The total fertility rate in South Korea has been declining for over a decade, resulting in a notable decline in the population of children under the age of 18. However, the number of children under 18 with registered disabilities has increased signi...
The total fertility rate in South Korea has been declining for over a decade, resulting in a notable decline in the population of children under the age of 18. However, the number of children under 18 with registered disabilities has increased significantly, indicating that the proportion of children with registered disabilities is increasing. If we include unregistered children with disabilities, those at risk of disability and those on the borderline of disability, the number of children with significant difficulties in their developmental process is estimated to be considerable. It is important that children with disabilities continue to receive rehabilitation at the right time to help them acquire better physical, mental and social skills. Although the skills acquired through rehabilitation are essential for children with disabilities to live a dignified life, the high cost of rehabilitation can make it difficult for them to access it. Therefore, national and local governments provide a range of social services to support the rehabilitation of children with disabilities. Nevertheless, social services for rehabilitation remain selective, as only some children with disabilities may be eligible, depending on the type of disability and the average income of the family. The right to social security as a child with a disability is a constitutional right that is a prerequisite for a child with a disability to lead a dignified life. Similarly, children with disabilities as beneficiaries of social security, rehabilitation as the content of social security and social services as the form of social security are all values that the state must actively protect. Thus, the right of children with disabilities to social services is also understood as a constitutional right. The most important and essential aspects of the right to social service for children with disabilities, such as the criteria for the selection of and the content of the services, as well as the restriction of the right to receive them , should be determined by law in accordance with the principle of statutory reservation. This right to social services can be realised by faithfully guaranteeing the right to an adequate guarantee of the progress of administrative procedures. The main social services that support the rehabilitation of children with disabilities are Developmental Rehabilitation Service of the Ministry of Health and Welfare, Community Social Services Investment Programs(CSS) and Therapeutic Support Service for Children with Special Needs of the Ministry of Education. Each social service is based on different laws and has its own criteria for selecting beneficiaries, levels of support and specific services that are provided. This has led to blind spots, where the right to receive social services has been limited due to not meeting the selection criteria for each service. Consequently, it has happened that there are children with disabilities who are not recognised as having a right to social services, even though they are in need of rehabilitation. The practical benefit of understanding the right to social services for children with disabilities as a constitutional right is to fill the gaps that are currently covered by social services for rehabilitation. Developmental rehabilitation services are based on ‘Act on the Support of Welfare of Children with Disabilities’. Decisions on the selection of eligibility and the content of support, which are the most important and essential aspects of social security, are delegated from the Act to the Implementing Regulations, which are in turn delegated to the Minister of Health and Welfare, and finally to the guidelines. These guidelines limit the right to social services to children with disabilities who meet only the criteria of six registered types of disability and the median family income, thereby limiting the right to social services for children with disabilities outside the criteria. Community Social Services Investment Programs(CSS) is implemented on the basis of the 'Act on the use of social services and the management of vouchers'. However, the specific content of CSS has been determined through delegation and re-delegation in the legislative Rules and the content of the delegation is broad, leaving the administration with wide legislative discretion to determine the specific content of CSS. Even though early Childhood Development Services and Child and Adolescent Psychological Support Services are important social services that support the rehabilitation of children at risk of disability, the right to social services for children with disabilities has been restricted according to the type of disability, the duration of the social service, the region of residence and the median income standard, etc. The fact that the contents and limits of the right to social security for children with disabilities are determined by administrative rules, known as guidelines, means that the views of children with disabilities and their carers may not be adequately taken into account in the process, and that there is insufficient democratic legitimacy in restricting their rights. This paper examines the case law on administrative legislative discretion in the field of social security, confirming that the restriction of the type of disability is an important and essential aspect of the right to social services and of equality for children with disabilities. It also points out that the right to social security can be restricted by residence, income and receiving multiple benefits, and makes concrete recommendations to improve this. In addition, a review of the legal framework of each social service shows that greater administrative and legislative discretion through blanket delegation leads to greater limitations on the right to social security and equality of children with disabilities. It also provides for the need to apply more strictly the principle of legal reservation and the doctrine of non-blanket delegation in the field of social security. It is to be hoped that the administrative legislative process in the field of social security will more fully apply the principle of statutory reservation and the doctrine of non-blanket-delegation in determining the content of essential and important matters, and that the right to social security for rehabilitation support for children with disabilities will be more fully guaranteed.