Guidance on Part 11 (Continuing Care) of the Children and Young People (Scotland) Act 2014

Eligibility for Continuing Care

37. In terms of Continuing Care an eligible person is described in section 26A of the 1995 Act, as inserted by section 67 of the 2014 Act, as a person who is at least sixteen years of age ( i.e. born after 1 April 1999) but has not reached the 'higher age' as specified by Order made by Scottish Ministers.

38. Article 3 of The Continuing Care (Scotland) Order 2015 (the 2015 Order) specifies that the period to provide Continuing Care under section 26A(6) of the 1995 Act is the period from the date on which an eligible person ceases to be looked after by a local authority until the date of that person's twenty-first birthday.

Gradual Introduction of Continuing Care

39. In order to provide local authorities and carers with adequate time to plan and prepare, Continuing Care is being introduced gradually. In the first year (2015-16) only sixteen year old looked after children (who leave foster, kinship or residential care on or after 1 April 2015) will be eligible. These young people will have been born in the twelve months from 1 April 1999 to 31 March 2000. Article 2 of the 2015 Order states that the 'higher age' specified for the purpose of section 26A(2)(b) of the 1995 Act was 'seventeen' years of age. Article 2 of the 2015 Order was amended by The Continuing Care (Scotland) Amendment Order 2016 which extended the specified higher age from 'seventeen' to 'eighteen' years of age.

40. In subsequent years the Scottish Government will extend the entitlement to Continuing Care by annually amending The Continuing Care (Scotland) Order 2015 to increase the 'higher age' for eligible persons by a year at a time (using the power in section 26A(2)(b) of the 1995 Act.

41. The gradual extension of eligibility as enabled by section 26A(2)(b) of the 1995 Act also means that any eligible young person ( i.e. those born after 1 April 1999) who remains looked after until seventeen or eighteen years of age will be entitled to receive Continuing Care support when they cease to be looked after up until their twenty-first birthday.

42. Continuing Care enables a young person to remain in the placement they were in when they were looked after. Local authorities should consider Continuing Care among all the options available to young people ceasing to be looked after. It should not be used as an alternative to remaining looked after under the 1995 Act if it is in the best interest of the young person. A young person who is currently looked after under section 17(6) of the 1995 Act should remain 'looked after' up until the age of eighteen years if that is in their best interest.

Legal status and policy intentions of Continuing Care

43. A young person in Continuing Care is not 'looked after' under section 26(A) of the 1995 Act, they are in a Continuing Care placement. Continuing Care is a legal term to describe the placement. Section 26(A) of the 1995 Act states that young people in Continuing Care are entitled to the same supports ( i.e. accommodation and other assistance) as when they were looked after.

44. Local authorities should develop Staying Put ^[5] policies that provide carers with information and guidance relating to all aspects of continuing the young person's accommodation and support with them when they cease to be looked after.

45. Continuing Care is available to all eligible young people who were looked after in foster care, in formal kinship care (if they were looked after under section 17(6) or section 25 of the 1995 Act) and in residential care. This includes young people in foster care or residential education/care purchased by the local authority from private and third sector providers. Children and young people who are 'looked after at home', are not eligible for Continuing Care, but may go on to receive Aftercare support. Please see Guidance on Part 10 (Aftercare) of the 2014 Act.

46. Children and young people who are in a placement by means of a kinship care order under section 11 of the 1995 Act are not looked after and therefore not entitled to Continuing Care. Good practice would be for local authorities to provide appropriate support, advice and guidance to young people when an order under section 11 of the 1995 Act comes to an end.

47. Section 26A of the 1995 Act (Provision of continuing care: looked after children) was inserted by section 67 of the 2014 Act. Section 26A(1) states that the section applies where an eligible person ceases to be looked after by a local authority and section 26A(2) defines an 'eligible person' as a person who is at least sixteen years of age and is not yet such higher age as may be specified in an Order made by Scottish Ministers.

48. A local authority must, under section 26A(3) of the 1995 Act, provide such an eligible person with Continuing Care, subject to the exceptions listed in section 26A(5).

Provision of Continuing Care

49. Section 26A(4) of the 1995 Act requires local authorities to provide eligible care leavers with a continuation of the same accommodation and other assistance as was being provided for the person by the authority, immediately before the person ceased to be looked after. This means that if an eligible young person in a foster placement, residential care, or looked after in kinship care requests Continuing Care then they are requesting to remain in that placement with the same carers and they will receive the same package of support they were receiving before they entered Continuing Care.

50. A young person who is the subject of a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 is 'looked after' until eighteen years old. They are therefore eligible for Continuing Care and entitled to request this prior to the end of a permanence order at any point on or after the young person's sixteenth birthday or on reaching age eighteen years. This should be discussed as part of the planning process for the young person leaving care.

51. The only reason for failing to provide Continuing Care is if to do so would significantly adversely affect the welfare of the young person (section 26A(5)(c)). This must be evidenced in a Welfare Assessment carried out under articles 4 and 7 of The Continuing Care (Scotland) Order 2015.

52. For some looked after children who have complex needs, this will require detailed discussion, planning and collaboration by all relevant parties to agree a level of support that meets the needs of the young person and is supported by the carer. All corporate parents have a duty to collaborate in order to meet the needs of looked after children under their Corporate Parenting responsibilities in Part 9 (Corporate Parenting) of the 2014 Act. Please see the Children and Young People (Scotland) Act 2014: Statutory Guidance on Part 9 Corporate Parenting published August 2015

53. Continuing Care must also be provided by Residential Schools who provide a targeted service. It may be that these resources can only offer Continuing Care until age eighteen which is the age at which children must leave Secondary Education. Local authorities will want to ensure that proper planning for a placement move is in place at this point and the young person receives support of an equivalent standard provided previously by the school.

Exceptions to providing Continuing Care

54. There are three circumstances as detailed in section 26A(5) of the 1995 Act as inserted by section 67 of the 2014 Act where a local authority does not have a duty to provide Continuing Care to an eligible young person;

a) If the young person was accommodated in secure care immediately before ceasing to be looked after;

b) If the young person was in a care placement where the carer/provider has indicated that they are unable or unwilling to continue to provide the placement; or

c) If the local authority considers that providing the care would significantly adversely affect the welfare of the person.

55. 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 in an Order made by Scottish Ministers. Article 3 of The Continuing Care (Scotland) Order 2015 specifies that this period is the period from the date on which an eligible person ceases to be looked after by a local authority until the date of that person's twenty-first birthday.

56. Section 26A(7) of the 1995 Act states that the duty to provide Continuing Care ceases if:

a) the person leaves the accommodation of their own volition,

b) the accommodation ceases to be available, or

c) the local authority considers that continuing to provide the care would significantly affect the welfare of the person.

57. In relation to section 26A(7)(c) of the 1995 Act it is expected that only in exceptional circumstances will a local authority cease provide a Continuing Care placement because continuing to do so would significantly adversely affect the young person, if they were to remain in placement. The Welfare Assessment which a local authority must carry out to reach this conclusion is described in more detail later in this guidance.

58. Section 26A(8) of the 1995 Act describes, for the purposes of section 26A(7)(b), the situations in which accommodation ceases to be available and includes:

a) in the case of a care placement, where the carer indicates to the authority that the carer is unable or unwilling to continue to provide the placement,

b) in the case of a residential establishment provided by the local authority, where the authority closes the establishment,

c) in the case of a residential establishment provided under arrangements made by the local authority, where the arrangements come to an end.

59. In relation to 26A(8)(b) or (c)(i) where accommodation ceases to be available this will only be applicable in exceptional circumstances, such as a residential establishment closing without any alternative provision being provided or where the arrangements under which the establishment was provided come to an end. It will not be due to the accommodation provider being unable or unwilling to continue the placement, unless section 26A(7)(c) of the 1995 Act applies and the local authority considers that remaining in the placement would significantly adversely affect the welfare of the young person.

60. Article 4 of The Continuing Care (Scotland) Order 2015 states that, for the purposes of section 26A(5)(c) of the 1995 Act, a local authority must consider whether providing an eligible person with Continuing Care would significantly adversely affect the welfare of that person;

a) as soon as reasonably practicable before the person ceases to be looked after by them; and

b) by carrying out a welfare assessment of that person in accordance with Article 7.

61. Article 5 of The Continuing Care (Scotland) Order 2015 states that, for the purposes of section 26A(7)(c) of the 1995 Act, a local authority must consider whether continuing to provide an eligible person with Continuing Care would significantly adversely affect the welfare of that person;

a) at intervals not exceeding twelve months (the first interval starting from the date on which the person ceases to be looked after by the local authority); and

b) by carrying out a welfare assessment of the person in accordance with Article 7.

62. The local authority must prepare and publish a written statement detailing the manner in which the eligible person is to be assessed (The Continuing Care (Scotland) Order 2015, Article 6).

63. The purpose of the Welfare Assessment is to assess if the placement is appropriate and not significantly adversely affecting a young person's welfare. Matters to be considered by the local authority in carrying out the Welfare Assessment are set out in Article 7(4) of The Continuing Care (Scotland) Order 2015. By virtue of the provision in new section 23A(1) and (2) of the 1995 Act (as inserted by section 95 of the 2014 Act) when exercising their Continuing Care functions under section 26A the local authority must have regard to the general principle that functions should be exercised in relation to children and young people in a way which is designed to safeguard, support and promote their wellbeing. In assessing the wellbeing of a child or young person the local authority is to do so by reference to the extent to which the matters listed in section 96(2) of the 2014 Act ( i.e. the wellbeing indicators) are, or as the case may be, would be satisfied in relation to the child or young person (section 23A(3)).