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 dutiesThere are four key duties that can assist in fighting proposed cuts to services for disabled children and disabled adults:

  • 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;
  • The duty, if consulting on a proposed change to a service, to do it properly;
  • The duty to respect disabled children and disabled adults’ human rights, particularly their right to family and private life; and
  • 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 interestsOne 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.

ConsultationWhether or not there is a duty to consult, once a public body decides to consult it has to do so properly. This essential starting point was made clear in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 (Coughlan). In other words, whether consultation is a duty or a choice, once launched the standard and quality of the consultation has to be the same.

Even if there is no specific duty to consult on a particular issue, disabled people’s organisations, parents’ forums and other local groups may well have a legitimate expectation that there will be consultation about changes to important services. The recent Building Schools for the Future case provides an example of a failure to consult at all amounting to an ‘abuse of power’; R (Luton BC and others) v Secretary of State for Education [2011] EWHC 217 (Admin). Once consultation begins, Coughlan makes clear that four things must be in place to make it lawful:

1) Public bodies must consult in good time – so that responses to the consultation can still genuinely be taken into account before the final decision is made;

2) There must be enough information so that people responding to the consultation understand the proposals and can make an informed response;

3) There must be enough time for responses. Whether ‘enough’ time has been given will be judged by the court, if the consultation is challenged, on the facts of the individual case. However, for example, a very short consultation over a school holiday period in relation to a service used by disabled children is unlikely to be ‘enough’ time;

4) There must be genuine consideration of the responses – not just ‘lip service’ paid to them.

If a particular consultation does not match these requirements, any child, adult or family potentially affected by the proposed changes can bring an application for judicial review to challenge the consultation. If the court agrees that the consultation is unlawful then the court will quash it and make the public body consult again – and do it properly the next time.

Human rightsThe most important human rights in the context of cuts to services are those protected under article 8 of the European Convention on Human Rights, incorporated into English law through the Human Rights Act 1998. Article 8 requires respect for two distinct but linked rights, the right to family life and the right to private life. The right to family life is simpler to understand; respect for all types of family is required, but the right to private life is particularly important for disabled people.

Private life includes a person’s ability to function socially (R (Razgar) v Home Secretary [2004] 2 AC 368, speech of Lord Bingham) and a person’s ‘physical and psychological integrity’ (Pretty v UK (2002) 35 EHRR 1). In effect, this means that disabled people have a right under article 8 to services and support to enable their personalities to develop and for them to function socially.

Article 8 requires the state not to ‘interfere’ with a person’s right to respect for family and private life unless that interference is ‘in accordance with the law’ and ‘necessary in a democratic society’, which means proportionate (see below). Any decision to cut or withdraw services that support a disabled person’s ability to function socially and/or their psychological integrity is an ‘interference’ with that person’s article 8 rights. For this ‘interference’ not to breach article 8 and be unlawful it must meet these two requirements. To reiterate, any cut to a service to disabled people will breach article 8 unless it is (i) in accordance with the law and (ii) proportionate.

For the purposes of article 8, the ‘law’ includes not just legislation but (for example) statutory guidance. This means that a breach of (for example) the Framework for the Assessment of Children In Need and Their Families, which requires disabled children to be assessed and provided with sufficient services to secure their well-being, is likely to result in an unlawful interference with a child’s article 8 ECHR rights.

Even if all the relevant ‘law’ has been complied with, the final test under article 8 is whether the decision is proportionate (‘necessary in a democratic society’). The key judgment here is the speech of Lord Bingham in an immigration case, Huang v Home Secretary [2007] 2 AC 167. Lord Bingham emphasised that for a decision to be proportionate it must be no more than necessary to accomplish the objective. So in the context of cuts, if other less drastic steps could be taken to achieve the necessary savings then the decision cannot be proportionate and therefore the proposed cut would breach article 8. Furthermore, Lord Bingham added in Huang that the ‘overriding requirement’ of proportionality was ‘the need to balance the interests of society with those of individuals and groups’. The ultimate question under article 8 in any cuts case therefore is whether the wider economic interest justifies the decision to withdraw or reduce services to vulnerable people.

What about a situation where a disabled child or adult is not yet receiving services? There may then be a ‘positive’ obligation under article 8 for a public body to show respect for the person’s right to family and/or private life through providing services. This is particularly so for children if such action would ‘enable family life to continue’ (Anufrijeva v Southwark LBC [2004] QB 1124, judgment of Lord Woolf).

Bringing a challenge under article 8 requires a person to be an actual or potential ‘victim’ of a violation of their rights; section 7(1) of the Human Rights Act 1998. This is not supposed to be a high hurdle and any child or family who are or may be directly affected by cuts would be able to bring such a challenge.

Disability equality dutyThe disability equality duty is a duty on public bodies to have ‘due regard’ to a number of specified needs, including the need to promote equality of opportunity for disabled children. The duty applies to all decisions by public bodies, including those in relation to individual cases; see Pieretti v Enfield [2010] EWCA Civ 1104. So when (for example) a local authority is deciding what level of service it should provide to an individual disabled child it must consider the need to promote that child’s equality of opportunity compared with other children.

However, the disability equality duty also applies when high-level decisions are taken about the nature and shape of services. In discussions about the future of services to be provided to disabled people, public bodies need to be able to show that they have had the disability equality duty in mind at all relevant times. If they cannot, it is likely that, if challenged, the High Court will quash any decision taken and require it to be taken again with due regard to the duty.

It is important to understand that the disability equality duty does not require the public body to achieve equality of opportunity for disabled people – just to pay due regard to this need when reaching its decisions. However, it may be extremely difficult for a public body which is proposing a substantial cut to services which are valued by disabled children and/or disabled adults to show how it has had ‘due regard’ to the duty.

An important issue is when precisely in a decision-making process must a public body have regard to the disability equality duty. The Southall Black Sisters case (R (Kaur and another) v Ealing LBC [2008] EWHC 2062 (Admin)) shows that equality duties must be considered when proposals are drawn up. It is therefore unlikely to be good enough for a public body to commit to doing a disability equality impact assessment after a consultation – even if before the actual decision is taken.

The disability equality duty can be enforced on an application for judicial review by any disabled person or their family if they are potentially affected by the decision. The remedy will be to quash any decision taken without due regard to the duty and an order requiring it to be retaken lawfully.

ConclusionThe general duties set out in this article all have a role to play in challenges to cuts to services which benefit disabled children and/or disabled adults. Underpinning all of them is a requirement under domestic law and international law that disabled children and their families should be supported to live ‘ordinary lives’. Respect for the human dignity of disabled children and disabled adults is nothing less than what the law requires. Disabled people, families, local groups and their lawyers and advisers have the legal tools to ensure that, even in a time of intense pressure on public finances, the legal rights of disabled people and their families are respected.

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)

  • A paper on the ways in which legal duties can be used to challenge cuts to disabled children’s services, Cemented to the Floor by the Law, is available at the Council for Disabled Children website