Amendments to the key duty for disabled children’s social care

At one level this is an extremely geeky post – covering the amendments to various social care duties for disabled children’s social care now the Children and Families Act 2014 and the Care Act 2014 are both in force. However it serves an important purpose, which is to highlight how far we are from a single coherent scheme to make sure the education, health and care needs of every disabled child are properly met. Some of the changes made are also potentially important, including a new duty to provide information on services to disabled children.

This post concerns the attractively named Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015. This is ‘secondary’ legislation, being law made by the Minister – in this case the Secretary of State for Education.

Its purpose is to make changes to the various Acts of Parliament which are affected by the new schemes introduced by the Children and Families Act 2014 and the Care Act 2014. You might ask how a Government Minister gets to change the wording of an Act of Parliament – surely that’s a job for, well, Parliament. The answer to this lies in section 136 of the Children and Families Act 2014 and section 123 of the Care Act 2014. Through these sections Parliament has allowed the Secretary of State to make an Order changing other Acts of Parliament as a consequence of the two Acts passed in 2014.

Any boy has she done so. The Order makes amendments to 39 different Acts of Parliament on my count. These include the Opticians Act 1989 and the Water Industry Act 1991 which need not concern us – but on any scale it’s a huge number of changes. There is a very helpful summary of all the changes in the Explanatory Memorandum published with the Order for those who want the complete picture.

To see the changes themselves you need to look at the Schedule to the Order. Many of the amendments concern restricting previous legislation solely to Wales. However there are important changes made through the Order to section 2 of the Chronically Sick and Disabled Persons Act 1970 – which I am constantly banging on about because it is the key duty to provide disabled children with social care services. These changes apply to England and Wales and are found from paragraph 19 of the Schedule.

What the Order does is insert new sub-sections into section 2 of the CSDPA 1970 – see para 21 of the Schedule. Sub-section 4 now reads:

Where a local authority have functions under Part 3 of the Children Act 1989 in relation to a disabled child and the child is ordinarily resident in their area, they must, in exercise of those functions, make any arrangements within subsection (6) that they are satisfied it is necessary for them to make in order to meet the needs of the child.

So the key duty to provide disabled children with social care services is now in section 2(4) of the CSDPA 1970 (as amended). It seems to me that this works in the same way as the previous duty in section 2(1) – the local authority must assess the child’s needs under section 17 of the Children Act 1989 and the Working Together statutory guidance, and then decide whether it is ‘necessary’ to provide any of the specified list of services.

The list of services is now found in sub-section 6. Some of the wording has been tidied up but it is in practice the same as the previous list – and so covers every type of conceivable social care service apart from residential short breaks. To emphasise – there is an individual right to these services for every disabled child where after an assessment the local authority accepts that it it is necessary to meet their needs by providing them.

It is also very helpful that the new 2015 version of the Working Together guidance says at p18 that:

When undertaking an assessment of a disabled child, the local authority must also consider whether it is necessary to provide support under section 2 of the Chronically Sick and Disabled Persons Act (CSDPA) 1970. Where a local authority is satisfied that the identified services and assistance can be provided under section 2 of the CSDPA, and it is necessary in order to meet a disabled child’s needs, it must arrange to provide that support.

This shows the link between the duty to assess under the Children Act 1989 and the duty to provide services under the CSDPA 1970 in the clearest possible terms.

The Order also creates a new right to information about the services for disabled children under CSDPA 1970 section 1(5) – see para 20 of the Schedule. This seems to be a kind of tailored ‘local offer’ for individual children which could be very important. The Explanatory Memorandum says nothing about the purpose of this amendment – it simply seems to have been made to reflect the existing duty in relation to disabled adults. However any new right to information for disabled children must be welcomed – and interestingly the right is for the child to be informed, not the parent. I look forward to a host of new accessible information on available services for disabled children from every local authority.

There may well be some other important amendments – for example the carer’s assessment duty under section 6 of the Carers and Disabled Children Act 2000 has been amended to apply only to Wales, as there are new provisions for parent carer’s needs assessments in England. However as far as I can tell there is nothing of substance changed – nor should there be in an Order intended to make only consequential amendments.

To return to where this post started – in no rational world would we need to amend 39 Acts of Parliament when we have introduced two new Acts that are supposed to ensure proper support is provided to disabled children and adults. However what the Order highlights most clearly is that social care for disabled children falls through the gap between the two 2014 Acts – which is why this support is still being provided under an Act passed for disabled adults in 1970. Perhaps this will be remedied in the next Parliament.