with Connor Johnston and Efa Jones, Law Commission
Today we have a post about the Law Commission Review of Children’s legislation, by two of the people involved in it. Time after time, review after review, social care for children is equated with protecting children from abuse or neglect. Social care support is vital so many disabled children can live full lives, have fun, make friendships, and participate in society. But families are routinely fobbed off by council social care departments, even though disabled children are legally classed as “children in need”, entitled to an assessment of their social care needs.
The situation isn’t helped because the law is complex, confusing and riddled with painfully obsolete terminology. It stems from 10 different acts of parliament, regulations and guidance going back more than 50 years. The legal framework is difficult for families to navigate, misses out vital things that should be covered, and encourages the shifting of responsibilities, creating gaps that disabled children and their families too often fall through.
Parents have been calling for years for the law to be reviewed, clarified and strengthened. The Disabled Children’s Partnership, of which we are members, has made this one of their priorities for change. We wholeheartedly welcome the task that the Law Commission has taken on to review the entire legislative landscape underpinning social care for disabled children.
Our article is from Connor Johnston, the lead lawyer on the disabled children’s social care project and a barrister specialising in social care law, and Efa Jones, the project research assistant who’s been involved in the review since its inception…
What is the Children’s Social Care Law Commission Review about and how can you contribute? by Connor Johnston and Efa Jones
The Law Commission is a statutory body, independent of government. We aim to ensure the law is as fair, modern, simple and cost-effective as possible. We do this by reviewing the laws of England and Wales through research, consultation and recommending reforms to Government.
Social care law for disabled children is out of date. Some of the law in this area dates back to the 1970s and envisions that social services might provide disabled children with, for example, a ‘wireless’ (the radio kind…). Some of the language and definitions date back even further. For example, section 17 of the Children Act 1989 says that a child is disabled if they are “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”.
This definition, which most agree is out of date and offensive, can be traced back to the creation of the welfare state and finds its roots in legislation intended to help soldiers injured during the Second World War find jobs. It was created at a time when our awareness of neurological conditions such as autism was in its infancy. (Indeed one section of the 1970s legislation, which is no longer in effect, originally defined autism as a form of ‘early childhood psychosis’.)
But the problems with social care law for disabled children aren’t just related to language and definitions. The law is also far too complicated. For example, there are around 13 different assessment duties relating, directly or indirectly, to children with disabilities. Not all of them are written down. And those that are, are written down across many different bits of legislation.
Support not safeguarding
More issues emerge when we start looking at how the law works in practice. Many parents of disabled children responded to the Independent Review of Children’s Social Care expressing concerns about their experiences when they tried to get help for their children. Parents said that there was often a focus on safeguarding during assessments rather than on the child’s disability-related needs. For example, one parent said “… families who are trying their very best to get that help are labelled as bad parents and harming their children”*. Responses to the review also described the postcode lottery that exists: across the country, the services available for disabled children differs greatly area by area. [*The independent review of children’s social care: Call for ideas.]
These are the kinds of issues we are considering as part of our review into social care law for disabled children. This is a project that the Department for Education has asked us to do, following on from the Independent Review, and as part of the commitments made by the department in Stable Homes, Built on Love and the SEND and AP improvement plan.
You can read the terms of reference of our review on our website. The focus of the review is on social care and not SEND law, but there is important overlap. Most obviously social care should be, although often isn’t, a key component of an EHCP. Added to which, our terms of reference specifically require us think about how the social care legislation relating to disabled children aligns with other parts of the statute book including support for SEN.
What stage is the review currently at?
We are currently in the pre-consultation stage of the project. This means carrying out in-depth legal and policy research as well as speaking to a range of people – parents, young people, local authorities and social workers, charities, academics, and judges, among others, to try to get a feel for what works and what doesn’t.
So far, we have heard a range of ways in which the current system isn’t working. For example, we hear from parents that those assessing their children don’t always have an understanding of disability or their child’s particular condition. Assessments for parent carers, we are told, often don’t happen at all or, if they do, there aren’t always appropriate services available to meet the needs that are identified. We’ve heard from a number of mums who’ve told us about being offered things like gym memberships or massages by way of short breaks—services they can’t take up because of their caring responsibilities—which is why they needed a short break in the first place. On the other side of the coin, local authorities tell us of the financial strain they are under and how lack of resources and undervaluing of the social care workforce can make it difficult to deliver social care effectively.
These are just a snapshot of some of themes and issues emerging from this pre-consultation stage of the project. This is helping us to get an idea of what is wrong (and right) with the current system, which will then feed into a full public consultation. That consultation will set out, as thoroughly and as fairly as we can, the problems with the current system and how we think the law could be changed to deal with them. Of course, changing the law won’t resolve all of the problems we are hearing about. But where legal change can make it possible to deliver social care to disabled children more effectively, we need to identify that.
How can you get involved?
That’s where you come in. When we come to consult, we will need your views. Do you agree or disagree with the way we describe the problems with the current system? Have we missed things? Are there groups, particularly those who are heard from less often, who we haven’t thought about? And perhaps most importantly, do you think our proposals will work? If not, what do you think we should do instead?
We aim to consult over a three month period starting in July 2024. This will give you a chance to answer some of those questions. Watch this space, as we need to hear from as many of you as possible once the consultation launches. If you want to get in touch in the meantime, you can contact us at dcsc@lawcommission.gov.uk.
Also read:
- Can you legislate for love? The Government’s plans for children’s social care aims to
- What’s in the Children’s social care review for disabled children?
- Children’s Social Care Review: Are disabled children ‘someone else’s’ problem?
- Why does Josh’s review seem to think disabled children are “Not Known to Social Care”?
- Challenging opaque, illegal social care plans for disabled adults
- Know your child’s rights to social care support
- How local SEND campaigners saw off their LA’s SEND Safety Valve plans—and how you can too
- Why can’t my disabled children have a Blue Badge just because they’re under three? Please help me change the rules!
- SEND Improvement: Supported internships without EHCPs, plus “incredible”, “unforgettable” disabled children’s short breaks
- A mum’s 5 top tips for action to get a local inclusive playground for your disabled child
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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.
- “Why would anyone in government think that was an okay idea?” #SaveSENDLegalRights - May 12, 2026
- The SEND reform reality check: Why experts’ and policymakers’ concerns are growing under scrutiny - April 15, 2026
- MPs warn “unsustainable” SEND transport system fails families with disabled young people - March 6, 2026
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