24th May 2016 • My Family Our Needs

Many young people often struggle to access suitable play and leisure activities. This could include social or sports clubs at evenings or weekends or activities during school holidays. This might be because of difficulties with obtaining funding, lack of information about what opportunities are available or simply because the scheme does not cater for the needs of disabled young people.

With cuts to funding and tightening of eligibility criteria for services being seen across the country, understanding your legal rights in this area has never been more important. Polly Sweeney explains more.

What should my local authority be providing?

Since April 2011, there has been a duty, under Section 25 of Children and Young Person Act 2008, on local authorities to provide ‘breaks from caring to assist parents and others who provide care for disabled children to continue to do so’. These are known as ‘short breaks’ and should form part of a child or young person’s care package – either directly commissioned or provided as a direct ‘cash’ payment.

The Breaks for Carers of Disabled Children Regulations states that local authorities must provide a range of short breaks for disabled children in their area including daytime care in or outside the child’s home, overnight care in or outside the child’s home and educational and leisure activities.

In addition, play and leisure opportunities for disabled children and young people are available under Section 2 of the Chronically Sick and Disabled Persons Act 1970 and under the Children Act 1989. This might include:

  • provision of leisure facilities;
  • occupational, social, cultural or recreational activities;
  • assistance to enable your child and family to have a holiday;
  • travel assistance.

Details of services available under these legal provisions should also be included in your local authority’s Local Offer which must also explain:

  • which particular play and leisure activities are available to all children and young people with SEN and disabilities via universal services;
  • which play and leisure activities are provided as part of more targeted services for children and young people who require additional short-term support over and above universal services;
  • what specialist play and leisure opportunities are available – these are generally only accessed following a formal assessment from a social worker.

Article 31 of the United Nations Convention on the Rights of the Child also provides that children have the right to relax and play and to join in a wide range of cultural, artistic and other recreational activities.

What if a young person’s disability means they can’t access opportunities?

Sections 20 to 22 of the Equality Act 2010 protects disabled children and young people from discrimination. They create a legal duty on organisations (including schools and colleges and service providers) to make reasonable adjustments to their policies and premises and to provide auxiliary aids and services to avoid young people with disabilities being placed at a substantial disadvantage. Importantly, disabled children and young people cannot be forced to meet any additional costs of providing these reasonable adjustments.

A failure to make a reasonable adjustment amounts to unlawful discrimination and can be challenged in court where the disabled individual may also seek compensation.

How do I access this support?

Each local authority must produce a ‘short breaks services statement’. This statement must set out details of the range of services provided, the eligibility criteria and how the range of services is designed to meet the needs of carers in their area.

The new SEND Code of Practice: 0 to 25 years states that local authorities must publish this short breaks statement on their website and that this will form a core part of its Local Offer – the new requirement on local authorities introduced under Part 3 of the Children and Families Act. In addition to the information above, the Local Offer must also contain information on any eligibility criteria which must be satisfied before any play or leisure activities can be accessed.

Parents and young people themselves should be consulted when the Local Offer is prepared and reviewed and you have a right to make comments on the content of the Local Offer, including on the quality of the play and leisure activities included and any gaps in provision. Those comments must be published on an anonymous basis along with the local authority’s response to comments made.

If you are concerned that your child is not being given the opportunity to access appropriate play and leisure opportunities then you should seek legal advice from a specialist solicitor who can advise you of rights to legally challenge decisions. Legal aid remains available for children and young people for advice regarding your legal rights in this area.

Polly Sweeney is a Solicitor at Irwin Mitchell. www.irwinmitchell.com