[The Law Commission’s Disabled Children’s Social Care project – on which I was a consultant – has published its final report today (16 September). I will do a walkthrough of the report as soon as I regain access to the shed (currently out of action as a furniture store during home redecoration), but in the interim I set out below the key parts of what it has said in publishing the report, alongside a suite of other materials to be found here.]
The recommendations in our report provide a comprehensive set of reforms to disabled children’s social care law. The reforms we recommend represent the most substantial change to this area of law since the Children Act 1989. The objective of our recommendations is to make the law clearer, simpler and fairer. Taken together, the reforms should provide a more modern legal framework, better suited to meeting the specific needs of disabled children and their families.
Problem
Over time this area of law has become increasingly complicated and inaccessible. 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”.
Elements of the law are also now out of date. For example, the definition of disability in 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”. This definition dates from the Second World War.
The law is also – potentially – unfair. It 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. 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.
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.
Project
It is these problems, and others, that we have considered throughout the review and sought to address in making our recommendations for reform. The review was carried out at the request of the Department for Education. It arose from a recommendation made by 2022 Independent Review of Children’s Social Care.
Our recommendations for reform are based on provisional proposals contained in our consultation paper on disabled children’s social care. We carried out a full public consultation on our proposals between 8 October 2024 and 31 January 2025, inviting written responses. In addition, both before and during the consultation we met with around 1,000 stakeholders at approximately 150 meetings and events.
Our recommendations are set out in full in our report. Key recommendations include:
- 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.
Next steps
We published our final report on 16 September 2025. It is now for Government to review and consider our recommendation for reform.
[Editorial note – those who know me that I have been particularly interested in the participation aspect of the project, which culminates in proposals for a statutory principle, checklists, the adoption of the MCA 2005 for relevant decisions/actions by 16-17 year olds and a statutory test for determining competence for under 16s on the basis of the functional limb of the MCA 2005].
