The Law Commission has U-turned on a proposal to create a separate legal framework for disabled children to ensure their social care needs are met, amid warnings that the proposal could lead to disabled children being deprioritised.
Consulting on disabled children’s social care law last year, the commission said the legislation was out of date, inaccessible and potentially unfair. It 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 a final report published today, the commission conceded that its original solution was not the right one.
Critics said the proposal could make it harder to identify and meet the wider needs of disabled children, such as needs relating to poverty, racism, bullying or poor housing. It could also lead to disabled children being deprioritised within the area of social work, complicate the law and make it harder to identify cases where a disabled child faces a genuine risk of harm or abuse.
The commission has now recommended that disabled children remain within the scope of section 17, with a ‘discrete set of provisions’ added to the Children Act to implement other recommendations.
Those other recommendations include a new statutory duty to assess the social care needs of disabled children and give families the right to a written copy of the assessment. The need for care and support would be judged without reference to the support the child is currently receiving.
To end a ‘postcode lottery’ that has arisen as a result of local authorities being able to take into account their resources in their decision-making process, the commission recommends a new single duty to meet the social care needs of disabled children subject to a national eligibility criteria.
The government has one year to decide whether to accept or reject the commission’s recommendations. An interim response will be published within six months.
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