CHILDREN’S AND CARERS’ RIGHTS : SOCIAL CARE

1. CHILDREN’S AND CARERS’ RIGHTS: SOCIAL CARE Caroline Barrett – Solicitor – Irwin Mitchell LLP Family Voice Conference – 01.07.16

2. Overview Care assessments Care plans Short breaks Personal budgets and direct payments Local offer Carer’s rights What to do if it all goes wrong Q&A

3. Care assessment and care plans

4. Children’s care assessments - overview REQUEST ASSESSMENT FROM LOCAL AUTHORITY LOCAL AUTHORITY CONFIRMS WHETHER IT WILL CARRY OUT AN ASSESSMENT ASSESSMENT MUST BE COMPLETED WITHIN A MAXIMUM OF 45 DAYS ASSESSMENT SHOULD INCLUDE A PLAN OF ACTION SETTING OUT HOW CHILD’S NEEDS SHOULD BE MET. LOCAL AUTHORITY REQUIRED TO WORK WITH OTHER AGENCIES WHERE REQUIRED CARE DELIVERED EITHER DIRECTLY BY A CARE AGENCY, OR VIA THE RECEIPT OF DIRECT PAYMENTS

5. What does the law say? • S.17 Children Act 1989 - local authorities must safeguard and promote the welfare of children in their area who are ‘in need’. • S.2 Chronically Sick and Disabled Person’s Act – duty to provide services to meet those needs • Human rights – “Article 8” • Children are ‘in need’ if: • They are unlikely to achieve or maintain a reasonable standard of health or development without services; or • Their health or development is likely to be significantly impaired, or further impaired, without the provision of services; or • They are disabled.

6. Assessment - Key points

7. How will the care assessment be completed? • Statutory guidance – Working Together to Safeguard Children Maximum time frame for completing an assessment is 45 days. In certain circumstances local authorities should consider providing interim services prior to completion of assessment. Care assessment should include a ‘plan of action’ – make sure that there is a lawful care plan which shows what services are going to be provided, and who is going to provide them. • s.10 Children Act 1989 and s.82 NHS Act 2006 – local authority and health care bodies/other agencies must work together

8. What will a good care assessment look like? • There is no prescribed template for a care assessment that all LAs will follow • Typically, assessments will cover issues such as: • Diagnosis • Health and development, milestones etc • Communication needs • Equipment needs • Culture and identity • Any behavioural issues • Medical needs • Day-to-day care needs • There must be a plan of action setting out how the needs will be met. Sometimes the LA will attach this to the assessment in a separate document (a care plan)

9. Direct paymentsvs LA commissioning • At the end of the care plan = “personal budget” • You can choose to receive this yourself and pay for carers directly. • Or the local authority can commission services itself. More flexibility? More administration? • Important to understand how the personal budget is calculated – ask for clarification from LA if unclear.

10. Carers’ Rights • Carers are entitled to their own care assessment, but their needs are often assessed within the child’s assessment itself. • “Parent carers assessments” under s.97 CFA 2014 (s.17ZD – S.17ZF Children Act 1989): • Carried out on the appearance of need • Must consider carer’s wellbeing and ability to provide support disabled child • Consider what needs for support they have • Services for carers can be provided under s.17 and included in the EHC plan

11. Short breaks • Short breaks or ”respite” care is available and should also be considered by LA. This should form part of child’s care package and be set out in the care plan - either directly commissioned or via direct payments • S.17 (6) and now schedule 2 para 6(c) of CA 1989 – authorities must assist individuals who provide care to children to continue to do so, by giving them breaks from caring. • Regulations - “Breaks for Carers of Disabled Children Regulations” SI 2011/707. Regulation 4 “Types of services which must be provided” provides: “A local authority must provide, so far as is reasonably practicable, a range of services which is sufficient to assist carers to continue to provide care or to do so more effectively” • All LAs are required to provide a range of short breaks services – all LAs should have a short breaks statement within their Local Offer which sets out when short breaks will be offered and what is available locally. • Could be a couple of hours per week, or more substantive residential provision

12. NHS care – “continuing care” • Some children will receive part of their care package from NHS as well as the LA. • The National Framework for Children and Young People’s Continuing Care’ 2010 – applies when more specialist healthcare provision is required e.g. • Regular physiotherapy/occupational therapy needs • Night time care/nursing needs • PEG feeds and/or complex medication • For children, ‘joint’ NHS and LA care plans. This changes under adult services. • S.10 Children Act 1989 – NHS and LA must work together

13. The Local Offer “Local authorities must publish a Local Offer, setting out in one place information about provision they expect to be available across education, health and social care for children and young people in their area who have SEN or are disabled, including those who do not have Education, Health and Care (EHC) plans” Must include any eligibility criteria which applies before provision can be accessed Comments must be published and responded to by the LA

14. The Local Offer – cont. Information to be included: • special educational, health and social care provision for children and young people with SEN or disabilities • details of how parents and young people can request an assessment for an EHC plan • arrangements for identifying and assessing children and young people’s SEN – this should include arrangements for EHC needs assessments • other educational provision, for example sports or arts provision, paired reading schemes • post-16 education and training provision, apprenticeships, traineeships and supported internships

15. The Local Offer – cont. Information to be included: • information about provision to assist in preparing children and young people for adulthood • arrangements for travel to and from schools, post-16 institutions • support to help children and young people move between phases • sources of information, advice and support in the local authority’s area • childcare, including suitable provision for disabled children and those with SEN • leisure activities • support available to young people in higher education

16. The Local Offer – cont. Information to be included: • arrangements for resolving disagreements and for mediation, and details about making complaints • parents’ and young people’s rights to appeal a decision of the local authority to the First-tier Tribunal • the local authority’s accessibility strategy • Should cover universal, targeted and specialist services

17. What to do if it all goes wrong • Speak to your child’s social worker and ask for changes/additional support • Consider formal complaint and progressing to ombudsman • Consider legal advice, particularly important where matters : • Are urgent and you can’t wait for a complaint • Involve a decision that was made on a particular date, as judicial review has a 3 month time limit. Legal aid is still available in the majority of judicial review cases involving children.

18. Caroline.Barrett@irwinmitchell.com Further information: http://www.irwinmitchell.com/personal/protecting-your-rights/social-healthcare-law/the-children-and-families-act-2014/factsheets-and-template-letters