The Law Commission is carrying out a review of the laws underpinning social care for disabled children in England.
The role of the Law Commission is to review existing laws and recommend reforms. Coram Children’s Legal Centre submitted a response to the review in January 2025. The review has been commissioned by the government, which will wait to see what comes out of the review and make its own decisions about what policy reforms are needed.
What changes are needed?
In its introduction to the proposed review, the Law Commission came to the conclusion that the current law does not meet the needs of disabled children and their families, as it is out of date, overly complicated, and out of step with other areas of law. They also suggested changes to the language and definitions used to describe disabled children in law, which have become obsolete and in some cases offensive.
The Law Commission has proposed creating a new legal framework specifically for social care for disabled children and their families. The existing legal framework is already complicated and confusing, and making the changes suggested within the current system would make it even more difficult to understand. A new legal framework would create a statutory duty to meet the needs of disabled children and their families, and a national eligibility criteria for when that duty is triggered. This would remove the postcode lottery of eligibility for services that many children and their families currently face.
What changes are being considered for the Children Act 1989?
There is concern among those who work with disabled children that a new framework could lead to a loss of the wide discretionary powers currently available under section 17 Children Act 1989. Removing disabled children from the scope of section 17 would be a huge step, so it is very important that new equivalent powers must be created alongside the new statutory duty; there must be no reduction in the rights or options for support made available to disabled children and their families. The Law Commission seems to have recognized this in their consultation paper, and we hope that it will listen to the concerns raised in many of the consultation responses.
There is much to be hopeful about in the consultation. Suggestions include looking at improved joined up working between local authority departments, such as lead professionals spanning local authority teams; proposals for greater participation by children in decision making, and for independent advocacy for children; and taking greater account of the impact of family care on siblings when assessing what additional support is needed. There is the potential for a new definition of disability in line with the definition set out in the Equality Act 2010, but without the 2010 Acts exclusions for addiction or certain behaviours (e.g. conditions that cause tendency to steal etc.). This well-established and understood definition would provide clarity and consistency across all areas of law. The Law Commission is also proposing a ‘non-exhaustive list’ of services that can or should be provided under the duty to meet the needs of disabled children, in order to improve clarity and fairness, and reforms to the direct payments system.
However, there are limits to the scope of what the Law Commission can achieve. For example, they are not currently looking at reforming the law governing special educational needs and disabilities (SEND). There is a huge overlap between children who need support at school to meet their special educational needs, and children who need social care support at home because they are disabled. Without an in-depth review of the current SEND system, many disabled children will still not receive the full support they need. Likewise, disabled children who are not in family-based care, such as children in custody, are unlikely to see much improvement in the already limited support they receive without further investment into the secure estate and youth justice as a whole.
What is the timetable for reform?
In October 2024 the Law Commission published a consultation paper setting out their initial views on the current legal framework around social care for disabled children, and setting out some provisional proposals for how that framework could be improved. The Commission invited responses from any interested groups or individuals before 31 January 2025, when the consultation period closed. However, the review is ongoing, and we can expect to see a raft of policy proposals and responses from the government in the next months and years.
The Law Commission is now analysing the consultation responses before they make their final recommendations to government. The government must then select the recommendations it wants to carry out, and put them to Parliament as a proposed Bill. What any new law will look like will ultimately depend on parliamentary decisions about how much money should be spent on children’s social care, and which children should or should not get additional support. The process of creating new law can be a slow one, and we should not expect a complete overhaul of the current system within the next year.
