In its report, published yesterday (16 September), the Law Commission noted that the law has been interpreted to allow local authorities to develop “area-specific eligibility criteria”, to determine which disabled children qualify for services and which do not.
It said: “This means that disabled children with the same needs get treated differently depending on where they live in the country. That was not the intention behind the legislation.”
The most important parts of disabled children’s social care law are section 2 of the Chronically Sick and Disabled Persons Act 1970 and section 17 of the Children Act 1989.
In its report, the commission observed: “Both of these legal provisions were ground-breaking. The Chronically Sick and Disabled Persons Act 1970 was one of the first ever pieces of legislation to focus on helping disabled people. It did so by creating, for the first time, a duty to meet the needs of disabled children and adults.”
However, outlining the problems with the current law, the commission acknowledged that elements are now out of date.
The report stated: “The definition of disability in section 17(11) of the Children Act 1989 refers to any 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”.
“[…] It was drafted at a time when our awareness of neurological conditions such as autism was in its infancy. The language used then is offensive now and is very different to the more modern approaches contained in the Equality Act 2010 or the United Nations Convention on the Rights of Persons with Disabilities.”
Further, the report found that the law is “potentially unfair” - noting that it has been interpreted to allow local authorities to “draw up their own local eligibility criteria”, to determine which disabled children qualify for services and which do not.
Report authors added: “In addition to these problems, throughout this review, families have told us that the law is applied in a way which makes it difficult for their children to access the services they need.
“The most prevalent concerns we heard were that:
- there is too much focus on safeguarding disabled children from harm at the expense of meeting their needs – they are often viewed as children in need of protection, rather than children in need of help;
- those assessing the needs of disabled children do not always have expertise in disability;
- the eligibility criteria for accessing services are often too high;
- the needs of parents, carers and siblings are often overlooked; and
- the different teams, departments, and organisations responsible for a child operate in silos and do not always talk to each other.”
Consulting on disabled children’s social care law last year, the commission proposed removing disabled children from the scope of section 17 of the Children Act 1989 and creating a new “simplified” legal framework that addressed their needs.
However, in its report published yesterday, the commission conceded that its original solution was “not the right one”.
The report stated: “Those who opposed the proposal did not disagree with the objectives of simplifying the legal framework or striking a more appropriate balance between safeguarding disabled children from harm and meeting their needs. However, they questioned whether a new legal framework taking disabled children out of the scope of section 17 of the Children Act 1989 would achieve these objectives and were concerned about the risk of unintended consequences.”
Some consultees, for example, felt that a separate legal framework would result in the segregation of disabled children.
Others argued that a separate, additional legal framework would “complicate” rather than simplify the law.
The report made the following key recommendations for reform:
- A simplified and unified legal framework for disabled children’s social care law, sitting within the Children Act 1989.
- A single, comprehensive piece of statutory guidance on disabled children’s social care law, setting out the rights and responsibilities of disabled children, families, and local authorities. This guidance should include material which helps local authorities to ensure that there is an appropriate balance struck between identifying and meeting the needs of disabled children and their families in a non-stigmatising way and safeguarding them from harm and abuse. The purpose of this is to avoid inappropriate stigmatisation of parents and carers.
- An updated definition of disability.
- A single duty to meet the social care needs of disabled children, subject to national eligibility criteria. As a first step toward this national system, we recommend that the Government carry out further work – involving disabled children, families and local authorities – to decide what the eligibility criteria should be and ensure that they are financially sustainable.
- A right to independent advocacy for disabled children, and for parents and carers, who would not be able to effectively participate in the assessment of their needs without the support of an advocate.
- Rights for disabled children to participate in decisions about their care and support.
- A statutory requirement that planning for disabled children to make the transition to adulthood should start by the age of 14.
- Clarification of the dividing line between health and social care.
- A fair, accessible, independent and effective system for resolving disputes about social care for disabled children.
It is now for Government to review and consider the commission’s recommendations.
A Department for Education spokesperson said: “The current legal framework for disabled children in the social care system and their families is fragmented and difficult to navigate.
“We are grateful to the Law Commission for shining a light on this issue and will carefully consider the findings and respond in due course.
“We are determined to break down barriers to opportunity through our Plan for Change. That is why our Children’s Wellbeing and Schools Bill marks the biggest overhaul of children’s social care in a generation and we’re working closely with families to reform the SEND system to deliver the outcomes children deserve.”
Lottie Winson