Continuing Care (Scotland) Amendment Order 2019: consultation

Annex A - Eligibility for Continuing Care from April 2019

The Children and Young People (Scotland) Act 2014:

Section 67 of the 2014 Act inserts a new section 26A into the Children (Scotland) Act 1995 in relation to continuing care. Continuing care is defined in new section 26A(4) of the 1995 Act as meaning the same accommodation and other assistance as was being provided for the eligible person by the local authority, immediately before the person ceased to be looked after.

New section 26A(1) provides that the local authority's duty to provide continuing care applies where an eligible person ceases to be looked after by a local authority. New section 26A(2) defines "eligible person" as a person who is at least 16 years of age and is not yet such higher age as may by specified by Ministers by order. New sections 26A(5) and (7) detail when the duty to provide continuing care does not apply and ceases to apply respectively. New section 26A(6) provides that a local authority's duty to provide continuing care lasts, subject to section 26A(7), until the expiry of such period as may be specified by Ministers by order. Subsections (9) and (11) to (13) make further provision as to orders which may be made by Ministers.

Part 11 of the 2014 Act also reflects the philosophy of care set out in the Scottish Government's 'Staying Put-Scotland' guidance of October 2013. This stressed the importance of encouraging and enabling young people to remain in safe, supported environments until they are better ready to make the transition into independent living.

The Continuing Care (Scotland) Order 2015:

Article 2 specifies a higher age of 17 years of age for young people to be eligible for continuing care. In line with discussions during the Bill development process this higher age limit was to be extended annually to ensure this cohort continue to be eligible as they increase in age until the duty to provide continuing care extends to care leavers aged from 16 to 21 years of age.

Article 3 specifies the period that the local authority's duty to provide continuing care in terms of new section 26A(6) of the 1995 Act lasts is from the date on which the eligible person ceases to be looked after until the date of their twenty-first birthday.

Articles 4 and 5 cover assessment of eligible young people to ensure that continuing care would not significantly adversely affect the welfare of the young person. In a similar way to the Support and Assistance of Young People Leaving Care (Scotland) Regulations 2003 and associated guidance on Supporting Young People Leaving Care in Scotland, the local authority must carry out a welfare assessment of the eligible person as soon as reasonably practicable before the person ceases to be looked after by them. They also must carry out a welfare assessment of eligible persons receiving continuing care at intervals not exceeding twelve months starting from the date the person ceases to be looked after. Such welfare assessments are to be carried out in accordance with articles 6 and 7.

Articles 6 and 7 make general provisions about welfare assessments and set out the issues to be taken into account by a local authority in completing a welfare assessment, which includes considering each of the matters listed in the Schedule, and lists the range of persons whose views they may seek in that connection. These are currently drafted to complement the provisions in the Support and Assistance of Young People Leaving Care (Scotland) Regulations 2003 and associated guidance on Supporting Young People Leaving Care in Scotland. They emphasise the importance of seeking and recording the views of the young person and other relevant people in reaching agreement about the welfare status of the young person.

This is all set out in more detail in the Guidance on Part 11, which was published on 3 November 2016 and can be found at: http://www.gov.scot/Publications/2016/11/4644

The Continuing Care (Scotland) (Amendment) Order 2016:

This Order increased the higher age limit for eligible persons in section 26A(2)(b) of the Children (Scotland) Act 1995 to eighteen years of age. This means that from 1 April 2016 the duty on local authorities to provide continuing care under section 26A of the 1995 Act was to a person who is at least sixteen years of age and who had not yet reached the age of eighteen.

The Continuing Care (Scotland) (Amendment) Order 2017:

This Order increased the higher age limit for eligible persons in section 26A(2)(b) of the Children (Scotland) Act 1995 to nineteen years of age. This means that from 1 April 2017 the duty on local authorities to provide continuing care under section 26A of the 1995 Act was to a person who is at least sixteen years of age and who had not yet reached the age of nineteen.

The Continuing Care (Scotland) (Amendment) Order 2018:

This Order increased the higher age limit for eligible persons in section 26A(2)(b) of the Children (Scotland) Act 1995 to twenty years of age. This means that from 1 April 2018 the duty on local authorities to provide continuing care under section 26A of the 1995 Act was to a person who is at least sixteen years of age and who had not yet reached the age of twenty.

The Draft Continuing Care (Scotland) (Amendment) Order 2019:

This Order increases the higher age limit for eligible persons in section 26A(2)(b) of the Children (Scotland) Act 1995 to twenty-one years of age. This means the duty on local authorities to provide continuing care under section 26A of the 1995 Act will from 1 April 2019 be to a person who is at least sixteen years of age and who has not yet reached the age of twenty-one.