Photo: Olesia Bilkei/AdobeStock
A review has begun on the “complex and fragmented” legal framework for social welfare for children with disabilities.
The Law Commission will consider ways to reform the legal framework, some of which dates back more than 50 years, to improve consistency, clarity and fairness for children and parents.
The Department for Education commissioned the review as part of its draft strategy, “Stable families based on love”, in response to the independent review into children’s welfare.
Current frameworks are “outdated”
In its final report, the Care Review said the current framework was “outdated” and a “patchwork of obligations” across multiple pieces of legislation, making it difficult for families and professionals alike to understand the legal support rights of children with disabilities.
The DfE’s review aims to:
Eliminate the patchwork of laws that currently govern the social welfare of children with disabilities Improve how the law relating to the social welfare of children with disabilities fits in with broader social welfare law Review the outdated language and definitions on which this area of law is based
Nicholas Paynes KC, public law member at the Law Commission, said: “It is essential that we simplify and modernise the law relating to the social care of disabled children. The current legal framework providing for the social care of disabled children is complex and fragmented, with some provisions dating back more than 50 years.”
“This has led to inconsistencies and a lack of clarity for parents and carers of disabled children, so I am pleased that the Law Commission will be carrying out this review.”
Disabled Children Welfare Act
Comprehensive information on the law relating to children with disabilities is available to all Community Care Informed Children licencers on the Children with Disabilities Knowledge and Practice Hub A summary of your key duties is provided below.
Definition of a disabled child: Illustrating the Care Review’s conclusion that current law is outdated, section 17 of the Children Act 1989 (s17 CA89) defines a child as a disabled child if he or she is “blind, deaf or mute or suffers from any mental disability or is seriously and permanently disabled by illness, injury, congenital deformity or any other disability as may be prescribed”. Child in need duty: s17 CA89 gives every disabled child the status of a child in need and imposes a duty on local authorities to “protect and promote” them. [their] Comply with and in line with its welfare obligations, facilitate care by families and provide “a range and level of services appropriate to the needs of those children”.Service provision: Councils acting under section 17 of CA89 must provide services to disabled children “if they are satisfied that they require them”. [do so] The support a child should receive “to meet the needs of the child” under section 2 of the Chronically Sick and Disabled Persons Act 1970 (s2 CSDPA70). This may include practical support for the child in the home, assistance with access to recreational and educational facilities outside the home, assistance with adaptations and transport to and from services provided under s17 CA89. Special Educational Needs and Disabilities (SEND): The right to SEND provision is governed by the Children and Families Act 2014. For children with an education, health and care plan, section 37 of the Act requires the council to specify in the EHCP the social care provisions provided to the child under s2 CSDPA70, and any other social care provisions reasonably required as a result of the child’s learning difficulties and disabilities. Assessment and support of parent carers of disabled children: Under sections 17ZD, 17ZE and 17ZF of CA89, the council must assess support needs if it believes that a parent carer of a disabled child needs support, or if requested to do so (unless it has already been assessed and the parent’s needs have not changed). On the basis of the assessment, the council must decide whether the parent and child have support needs, whether these can be met by services under section 17 of CA89, and whether to provide these services. Transition assessment: The council must assess the care and support needs of the child when he or she turns 18 under section 58 of the Care Act 2014, and the support needs of the carer when the child becomes an adult under section 60 of the Care Act. The trigger for such an assessment is that the assessment would be of significant benefit to the person and that the child in question is likely to require care and support when he or she turns 18. Provision of care and support on turning 18: In certain circumstances (section 17ZH CA89), local authorities must continue to provide services under s17 CA89 to young people who have turned 18, for example where they are entitled to a transition assessment but this has not been carried out.
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