Irwin Mitchell’s Public Law team recently acted on behalf of two clients, both disabled children who were in receipt of a ‘short break’ service when their families were informed by letter that funding would be withdrawn with effect from 1 April 2011. The Defendant Council terminated the funding it was providing to the charity KIDS in order for the Claimants and other disabled children in its area to receive ‘short breaks’.

KIDS is a national charity set up in 1970 which now supports disabled children and their families across England. The types of activities undertaken during a short break include going bowling, swimming or going to get a hair cut.

The Claimants (our clients), both disabled children, faced serious detriment as a result of this decision;

• Claimant 1 is a severely disabled child with a range of complex needs. He benefited from weekly short breaks provided by KIDS. The family described the service as ‘invaluable’. It provided opportunities to mix with non-disabled peers, which proved critical in developing in personal and social confidence.
• Claimant 2 is an eleven year old child that suffers from dyspraxia. Her condition means that she is under-developed in terms of maturity, which makes her more vulnerable than her peers. KIDS short-break service worked closely with our client and her family to address the problems that our client’s condition presents. KIDS gave our client the chance to socialise with other children with similar conditions as hers.

Irwin Mitchell challenged the Council and contended that their discontinuation of funding for the KIDS service was unlawful because it:

• Was a disproportionate interference with their right to respect for family and private life under Article 8 ECHR and is therefore unlawful by virtue of the Human Rights Act 1998 s6;
• Failed to comply with the Defendant’s duty pursuant to the Children Acts 1989 and 2004 to safeguard and promote the Claimants’ welfare;
• Constituted a breach of the Disability Discrimination Act 1995 s49A because the Defendant failed to have due regard to the needs specified in the sub-section in reaching its decision, in particular the need to treat disabled people more favourably than others if it is necessary to do so to promote disability equality; and
• Was irrational because (i) it was based on a false premise that there is less money for short break services in the coming spending review period than there was in the last funding round, whereas in fact the funding available from central government has increased, and (ii) in taking the decision the Defendant failed to ask and answer the right questions.

Irwin Mitchell sought to have the Defendant’s decision quashed as unlawful and to have certainty (by way of order or agreement) that the service would continue to be funded until the Defendant had made a fresh and lawful decision.

Irwin Mitchell were successful in their challenge and the case was settled. Following negotiations between the parties the Defendant Council agreed to continue to fund short breaks through KIDS for our clients and all the families previously in receipt of this service.

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