Law Commission consultation on disabled children's social care – Law Society response

The proposals

The Law Commission is reviewing the legal framework governing social care for disabled children in England.

They propose introducing a stand alone statutory framework to address the social care needs of disabled children.

The reforms include:

• there should be a single duty to assess the social care needs of a disabled child that is set out clearly in legislation
• after the assessment is carried out, the family should be entitled to a written copy
• disabled children’s social care law should be brought closer into line with special educational needs and disabilities (SEND) law
• following the SEND approach, but expanding it to those under 16; all children should – in principle and when they can – be able to decide for themselves to:
  • request an assessment of social care needs
  • make representations during the assessment of their needs
  • make representations about the plan to meet their needs
  • turn down an offer of advocacy support
  • ask for direct payments
  • make use of the relevant remedies that are available where a local authority has failed to assess or meet their needs appropriately
• where children aged 16 or 17 may be able to decide for themselves, local authorities should consider whether the child has capacity using the test from the Mental Capacity Act 2005
• there should be a right to independent advocacy for any disabled child who would otherwise have difficulty in participating in the assessment and planning process around their social care needs

Our view

We welcome reforms which simplify and clarify the law, and which improve disabled children’s access to assessments and support services.

We do not object to the introduction of a stand alone statutory framework in principle, as long as reforms are mindful of unintended consequences.

Our view is that any reforms should come with guidance which empowers professionals from different disciplines to work well together.

In order for there to be a robust mechanism for children and families to challenge local authority decisions, there must be a robust and sustainable legal aid system.

We are also keen that reforms increase children and young people’s voices in developing their own plans and that is reflected in the care and support they receive.

Independent advocacy is crucial, given that many young people do not know that they can challenge a local authority’s decision.

If a child or young person does not want an advocate then that should be their choice, but they should be given the chance to make an informed choice themselves.

Next steps