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(Queen's Bench Division (Administrative Court); Black J; 12 March 2009)
The child had a severe expressive and receptive language and communication disorder and suffered from a severe form of autism. The mother suffered from fibromyalgia and depression. The core assessment identified an average of 24 hours a week support for the family from the local authority. Some years later the authority introduced eligibility criteria for disabled children. After a 'new eligibility criteria form' had been filled in, a care plan was created under which the support provided to the family was cut by about half. The 'chosen plan' for the child was said to be respite care of 12 hours a week, which was said to amount to 'voluntary accommodation' under Children Act 1989, s 20. After discussions a slight increase in the support was agreed, but nonetheless the mother sought judicial review of the eligibility criteria.
Eligibility criteria had no role to play in relation to a local authority's duty under Children Act 1989, s 20(1). The s 20(1) duty was an absolute duty; there was a contrast between s 20(1) and ss 17 and 20(4), in that the latter gave rise to powers not duties. Eligibility criteria could, in principle be used, in relation to ss 17 and 20(4), provided that the use of the criteria did not conflict in an individual case with the fulfilment of an authority's general responsibilities to children under the Act. The respite care aspect of the support package had not, in any event, been provided under s 20(1); no duty arose under that section. Eligibility criteria could not be used to determine whether a particular child was within the pool of people for whom, having regard to the question of resources, the local authority might be prepared to provide benefits under Chronically Sick and Disabled Persons Act 1970, s 2. The criteria could not be used to limit provision to an individual once the authority had determined that arrangements from the list in s 2 were needed to meet the needs of that individual. Further, the eligibility criteria should have been applied after completing a core assessment and were not a substitute for a core assessment. The use of eligibility criteria in determining provision for children was a very complex area. Comprehensive and practical guidance should be drawn up to assist authorities.