Legal Literacy
Legal Literacy is the ability to connect relevant legal rules with professional priorities and objectives of ethical practice. The legal literacy resources will support practitioners, supervisors and strategic leaders to feel confident in their legal literacy knowledge and in their decision-making.
Some of our local reviews about young people and adults have illustrated our need to understand relevant legislation well in order to help people keep safe. Read on for further information about key pieces of legislation for adults, young people and children.
Mental Health
Mental health law resides in the Mental Health Act (MHA) 1983, as amended by the MHA 2007.
Children aged 16/17 with capacity may consent to their own admission and treatment, even if someone with parental responsibility refuses (s.131(3)). Similarly, if they refuse, they may not be admitted or treated on the consent of someone with parental responsibility (s.131(4)). However, their refusal may in certain circumstances be overridden by a court. Children aged 16/17 without capacity may be admitted and treated in circumstances not amounting to deprivation of liberty (s.5/6, MCA 2005). If deprivation of liberty is required, then either the MHA 1983 or the Children Act989 will be used, as the MCA deprivation of liberty provisions are not applicable to people under 18.
Children under 16 who are Gillick competent can consent to informal admission and consent to treatment, but if they refuse their refusal can be overruled by the Court, by someone with parental responsibility or by the local authority for a child in care. The MHA Code, however, notes that in an era of greater autonomy accorded to young people, professionals should be cautious about relying on the consent of someone with parental responsibility, and it may be the case that the MHA 1983 should be used if detention is required.
Children under 16 who are not Gillick competent may be admitted on the consent of a person with parental responsibility, provided the decision falls within the ‘zone of parental control’. Where decisions fall outside such a zone (perhaps because they are particularly invasive or even experimental), the MHA Code of Practice indicates that the MHA should be used, or authority sought from a court. Specific issue orders (s.8, Children Act 1989) can be sought on issues relating to treatment for mental disorder, or the court can also be asked to exercise its inherent jurisdiction.
Section 131A, MHA 1983, requires that children admitted are accommodated in an environment that is suitable for their age. Section 116 requires the local authority for a child on a care order admitted to hospital to arrange visits to the child on their behalf, and to take any other steps that could be expected of a parent of a child in such circumstances. Sections 85/86 (Children Act 1989)require notification to social services if a child is accommodated (such as in a hospital) for more than 3 months, with the local authority having a duty to ensure that the child’s welfare is safeguarded.
Residential Placements
Local authorities should have sufficient accommodation for looked after children in their area (Children and Young Persons Act 2008). Care plans should cover arrangements for their health, education, emotional and behavioural development, family and social relationships, and self-care skills. Due regard should be paid to their wishes and feelings. The IRO should adhere to the timeframe for reviews and ensure that young people are adequately safeguarded in suitable accommodation. Young people’s vulnerability increases if placed at a distance.
Out of area placements should be approved by the Director of Children’s Services and a copy of the care plan sent to the local authority where a young person will be placed. Placements should be made only after they have been considered necessary and deemed of sufficient quality. Early and consistent focus should be given to permanence planning and preparatory work for independence. Care plans should detail how risks have been assessed and will be managed. Social workers and IROs should be given sufficient time to build meaningful, trusting and lasting relationships with young people to facilitate planning and positive responses to crises. The local authority must arrange a health assessment, the resulting plan to be reviewed regularly. It must notify Clinical Commissioning Groups and General Practitioners of any placement changes.
Missing Children
Statutory guidance53 distinguishes between missing and absent children. Local authorities and the police should have an agreed protocol covering named leads in each agency and decision-makingabout risk in each case. Assessment of risk should be informed by the child’s age, vulnerability anddevelopment. Once found, a return interview should be conducted within 72 hours by a trained independent person to determine any harm he has suffered, his reasons for leaving a placement without authorization, future risk of absconding and his support needs. Subsequent care plans should address the child’s tendency to go missing and any child protection concerns that consequently arise.
Secure Accommodation
A looked after child may be placed in secure accommodation if there is a history of absconding, the child is likely to abscond and suffer significant harm or, if not in secure accommodation, is likely to injure themselves or others (s.25, Children Act 1989). This power may be exercised for up to 72 hours without court authority. Otherwise, a court order is necessary, for up to three months on first application and six months thereafter (Children (Secure Accommodation) Regulations 1991). The child’s welfare is relevant but not the paramount consideration for the court. The welfare checklist (s.1(3), Children Act (CA) 1989) does not apply here (Re M (a minor) (secure accommodation order) [1994]). The court must appoint a Children’s Guardian unless satisfied that this is unnecessary, and must specify the detention time limit. The use of secure accommodation does not contravene the right to liberty (Article 5, ECHR) if its purpose is educational supervision (Re K (secure accommodation order: right to liberty) [2001]). However, procedural fairness (Article 6, ECHR) requires that a child is informed promptly of any application, has adequate time and facilities to prepare a defence, has legal assistance and can cross examine witnesses (Re M (a child) (secure accommodation) [2001]). A review panel of three people, one of whom must be independent of the local authority, evaluates whether the criteria for detention still apply, the placement is necessary, and any other accommodation is appropriate. Policy guidance also emphasizes that secure accommodation should be a placement of choice rather than last resort, where a safe and secure placement meets the child’s need. Placement must follow a needs assessment rather than be triggered by resource shortage.
Local authorities must take reasonable steps to encourage children not to commit criminal offencesand to avoid the need for secure accommodation placement (s.17 and sch.2(7), CA 1989).
Leaving Care
All young people qualify for advice and assistance from the local authority (s.24, CA 1989) to promote their welfare when they cease to be looked after. The Children Leaving Care Act (CLCA) 2000 strengthens this with respect to eligible children: those in care aged 16 and 17 who have been looked after for more than 13 weeks since the age of 14 (including periods since 16 (R (Behre) v Hillingdon LBC [2004]) (Care Planning, Placement and Case Review (England) Regulations 2010).
These regulations clarify that a 16 or 17 year old should only cease to be looked after under section 20 (Children Act 1989) if the Director of Children’s Services approves, following consultation with the child, his relatives and the IRO. Responsibilities towards three other groups of young people are contained in Care Leavers (England) Regulations (CLER) 2010, namely:
relevant children: those aged 16 and 17 who meet the criteria of eligible children but have
left care, including those detained in young offender institutions or secure training centres;
former relevant children: those who before reaching 18 were either eligible or relevant;
those who used to be former relevant children and return to education or training in their early twenties.
The Act creates a duty to assess and meet the care and support needs of eligible, relevant and former relevant young people. All eligible, relevant and former relevant young people must have a pathway plan, until they are at least 21, covering education, training, career plans and support. The current care plan will be the starting point for developing the pathway plan. Regulations (CLER 2010) require review at least every six months, and itemize the principles that should underpin pathway plan provision and the roles of key agencies, specifying a timetable for assessment of needs, normally within three months. The contents of the pathway plan should include the contact and support to be provided, accommodation, education, training and/or employment, support for family and personal relationships, skill development for independent living, financial support, health considerations, and contingency plans. The level of financial support should be above that provided by social security benefits. Planning should consider the young person’s wishes and feelings; their views should be sought and they should receive a copy of the assessment and subsequent plan. The pathway plan should be reviewed if the young person enters the youth justice system, and if they are in custody, the IRO should chair planning and review meetings.
All eligible, relevant and former relevant young people must have a young person’s adviser to help compile, implement and review the pathway plan, to provide advice and support, and to keep in touch until at least the age of 21. They should keep a record of services provided and visit newly provided accommodation and thereafter at least every two months. This role has been extended (s.22, Children and Young Persons Act 2008) to include former relevant children who inform the local authority that they intend to pursue education and training when previously they were ineligible because of being over 21 and having completed or left a programme. The Act requires that this young person’s needs are assessed, a plan prepared and assistance provided as necessary to support education and training, even after the age of 25. Local authorities must provide vacation support, including accommodation, during breaks from further or higher education, and assist with the costs of employment, education and training. A young person who has been fostered may now remain with their carer under the ‘staying put arrangements’ (s.23CZA, CA 1989, as amended by s.98, Children and Families Act (CAFA) 2014).
Local authorities must arrange advocacy services for children in care or leaving care who wish to make a complaint (s.119, Adoption and Children Act (ACA) 2002). The duties on agencies to cooperate to improve young people’s wellbeing, and to safeguard and promote their welfare (ss.10 and 11, Children Act 2004), apply to young people aged 18 and 19 receiving leaving care services.
Concerns remain that local authorities are failing in their duties to young people leaving care. Local authorities must complete proper assessment of needs and pathway plans for disabled children in care approaching 18 (P v Newham LBC [2004]). Personal advisers must act as advocates, and be separate from those who complete statutory assessments and plans for leaving care (R (A) v Lambeth LBC [2010]). The content of plans must be adequately detailed and timetables laid out in regulations must be met (R (J) v Caerphilly CBC [2005]; R (Birara) v Hounslow LBC [2010]). Lack of cooperation does not excuse the council from attempting to perform its obligations and planning should build in contingency to deal with periods of resistance and failure to engage (R (JF) v Hackney LBC [2010]). Should a young person refuse support, this should be respected but attempts made to maintain contact.
Additional measures to support care leavers are contained in the Children and Social Work Act 2017.
S2 requires local authorities to publicise their local ‘offer’ for care leavers and s3 requires that personal advisors are provided until the age of 25.
Housing
The Homelessness Act 2002 requires that all young people aged 16 and 17, and those between 18 and 21 when leaving care, are regarded as vulnerable and in priority need for housing. The Act also advises that young people aged 16 and 17 should not be placed in bed and breakfast accommodation. If a young person was not already looked after but was unable to live at home, they may also request to be accommodated (s.20, CA 1989). Moreover, s.17 (CA 1989) includes the duty to assess housing need and the power to make provision (s.116, ACA 2002). Mediation between young people and parents, where the latter have decided to exclude a child from home, should be encouraged. An unreasonable refusal to return home might entitle a local authority to provide assistance under s.17 rather than s.20 (CA 1989), resulting in failure to qualify for enhanced leaving care provision (R (M) v Barnet LBC [2008]; R (GD) v Redbridge LBC [2010]).
Section 20 will be appropriate if a young person has been abandoned, has no-one with parental responsibility or such a person cannot provide care and accommodation. Local authorities may lawfully conclude that resourceful young homeless people require help with finding accommodationand support their negotiations with housing officials, rather than provide accommodation directly, especially if they do not wish social workers to be involved, understand tenancy agreements and can make housing benefit claims (R (G) v Southwark LBC [2009]). However, councils must not bypasstheir duties under s.20, CA 1989, for those young people whose needs extend beyond housing. Their needs must be fully investigated (R (MM) v Lewisham LBC [2009]) and in most cases homeless young people aged 16/17 will be children in need and should be accommodated (R (TG) v Lambeth LBC [2011]).
Under the Homelessness Reduction Act 2017, any applicant who is homeless or threatened with homelessness and eligible for assistance will be owed some duty regardless of priority need. Their case must be assessed, and the authority must seek to agree a personalised housing plan (s. 198AHousing Act 1996). If the applicant is homeless and eligible for assistance, the authority is required to take reasonable steps to help the applicant secure accommodation (s. 189B). If the applicant is threatened with homelessness, the authority is required to take reasonable steps to help the applicant to secure that accommodation does not cease to be available (s. 185). If the authority has reason to believe that the applicant is homeless and eligible for assistance and has a priority need, it must secure accommodation for the applicant pending its decision as to what duty is owed (s. 188). An applicant can request an internal review of the authority’s decision as tothe duty owed (s. 202) and can appeal against a review decision in a county court (s. 204).
Since October 2018 certain public authorities must refer people who are or may be homeless, or threatened with homelessness, to a local housing authority (s. 213B). This duty requires the person’sconsent, and choice of which local housing authority receives the referral, and applies to prisons, probation services, hospitals providing in-patient treatment, urgent treatment centres and social service authorities.
Children Act 1989
The CA 1989 definition of children in need includes disabled children (s.17), defined (albeit in dated language) as “blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as maybe prescribed”. Thus the local authority has a duty to safeguard and promote a child’s welfare, promoting their upbringing by their family (s.17), and they should have had an assessment of their needs, covering developmental needs (including health, education, emotional development and family relationships), their parents’ capacity to promote their welfare, and family and environmental factors (including housing)58. Assessment should be multi-disciplinary and link mainstream with specialist services. It should take account of children’s experience and understanding, consider the direct impact of their disabilities and address disabling barriers. A plan devoid of proper analysis of needs and without identifying services to be provided will be unlawful (R (B) v Barnet LBC [2009]; R (JF) v Hackney LBC [2010]).
Once a young person is 16, they may request accommodation by the local authority (s.20(11)), although their accommodation preference is not necessarily determinative. For instance, a refusal to place a young person aged 17 in a residential placement of her choice did not breach s.20(6)(b) (CA 1989). The requirement to give due consideration to expressed wishes did not impose an obligationto comply with them (R (Twomey) v Calderdale MBC [2005]).
Transition to adulthood for disabled young people engages specific considerations focusing on higher education/employment, independent living, participation in society and health. Preparation for these aspects of adulthood should be considered in annual education, health and care (EHC) reviews from year 9 (age 13/14) onwards, with smooth transition built into the plan; where care and support is likely to be needed after 18, the annual review can incorporate a transition assessment (s.58 Care Act 2014). Once a young person reaches the end of the school year in which they turn 16, they gain significant decision-making rights, including requesting an EHC assessment, making representation about the content of the EHC plan, requesting it names a particulareducational institution, requesting a personal budget, and making an appeal. Although their parents remain involved, the final decision rests with the young person, provided they have mental capacity in relation to the specific matter.
Children and Families Act (CAFA) 2014
The CFA 2014 introduced, for disabled young people, a requirement for a lead professional and a transition plan for health needs and a health ‘passport’ containing key information to avoid the need for the young person or their carer having to repeat the same information to seemingly endless numbers of professionals. The introduction of Education and Health Care Plans (EHCPs) via CAFA 2014 for those children with special/additional educational needs was also intended to provide the basis for more joined up support for services with regular reviews.
The EHC plan can remain until the young person is 25, and free access to further education must be given. Transition to adult health services must be managed. In relation to social care, any services provided under s.17, CA 1989, can continue beyond 18 as long as the EHC plan remains in place (ormay be replaced by care and support provision under the Care Act 2014, but there must be no gap in provision. Care and support provided under the Care Act 2014, and the personal budget associated with it, form the care element of any ongoing EHC plan, but the EHC plan remains the overarching plan that ensures outcomes are met. Prior to the end of the EHC plan, as the young person leaves the formal education and training system, their care and support needs must be reviewed as they may change significantly.
Care Act 2014
The Care Act 2014’s core principle of ‘wellbeing’ (s.1) applies to young people transitioning into adult services. It includes mental as well as physical health. Under the Act, planning and assessment processes must take needs, preferred outcomes and wishes into account, as well as identify strengths or ‘assets’. Importantly, the possibility of combining assessments with others being completed (e.g. EHCPs under the CAFA 2014) aims to reduce the number of potentially complex processes within which young people and their carers are engaged.
Care and support needs arise from or are related to physical or mental impairment or illness. This can include conditions as a result of physical, mental, sensory, learning or cognitive disabilities or illnesses, substance misuse or brain injury.
The Care Act 2014 (s.6 and s.7) imposes a duty to cooperate on agencies, both operationally and strategically. This includes a duty to promote smooth transitions for young people.
Under the Care Act 2014, the local authority has a duty (s.58) to conduct a transition assessment in relation to a young person, as they are likely to have care and support needs after 18. The local authority must proactively identify such children, including those who may not be receiving children’s services. Section 58 identifies the duty of the local authority to assess transition needs where a young person is deemed likely to have care and support needs as an adult and where there is a ‘significant benefit’ for that particular young person, at the time in question, and the ‘consent condition’ is satisfied. The assessment must explore whether there are current care and support needs (s58(1) (a) and also whether the young person is likely to have needs as an adult and, if so, the nature of those needs (s58(1) b). For a child with an EHC plan, the transition assessment can form part of the annual review.
Significant benefit refers to the timing of the assessment and not the perceived level of need. The test therefore is whether it is appropriate to assess at any particular time or age for that individual rather than being convenient for professionals or service provision timescales. In considering this, we are guided to consider changes in educational stages, accommodation arrangements and employment status. An expectation is that the local authority will minimise disruption and will combine assessments, such as health assessments or ECHPs, where possible. Whilst the CAFA 2014 requires that ECHPs are commenced by age 14 and reviewed annually, transition assessments under the Care Act 2014 should be carried out at the right time for the individual concerned.
When considering whether a young person is ‘likely to have care and support needs’ as an adult, information must be provided by the assessing authority about identified needs, not merely eligible needs, that are likely to continue into adulthood. The ‘consent condition’ in respect of assessments is met when the child has capacity to consent to the assessment and chooses to do so (s.58 (3a)).
Where there is no capacity or competence, but the local authority judges it to be in the child’s best interests to be assessed (s.58 (3b)) then the condition will also be satisfied. For young people, the Mental Capacity Act 2005 is of relevance for those aged 16 or over and in line with its principles there must be a presumption of capacity for this age group (s.1) unless proven to the contrarythrough the capacity assessment process (s.3).
Requests for transition assessments under the Care Act 2014 may be made by young people or their carers/parents and, if refused, the local authority must give written reasons and signpost ways in which needs may be reduced in the future through the provision of information and advice. If the decision to decline to assess at the requested time is due to a perception that there is no significant benefit, and the assessment will be deferred, then it is the responsibility of the local authority to reschedule and manage timings. Importantly, the young person does not need to be in receipt of services in order to request an assessment, and therefore local authorities will need to establish mechanisms through which to increase awareness of young people likely to have needs in adulthood, for example through enhanced liaison with schools, health services and other means, aswell as publishing their support offers.
The assessment must consider (s.59) the impact of a young person’s likely care and support needs on key aspects of his wellbeing (set out in s.1(2), CA 2014), the outcomes they wish to achieve in Care and Support (Eligibility Criteria) Regulations 2014. day-to-day life, and how care and support provision could contribute to their achievement.
The young person and their parents must be involved, along with anyone else they request to participate. The likely eligibility of the identified needs must be determined and an indicative personal budget may be given. For any needs not eligible, information and advice must be provided.
Assessment must include what else might help (s. 59(3)), including informal sources of support.
Importantly in respect of transition planning, the local authority under s. 59(4) must provide an indicative account of whether any of the identified care and support needs are likely to be eligible for support under adult services. Equally, if it appears that the young person’s parents will have needs as carers once the young person is 18, a carers assessment (s.8) must take place. This will consider whether they are likely to continue to be able to provide care, whether they are likely to be willing to do so, and the impact on their wellbeing. The aim is to identify how the provision of support could contribute to the outcomes they want to achieve, including their work, education, recreation or training. As with other Care Act 2014 assessments, the right to self-assessment applies, with the proviso that for a child the local authority believes it is appropriate.
Once the assessment has been completed and the young person turns 18, the local authority has the power to decide that this constitutes a needs assessment in respect of needs assessment for an adult (s.59(5)) or whether a new assessment is needed, taking into account issues such as the time gap between the assessment being completed and entering adult services, and any changes ofcircumstances.
The transition from children’s services to adult care and support need not take place as soon as a young person turns 18, but may be staged over months or years. If his EHC plan continues, the care and support aspects of it will be provided under the Care Act.
Sections 60 and 61 of the Care Act 2014 outline when there is a duty to assess carers of transitioning children and what the assessments must include. Whilst s.60 includes reference to ‘significantbenefit’, mirroring conditions for assessing young people, s.61 includes an assessment of their abilityand willingness to continue to provide care once the young person reaches 18. By virtue of s.62, local authorities have the power to provide any identified transitional support, mirroring that to be provided to young people.
The Care Act 2014 introduces for transitioning young people and their carers a right to ‘continuity of care’ (s.66). This should mean that nobody has their care and support suddenly removed upon reaching 18. Until an appropriate assessment of needs has been completed and Care Act 2014 duties discharged, the local authority must continue to provide existing services.
Finally, the Care Act 2014 introduced a duty to provide advocacy (s.67 and s.68) when assessing ayoung person’s transition needs, alongside when preparing a care and support plan, and when carrying out safeguarding enquiries.
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