Alice CullingworthThe families of two children with severe learning disabilities have been successful in a judicial review into local authority cuts to short breaks services, which they said would leave their children socially isolated.

The families of a 14-year-old boy and 8-year-old girl from Newbury, known only as DAT and BNM, instructed public law experts Irwin Mitchell to take on West Berkshire Council over the cuts, which will see the budget for short breaks services provided by voluntary sector organisations slashed by 48%. The decision was made at a meeting of West Berkshire Council on March 1 this year and reaffirmed at another meeting on May 31.

Irwin Mitchell applied to the High Court for a judicial review on the basis that the £215,600 funding reduction is unlawful as it breaches a number of legal duties, including those arising out of the Children Act 1989 and the Equality Act 2010.

The High Court declared today [July 22] that West Berkshire Council did not properly consider its legal duties before deciding to make the cuts, and that the subsequent decision was merely to “rubber stamp” the first decision without being able to cure the original flaws.

The hearing took place on June 22 and 23 at the Royal Courts of Justice in London with the judge siding with the families, forcing the council to rethink its plans.

DAT, who has autism and a rare neurodevelopmental disorder called William’s syndrome, requires around the clock care. He cannot wash or dress himself, get food or drink for himself nor be left unsupervised.

The teenager’s parents, who have three other children, rely on “life-saving” short breaks services to enable their son not only to have meaningful social experiences, but to give them a break to spend quality time with his siblings and each other.

“We’re obviously thrilled that the judgment has gone in our favour,” said DAT’s mother. “These services offer DAT support that we cannot provide him ourselves, because they allow him to socialise with his peers. Without short breaks he’ll be completely socially isolated. They really are life-saving, not just for him but for the family as a whole.” 

Previously, DAT benefitted from a care package funded by West Berkshire Council including short breaks and weekend clubs from West Berkshire Mencap, Crossroads Care Oxfordshire, Castle Gate and Guide Post. This package enabled him to visit the Mencap centre to play games with other disabled children, go swimming, on walks, and day trips to the zoo. It also paid for him to attend holiday clubs during school breaks, giving his parents and siblings a break from their 24-hour caring schedule.

BNM has autism, ADHD, epilepsy and cortical dysplasia, a brain malformation in the part of the brain responsible for emotional and impulse control. BNM’s mother says that as a result of her conditions BNM is incredibly volatile and can be violent. She requires constant attention by her family and carers.

The girl’s parents rely on short breaks services to give BNM the opportunity to play with children her own age and so they can spend quality time with their 12-year-old son. 

“These services are what keep the family together,” said BNM’s mother. “Without the same level of support by West Berkshire Mencap this summer, BNM won’t get the care that is best to meet her very complex needs. Mencap provides an incredible service. There is nothing else like it out there for families like ours. It is a lifeline for us and for our daughter.  

“We believed the council had not taken into account its legal obligations and the profound consequences of the cuts before it took its decision. Now we feel our legal challenge has been justified, and everyone who relies heavily on these precious services will be relieved and delighted.”

Previously, BNM benefitted from a care package funded by West Berkshire Council including an after school club and holiday play schemes from West Berkshire Mencap. The short breaks give BNM the structure she needs outside of school and gives the family peace of mind that she is having fun with other children in a safe space with specialist facilities and properly trained staff.

West Berkshire Council cut the funding for disabled children’s respite services from £415,600 in 2015/16 to just £200,000 for 2016/17. As a result, DAT and BNM will no longer be able to access the same level of services as they did before.

The cuts meant that Crossroads Care Oxfordshire’s services would reduce by about 40% and West Berkshire Mencap would provide 1,200 fewer hours of support over summer holidays compared with last year.

Alice Cullingworth (pictured), expert public law lawyer at Irwin Mitchell, representing DAT and BNM, said: “The High Court has decided that the council’s cuts were unlawful and they will now have to go back to the drawing board and take a new decision – this time complying with all their legal duties.

“With the summer holidays on the horizon many families were very concerned about the impact the cuts would have. They are now hopeful that the council will think again and confirm that these services will continue to be funded.”

Before starting court proceedings Irwin Mitchell invited the council to reverse its decision and to think again after having assessed the sufficiency of vital short breaks for families in West Berkshire. 

The firm also asked that it considered applying a modest amount from its reserves to prevent cutting short breaks services. After permission for the judicial review was granted, lawyers wrote to the council once more to ask it to think again and avoid incurring any more legal costs defending the claim.

“It’s therefore disappointing that this case has proceeded all the way to court but sadly we were left with no choice,” added Cullingworth. “The judgment means that the council will have to reconsider its decision to fund these highly valued services, which provide many families with critical support.”

The High Court ruled that the council’s decision to cut the budget on March 1 was unlawful because members were essentially misdirected about their legal obligations under the Equality Act 2010. 

The presiding judge, Mrs Justice Laing, said the decision was also unlawful because members did not consider other relevant statutory duties before they decided to proceed with the cuts. She said there was “no trace” of consideration by members of West Berkshire Council of any of these other legal duties, which are “mandatory relevant considerations”.

Mrs Justice Laing also ruled that the second decision the council took on May 31 to “re-affirm” the March 1 decision was legally flawed because “the way in which the issue was presented to members on May 31 gave a clear impression that they were expected to apply a rubber stamp to the decision of March 1, 2016, and a clear impression that they could not decide to rescind it”. The judge stated that there was “a very clear appearance of predetermination” and the second decision could not therefore “cure the flaws” of the first decision on March 1. 

Both decisions have therefore been quashed, which means that West Berkshire Council will have to take a new decision about funding for these services, and one that complies with all its legal duties.

Leila Ferguson of West Berkshire Mencap, who supported the claim and provided evidence about the impact of the cuts, said: “We are delighted that the High Court has ruled that the cuts in short break funding were unlawful.  This is fantastic news for all the children and families that we support.”

Rossanna Trudgian, head of campaigns at Mencap said: “Today’s judgement should be a reminder of the damaging effects cuts to local council funding from central government can have on the needs of disabled children, and that the support they are entitled to should be protected.

“Short breaks are a lifeline for many families who care 24 hours a day 7 days a week for their loved ones with a disability. The demands of caring for a disabled child, sometimes 24/7, can push many families into moments of crisis, with 8 out of 10 families who care for a child with a learning disability reporting to us that they have reached, or have come close to reaching, breaking point due to a lack of short breaks.

“Despite this a Mencap report in 2013 revealed more than half of council have cut spending on short breaks for families, and the trend appears to no sign of reversing. This High Court judgement should be a warning for the Government to address the crisis in local councils funding, in order to protect the support disabled people and their families rely on so desperately.”