Law Commission launches consultation on “out of date” disabled children’s social care law
The Law Commission has today (8 October) published a consultation paper on disabled children’s social care law, as part of a review to ensure it is fairer, simpler and more up to date.
Disabled children’s social care law is the body of legal rules covering whether a disabled child can get help from social services to meet their needs, what help they can get and how they get it.
The Law Commission warned however that the law is out of date, inaccessible and potentially unfair.
It noted: “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 Commission described disabled children’s social care law as a “complicated” set of rules, instructions and advice contained in numerous Acts of Parliament, regulations, court decisions, Government guidance and local authority policies.
It said: “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”. We think that’s a fair description.”
Further, the Commission observed that the law says local authorities should provide the services that are necessary to meet the needs of disabled children. However, whether that happens depends on where in the country the child lives – making it potentially unfair.
The consultation, which seeks views from young people, families, local authorities and social workers, asks a number of questions including:
- 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;
- whether there should be national eligibility criteria for disabled children’s social care;
- how disability should be defined;
- what remedies should be available for children and families when things go wrong;
- whether assessors should be required to have appropriate expertise and training.
The consultation seeks views on a proposal that any new framework should be accompanied by two sets of guidance - one for professionals applying the law, and the other for parents and carers who need to understand their rights under the law.
The Law Commission noted: “The guidance that we have in mind would accompany the statutory framework and help the two audiences to apply the framework to the situations they may encounter.”
Further, the consultation provisionally proposes that there should be a “single duty” to assess the needs of a carer for a disabled child, which should arise upon (a) request by the carer or (b) it appearing to the local authority that the carer may have needs for support.
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 Law Commission is an independent body established by statute to make recommendations to Government to reform the law in England and Wales.
The consultation will be open until 20 January 2025.
Lottie Winson
