The Law Commission has spent the last 12 months carrying out a much-needed and long-awaited review of the laws underpinning social care for disabled children in England. The aim is to ensure this vital area of law becomes fairer, simpler and more up-to-date.
The job of the Law Commission is to review existing laws and recommend reforms. Today the review team are letting us see their initial conclusions on disabled children’s social care, and the changes they’re thinking of recommending to the Government.
What’s being published today is a consultation paper so if you have an interest in social care for disabled children, you have until 20 January 2025 to share your views on the Law Commission’s recommendations.
What is disabled children’s social care law?
Disabled children’s social care law sets out the legal rules on whether a disabled child can get help from social care services to meet their needs, what help they can get, and how they can get it.
Social care services includes, for example, personal care in a child’s home, a short break for the child outside their home, an adaptation to the home they live in, or direct payments so families can arrange these things for themselves. It isn’t just one law, but is “a complicated set of rules, instructions and advice contained in numerous Acts of Parliament, regulations, court decisions and Government guidance”.
The main elements are section 2 of the Chronically Sick and Disabled Persons Act 1970 (which introduced a legal duty on local authorities to meet the needs of disabled children and adults) and section 17 of the Children Act 1989 (which introduced a general power to provide services to promote the care and upbringing of children within their families).
Out-of-date, inaccessible and unfair
In its review, The Law Commission says the law as it stands is not up to the job of meeting the needs of disabled children and their families, because it’s out of date, inaccessible and unfair. It uses obsolete definitions of disability and offensive language about disabled people.
As parents and carers of disabled children know all too well, whether their children can have access to the services they need depends on where in the country they live. The law currently allows local authorities to draw up their own local eligibility criteria, to determine which disabled children in their area qualify for services and which do not.
The Law Commission has heard families!
The Commission has listened and heard the message loud and clear:
- There’s way too much focus on safeguarding disabled children from harm rather than meeting their needs for care and support;
- Social care workers assessing the needs of disabled children often lack any kind of expertise in disability;
- Eligibility criteria for accessing services are too high;
- The needs of parents, carers and siblings are overlooked; and
- Different teams, departments and organisations often fail to work together to meet children’s needs or even to communicate.
So what do they propose should be done?
Reform the assessment process
“There should be a single duty to assess the social care needs of a disabled child that is set out clearly in legislation. After the assessment is carried out, the family should be entitled to a written copy.”
This would replace the current situation, where the duty to assess the needs of any child who appears to be disabled (under section 17 of the Children Act 1989) is widely misunderstood and/or disregarded. The Law Commission correctly points out that “the overlap between disabled children’s social care and SEND does not always work effectively”, and identifies the problem of a system that’s designed for child protection, not for support.
A new single assessment duty would be the “gateway” to all the various social care services. It would replace the different types of assessments that exist right now, i.e. Child in Need Assessments, EHC Needs Assessments, assessments of the needs of “looked after” and “eligible” children, short breaks, and Early Help assessments.
The key question, of course, is what the threshold would be for carrying out this new single assessment? One of the things the Law Commission wants your views on is what the appropriate threshold would be. Is the current threshold for assessment, where “it appears that a child has a disability”, too low? Or would a higher threshold result in too many children falling through the gap?
The Law Commission proposes that, “there should be a statutory requirement that an assessment is proportionate and appropriate to the circumstances of the child and their family”, (and should avoid requiring families to repeat the same information endlessly). They also propose a statutory requirement that “an assessment should be carried out by a person with appropriate expertise and training”. This is a requirement that already applies in adult social care law. And they want to hear people’s views on how best to assess the needs of parents, carers and siblings of a disabled child.
Remove the postcode lottery of eligibility for services
At present, local authorities are allowed to devise their own criteria for access to social care services for disabled children. In the summary of the consultation paper, the Law Commission says: “Of the eligibility criteria we’ve looked at in the lead up to this consultation, no two are the same.”
They conclude, robustly, that there should be a single duty to meet the needs of disabled children, and that this duty should be subject to national eligibility criteria, as is the case with adult social care:
“The fact that local authorities are entitled to take into account their resources in deciding whether they owe a duty to meet the needs of a disabled child means that disabled children’s social care law is out of step with other similar areas of law. In particular it is out of step with adult social care law, where local authorities are required to meet an adult’s needs for care and support, if those needs meet national – rather than local – eligibility criteria.”
What the national eligibility criteria should look like—in other words, which children should be eligible for what type of care and support—is, of course, the key question. And this is a political question, to be taken by elected policy-makers, not by the legal experts at the Law Commission, but do share your thoughts on it nonetheless.
Define a list of services that should be available
If there is to be a single duty to meet the needs of disabled children, based on national eligibility criteria, there should be clarity in law on the range of services that can or should be provided under that duty.
The Law Commission is proposing a “non-exhaustive list” of services. It wants views on the main social care services that disabled children require. This could include, for example:
- The provision of care at home or elsewhere,
- Educational or leisure activities,
- Services to assist parents and carers in the evenings, at weekends and during the school holidays,
- Adaptations to the home,
- Etc…
Reform direct payments
The Law Commission acknowledges that “direct payments don’t always work very well”. (Is anyone else nodding their head as hard as I am?) To address this, the review suggests direct payments for disabled children’s social care “should be brought closer in line with direct payments under the SEND system”.
This would mean setting direct payments “at an amount that is sufficient to secure the provision needed, as opposed to an amount that is estimated to be reasonable” and keeping direct payments under review so alternative arrangements can be made if they are not working.
How should disabled children’s social care fit with SEND law?
The Law Commission is clear that it is not looking at reforming the law governing special educational needs and disabilities. But SEND law is relevant, because there’s an obviously an overlap between children who need support at school to meet their special educational needs and children who need social care support at home because they are disabled, although the extent of this overlap isn’t easy to quantify. It’s hard to see how the same legal tests would work across support needed both in school, and also at home and in the community.
The Law Commission proposes bringing the two legal frameworks closer together, such as by combining social care assessments and care plans with EHC needs assessments and EHC plans.
The review team also address commissioning, i.e. identifying needs in a local area and securing sufficient services to meet them. The Children Act 1989 doesn’t require local authorities to identify the needs of disabled children in the local area, or to make sure that sufficient services are provided so that those needs can be met – but the SEND legislation does.
The Law Commission would like to hear about people’s experiences of how this commissioning duty is working in practice. The review says, promisingly, that if legal duties on paper aren’t working as they should, “that may mean that the duties need to be regulated more closely”. Please make it happen!
What would a new legal framework look like?
The Law Commission concludes that legal change is needed, and that there should be a new legal framework “focused solely on meeting the social care needs of disabled children”. The Commission says this would help ensure disabled children are viewed as children who may need extra help and not always children who need protection.
A new legal framework would mean taking disabled children out of the scope of section 17 of the Children Act 1989. Obviously, this would be a huge step, but if it makes it harder for local authorities to overlook and marginalise disabled children, it’s a step that must be taken.
What are the next steps, and who decides what happens?
You can read the full set of proposals and the consultation questions – all 84 of them! – here.
After the consultation period, which ends on 20 January 2025, the Law Commission will analyse responses and take a final decision on which proposals to recommend to the Government. Ultimately though, decisions about reforming the law must be taken by Parliament, and decisions about how much money should be spent on social care, or which children should or shouldn’t get help, are decisions for our elected politicians.
Also read:
- A record rise in SEND appeals, and challenges for teachers accessing school support. Things are not getting better…
- The Law Commission Review of disabled children’s social care legislation: How you can be involved
- Can you legislate for love? The Government’s plans for children’s social care aims to
- Private companies running SEND schools have immunity from the law – one family is pushing for change
- What will a Bill for Children’s Wellbeing do for our children with SEND?
- SNJ’s 7-point open letter to Bridget Phillipson, new Secretary of State for Education
- Parents of disabled children traumatised by the public bodies that should be supporting them
- Does the SEND Tribunal have to pay attention to the views, wishes and feelings of the child?
- Post-16: mental capacity and the SEND Tribunal
- The SEND “Emergency” debate: scrap safety valve, write-off high needs debt and stop piling trauma on to families
- “The curriculum belongs to the nation” Let them know that includes children with special educational needs
- Know your child’s rights to social care support
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When her younger daughter was diagnosed with Rett Syndrome in 2009 shortly before her second birthday, Catriona found herself dealing in practice with things she’d previously thought she understood in principle.
She juggles her work as policy manager for a national charity with caring and advocating for her daughter. She's passionate about improving the lives of disabled children and their families, and making the systems that should support them work more transparently and equitably.
Catriona writes for Special Needs Jungle in a personal capacity, and all views expressed are her own.
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