7.2 CDT Legislation Guidance

General Legislation
Child Care Legislation
Disability Legislation
Educational Legislation
Guidance

1. General Legislation

Human Rights Act

The Human Rights Act incorporates into domestic law the provisions of the European Convention on Human Rights.

Art2 Right to Life

Art3 Prohibition of torture or inhuman or degrading treatment or punishment

Art4 Prohibition of slavery and forced labour

Art5 Right to liberty and security of person

Art6 Right to a fair hearing

Art7 No punishment without lawful authority

Art8 Respect for private and family life, home or correspondence

Art9 Freedom of thought, conscience and religion

Art10 Freedom of expression

Art11 Freedom of assembly and association

Art12 Right to marry and found a family

Art14 The employment of the rights and freedoms set forth in this Convention shall be secured without discrimination

First Protocol: Peaceful enjoyment of property; right to education; right to free elections

Sixth Protocol: Abolition of the death penalty, except in time of war

Public authorities will be acting unlawfully if they act incompatibly with the convention, unless primary legislation means that they could not have acted differently. This means that claims relating to the separation of children from their families, and standards in residential care, amongst others, will be considered in the light of the Human Rights Act.
However, only Arts 2,3 and 7 are "absolute rights" in the sense that they cannot be balanced against the public interest. Articles 4 and 5 are limited rights in the sense that exceptions to these rights are exhaustively listed in the Articles themselves; for example, the power to detain prisoners of unsound mind
Arts 8 and 9 are qualified rights insofar as they can be subject to restrictions in the public interest, provided such restrictions are clear and meet the test of proportionality. An example of such proportionality would be overriding parent's lack of consent to adoption when it was clearly in the best interests of the child.

The Race Relations Act, 1976

The Race Relations Act makes it unlawful to discriminate directly or indirectly on the grounds of race, colour, nationality or ethnic origin in the areas of housing, education, employment or in the provision of goods, services or facilities to the public.
Discrimination is defined as where a person is treated less favourably than others on racial grounds, or where unjustifiable conditions or requirements exist to the detriment of a racial group.
Under Section 5 of the Act, race may be regarded as a genuine occupational qualification e.g. where the post holder provides persons of a racial group with personal service promoting their welfare, and those services can most effectively be provided by a person of the same racial group.
Under Section 35 of the Act, Special Needs of racial groups regarding education, training or welfare may be catered for through the provision of services or facilities.
Local authorities have an additional duty to ensure their functions are carried out with due regard to the need to eliminate unlawful racial discrimination, and to promote equal opportunity and good relations between persons of different racial groups.

Race Relations (Amendment) Act 2000

This Act outlaws racial discrimination both direct and indirect and by way of victimisation, in public functions not previously covered by the Race Relations Act 1976.
Local Authorities are specifically named as public authorities.
There is a further general duty on public authorities to have 'due regard' to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups.
The Secretary of State is also given the power to impose specific duties upon some of all of the public authorities to help their performance under the duty. The Commission for Racial Equality may issue compliance notices to enforce such specific duties.
The Commission for Racial Equality will also develop Codes of Practice on the implementation of the Act.

The Sex Discrimination Act 1975

This law outlaws sex discrimination, i.e. treating a person less favourably because of gender or marital status in the areas of employment, education, housing and the provision of goods, facilities and services. Gender may be regarded as a genuine occupational qualification

Care Standards Act 2002

The Care Standards Act provides a new more centralized framework for the registration and inspection of residential and community care services for both adults and children.
A National Care Standards Commission for England is created and will operate through eight regional commissions to take over the registration and inspection functions of local authorities.
The commission will work to national minimum standards for the registration and inspection of independent sector providers. Section 42 of the Act enables these powers to be extended to local authorities providing services in their social services function.
The Act covers the registration and inspection of children's homes, residential family centres and independent hospitals. Fostering agencies, voluntary adoption agencies, childminders and day care establishments for children and nursing agencies and domiciliary care agencies will also be subject to inspection.
In Part III of the Act, local authority adoption and fostering functions are included in the inspection powers of the Commission. The Commission will also advise the Secretary of state on policy. The Secretary of State has the power to make regulations concerning the employment, management and training of fostering workers.
Part IV of the Act sets up the National Care Council for England and the Care Council of Wales. The councils will register social workers and social care workers. The Commission will regulate the social work profession and is given powers to develop Codes of Practice.
Part VII of the Act is concerned with the protection of children and vulnerable adults.

2. Child Care Legislation

Children Act 1989

Under the Children Act, local authorities are required to provide and enable the provision of services to assist children in need and their families. Section 17 of the Children Act 1989 states:
Its shall be the duty of every local authority:
- to safeguard and promote the welfare of children in their area who are in need; and
- so far as is consistent with that duty, to promote the upbringing of such children by their families."
A child is 'in need' under the legislation if they are disabled. It should be recognised that disabled children, while 'in need' because of their disabilities, may also be in need due to other factors.
The Local Authority has other duties under the Act: to prevent the ill treatment of children; to look after children in certain circumstances; to provide after care for children for looked after children; and to have a complaints procedure.
The Local Authority must keep a register of disabled children and young people living in their area. Parents can choose whether or not their child's name is placed on the register.

The Children (Leaving Care) Act 2000

This Act imposes a duty upon local authorities to prepare 16 and 17 pear olds for leaving care and to support them up to the age of 21.
Each 'eligible child' i.e. a 16 or 17 year old who has remained in care for a period of at least three months, will have an assessment of their current and future needs leading to the preparation of a pathway plan.
A personal adviser will be appointed to support the child leaving care.
On leaving care, the terminology changes to 'relevant child'. There is a duty on each local authority to keep in touch with a relevant child, and a duty to safeguard and promote his / her welfare by maintaining and providing them with suitable accommodation.
Local Authority duties continue to age 21, except that assistance with education and training may continue to age 24.
Children financially maintained by local authorities may be excluded from access to social security benefits.

3. Disability Legislation

National Assurance Act 1948

Local Authority has a duty to promote the welfare of disabled people ordinarily resident in their area, and to provide residential accommodation for persons who, by reason of age, illness or disability or any other circumstances are in need of care and attention not otherwise available to them.
These power and duties are further defined in LA Circular 93(10) that gives a duty arrange general social work support and advice in the home and elsewhere; facilities for rehabilitation and adjustment, and for occupation and cultural and recreational activities; to provide accommodation to people in need in their area (duty) or from elsewhere (power); and to review the level and quality of Part III accommodation.

The Chronically Sick and Disabled Persons Act 1970

Local Authority has a duty to establish numbers of disabled people in their area, to determine their needs, and to publicise services.
Local Authority duty to make arrangements for the provision of a number of services if they are satisfied that it is necessary to do so in order to meet the disabled person's need. Services listed are:
- Practical assistance in the home
- Help with radio and television
- Library and recreational facilities and help to take up facilities outside the home
- Assistance with travel (permits and orange badge scheme)
- Help with holidays
- Meals
- Telephones
- Aids and adaptations
Local Authority has the duty to provide access for disabled people in certain buildings to which the public have access

The Disabled Persons (Services, Consultation and Representation) Act 1986

Disabled people and their carers have a right to ask for the Local Authority to assess their need for services.
Local Authority has the duty to inform disabled people of services provided in their area.
Local Authority has the duty to identify disabled school leavers and assess their need for social services.
When deciding what services to provide to a person under this Act, it requires the Local Authority to consider the ability of a carer to provide care or continue to provide care.

The NHS Community Care Act 1990

Requires social services departments to assess the needs of persons who may require community care services and, if appropriate, to provide 'care packages' in the light of the users' circumstances.
The Act relates to adults and not to children, but is relevant to assessment for transition plans.
The Act emphasizes a care management approach that incorporates:
- Information being made available for users
- Referrals screened for levels of assessment
- Needs led assessment
- Care Planning
- Implementation of care
- Monitoring and review

Disability Discrimination Act 1995

Makes it unlawful for service providers to treat disabled people less favourably for a reason related to their disability. Service providers (including Health and Social Services) are required to make 'reasonable adjustments' to avoid doing this.
Service providers can offer an alternative service when practices, policies or procedures make it impossible or unreasonably difficult for a disabled child or adult to use this service in question.

Carers (Recognition and Services) Act 1995

The Act provides for assessment of the ability of carers to provide care under certain circumstances.
Carers have a right to an assessment where the local authority is assessing the needs of a disabled child, under the Children Act 1989 or the Chronically Sick and Disabled Persons Act 1970, and where the carer provides or intends to provide a substantial amount of care on a regular basis for the disabled child.
An assessment must be carried out into the carer's ability to provide, and to continue to provide care. The Local Authority must take into account the results of the carer's assessment in deciding whether services should be provided to the cared for person.
Young carers are also covered by the Act.

The Community Care (Direct Payments) Act 1996

Local authorities have a power, not a duty, to make payments available in lieu of services to meet care needs assessed under NHS and Community Care Act 1990.
Recipients of direct payments must be disabled within meaning of the National Assistance Act 1948.
Payments cannot be made to pay for care given by spouses, partners or close relatives living outside the household.

The Local Government and Housing Act 1999

Local Authority power to give disabled facilities grants to disabled people (including disabled children) to help with the costs of adaptations to enable them to live as independently as possible in their own homes.

Carers and Disabled Children Act 2000

This Act supplements the Carers (Recognition and services) Act 1995, by enabling local authorities to provide carers' services in response to an assessment of need. Carers' services are not specified in the legislation, but are simply described as 'any services which local authority sees fit to provide and which will in the local authority's view help the carer care for the person cared for.' They may be means tested.
The Act also extends the Community Care (Direct Payments) Act 1996 in that it enables carers to receive direct payments in lieu of services. Eligible carers are those who provide a substantial amount of care on a regular basis. It includes ' young carers' aged 16 or 17 who are caring for a person aged 18 or over.
Persons with parental responsibility for a disabled child who would be a 'child in need' within the meaning of Section 17 of The Children Act 1989 are also eligible for assessment. Such an assessment is then 'taken into account' when deciding what, if any, services to provide under Section 17.
Disabled young people aged 16 and 17 become eligible for direct payments in their own right
There is a power to provide vouchers for the purchase of respite provisions for both adults and disabled children to enable the carer to take a break.

4. Educational Legislation

The Education Act 1996

The Education Act 1996 specifies the procedures to be followed by Local Education Authorities (LEAs) with regard to identification and assessment of children with special educational needs and any special educational provision arising from assessment. The majority, but not all, children with disabilities will also have special educational needs.
A child may be defined as having a learning difficulty calling for special educational provision if they have a disability that either prevents or hinders him from making use of educational facilities of a kind generally provided for children of their age in schools within the area of the local education authority.

Learning and Skills Act 2000

This Act entitles pupils with an Educational Statement, in their last statutory year of schooling (year 11) to assessments, action plans and transition decisions.
Pupils who do not have an educational Statement, but have been identified in school as needing transition support will also have been entitled to an assessment, as will similar post-16 leavers from sixth forms (years 12, 13 and 14) and college leavers.
In addition, there is also a new requirement for post-19 Assessment for young adults with more severe learning difficulties and disabilities.

The SEN and Disability Act 2001

Schools must not give less favourable treatment in the education or associated services provided which discriminates against a disabled pupil.
Schools must make a reasonable adjustment in relation to education and associated services so that disabled pupils are not placed at substantial disadvantage. Schools must anticipate and plan for this.
There is a duty to place children with special needs in mainstream schools subject to the parent's wishes and appropriateness to the child's needs, except where this conflicts with other pupils' interests, or where it is inconsistent with efficient use of LEA resources.
Schools must give information to parents regarding arrangements for disabled pupils.

SEN Code of Practice

Provides practical advice to LEAs, maintained schools, early years settings and others on their statutory duties to identify, assess and make provision for children's special educational needs. The code take account of the SEN and Disability Act 2001 and highlights
A stronger right for children with SEN to be educated at a mainstream school
A new duty on schools to tell parents when they are making special educational provision for their child
New duties on LEAs to arrange services offering advice, information and a means of resolving disputes for parents of children with SEN
The Code contains separate chapters on provision in the early years, primary and secondary phases and new chapters on working in partnership with parents, pupil participation, and working in partnership with other agencies.
LEAs, schools, early years settings and those who help them (including Health and Social Services) must have regard to the code of Practice.

5. Guidance

Respite Care: Series of Short term Placements of children - Local Authority Circular LAC (95) 14

A series of short placements should be treated as one placement, up to a maximum of 120 days in any twelve months
First Placement Review should take place within three months with subsequent reviews at intervals of no less than six months.
The first social work visit should take place within the first seven days the child is actually in placement, or before the first review, which ever is sooner.
Confirms that the child or young person should have a medical assessment prior to placement.

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