Children looked after by local authorities: legal framework

This report describes key aspects of the law as it applies throughout a child's journey through public care and supervision.

Footnotes for Children with disabilities

1 Disability Discrimination Act 1995, s1(1)

2 Nisbet, Ian 'Disability and the Law' in Baillie et al (eds), (2003) Social Work and the Law in Scotland (Wales, Palgrave/ OUP), pp 116 -117

3 Disability Rights Commission (2002) Disability Discrimination Act 1995 Code of Practice: Rights of Access - Goods, Facilities, Services and Premises - See Appendix 'The Meaning of Disability' This is a statutory code prepared at the request of the Secretary of State for Education and Employment and applies to Scotland, England and Wales

4 C(S)A 1995, s22

5 C(S)A 1995, s93(4)

6 C(S)A 1995, s23(1)

7 Children (Scotland) Act 1995 Regulations and Guidance Volume 1 Support and Protection for Children and their Families Chapter 6 - Children and Disability, paragraphs 32,37,41,53

8 Standards in Scotland's Schools etc. Act 2000, s15

9 SISSA 2000, s15(4)

10 Disability Discrimination Act 1995

11 DDA 1995, s21

12 Petch, Alison 'Care in the Community' in Baillie et al (eds), (2003) Social Work and the Law in Scotland (Wales, Palgrave/ OUP), p126

13 Social Work (Scotland) Act 1968, s12A, as inserted by the NHS and Community Care Act 1990, s55

14 C(S)A 1995, s23(3)

15 C(S)A 1995, s24

16 Community Care and Health (Scotland) Act 2002, ss9 and 10, amending the Social Work (Scotland) Act 1968 and the C(S)A 1995 respectively

17 ibid, ss 10 and 11, see also CCD 2/2003 Community Care and Health (Scotland) Act 2002: New Statutory Rights for Carers - Guidance

18 Disabled Persons (Services, Consultation and Representatives) Act 1986

19 Chronically Sick and Disabled Persons Act 1970, s29(2) as amended by the Chronically Sick and Disabled Persons (Scotland) Act 1972

20 Children (Scotland) Act 1995 Regulations and Guidance Volume 1 Support and Protection for Children and their Families Chapter 6, paragraph 14, p 32

21 R v Gloucester County Council and the Secretary of State [1997] A.C. 584; A local authority carried out an assessment of the community care needs of an elderly, infirm man in September 1992. He needed home care for shopping, collecting his pension, laundry, cleaning and meals on wheels. Two years later the council told him that, because the money allocated by central government had been reduced and there was not enough to meet demand, his cleaning and laundry services would be withdrawn. He, with others, successfully brought proceedings against the council for judicial review. On appeal the House of Lords ruled that in assessing an applicant's need for a service, the degree of that need and the necessity to make arrangements to meet it, a local authority had to balance the severity of the applicant's disabling condition against the cost of those arrangements and the availability of resources. Resources were therefore a proper consideration in deciding what services to provide. However services should not be withdrawn without a further reassessment of the client's needs at that time.

22 R v Avon County Council ex p M [1994] 2 F.L.R. 1006; M suffered from Down's Syndrome and the local authority was required to make arrangements for his care. In 1989 the council began to assess M's needs, and M was placed at a training unit for two years. In June 1991, M was offered a place at Milton Heights and he and his family wanted him to reside there permanently. Milton Heights was not a placement within the council area. The council refused to provide the necessary funding for the placement and subsequently decided on an alternative placement. M sought a review of that decision, and in January 1992, the local review panel recommended a placement at Milton Heights. The council rejected the review panel's recommendation, and M sought judicial review. The Council agreed that M's case would be looked at by a further review panel, with a report from two experts. In January 1993, the panel decided that M's entrenched position regarding his wish to go there and his likely adverse reaction to any alternative placement formed part of his psychological needs, that his needs were best met by a placement at Milton Heights and that the council should fully fund the placement. The following week, the council rejected that recommendation. M applied for judicial review of the council's decision. The Court held that the National Health Service and Community Care Act 1990 s. 47 required the community care services provided for M to be suitable to his individual needs, which included his psychological needs. M's wish to be placed at Milton Heights was part of his psychological needs. The council could not overrule the review panel's recommendation without a substantial reason, and without having given the recommendation the weight it required. The strength, coherence and apparent persuasiveness of the recommendation had to be addressed head on if the council were lawfully to depart from it and the council's decision was quashed.

23 C(S)A 1995, section 25(8) and 17(6)

24 The Arrangements to Look After Children (Scotland) Regulations 1996, Regulation 17

25 ibid, regulation 17(3)

26 Social Work (Scotland) Act 1968, ss 12B and 12C, as inserted by The Community Care (Direct Payments) Act 1996

27 Regulation of Care (Scotland) Act 2001, section 70 - applies direct payments to services for children by amending section 12A of the Social Work (Scotland) Act 1968 to include services, other than assistance in cash, provided for children under section 22 of CS(A)95, and amends section 5A to remove the exclusion of children's services from the definition of community care services for the purposes of section 12A

28 Social Work (Scotland) Act 1968, section 94(1)(b)

29 Community Care and Health (Scotland) Act 2002, section 7

30 Social Work (Scotland) Act 1968 12B(1B); See also the Community Care (Direct Payments) (Scotland) Regulations 2003, regulation 3 specifying who may receive direct payments on behalf of an eligible person

31 Scottish Executive Circular CCD1/2004 Direct Payments Policy and Practice Guidance

32 DDA 1995, section 20(4); see Nisbet, p119

33 Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002

34 DDA 1995, s58

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