Disability Law Service is a legal charity that represents disabled adults and children and their carers in Community Care, Employment, Discrimination and Welfare Benefits.
The Community Care team have become aware that some autistic children are being denied an assessment from their Local Authority’s Children with Disabilities’ team due to unlawful policies. The team are aware of three Local Authority’s that have an unlawful policy in place.
The Problem with Local Authority Policies
The general problem with Local Authority policies of this kind is that their ‘eligibility criteria for an assessment’ often exclude autistic children unless they also have another disability or health issue.
An example of a policy from one of the Local Authorities is: –
The 0-25 service provides a service to children who have a: –
- Severe physical or learning disability or sensory impairment;
- Profound multiple disability;
- Children with complex and severe health needs including chronic or life limiting illnesses;
- Children attending special schools with a moderate learning disability;
Children with autism who also meet one of the above criteria.
The problem with this criteria is that it excludes autistic children who attend mainstream schools, or special schools but who do not have a moderate learning disability.
Why is this policy unlawful?
Local Authorities should provide services designed: –
- To minimise the effect on disabled children within their area of their disabilities’;
- To give such children the opportunity to lead lives which are as normal as possible.
The Local Authority’s duty is to safeguard and promote the welfare of children within their area who are in need, and to provide a range and level of services appropriate to those children’s needs.
An autistic child meets the definition of disability if he suffers from a mental disorder of any kind. Mental disorder means any disorder or disability of the mind.
Autism is a protected disability under section 6 of the Equality Act 2010. Autistic children will be protected under the Equality Act definition if their condition has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.
A policy that excludes children who are autistic from appropriate care is a form of direct discrimination as the Council are treating children who are autistic less favourably than those with other disabilities’.
Additionally, this policy states that a child must have autism, as well as an associated condition to be considered for their services which is indirect discrimination.
Moreover, Local Authorities are to have regard to the need to eliminate discrimination, and the need to promote equality between children with autism, and children with other disabilities, or between children with autism, and non-disabled children.