinary lives. These groups require both specialist and targeted services and flexible universal services which can be adapted to their needs.

The past decade has seen services for disabled children and disabled adults improve, albeit patchily, under a focused programme of investment. A key example of this is the Aiming High for Disabled Children programme, which led to over £800m being spent on improving disabled children’s services during the last spending review period.  However, it is precisely because of these large sums that disabled children and disabled adults are likely to be hit hardest by the coming cuts to public services.

This was made clear at last week’s National Autistic Society professional conference in Manchester, where hundreds of delegates from all over the country expressed serious concern about the future of services for children and adults with autism, from specialist education services to services helping adults with autism to enter employment.

I am concerned here with some of the general legal obligations which may be used by disabled children, disabled adults and their advocates to resist spending cuts. And it should also be remembered that where a duty arises to provide a service to an individual, compliance with this duty is likely to be necessary regardless of whether there is sufficient money in the budget. Decisions by public bodies that run contrary to their statutory duties, for example to slice a fixed percentage off the allocation of personal budgets in adult social care, are highly likely to be overturned by the High Court.

Legal duties
There are four key duties that can assist in fighting proposed cuts to services for disabled children and disabled adults:
      1.  The duty to ensure that children’s best interests are a ‘primary consideration’ in decisions affecting them and that public bodies carry out their functions having regard to the need to safeguard and promote children’s welfare;
      2. The duty, if consulting on a proposed change to a service, to do it properly;
      3. The duty to respect disabled children and disabled adults’ human rights, particularly their right to family and private life; and
      4. Section 49A of the general disability equality duty in the Disability Discrimination Act 1995, to be replaced from 1 April by the public sector equality duty under section 149 of the Equality Act 2010.

Best interests
One of the central obligations under the UN Convention on the Rights of the Child (Article 3) is that in decisions affecting children, their best interests should be a ‘primary consideration’. In ZH (Tanzania) [2011] UKSC 4, a case involving the proposed deportation of a mother to Tanzania when her children were British citizens, Baroness Hale stated that while all other considerations could outweigh a child’s best interests, ‘the important thing…is to consider those best interests first’.
In the context of cuts to disabled children’s services, the ‘best interests’ duty requires the impact of the decision upon them to have been the first consideration in the minds of the decision-makers. Any decision to cut services without children’s best interests being a primary consideration is therefore potentially unlawful. The requirement to act in children’s best interests could be enforced in the courts by the child, their parent or another person close to the child.

A key route under which the courts can consider whether proper regard has been had to disabled children’s best interests is through section 11 of the Children Act 2004, which requires public bodies to have regard to the need to safeguard and promote the welfare of children in carrying out their functions. Public bodies are not required to actually safeguard and promote children’s welfare under this duty, but they must consider this issue when reaching their decisions. Any decision to cut or withdraw a valued service to disabled children which does not see an alternative service put in place may be open to challenge under this duty on an application for judicial review.

Please stay tuned for part 2 on 'consultation' (i.e. a public body's duty to consult properly over proposed changes to services) and 'human rights'.  If you'd like to receive a notification email when the next blogpost is posted, please enter your email address in the 'follow by email' box (top right).

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