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Challenging a Refusal to Assess your Disabled Child

Challenging a refusal to assess your disabled child for specialist services

Disability Living Allowance Hearing

Has your council told you that they will not assess your disabled child so that they might have access to short breaks or any other support services or help? This is not about your child’s EHCP by the way but about all of the other help your child could get from your local council to support you and your family. Find out here about how legislation in health and social care can help you access short breaks and other help your child needs. 

Irwin Mitchell have very kindly helped Sky Badger put these legal guides together. You can find them as well as lots of other organisations and charities specialising in legal advice at the bottom of this page.

How to ask for an assessment

Is there a minimum age?

There is no minimum age for a child to be ‘in need’ and for an assessment to be required.

Does my child need a diagnosis?

There is no requirement for a formal diagnosis before there is a duty to assess.

Here are the steps to guide you through the process…

 

  1. Ask if an assessment can be carried out from their social worker or the duty worker from the Disabled Children’s Team. The request can be made on the telephone, face-to-face or in writing by letter or email. Parents can simply ask “will the council carry out an assessment of my child under section 17 of the Children Act 1989?”
  1. If the answer is ‘no’, then a version of the letter suggested below can be sent. Local Authorities only have one working day to decide what type of response is required and to acknowledge receipt, so if no response is received within a few days, it is appropriate to write the letter  and send it back to your Local Authority.
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A Guide to the Care Act

What happens when my disabled child becomes an adult?

The Care Act 2014 offers carers more rights and protection both for themselves and the also the disabled adult they care for too.

Click here to find out how the Care Act can help you and your family here.

What does a 'child in need' mean?

Children are ‘in need’ if they need help from the council with their health or development or if they are ‘disabled’. The term ‘disabled’ under the Children Act 1989 has a very wide meaning. It includes any mental disorder or any substantial and permanent physical disability.

It will be unlawful to refuse to assess children because they have a particular type of disability – for example ADHD or Asperger syndrome.

Legal duties upon Local Authorities

Assessments under the Children Act 1989 (and for carers under the Children and Families Act 2014) are the first part of the legal process that councils must go through in order to decide if a disabled child and / or their carers should be provided with services. The law says that councils must assess every child who is or may be a child ‘in need’ (see definition below under sources of reference).

  • Any assessment has to be carried out in accordance with the Framework for the assessment of children in need (‘the Assessment Framework’) which requires assessments to be carried out quickly and to cover all the areas of potential need that a child may have.
  • In some areas, disabled children and young people may be able to access some services without an assessment, such as clubs, however generally an assessment will be the way in which disabled children and their families access support services, short breaks, and funding via direct payments to buy these types of services.
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Social Services Assessment...What happens next?

Once an assessment has been carried out the local authority must then decide whether it is necessary to provide the child with a service. Many authorities use their own ‘eligibility criteria’ to help them reach this decision, which must be published and available for families to see.

The social worker should then produce a “child in need plan” setting out what care and support is going to be provided, when, and how. The support to be provided to the carer, such as short breaks and respite, can be included in the same child in need plan.

REFUSAL TO ASSESS TEMPLATE LETTER

Click here to find a template letter from Irwin Mitchell which can be sent when a council has refused to carry out an assessment. The letter should be sent, by fax, email and post if possible, to Director of Children’s Services and also to the social worker (if parents have one) and to the Lead Member for Children’s Services (the councillor who is in charge of children’s services for the council). Click on the Link below, scroll down to the Heading Health and Social Care, below that are template letters.  Click on “Challenging a refusal to assess your Disabled Child for Specialist Services.”

What should I do next?

  • Parents should always try to resolve disputes with the local authority through discussions.
  • If an assessment has taken place and nothing has happened as a result, or parents strongly disagree with the conclusions of an assessment (which may be that the Local Authority does not need to provide services) then it will be necessary to take specialist advice.
  • If there is no response to a letter sent such as the one below requesting an assessment then again specialist advice will need to be taken.

Browse loads of other legal support here

Use our directory to find lots of organisations and charities that can give you great legal advice for you and your family.

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