Some dates for the 2026 diary
In March 2026 the English Government is due to give its interim response to the Law Commission’s proposals (published in September 2025[1]) for the reform of the law relating to disabled children’s social care law. Its final response should be published by September 2026.
Sandwiched in between these dates (hopefully) should be the publication of the Westminster Parliament’s Joint Committee on Human Rights report concerning the Human Rights of Children within the Social Care System in England.
Last month the Joint Committee heard evidence[2] from (among others) the Law Commission team responsible for the September 2025 report. In large measure the team stuck to the measured language of its report. However, on a few occasions, the live screening betrayed the odd glimpse of what might be described as ‘exasperation’.
For example, when asked about the accessibility of the current legal regime, Connor Johnston, senior lawyer at the Law Commission, said that it was ‘not remotely accessible’ and pointed to the problem that this ‘incredibly complex and patchwork system’ creates for families and practitioners. In the opinion of the barrister for the Commission, Alex Ruck Keene KC, the law is ‘incredibly complicated incredibly messy’ and in consequence ‘people just don’t understand it at all, including I should say within the Department for Education’. He then (bless him) called a spade a spade and gave the example of the Family Help/Early Help regime and the ‘continuing myth that it is extra-statutory assistance’, adding that this mistaken belief:
fails to grapple with the fact that local authorities are creatures of statute. They cannot do something unless they have statutory powers. Because we now have a system that is incredibly complicated, there are bits where there is a perception that, “You really do not want to get into doing a Section 17 assessment. Let us say that it is extra-statutory”, when, as a matter of law, it is not extra-statutory at all. It is just a very light-touch assessment.[3]
Other welcome ‘nods to reality’ included giving emphasis (at the outset of their evidence) to the way that the system has generated destructive ‘parent blaming’ practices:
there is sometimes too much focus on safeguarding children from harm rather than meeting the additional needs arising from their disability. The particular instances we heard again and again during this review of where that occurs are families asking for help for their disabled child and being made to feel as if they have done something wrong through actions such as checking bedrooms, fridges and mattresses and interviewing children without parents.[4]
The recommendations in the Commission’s Final Report[5] are recommendations that will, if fully implemented, materially improve disabled children’s social care law in England. They are not perfect, but they deserve support.
The vexed question of eligibility criteria
One recommendation that needs ‘firming up’ relates to the importance of there being clear national eligibility criteria for accessing disabled children’s social care services (as is the case for adults). Although the Commission in its 2024 Consultation Paper[6] expressed the opinion that the duty to provide support should be dependent on the severity of the child’s needs and not the resources of the local authority (paras 7.45 – 7.49) this question has been fudged in its final report. Sadly, in the Committee hearing, there was no ‘calling a spade a spade’ when it came to this question.
The Final Report explains that the Commission refrained from making recommendations concerning the nature of the eligibility criteria as this issue was ‘inextricably linked with exclusively political questions about how much money should be spent on disabled children’s social care’ (para 7.11).
In the Committee hearing, the Commission’s evidence was equally detached. ‘Yes’, it was accepted that there was a huge variation in the local eligibility criteria – ‘no two were the same’/‘a postcode lottery’; Yes, that they were often hard to find (and they could have added ‘and generally incomprehensible’); ‘Yes’, not being treated in a similar way to adults is discriminatory; and ‘Yes’, criteria that treat some children differently because of their particular ‘diagnosis and label’, are wrong – but at that point (as with the Commission’s published recommendations) – it all became far too complicated. The Commission’s view being that once ‘you start saying, “You have an individual entitlement to something” … ‘that starts costing money’ – so it is best avoided.
All well and good – but the Commission was giving evidence to the Human Rights Committee and not the Treasury Committee. In enacting Human Rights legislation and in signing up to International Human Rights Treaties, the UK commits to ensuring, within its jurisdiction, that there is a fundamental respect for the human rights of all – including disabled children and their families. Such a commitment brings with it an obligation to find the resources to ensure that these rights are upheld: that the measure of the provision we make, should be judged by the ‘standards of a civilised society’[7] and not by the machinations of an austerity abacus.
It is to be hoped that the Joint Committee will, when it reports, take the opportunity to remind the Government that the support needs of disabled children and their families are not exclusively political questions.
This brief posting should not end on a negative note. The Law Commission report is an excellent document, that deserves widespread support. In relation to those few sections where it does not (in my opinion) ‘hang together’ – these can be resolved if, and when, a government finds time to bring forward a Disabled Children’s Social Care Bill. There is little or no hope that such a Bill will come to pass in 2026 – but there is much in the Commission’s report that can be implemented without delay via amendments to guidance. With hope, the Department for Education is now pencilling in 2026 diary dates for this to happen – starting with the next update to its Working Together Guidance.[8]
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[1] Law Commission Law Disabled Children’s Social Care: Final Report (September 2025) Law Com No 422 House of Commons HC 1287 at https://cdn.websitebuilder.service.justice.gov.uk/uploads/sites/54/2025/09/Disabled-Childrens-Social-Care-Final-Report.pdf
[2] Houses of Parliament Human Rights (Joint Committee) Human Rights of Children within the Social Care System in England Wednesday 10 December 2025 – Recording at https://www.parliamentlive.tv/Event/Index/8dac1502-f618-4d50-8638-0ce6e4063c7a and Transcript at https://committees.parliament.uk/oralevidence/16896/pdf/
[3] In this respect, see L Clements and A L Aiello Institutionalising parent carer blame para 2.25 (Cerebra 2021).
[4] In this respect, see also L Clements and A L Aiello Institutionalising parent carer blame para 5.36 (Cerebra 2021).
[5] Law Commission Law Disabled Children’s Social Care: Final Report (September 2025) Law Com No 422 House of Commons HC 1287 at https://cdn.websitebuilder.service.justice.gov.uk/uploads/sites/54/2025/09/Disabled-Childrens-Social-Care-Final-Report.pdf
[6] Law Commission Law Disabled Children’s Social Care Consultation Paper 265 (October 2024) at https://cdn.websitebuilder.service.justice.gov.uk/uploads/sites/54/2024/10/Disabled-childrens-social-care-consultation-paper.pdf
[7] See, in this respect, R v Gloucestershire County Council ex p Barry Lord Lloyd (dissenting) “in every case, simple or complex, the need of the individual will be assessed against the standards of civilised society as we know them in the United Kingdom”; see also Price v UK (2002) 34 EHRR 1285, Judge Greve at 1296; R (McDonald) v Royal Borough Kensington and Chelsea [2011] UKSC 33 Lady Hale (dissenting) at para 79; and R (KM) v Cambridgeshire County Council [2012] UKSC 23 Lady Hale, paras 40 – 49.
[8] HM Government Working Together to Safeguard Children 2023 and see also L Clements Jam tomorrow – maybe: the revised Working Together guidance (2024).
Posted 3 January 2026