Understanding eligibility criteria for short breaks and ensuring scarce resources are not diverted to meet legal challenges!

The Aiming High for Disabled Children programme significantly increased the range and capacity of short breaks for disabled children with a three year investment of ring-fenced funding. In December 2010 the Coalition Government announced that funding of £800 million will be available over the next four years.

This news is welcome and should enable local areas to continue the transformation of short breaks, but in removing the ring-fence and with tight budget settlements, local areas will inevitably be forced to prioritise and make difficult decisions about local provision.

Short breaks are welcomed by disabled young people and their families and carers, who now have a much better choice and access to short breaks and activities. The new types of provision can help local areas save money as regular short breaks mean that families can plan their lives, feel supported and don't need to resort to the residential services that have traditionally been used to respond to a family in crisis.

From 1st April 2011 there is a new duty on local authorities to provide short breaks to meet the needs of carers in their area and by 1st October 2011 local authorities must publish a statement for carers in their area setting out: - details of the range of short breaks services provided; - any criteria against which eligibility services will be assessed; and - how the range of services is designed to meet the needs of carers in their area. It is essential that local authorities operate fair, legal and transparent eligibility criteria and that these are developed now and with sufficient time to consult families in their local area.

There is confusion surrounding eligibility criteria particularly when in 2009 a local authority was challenged in a judicial review, R (JL) v Islington LBC for having changed their eligibility criteria resulting in a reduced level of service being offered.

Local Authorities who don't have eligibility criteria or don't have criteria that are lawful will be increasingly vulnerable to a legal challenge. From 1st April 2011, ring-fenced funding ended and at the same time the legal duty was placed on the local authority to provide a range of short breaks services to meet the needs of carers.

Families are most likely to question decision making and challenge eligibility criteria where these have not been developed in partnership. In summary, transforming short breaks can be a highly effective use of scarce resources, especially where universal services are developed to create choice and opportunities, but unless an authority intend to offer an unlimited service in their area they must have publicly available eligibility criteria.

Local authorities also have due regard to the interface between the Children Act 1989 and the Chronically Sick and Disabled Person's Act and pay due regard to the Equality Act 2010. For further information about drafting eligibility criteria, consulting families, or auditing existing eligibility criteria please call us on 0114 235 2902 or e-mail info@maddocksassociates.com