The ‘outdated’ legal framework on social care for disabled children in England will be reviewed with a view to making it fairer and more effective.
The Department for Education has asked the Law Commission for England and Wales to review the “patchwork of legislation” for the group, dating back to 1970.
The review was a commitment in the DfE’s draft children’s social care implementation strategy, published in February, in response to the Independent Review of Children’s Social Care.
In its final report, the care review said the current framework was “outdated”, involved a “patchwork of duties” that sat across multiple pieces of legislation, making it harder for both families and professionals to understand disabled children’s legal entitlements to support.
DfE criticisms of current law and aims for review
The DfE echoed this in its strategy, adding that the current framework led “both to variation in the services provided and to confusing, often safeguarding-focused routes to accessing support”.
According to the Law Commission, children’s minister Claire Coutinho has set it the following objectives for the review:
- To recommend a solution to the patchwork of legislation that currently governs social care for disabled children.
- To improve how the law on social care for disabled children fits in with the law relating to children’s social care more broadly.
- To recommend a route to review the outdated language and definitions underpinning the law on social care for disabled children.
It said its overarching aim was to “simplify and strengthen the law, ensuring that the system is fair and works for parents, care givers and local authorities”.
The commission will now develop terms of reference and a timeframe for the project.
The law on social care for disabled children
Comprehensive information on the law on disabled children is available to anyone with a licence for Community Care Inform Children, on our disabled children knowledge and practice hub. We have provided an overview of the key duties below:
- Definition of a disabled child: exemplifying the care review’s conclusion that existing legislation is outdated, section 17 of the Children Act 1989 (s17 CA89) defines a child as disabled if s/he is “blind, deaf or dumb or suffers from mental disorder of any kind or is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 or such other disability as may be prescribed”.
- Child in need duties: s17 CA89 accords child in need status to all disabled children, placing their local authority under a duty to “safeguard and promote [their] welfare, and consistent with that duty, promote their upbringing by their families, by providing “a range and level of services appropriate to those children’s needs”.
- Service provision: councils acting under s17 CA89 must provide services to disabled children if “they are satisfied it is necessary for them to [do so] in order to meet the needs of the child”, under section 2 of the Chronically Sick and Disabled Persons Act 1970 (s2 CSDPA70). These include providing practical assistance around the home to the child, recreational facilities outside the home, help in accessing educational facilities, assistance with adaptations and travel to and from services provided under s17 CA89.
- Special educational needs and disability (SEND): entitlement to SEND provision is governed by the Children and Families Act 2014. For children with an education, health and care plan, section 37 of this act requires councils to specify in the EHCP any social care provision made for the child under s2 CSDPA70 and any other social care provision reasonably required as a result of the child’s learning difficulties and disabilities.
- Assessing and supporting parent carers of disabled children: under sections 17ZD, 17ZE and 17ZF CA89, councils must assess the support needs of parent carers of disabled children if they appear to need support, or on request, unless they have already done so and the parent’s needs have not changed. On the back of the assessment, the council must decide whether the parent and child have needs for support, whether these may be met by services under s17 CA89 and whether to provide these services.
- Transition assessments: councils are required to assess a child’s needs for care and support on turning 18 under section 58 of the Care Act 2014, and their carers’ needs for support when the child reaches adulthood under section 60 of the Care Act. The trigger for such assessments is that they would be of significant benefit to the person and it appears that they would need care or support when the child in question turns 18,
- Provision of care and support on turning 18: in specified circumstances (section 17ZH CA89), councils must continue to provide services under s17 CA89 to young people on turning 18, for example when they were entitled to a transition assessment but it had not been carried out.
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Be Careful For What You Ask?
The Care Act 2014 and The Children Act 2006 (and the Workings Together Guidelines) place the use of market mechanisms, and subsequent Public Procure Procedure, Contract Law, Information Act Law onto the face of the statutes.
For sure, like LASSA70 or the CSDPA70, do embody a spirit that simply can’t be replicated in a market environment.
How these statutes relate to the Unfair Terms and Conditions of Contract, the Enterprise Act and Competition and Public Procurement legislation AND their interactions with Information Management Requirements and Data Subject Rights isn’t understood, at all.
Or rather, and if it is understood, the direction of legislative drift is towards the protection of economic interests and away from the rights the child.
When the MacAlister Review made play of the increased role of Advocacy this is a dilution of existing powers, and especially record retention requirements, held and required by Councils.
I wondered if the Office of The Children’s Commissioner ought really to be recognised as ‘The Body’ empowered to raise s11(1) Super Complaints with the OFT and CMA.
This, or some iteration of it, would truly be a 21st Century innovation.