Garden Court Community Care and Education Law Teams respond to Law Commission Consultation on Disabled Children’s Social Care

Find out more about the Law Commission’s Consultation on Disabled Children’s Social Care. The Consultation closed on 31 January 2025. See our response to the Consultation here.

• We agree with the main proposition of a new distinct legal framework for social care for disabled children and their families, with a statutory duty and national eligibility criteria for when the duty is triggered. This would be an enforceable duty like the Care Act 2014 (Parts 2 and 6).
• We do not want any loss of the wide discretionary powers in s 17 Children Act 1989, so we say equivalent powers should be re-enacted to stand alongside this new statutory duty.
• In Part 1, we agree with the frameworks proposed for assessments of children and carers, and greater taking into account of situation of siblings.
• In Part 4, we say there is scope for greater alignment with Special Educational Needs & Disabilities (SEND) in the sense of greater integration of assessment process, and that enforcement regimes should be on a par with each other, in the sense that the new statutory duty for social care for disabled children should be as robust as the duty under S 42 Children and Families Act 2014.
• We also say in Part 4 (in an area where there are differing shades of view across the community care law sector) that, in principle, there is benefit in having a statutory appeal but this is with major provisos that there would need to be significant resourcing of the tribunal and reform of legal aid, for that to be an effective remedy (Q 65).
• The consultation report proposes that SEND tribunals are given power to recommend social care assessments; we say they should be able to order them.
• In Part 4, we support greater joined up working between departments, including Team Around the Child and lead professionals spanning local authority teams (Q 60).
• In Part 5, we say that the definition of disability should be the one in EA 2010 without the exclusions of addiction and the list of other conditions that are excluded in the 2010 Act (e.g. conditions that cause tendency to set fires, to steal etc), also with an extension of the definition as regards younger children
• In Part 5, we agree with having overarching principles as in s 1 Care Act 2014 and comment that they have been useful.
• There are proposals for greater participation by children in the decision-making and for independent advocacy for children.
• In Part 5, we also comment on when should a child be allowed to make their own decisions about their social care. We say that under 16, it is generally reasonable to protect a child from making an unwise decision about their social care.
• In Part 5, there are also comments on proposals on what the test should be for a child’s mental capacity to make their own decision.
• We say, in Part 3, that Disabilities Facilities Grants (under the HGC&R Act 1996) in respect of disabled children should not be subsumed into the new duty, but the social care duty should not be treated as discharged simply by referring the parents to the DFG scheme.