Working out what a disabled child needs at home is usually the straightforward part. Working out who is responsible for providing it, and on what legal basis, is where it gets harder. Michael Mandelstam’s briefing paper for Inclusion sets out the legal framework behind equipment and home adaptations for disabled children, written with Occupational Therapists in mind.
Who the paper is for
It is written for OTs working in or alongside local authority services, and for anyone who has to justify a recommendation, question a decision, or explain to a family why a request has been turned down. Case managers, social workers and SEND staff meet the same questions from a different angle. It sits alongside the work our OTs do on our housing and equipment assessments for children and young people.
What the paper covers
The paper is in three parts.
The first sets out the legislation: the Children Act 1989, the Chronically Sick and Disabled Persons Act 1970, the Children and Families Act 2014, the Housing Grants, Construction and Regeneration Act 1996 which governs disabled facilities grants, and the NHS Act 2006, alongside the Human Rights Act and the Equality Act 2010. The argument running through it is that more than one Act may apply to the same request, and what cannot be achieved under one may be achievable under another.
The second sets out the principles the courts and the ombudsmen apply. They are concerned with how a decision was reached rather than what was decided: whether it followed the legislation, whether relevant factors were taken into account and irrelevant ones left out, whether it fell within the range of decisions a reasonable authority could have made, and whether a blanket policy was applied where discretion should have been exercised.
The third takes the first two and applies them to situations that come up in practice. Car seats. Behaviour and safety, including when an extra bedroom becomes a safety matter rather than an overcrowding one. Whether existing space can be used instead of building new. Bathroom adaptations and the needs of the rest of the family. Shared care across two homes. Communication aids and which part of an education, health and care plan they belong in. Charitable funding, and when it does and does not discharge a local authority’s duty. And how quickly an assessment has to happen.
Why the legal basis matters in practice
A recommendation carries more weight when the duty behind it is clear. Knowing which piece of legislation a request falls under, and what a decision-maker is expected to take into account, changes how a report is written and how likely it is to be acted on.
It matters at the other end too. The paper covers cases where an OT recommendation was rejected without adequate explanation, and where a local authority applied one set of eligibility criteria across two different Acts without distinguishing between them. Anyone working a long waiting list will recognise the section on assessment timescales, including the case where a screening was presented as the assessment and the real one followed 18 months later.
Before you read it
The paper was written in February 2021 and reflects the law as it stood then. It focuses on England, though many of the points apply broadly across the rest of the UK. One change is worth knowing about before you start: references to clinical commissioning groups should now be read as integrated care boards, which replaced them in July 2022. The principles the paper sets out are unaffected.
As Michael Mandelstam notes in the paper itself, it gives legal pointers. It is not legal advice.
Read the briefing paper
Read the briefing paper (PDF) on equipment and home adaptations for disabled children.
Working with Inclusion
Our OTs carry out housing and equipment assessments for children and young people across the UK, including assessments to support a Disabled Facilities Grant application. We also work with local authorities on waiting lists and caseload capacity. Get in touch to talk through a single case or a caseload.