Children looked after by local authorities: legal framework

This report describes key aspects of the law as it applies throughout a child's journey through public care and supervision.

12 Leaving care

The law requires local authorities to support certain young people whom they have previously looked after. Local authorities must provide aftercare, in the form of advice, guidance and assistance, to any young person aged between 16 and 19, who was looked after by the local authority at, or after, the time he or she ceased to be of compulsory school age, unless it is clear that the young person does not need that help. Local authorities may also provide aftercare to young people aged 19 to 21 years if they ask for help. 1 Regulations distinguish between these two groups of young people as 'compulsorily' or 'discretionarily' supported. Assistance may include financial help or other resources such as a place to stay. Regulations may specify different provision for different areas. 2 Local authorities do not have any statutory duties to assist young people who were no longer looked after by the time they ceased to be of compulsory school age.

A study of Scottish practice found that most local authorities offered a planned programme of throughcare but many eligible young people had not received one and had left care without a clear statement of their needs for continuing support. Provision varied throughout Scotland. Some local authorities were extending and improving services for young care leavers. The researchers identified a need to strengthen links between services within local authorities and with other agencies, and to improve management information and quality assurance. 3

Recently changes in the law have sought to strengthen support for children leaving care. 4 Homeless 16 and 17 year olds are now deemed to be in priority need for housing by local authorities. 5 The Scottish Executive has recently issued revised guidance on throughcare and aftercare for young care leavers. 6 Financial support for 16 and 17 year olds formerly looked after by local authorities has transferred from the Benefits Agency to local authorities. 7 Scottish ministers have exercised their statutory power to make regulations in respect of aftercare provision and entitlement, assessment of need and complaints procedures. 8 These specify who should be consulted in assessments of need, how assessments should be conducted and recorded and the considerations to which the local authority should have regard in assessing need. 9

The local authority which looked after the child retains statutory responsibility for providing aftercare, even if the young person moves to another local authority area. 10 Guidance encourages the responsible authority to remain directly involved, minimising the need for a receiving authority to have contact with the young person, but exhorts local authorities to collaborate with each other in providing aftercare. It states that the young person should receive the same standard of care or services from a receiving local authority who assumes responsibility for supporting the young person as that they could have expected from the authority which had looked after them. 11

The local authority must carry out an assessment of the needs of any person entitled to aftercare, or who is asking for help, who is over 19 years of age and was previously entitled to aftercare. 12 The local authority may not delay support or financial assistance to a young person entitled to aftercare until an assessment of the young person is complete and a care plan in place, but should provide such help as it considers the young person needs in the interim. 13 Secondary legislation requires that when assessing young people the local authority should seek and have regard to their views and enable them to participate in meetings considering their needs. 14

The assessment should be completed within three months of the young person becoming eligible for aftercare or the young person requesting help from the local authority. 15 Following an assessment, the local authority must, within 21 days, prepare a plan for the young person's support, called a 'pathway plan'. This should describe how the local authority proposes to meet the young person's needs, and state when, and by whom, each aspect of the plan will be implemented. 16 One person, called a 'pathway co-ordinator', should co-ordinate the assessment. The pathway co-ordinator tasks are:

  • to advise and support the young person and ensure that he or she is properly consulted
  • participate in assessment of the young person's needs, planning their aftercare and periodic reviews of the plan
  • to co-ordinate the provision of services for the young person
  • to monitor his or her progress and well-being

The pathway co-ordinator is also required to keep written records and ensure that the young person has a copy of the assessment and understands its contents. 17 Local authorities must also arrange for an independent person to support and advocate for the young person if they request one and the pathway co-ordinator should liaise appropriately with the young person's supporter. 18 To assist local authorities to fulfil their statutory obligations, national guidance encourages the use of assessment and planning materials prepared by the Scottish Throughcare and Aftercare Forum and Barnardo's. 19

Local authorities must establish a complaints procedure for young people who have, or have had, a statutory entitlement to aftercare. 20 This should include provision for appeals by young people against a local authority's decision to refuse advice, guidance and assistance under the provisions in children's legislation for children who were formerly looked after. The revised guidance emphasises local authorities' role as corporate parents, and states that the support to care leavers should be equivalent to that provided by parents to their children. This may need to continue well after a young person reaches adulthood at 18 years of age. Support should adapt to meet the young person's changing needs and include accommodation and financial support as well as advice and assistance. As a corporate parent the duties in respect of young care leavers apply to all departments of the local authority and agencies with whom they work. 21

Financial support for young people leaving care

Legislation has extended powers of local authorities to make payments for or towards the maintenance of a child who is residing with and being cared for, other than as a foster child, by a person other than the parent of the child until they are 18 years old, rather than, as formerly, 16 years. 22 However regular financial support to young care leavers entitled to aftercare is limited to young people who were looked after away from home for a period of, or periods totalling, 13 weeks or more since the age of 14, unless there are exceptional circumstances. 23 Short-term respite placements are not counted in the calculation of the 13 week eligibility period.

Maintenance for young people in full-time education

Local authorities have a discretionary power to make grants to a young person aged 16 to 21 years formerly looked after by the local authority, to enable him or her to meet expenses connected with a course of education or training, and to contribute to the accommodation and maintenance of the young person in any place near where he may be employed or looking for work, or receiving education or training. They may continue to make such a grant or contributions to the young person beyond the age of 18 years until he completes the course of education or training. 24 This enables a young person leaving care to be supported through college or university. Social Work Services Inspectorate and Her Majesty's Inspectorate for Education found that some local authorities had no clear policies on financial support to young care leavers in full-time further or higher education. Decisions about their support were taken on an ad hoc basis, presenting an additional barrier to educational aspiration. The inspection team recommended that local authorities make specific financial arrangements for maintaining young people until they complete their studies. 25

Local authorities are not permitted to financially maintain young people over 16 years of age living with their families, unless the young person would have been entitled to social security benefits but are excluded from receipt of benefit because they were formerly looked after by the local authority. 26 Any financial or other support to a young person aged between 16 and 18 years should not be less than the value of security benefits that the young person would have been entitled to.

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