The legal definition of a disabled child is out of date, offensive, does not capture the nuances of neurodiversity and needs to be reformed, the Law Commission has said.

Opening a consultation on disabled children’s social care law this week, the commission said a disabled child is defined in law as someone who is ‘blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity’.

However, the commission said this definition can be traced back to legislation intended to help injured soldiers find jobs after the second world war and was drafted at a time when awareness of neurological conditions such as autism was low.

The law is also potentially unfair as it permits children in similar circumstances to be treated differently, the commission said.

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'The law requires local authorities to make the arrangements necessary to meet the needs of disabled children. Those needs will depend on the nature of the child’s disability: not where they live or how much money their local authority has left in its budget,' the consultation paper states.

‘But whether the child is able to access services to meet those needs depends on the eligibility criteria the local authority has adopted, taking into account their budgetary constraints. These criteria vary from authority to authority. This has the consequence that the same child might qualify to have their needs met in one area of the country but not another. This consequence was not intended.’

The commission seeks views on several issues, including how disability should be defined, a  new legal framework for disabled children’s social care and remedies for families when things go wrong.

Public law commissioner Professor Alison Young said: ‘The children who need help from social services have changed over time as our awareness and understanding of particular conditions has developed. It is important for these children, their carers and those providing services that the law is fair, up to date and most importantly, simple to understand. We welcome views from everyone with experience in this area before we make our final recommendations.’

The consultation closes on 20 January. 

 

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