Law Commission report seeks to end postcode lottery of disabled children’s social care

The Law Commission has published its recommendations on how to reform disabled children’s social care law to make it clearer, simpler and fairer, as well as better suited to meeting the specific needs of disabled children and their families.

One of the key recommendations is the establishment of a new unified framework with national eligibility criteria to end the current postcode lottery in social care.

The Department of Education asked the Law Commission to review the law governing social care, aiming to align it with other areas, such as special educational needs and disability (SEND) law.

Over the past two years, it has heard from disabled children and young people, parents and carers, social workers, managers and directors at local authorities, charities, and third-sector organisations, academics, lawyers, and judges.

Currently, families and local authorities navigate a complex web of overlapping laws from the 1970s and 1980s, which creates confusion and inconsistent provision across the country.

Child in need and safeguarding law

Recommendations include disabled children remaining within the scope of section 17 of the Children Act 1989 and classed as a “child in need”.

The Law Commission said that parents and carers told them that there was too much emphasis on safeguarding disabled children from harm and abuse, and not enough attention given to identifying and meeting the needs arising from their disabilities.

The trend has been referred to in academic research as “parent carer blame”. Specific examples in the report that contributed to this perception of blame included children being interviewed on their own during assessments, the assessment of children’s bedrooms, and parents being encouraged to attend a parent course.

But after consultation, the Law Commission thought that a separate law focusing only on disability related needs might make it harder to identify and meet the broader needs of disabled children, such as needs relating to poverty, racism, bullying or poor housing.

It could also complicate, rather than simplify, the law, adding to the list of legislation which families and professionals have to navigate. In addition, it could make it harder to identify cases where a disabled child faces a genuine risk of harm or abuse.

Definition of disability in social care

Another problem is that the definition of disability in the Children Act 1989 is out of date, reflecting a time when society had a very different understanding of what it means to be disabled. The second is that the definition is inconsistent with the definition that applies in SEND law.

This adds an unnecessary layer of complexity to the law, meaning that a local authority may need to apply two different definitions to the same child in two closely related contexts.

The Law Commission recommends that, under the social care law for disabled children, a child should be regarded as having a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

It says that the statutory guidance  should:

• Clarify that a recognised medical diagnosis is not needed to satisfy this definition of
  disability
• Clarify that the definition can encompass the diverse range of conditions which can affect a child’s ability to perform daily activities
• Address the particular circumstances of disabled children in adoptive families.

Unified framework for disabled children

The Law Commission recommends that a new, unified framework be accompanied by dedicated and comprehensive guidance setting out the rights and responsibilities of disabled children, their families, and local authorities.

This would establish national eligibility criteria, ending the current postcode lottery where a disabled child in one part of the country will have their needs met, but a child in another part of the country with identical needs will not.

In its consultation paper, it proposed that there should be a single statutory duty to meet the social care needs of disabled children, subject to national eligibility criteria. However, local authorities (as well as other consultees) who were both for and against the proposals expressed real concern that the proposals would not be deliverable without significant extra funding, which may not be available.

The Law Commission added that it risked making recommendations that have serious unintended consequences, such as introducing restrictive national eligibility criteria out of financial necessity, making it harder for disabled children to access social care than is currently the case in many areas of the country.

• Further reading: Special Needs Jungle – Reforming disabled children’s social care: a disappointing fudge as Law Commission rows back proposals

Additionally, it was concerned that local authorities might begin charging for services that are currently free of charge. Or if they are unable to comply with their obligations, this would lead to costly litigation.

As a first step toward establishing this national system, the Law Commission recommends that the Government undertake further work – involving disabled children, their families, and local authorities – to determine the eligibility criteria and ensure they are financially sustainable.

Assessment for social care

Local authorities are under a duty to assess the social care needs of any child within their area who
appears to be “in need”. Disabled children are one category of “child in need”. This means that a local
authority is required to assess the social care needs of any disabled child (or child who appears
to be disabled) within their area.

The Law Commission stated that the first issue with the law relating to assessments is that the duty to assess the social care needs of a disabled child is implied, rather than express. That means that some local authorities do not carry out assessments when they should.

The research conducted, examining the policies and criteria applied by 104 local authorities nationwide, suggested that some authorities apply a threshold to determine which disabled children are entitled to an assessment.

Another problem is that there are multiple legal routes to an assessment of a disabled child’s social care needs. This creates complexity and confusion in the law. In addition, it stated that it is not always clear how the duty to assess interacts with other types of assessments to which disabled children might be entitled, such as those for EHCPs.

The Law Commission proposes that there should be a single statutory duty to assess the social care needs of disabled children. Families should be entitled to a written copy of this assessment. However, it added, there was no clear consensus over the threshold for obtaining an assessment, and some stakeholders said that clarifying the law would increase the burden on local authorities.

Other social care reforms

Other key reforms include granting disabled children express rights to request social care assessments and ensuring they receive independent advocacy when needed, to ensure that their voices are heard. The proposals would also strengthen transition planning to adulthood and improve cooperation between health, education and social care services.

Implementation of these recommendations would require government approval and the introduction of new legislation in Parliament.  The full report and recommendations are now with the government for consideration.

Responses to the report

Carol Boys, Chief Executive Down’s Syndrome Association, said: “The Down’s Syndrome Association welcomes several of the Law Commission’s recommendations, including the introduction of a statutory duty to assess the social care needs of disabled children, an increased emphasis on assistance over risk-based assessment, the requirement to consult experts in a child’s condition when needs require it and the implementation of transition planning for Adult Social Care no later than Year 9.

“However, we are deeply disappointed that the Law Commission has not proposed broader legislative reform, instead maintaining the current legislative structure with additional provisions and statutory guidance. This approach leaves families needing to navigate a complex legislative system and falls short of the reform needed to make the law clearer and more accessible for families of disabled children.”

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Contact’s CEO Anna Bird welcomed the report, describing the proposals as “a once-in-a-generation opportunity to fix an outdated system that leaves thousands of families with disabled children without vital support.”

She added, “More children are living with complex health needs and disabilities, but it has become increasingly hard to qualify for social care support. Criteria is shrouded in mystery and different depending on where you live. And the application process has been too focussed on safeguarding and created a culture of parent blame when families are simply asking for help.

“The proposed reforms would not only relieve pressure on families caring 24/7, they also would reduce pressure on schools who are often left to pick up the pieces from social care failings. And it would help reduce poverty. We urge the government to accept the proposals in full and start on reform without delay.”