Transitioning to Adult Social Care

Transitioning to adult social care

Rosie Banks, Associate Solicitor, Boyes Turner

Boyes Turner Company Logo Blue

The transition process from children to adult social care can be a very worrying time for parents of children and young people with disabilities. However, local authorities have various duties towards young people to ensure a smooth transition period. This article provides an overview of the key obligations.

Assessments for a child, young carer, or child’s carer

Under the Care Act 2014, local authorities must assess a disabled child, a young carer, and/or an adult caring for a disabled child (or give reasons for a decision not to) where:

  1. It is likely that a disabled child, a young carer or an adult caring for a child (“a child’s carer”) will have care and support needs when they, or the child they care for, turns 18; and
  2. The assessment will be of “significant benefit” to the individual

When completing the assessment for a disabled child, the local authority must consider:

  1. The child’s current needs for care and support;
  2. Whether the child is likely to have needs for care and support when they turn 18 and, if so, what those needs are;
  3. The outcomes that the child wants to achieve in their life; and
  4. Whether, and to what extent, providing care and support could contribute to achieving those outcomes

If the local authority decides not to complete an assessment, it must confirm its reasons in writing, together with information and advice about how to prevent or delay the development of needs for care and support in future.

Adult social care assessments

If a young person has already turned 18 the local authority may decide to treat the assessment as a full adult needs assessment under the Care Act. Following an assessment, the local authority should produce a care and support plan, which specifies which needs have been identified by the assessment; which of those needs are “eligible needs”; which needs the local authority is going to meet and how it is going to meet them.

Once the needs assessment has been completed, the local authority will usually complete a financial assessment to determine whether it is necessary for a financial contribution to be made towards any support to be provided or arranged by the local authority.

Children with an Education Health and Care Plan (“EHCP”)

An EHCP is intended to improve cooperation between all services that support children with special educational needs and their families, and the social care transition assessment may take place as part of the annual review of a young person’s EHCP.

Planning for the transition process should begin when the child is in Year 9 at school (13 or 14 years old) and may be aligned with discussions about potential post-16 and post-19 educational placements. The transition process is an ongoing process, rather than a single event, and discussions should continue at each annual review after year 9.

An EHCP can continue to be maintained until a young person reaches the age of 25, depending on the support that they require and whether they continue to derive benefit from the EHCP.

NHS Healthcare funding

Where a child receives a package of care that is funded by NHS Continuing Care, the Clinical Commissioning Group (“CCG”) should undertake a formal screening process when the child reaches 16, with a view to confirming whether they will be eligible for NHS Continuing Healthcare upon turning 18. Not all children and young people who receive NHS Continuing Care will be eligible for NHS Continuing Healthcare. An independent review of the decision can be requested if the young person is deemed ineligible.

Continuity of services

Where a child or young person is already receiving support from children’s social services, and/or via an NHS Continuing Care package, that support must remain in place until the respective adult care and support is able to take over, or until it is clear that adult care and support is not required. There should be no sudden gap in the provision of support.

Mental capacity

It is important to consider a young person’s mental capacity to make their own decisions about the care and support that they receive.

Under the Children and Families Act 2014, young people aged 16-25 have the right to make certain requests and decisions about their education provision, if they have mental capacity to do so. If they do not, a representative (a deputy, attorney, or parent), can make decisions or requests for them.

For all other decisions about care and support, where a young person lacks mental capacity to do so, a parent can consent to care and treatment[1] on their behalf until they reach the age of 18. Upon turning 18, and in the absence of a deputy or attorney, decisions should be made in the young person’s best interests. This is usually a collaborative process by those involved in caring for the person, in consultation with parents or other close family members who have an interest in the person’s care or treatment. More guidance about best interest decision making can be found in the Mental Capacity Act 2005 Code of Practice. 

What if these steps are not taken?

If you are not provided with information about the transition process by your child’s social worker, the first step is to request a transition assessment (or an adult needs assessment if your child has turned 18). Make the request in writing where possible and request a formal written explanation if the local authority refuses to assess.

You can make a complaint in accordance with your local authority’s complaints procedure (you can find this on your local authority’s website or request directly from the local authority). If still unsatisfied, you can complain to the Local Government and Social Care Ombudsman. If you believe your local authority has acted unlawfully, you should also seek legal advice.

[1] There may be some exceptions to this: for example, a parent cannot consent to a “deprivation of liberty” on behalf of a 16 or 17-year-old. If a 16 or 17-year-old is deprived of their liberty (this means that they are subject to continuous supervision and control, not free to leave, and cannot consent to this arrangement themselves), the Court (either the Court of Protection or the High Court) must be asked to authorise the deprivation of liberty.

If you have any questions or require advice, please contact Rosie Banks on 0118 959 7711 or email rbanks@boyesturner.com


 

Share this article on: