Council not bound to provide free special care

Downs boy's father fails in bid to establish duty under Children Act

News, 14 February 2006

The father of a 13-year-old boy with Down's syndrome has failed in an action to have his local authority provide free out-of-school care.

Lady Smith in the Court of Session ruled today that, despite having assessed Declan Crossan under the Children (Scotland) Act 1995 as having a particular need, South Lanarkshire Council were not bound to meet that need.

Declan's father Gerard Crossan wanted the council to meet the costs of providing after-school care for Declan, who attended school but needed 24-hour supervision. Declan had a place at a privately-run club to which the council provided advice and support but not funding. Mr Crossan met the fees himself.

Lady Smith said that the purpose of the Act was to enable the authority to assess the needs of children in its area so it could decide what provision, if any, to make for them. Section 22 set out "duties of a general character only which are intended to be for the benefit of children in need in general. A local authority may thus decide to provide for a particular need of a particular child but it is not obliged to do so".

She added that the absence of an express provision that the authority was bound to provide services free of charge indicated that even if it was providing care for Declan directly, it would be open to it to charge for doing so.

Nor was it an infringement of the Crossans' right to respect for private and family life under the Human Rights Act. This did not oblige the state to provide financial support to enable one parent to stay at home with the children.

Lady Smith's decision can be read at http://www.scotcourts.gov.uk/opinions/2006CSOH28.html .