Best interests and mental capacity
Nicholas Endean | 04.05.2018
18.07.2017 Nicholas Endean
A recent investigation by the Local Government & Social Care Ombudsman ("Ombudsman") in a case involving a young disabled man has confirmed that Children’s services in Croydon had failed to meet their combined statutory duties under the Children Act 1989 and the Chronically Sick and Disabled Persons Act 1970 to provide support services.
We learn that as a result of the failure to provide support, combined with the failure to provide regular short breaks or respite care, the disabled young person in this case became hospitalised after suffering a major epileptic fit and his grandmother became ill due to stress.
Children's Services had taken so long to complete a transition assessment (in order to identify what social, health and educational needs the young man might require by way of support in adulthood) that he had not received any support, or had a transition assessment, before his transfer to Adult Services.
The grandmother's struggle reported in this case to obtain agreement from Children's Services to fund regular short breaks and/or respite care is a well-documented problem, and yet it has been recognised (not least by the former Department for Education and Skills, now the Department for Children, Schools and Families) that a short break or respite care is one of the most important support services than can be provided to families with disabled children.
Sadly all too often we hear from families who detail their battle with Children's Services to obtain agreement to fund the cost of such a vital support service, despite the fact that the Local Authority is required to provide short breaks or respite care and other services under the Chronically Sick and Disabled Persons Act 1970 to all those disabled children assessed as in need.
In this Croydon Borough Council case, the Ombudsman concluded there was an "urgent need" for a transition assessment to be completed. The Local Authority's defence that they had failed to provide support to this disabled boy and his grandmother because of the withdrawal of support by a care provider was dismissed by the Ombudsman.
The Ombudsman was clear that regardless of any withdrawal of support by a care provider, the Local Authority still has a duty to replace and provide support to a disabled child in need, and in this case, the Local Authority had failed to do so.
We hope the Ombudsman's report in this case will serve to remind Local Authority's of their statutory duties to support disabled children and their families, ensure they adequately discharge all of their duties in relation to education, health and social care needs, and prevent families with disabled children from suffering harm in the future.
H M Treasury/Department for Education and Skills, Aiming high for disabled children, 2007 Children Act 1989 Chronically Sick and Disabled Persons Act 1970 Disabled Persons (Services, Consultation and Representation) Act 1986 Report by the Local Government and Social Care Ombudsman, Investigation into Complaint against London Borough Council, Ref: 16 006 391, 4 July 2017