Law Commission seeks views on disabled children’s social care law + response from DfE

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 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.  

This help could be personal care for a child provided in their own home by a carer. It could be a short break, to give a child the chance to get involved in activities in the community while their parent has some time off from their caring responsibilities. It could be an adaptation to a child's home to make it accessible for a wheelchair. Alternatively, it could be direct payments so that they can purchase any of these things for themselves. A range of other services could also be provided. 

Society has changed a lot since the foundations of disabled children's social care law were laid in the 1970s. For example, we know a lot more about conditions like autism and many more children are now recognised as neurodivergent. But some things haven't really changed. Disabled children who need help from social services often have serious and complex needs. The person asking for the help will usually be the child's parent or carer – in practice this is often their mother– who may be exhausted from juggling their caring responsibilities around work and looking after the child's siblings. The person deciding whether to provide help and, if so, what kind of help to provide, will often be a busy social worker with a large case load to manage. 

In these circumstances, for the law to be useful, it should be up to date, easy to find and understand, and fair. Arguably, it is none of these things. 

The law is out of date.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. It came from legislation that was intended to help injured soldiers find jobs after the war. 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”. We think that's a fair description. 

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; 

·       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 we should define disability;  

·       what remedies should be available for children and families when things go wrong? 

The consultation is open until 20 January 2025. 

Notes for editors 

1.     Further details on the project, full consultation paper and a summary are available here https://lawcom.gov.uk/project/disabled-childrens-social-care/  

2.     The Law Commission have been asked to review the law by the Department for Education and terms of reference have been agreed with them. The review extends to England only. 

Please see a quote from the Children's Minister, supporting a Law Commission consultation on changes to disabled children's social care law – looking at solutions to out of date and unfair provisions.

From their release, in full below: “Disabled children who need help from social services often have serious and complex needs. The person asking for the help will usually be the child's parent or carer – in practice this is often their mother– who may be exhausted from juggling their caring responsibilities around work and looking after the child's siblings. The person deciding whether to provide help and, if so, what kind of help to provide, will often be a busy social worker with a large case load to manage.  

In these circumstances, for the law to be useful, it should be up to date, easy to find and understand, and fair. Arguably, it is none of these things.”