Children and Young Persons Bill [HL]

As Minister with responsibility for disabled children, I have no cause dearer to my heart than improving the support for families with disabled children, including short breaks. This is not just a pious aspiration; in fact, few causes commandeer more new government funding than short breaks. The figures that the noble Lord, Lord Rix, and the noble Baroness, Lady Sharp, referred to speak for themselves. More than £300 million of new government funding is being provided over the next three years in respect of short breaks. Indeed, at the moment hardly a new document is published by my department that does not introduce new funding in this area. The Children’s Plan, which was published last month, included £90 million of new capital funding in this area. We are investing substantially in improving—indeed, transforming—the quality of provision for all the reasons that noble Lords so eloquently set out about the life chances and the quality of life of children and families in the categories that we are discussing. The issue is whether the law should be changed in the way envisaged by this amendment. My response comes in two parts. The first part is on whether there is an existing enforceable right to short breaks in English law. That was the issue raised by the noble Lord, Lord Rix, at Second Reading, when he conveyed to me the legal opinion provided to the Every Disabled Child Matters campaign. It makes two arguments in support of its view that an enforceable right to short-break care already exists in English law. I undertook to him that I would respond in Committee, so I hope that the Committee will bear with me if I am unusually lengthy in my remarks. The first argument set out by the Every Disabled Child Matters campaign is that a disabled child who has been assessed by the local authority as in need of residential short-break care under Section 20(1) of the Children Act 1989 has an enforceable right to such care, although it is recognised that this is likely to apply only to families in crisis or potential crisis. The opinion contrasts the test in Section 20(1)(c), where the local authority has a duty to provide accommodation for any child in need in its area if the carer is prevented from providing the child with suitable accommodation and care, with the test in Section 20(4). In Section 20(4), the local authority has the power to provide the child with accommodation if it would safeguard and promote the child’s welfare, even though the child’s parent is able to provide the child with accommodation. The opinion argues that the enforceable duty under Section 20(1)(c) is triggered, "““if a parent is able to provide a child with accommodation, but is not able to provide accommodation that is suitable to the child’s needs, or is unable to provide suitable care””." In those circumstance, in its view, "““she is ‘prevented …. from providing him with suitable accommodation and care’ and the duty will arise under s20(1)(c )””." However, our considered view is that Section 20(1)(c) is not broad enough to encompass the provision of short-break services. Rather, we take the view that Section 20(4) should be the basis for a local authority to provide short-break care, but there is no entitlement to it. The opinion argues that a child may have an enforceable right to short-break care at home under Section 17 of the Children Act 1989 read in conjunction with Sections 2 and 28A of the Chronically Sick and Disabled Persons Act 1970. The services that may be provided under these provisions include, under Section 2(1)(a), "““practical assistance for that person in his home””." It is our view that Section 17 read with Sections 2 and 28A of the 1970 Act would not provide an enforceable right for the provision of short-break care. The concept of practical assistance in the home is quite different from the concept of short-break care. The opinion accepts that a local authority must necessarily consider its available resources when assessing the needs of a particular disabled child and its family following the Barry case. It is also accepts that, even where a specifically enforceable right to short-break care exists, a local authority is probably permitted to have in place eligibility criteria to determine the level of need at which it will provide services. We accept and agree with this argument. We therefore do not believe that there is an existing enforceable legal right to short breaks, nor do we consider that the best way to improve short-break provision is through the imposition of a new duty. The existing statutory framework affords local authorities the necessary flexibility to respond appropriately to the assessed needs of children who meet the criteria for services set out in Section 17 of the Children Act, including disabled children. However, as I said at the outset, we are not content with current short-break provision—far from it. We wish to see a transformation in that provision, which is why we are making more than £300 million of new funding available over the next few years. I stress to the Committee that that funding is ring-fenced. It is very difficult to get that kind of funding ring-fenced in local authority budgets, but we have taken that step to ensure that this funding leads to a transformation in the quality of short-break provision and does not simply substitute for other local authority expenditure. Last May, in our Aiming High for Disabled Children: Better Support for Families document, we set out our objectives for the additional £370 million of additional funding. In the press notice referred to by the noble Lord, Lord Rix, which we put out on Monday, we set out how we intend to take forward the rollout both of the pilots over the next two years and of the nationwide short-break provision thereafter. The noble Baroness, Lady Sharp, said that there was a danger that this funding would promote a postcode lottery and would favour some areas more than others. I think that she misunderstands the nature of the rollout. The 21 pathfinder areas that will receive the bulk of the funding in the first two years are the pathfinders to the rollout of the full short-break provision in year 3. The rollout of that full provision will benefit all local authorities. The escalation of the funding reflects this. In the next financial year, there will be £15 million of revenue funding to support predominantly, but not exclusively, the pilots. As we extend the piloting, this will increase to £80 million in 2009-10. That increases to £185 million in the third year, 2010-11, as we go national. It is absolutely our intention that there should be consistency in the national provision of transformed short-break services. The rollout that we set out in the press notice on Monday taking forward Aiming High for Disabled Children seeks to secure that. Why are we piloting? We are piloting for precisely the reasons given by the noble Baroness, Lady Morris. We need to ensure that we get the quality of short-break service that delivers on the expectations of parents, which means getting assessment processes right. As the noble Baroness said, often they are not fit for purpose at the moment. This also means ensuring that the quality of the short breaks themselves reflects best practice and that local authorities have in place, or commission, the effective infrastructure needed to deliver short-break provision. Of course, it will take time for them to get that in place and they need to look at best practice models as they do so. Only this morning I chaired the ministerial implementation group taking forward the short-break policy. On that group we have leaders of primary care trusts, local authorities and many of the charities that do outstandingly valuable work in this area. I chair the group jointly with my honourable friend Ivan Lewis, a Minister in the Department of Health, which brings together the two departments in a close partnership relationship. We are absolutely committed to seeing that this huge investment of public funds leads to a transformation in short-break services and to a consistency of provision between local authority areas. I hope that, on that basis, Members of the Committee will not think that we need to impose unduly rigid provisions in statute when what matters is the reality on the ground. The reality on the ground is that we are investing more than £300 million to bring about a transformation in services over the comparatively short period of three years.