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        Review into ‘complex and fragmented’ social care laws for disabled children begins

        Law Commission to examine how legal framework can be reformed to improve consistency, clarity and fairness for children and parents, in government-commissioned project

        By Mithran Samuel on October 17, 2023 in Children, Social work leaders
        A disabled child in a chair
        Photo: Olesia Bilkei/AdobeStock

        A review into the “complex and fragmented” social care legal framework for disabled children has opened.

        The Law Commission will examine how the legal framework – some of which dates back over five decades – can be reformed to improve consistency, clarity and fairness for children and parents.

        The Department for Education commissioned the review as part of its draft strategy, Stable Homes, Built on Love, in response to the Independent Review of Children’s Social Care.

        Current framework ‘outdated’

        In its final report, the care review said the current framework was “outdated” and involved a “patchwork of duties” that sat across multiple pieces of legislation, making it harder for both families and professionals to understand disabled children’s legal entitlements to support.

        The DfE’s objectives for the review are:

        • Resolving the patchwork of legislation that currently governs social care for disabled children.
        • Improving how the law on social care for disabled children fits with wider social care law.
        • Reviewing the outdated language and definitions underpinning this area of law.

        For the Law Commission, public law commissioner Nicholas Paines KC said: “It is essential that the law relating to disabled children’s social care is simplified and modernised. The current legal framework governing social care for disabled children is complex and fragmented, with some provisions dating back over 50 years.

        “This contributes to inconsistency, and a lack of clarity for parents and care givers of disabled children. I am therefore pleased that the Law Commission will be undertaking this review.”

        The law on social care for disabled children

        Comprehensive information on the law on disabled children is available to anyone with a licence for Community Care Inform Children, on our disabled children knowledge and practice hub. We have provided an overview of the key duties below:

        • Definition of a disabled child: exemplifying the care review’s conclusion that existing legislation is outdated, section 17 of the Children Act 1989 (s17 CA89) defines a child as disabled if s/he 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 or such other disability as may be prescribed”.
        • Child in need duties: s17 CA89 accords child in need status to all disabled children, placing their local authority under a duty to “safeguard and promote [their] welfare, and consistent with that duty, promote their upbringing by their families, by providing “a range and level of services appropriate to those children’s needs”.
        • Service provision: councils acting under s17 CA89 must provide services to disabled children if “they are satisfied it is necessary for them to [do so] in order to meet the needs of the child”, under section 2 of the Chronically Sick and Disabled Persons Act 1970 (s2 CSDPA70). These include providing practical assistance around the home to the child, recreational facilities outside the home, help in accessing educational facilities, assistance with adaptations and travel to and from services provided under s17 CA89.
        • Special educational needs and disability (SEND): entitlement to SEND provision is governed by the Children and Families Act 2014. For children with an education, health and care plan, section 37 of this act requires councils to specify in the EHCP any social care provision made for the child under s2 CSDPA70 and any other social care provision reasonably required as a result of the child’s learning difficulties and disabilities.
        • Assessing and supporting parent carers of disabled children: under sections 17ZD, 17ZE and 17ZF CA89, councils must assess the support needs of parent carers of disabled children if they appear to need support, or on request, unless they have already done so and the parent’s needs have not changed. On the back of the assessment, the council must decide whether the parent and child have needs for support, whether these may be met by services under s17 CA89 and whether to provide these services.
        • Transition assessments: councils are required to assess a child’s needs for care and support on turning 18 under section 58 of the Care Act 2014, and their carers’ needs for support when the child reaches adulthood under section 60 of the Care Act. The trigger for such assessments is that they would be of significant benefit to the person and it appears that they would need care or support when the child in question turns 18,
        • Provision of care and support on turning 18: in specified circumstances (section 17ZH CA89), councils must continue to provide services under s17 CA89 to young people on turning 18, for example when they were entitled to a transition assessment but it had not been carried out.

        children's social care law, disabled children, Stable Homes Built on Love

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        1. Disability News Service 19th October 2023 - Shaping Our Lives - October 19, 2023

          […] A review into the “complex and fragmented” social care legal framework for disabled children has opened. The Law Commission will examine how the legal framework – some of which dates back over five decades – can be reformed to improve consistency, clarity and fairness for children and parents. The Department for Education commissioned the review as part of its draft strategy, Stable Homes, Built on Love, in response to the Independent Review of Children’s Social Care: Read The Community Care article […]

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