Direct payments and disabled children
An earlier posting[1] considered an important local government ombudsman decision. The decision confirmed that: (1) parents of disabled children have a right to opt for a direct payment even if they have been offered a council funded service (for example respite care / short breaks care etc);[2] and (2) that this right exists regardless of their child’s ‘level of disability’. Let’s call this the 2021 decision.
The ombudsman held that the council’s policy of restricting direct payments to those disabled children who met the eligibility criteria for being assessed by its Disabled Children’s Team, was unlawful – or as the ombudsman prefers to phrase it ‘did not comply with the Children Act 1989 or the Children and Families Act 2014’.[3] It appears that only 2.5% of disabled children in England are, at any one time, receiving support from a Disabled Children’s Team.[4]
The council accepted that it was at fault and agreed to review its decision to refuse direct payments and – among other things – to review (within six months) its policy / practice on such payments and its eligibility criteria ‘to ensure these are in line with the relevant legislation’.[5]
A year after this decision the ombudsman published a similar fact report[6] concerning the same council – where the council had refused to make direct payments because the disabled child in question was not being assessed by its Disabled Children’s Team. Let’s call this the 2022 decision.
The ombudsman noted that his investigator had already held this policy to be non-compliant with the law and yet, the council had carried on regardless – to the point that the complainant had had to her pursue her complaint all the way to his office. Once more the ombudsman required the council to take action to ensure that its policies / practices were legally compliant – requiring (among other things) that it write to all families with children who were receiving short breaks through its Early Help service, to tell them:
- about the changes to the Council’s direct payments policy for disabled children, following the review it agreed to carry out after his 2021 decision;
- that they can now request a direct payment to arrange their short breaks if they wish to do so and the Council will consider this; and
- if they have previously requested a direct payment for short breaks and this was refused, they can complain to the Council and ask it to reconsider.
Let’s now turn the dial back to the original December 2021 decision.
The council had agreed (in addition to reviewing its policy and eligibility criteria) to review its decision that the complainant was not eligible for a direct payment. In due course the council undertook a re-assessment – for which the assessing social worker arrived unannounced and (from the complainant’s perspective) ‘made the assessment feel like a child protection assessment by speaking to [her disabled son] alone in his room’.[7] The council then refused to make direct payments because it considered that the council funded service it was offering was able to meet her son’s needs: in essence, a conclusion directly contrary to the ombudsman’s December 2021 decision.
This left the complainant with little or no choice but to make a further complaint: let’s call this the 2023 decision.[8] It then took the council four months to admit that it didn’t have a leg to stand on, and to apologise. In due course it also accepted that its website still contained the same flawed eligibility criteria that had been condemned by the ombudsman in the 2021 decision.
These cases are testimony to the tenacity and legal literacy of parents when confronted by councils that fail to understand their legal responsibilities and fail to comply with these responsibilities even when the ombudsman has taken the trouble to explain them in simple terms. Sadly, there is a long tradition in public sector of councils behaving this way – of agreeing to review polices and then failing to see this through – for example, by failing to retrain staff; by failing to revise website materials; by failing to amend their template forms; and so on.[9]
Credit must also be given to the ombudsman for getting to grips with the legal duties of councils in cases such as this, and for then spelling them out in straightforward terms to councils. However, aspects of both the 2021 and the 2023 decisions are open to criticism.
A significant problem with the 2021 decision was analysed in some detail in the earlier posting[10] – namely the ombudsman’s unwillingness to find that the respite centre (to which the disabled young person had to be dragged and then restrained / blocked from leaving) was unsuitable. As the 2023 decision notes the young man’s mother subsequently asked the council to provide her with copies of the risk assessments that had been compiled for these incidents and for copies of the relevant restraint policies. Although the council had agreed to share these with her, it appears that this has not happened.
A troubling statement in the 2023 decision concerns the fact that the flawed direct payments policy remained on the council’s website for well over a year (after its defective nature was identified by the ombudsman) and that council staff continued to apply this policy during this period. There must, therefore, be a likelihood that families would have read the on-line policy and believed (wrongly) that this meant that they were not entitled to receive direct payments. This concern is simply dismissed by the ombudsman (at para 44) stating ‘My enquiries found it has not caused any other person who has not already complained an injustice.’ How, as a matter of basic logic can a non-clairvoyant ombudsman come to such a conclusion?
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The evidence suggests that a number of councils operate policies of the kind criticised by the ombudsman in these reports: policies that deny direct payments to disabled children if they are not being care managed by their Disabled Children’s Teams and policies that prohibit the making of direct payments to cover directly commissioned services such as Early Help respite care.[11] If one is to be charitable, these problems stem from a misunderstanding by practitioners of the legal rights of disabled children and their families to a range of services under the Chronically Sick and Disabled Persons Act 1970 and the Children Act 1989. On this basis there is, therefore, a pressing need for practitioners to have training on these matters.[12] The research suggests that this is simply not happening.[13] Even without evidence of such widespread failure, one would expect that the importance of legal literacy training of this kind to be flagged up in the current statutory assessment guidance ‘Working Together 2018’. Sadly, the guidance is silent on this issue.
The Department for Education is currently consulting on how ‘Working Together 2018’ should be updated and those responding to the consultation might wish to highlight the importance of the revised guidance including specific mention of the need for appropriate legal literacy and disability awareness training.[14]
[1] Direct payments and disabled children with the ‘wrong impairments’ 26 March 2022.
[2] Liverpool City Council (20 012 558) 14 December 2021 para 30 and see also Liverpool City Council (22 009 514) 11 April 2023 para 31.
[3] Liverpool City Council (22 000 114) 13 Dec 2022 para 49. The prevalence and impact of policies of this kind are considered in L Clements and A Aiello Institutionalising parent carer blame (Cerebra 2021) paras 5.01 – 5.12.
[4] L Clements and A Aiello Challenging Parent Carer Blame: Interim implementation research report 1 (Cerebra 2022).
[5]Liverpool City Council (20 012 558) 14 Dec 2021 para 37
[6] Liverpool City Council (22 000 114) 13 Dec 2022.
[7] Liverpool City Council (22 009 514) 11 April 2023 para 28. For a critical analysis of practices of this kind see L Clements and A Aiello Institutionalising parent carer blame (Cerebra 2021).
[8] Liverpool City Council (22 009 514) 11 April 2023.
[9] See generally L Clements Clustered injustice and the level green (Legal Action Group 2020) pp 82-83.
[10] Direct payments and disabled children with the ‘wrong impairments’ 26 March 2022.
[11] See for example, L Clements and A Aiello Institutionalising parent carer blame (Cerebra 2021) paras 5.01 – 5.12.
[12] Something considered of major importance by the Parent Carer Groups and Parent Carers in their Draft in their draft ‘fit-for-purpose’ Guidance for the Assessment of Disabled Children & their Families (para 7 page 2) which can be assessed by clicking here.
[13] See for example L Clements and A Aiello Challenging Parent Carer Blame: Interim implementation research report 1: Disability and human rights training and guidance for disabled children’s assessors (Cerebra 2022) page 3.
[14] For a briefing note on the consultation – click here.
Posted 14 July 2023