Rosalind Hodder Compton, legal and practice development manager at Coram Children's Legal Centre, outlines developments in the Law Commission's review of disabled children's social care law
The Law Commission is carrying out a review of the laws underpinning social care for disabled children in England. The role of the Law Commission is to review existing laws and recommend reforms. The review has been commissioned by the government, which will wait to see what comes out of the review and make its own decisions about what policy reforms are needed.
Changes needed
In its introduction to the proposed review, the Law Commission came to the conclusion that the current law does not meet the needs of disabled children and their families, as it is out of date, overly complicated, and out of step with other areas of law. It also suggested changes to the language and definitions used to describe disabled children in law, which have become obsolete and in some cases offensive.
The Law Commission has proposed creating a new legal framework specifically for social care for disabled children and their families. The existing legal framework is already complicated and confusing, and making the changes suggested within the current system would make it even more difficult to understand. A new legal framework would create a statutory duty to meet the needs of disabled children and their families, and a national eligibility criteria for when that duty is triggered. This would remove the postcode lottery of eligibility for services that many children and their families currently face.
Children Act 1989
There is concern among those who work with disabled children that a new framework could lead to a loss of the wide discretionary powers currently available under section 17 of the Children Act 1989. Removing disabled children from the scope of section 17 would be a huge step, so it is very important that new equivalent powers must be created alongside the new statutory duty; there must be no reduction in the rights or options for support made available to disabled children and their families. The Law Commission seems to have recognised this in their consultation paper, and we hope that it will listen to the concerns raised in many of the consultation responses.
There is much to be hopeful about in the consultation. Suggestions include looking at improved joined-up working between local authority departments, such as lead professionals spanning local authority teams; proposals for greater participation by children in decision making, and for independent advocacy for children; and taking greater account of the impact of family care on siblings when assessing what additional support is needed. There is the potential for a new definition of disability in line with the definition set out in the Equality Act 2010, but without the 2010 Act's exclusions for addiction or certain behaviours (for example, conditions that cause tendency to steal). This well established and understood definition would provide clarity and consistency across all areas of law. The Law Commission is also proposing a “non-exhaustive list” of services that can or should be provided under the duty to meet the needs of disabled children, to improve clarity and fairness, and reforms to the direct payments system.
However, there are limits to the scope of what the Law Commission can achieve. For example, it is not currently looking at reforming the law governing special educational needs and disabilities (SEND). There is a huge 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. Without an in-depth review of the current SEND system, many disabled children will still not receive the full support they need. Likewise, disabled children who are not in family-based care, such as children in custody, are unlikely to see much improvement in the already limited support they receive without further investment into the secure estate and youth justice system.
Timetable for reform
In October 2024, the Law Commission published a consultation paper setting out their initial views on the current legal framework around social care for disabled children, and setting out some provisional proposals for how that framework could be improved. The commission invited responses from any interested groups or individuals before 31 January 2025, when the consultation period closed. However, the review is ongoing, and we can expect to see a raft of policy proposals and responses from the government in the next months and years.
The commission is now analysing the consultation responses before it makes its final recommendations. The government must then select the recommendations it wants to implement and put them to parliament as a proposed bill. What any new law will look like will ultimately depend on parliamentary decisions about how much money should be spent on children's social care, and which children should or should not get additional support. The process of creating new law can be a slow one, and we should not expect a complete overhaul of the current system within the next year.
