Today the Law Commission publishes a consultation paper on disabled children’s social care law and whether it meets the needs of disabled children and their families. The Commission is seeking views from young people, families, local authorities and social workers, and anyone else with an interest in or awareness of the area. The consultation is part of a review into the law to ensure that it is fairer, simpler and more up to date.
“Disabled children’s social care law” is the body of legal rules covering:
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whether a disabled child can get help from social services to meet their needs;
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what help they can get; and
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how they get it.
The law is out of date. Under section 17 of the Children Act 1989 a disabled child is a child who is “blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity”. This definition is from the 1940s. The language used to describe disability at that time is offensive now and doesn’t capture the nuances of neurodiversity.
The law is inaccessible. In fact, it is not one law at all. It is a complicated set of rules, instructions and advice contained in numerous Acts of Parliament, regulations, court decisions, Government guidance and local authority policies. The authors of the leading legal textbook on disabled children describe it as “a system of baffling complexity” the navigation of which amounts to “additional tiring and frustrating work”.
The law is also – potentially– unfair. It says that local authorities should provide the services that are necessary to meet the needs of disabled children. But whether that happens depends on where in the country the child lives. That wasn’t the intention of the legislation.
Professor Alison Young, Commissioner for Public Law, said:
“The children who need help from social services have changed over time as our awareness and understanding of particular conditions has developed. It is important for these children, their carers and those providing services that the law is fair, up to date and most importantly, simple to understand. We welcome views from everyone with experience in this area before we make our final recommendations.”
The consultation asks a number of questions including:
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whether there should be a new legal framework for disabled children’s social care, taking disabled children out of section 17 of the Children Act 1989;
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whether there should be national eligibility criteria for disabled children’s social care;
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how we should define disability;
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what remedies should be available for children and families when things go wrong?
The consultation is open until 20 January 2025. Future details on the project, full consultation paper and a summary are available here.
Amanda Allard, Director of CDC said:
“CDC welcomes the Law Commission review of the complex landscape of social care legislation for disabled children. Some of the proposals set out in the consultation paper align with CDC’s ambition for disabled children to have full and happy childhoods, to fulfil their potential, and be active within the community and for parents of disabled children to be parents first, living ordinary lives. However, with any change of this scale there is a risk of unintended consequences, and it will be critically important to interrogate the proposals to ensure that the rights of disabled children and families are not diluted. We would strongly encourage parent carers, children and young people and practitioners to engage with the consultation.”
Caroline Coady, Deputy Director of CDC said:
“CDC have worked with the sector to explore the opportunity to improve outcomes for children and families through needs-led eligibility approaches and embedding the role of the Designated Social Care Officer (DSCO) for SEND. We welcome the opportunity to explore the significance of these elements in improving outcomes for children and families through more accessible provision and better integration between social care, education and health partners. We will be supporting the growing community of practice of DSCOs across England, alongside parent carers, children and young people and VCS, to inform the consultation as well as sharing the most up to date evidence of impact from our work.”