Legal Requirements of a Child's Needs Assessment

1. The Criteria for Assessment

Under section 58 of the Care Act the Local Authority must assess the needs of a child who is approaching the age of 18 when:

1. It appears that the child has needs for Care and Support; and
2. It appears that the child is likely to have needs for Care and Support after becoming 18; and
3. Carrying out an assessment would be of significant benefit to the child.

2. Consent

Unless the child is experiencing (or at risk of experiencing) abuse or neglect, the Local Authority can only undertake the assessment if they:

1. Have the mental capacity to (from age 16) or are Gillick competent to (under age 16) consent to a child's needs assessment being carried out; and
2. Consent to the child's needs assessment being carried out; or
3. Do not have the mental capacity to (or are not Gillick competent to) consent to a child's needs assessment being carried out; but
4. The Local Authority is satisfied that carrying out the child's needs assessment would be in their best interests.

If the child is experiencing (or at risk of experiencing) abuse or neglect, the Local Authority must carry out the assessment, nonetheless.

3. Who Must be Involved in the Child's Needs Assessment

The Local Authority, in carrying out a child's needs assessment must involve:

1. The child;
2. The child's parents;
3. Any carer that the child has;
4. Any person who the child asks the Local Authority to involve;
5. Any person who the child's parent asks the Local Authority to involve; and
6. Any person who the child's carer asks the Local Authority to involve.

Parents and those with Parental Responsibility

The Care Act requires the Local Authority to involve the child’s parents, wherever possible.

The term parent is widely defined and includes;

• A parent with parental responsibility;
• A parent who does not have formal parental responsibility for the child;
• A person who is not a parent of the child but has parental responsibility for the child.

A mother automatically has parental responsibility for a child from birth. A father usually has parental responsibility if he's either:

1. Married to the child's mother;
2. Listed on the child's birth certificate;
3. Has made a parental responsibility agreement with the child’s mother; or
4. Been granted parental responsibility by an order of the court.

Similar rules apply to a second female parent. Another person can have parental responsibility for a child that they do not live with (for example where parents do not live together), and a person other than the child's parents can apply for parental responsibility through the courts under the Children Act 1989. A local authority will also have parental responsibility if the child is the subject of a care order under s. 31 of the Children Act 1989 (but not if the child is accommodated under s. 20 of that Act).

If there is no parent or person with parental responsibility

If there is no parent or person with parental responsibility available, consideration should be given to whether there is another person (who is not engaged in providing care or treatment on a professional basis or for remuneration) who could facilitate the child’s involvement in the assessment. If not, an independent advocate must be provided.

4. Who can Request a Child's Needs Assessment

The following people can request a child's needs assessment is carried out:

1. The child;
2. A parent of the child (whether or not they have parental responsibility);
3. A person with parental responsibility for the child (whether or not they are the child's parent); or
4. Any person providing care to the child (whether on an unpaid or paid basis, and including the provision of practical or emotional support as well as personal care).

A request for an assessment may also come from someone with a professional involvement with the child.

The Local Authority should also be proactive in identifying young people who meet the criteria for an assessment. Where the child is looked after by the Local Authority, the need for an assessment should already be known. The Care Act recognises that it is highly likely that young people who are in receipt of other children's services would meet the criteria and transition assessments for these young people should be carried out as they approach adulthood unless there is a good reason not to.

5. Refusal of a Child's Needs Assessment

Refusal by the Child

Unless the child is experiencing (or at risk of experiencing) abuse or neglect, they can refuse the assessment when they:

1. Have the mental capacity to (from age 16) or are Gillick competent to (under age 16) consent to a child's needs assessment being carried out; and
2. Do not consent to the child's needs assessment being carried out.

If the child is experiencing (or at risk of experiencing) abuse or neglect, the Local Authority must carry out the assessment, nonetheless and to the extent that it can, documenting the steps it has taken to do so.

In cases where a child initially refuses an assessment but later changes their mind, the Local Authority must consider the request based on the presenting information at that time.

Refusal by the Local Authority

The Local Authority can only decline to carry out a child's needs assessment on the basis that either:

1. There is no appearance of likely need; or
2. Carrying out the assessment would not be of significant benefit to the child at that time.

When the Local Authority has declined to carry out an assessment it must give the child (or other person who made the assessment request):

1. Written reasons for its decision;
2. Information and advice about what can be done to prevent and delay the development by the child of Care and Support needs in the future.

Where the assessment has been declined because there is no significant benefit to carrying it out at that time, the Local Authority should explain its reasons, indicating when (in its view) it would be of significant benefit to carry out the assessment. In these circumstances, the Local Authority should take responsibility for making the necessary arrangements to carry out the assessment when this time comes.

6. What the Assessment must Include and Consider

Under the Care Act a child's needs assessment must include an assessment of:

1. The impact of the child's needs for Care and Support on their individual Wellbeing now;
2. The anticipated impact of the child's likely needs for Care and Support from the age of 18 on their individual Wellbeing;
3. The outcomes the child wishes to achieve in day-to-day life; and
4. Whether, and if so to what extent, the provision of Care and Support could contribute to the achievement of those outcomes.

The Local Authority must also consider whether, and if so to what extent, matters other than the provision of Care and Support could contribute to the achievement of the outcomes that the child wishes to achieve in day-to-day life.

Where the child appears to have significant health needs and may be eligible for NHS Continuing Health Care, the Local Authority must refer the child to the relevant NHS body for an assessment to be considered.

7. After Completing the Child's Needs Assessment

Having carried out a child's needs assessment the Local Authority must give the child:

1. An indication as to whether any of the needs for Care and Support identified from the age of 18 are likely to meet the national eligibility criteria (and if so, which ones);
2. Information and advice about what can be done to meet or reduce the needs which it thinks the child is likely to have after 18; and
3. Information and advice about what can be done to prevent and delay the development of needs for Care and Support in the future.

Information should be proportionate and accessible to the child and consideration should be given about who is best placed to provide the information (for example a person they know and trust may be best placed rather than someone they have only recently met).

Where a child is found to lack mental capacity (or is not Gillick competent) the information above must be provided to their parents.

8. What Happens when the Child becomes 18

If a child's needs assessment has been completed

When the child turns 18, the Local Authority Adult Care and Support services must decide whether to treat the child's needs assessment carried out as part of the transition process as an adult needs assessment as it stands, or whether to carry out a further needs assessment under the adult provisions.

When making this decision the Local Authority must have regard to:

1. When the child's needs assessment was carried out; and
2. Whether the person's needs or circumstances have changed since the time that the child's needs assessment was carried out in a way that might affect the decision on eligibility.

If further assessment is required, children’s services must continue to provide and fund support and services until those assessments have been carried out and the transition process has been completed.

The transition process is completed when either Care and Support services start to be provided under the adult provisions, or when the child (and their parents) have been informed in writing of the decision not to provide any adult services.

For most young people the transition process does not end on their 18th birthday but on some other suitable date, such as at the end of the school year.

If a child's needs assessment has not been completed

If a child's needs assessment has not been carried out before the child turns 18, the Local Authority has no alternative but to complete an adult's needs assessment.

Children’s services must continue to provide and fund support and services until the adult needs assessment has been carried out and the transition process has been completed.

The transition process is completed when either Care and Support services start to be provided under the adult provisions, or when the child (and their parents) have been informed in writing of the decision not to provide any adult services.

For most young people the transition process does not end on their 18th birthday but on some other suitable date, such as at the end of the school year.

The transfer of professional support to Adult Care and Support

Both the Care Act and the Children and Families Act allow for children's services to continue providing support to a young adult beyond the age of 18 if this is what will best support them.

Examples of situations when it may be beneficial to a young adult to continue being supported by children's services include:

1. Where needs are particularly complex and the transfer to adult Care and Support is likely to take many months/years;
2. Where a young person has an Education, Health and Care Plan (EHC plan) and needs support beyond the age of 18 to consolidate their education and achieve the outcomes in the plan (the Children's and Families Act permits EHC plans to be maintained up to the age of 25); and
3. Where a placement for a young adult is extended beyond the age of 18 (all local authorities must have a policy to ensure that transition for care leavers reflects transition for other young people).

As part of the transition process, the child and their parent/s must be fully involved in any decision about when and how to transfer their professional support to Adult Care and Support. Any transition plan should set out how this will happen, who is involved and what support will be provided to make sure the transition is as seamless as possible.

Funding of Services post 18

In all cases, children’s services must continue to provide and fund services until an adult needs assessment has been carried out and the transition process has been completed.

The transition process is completed when either Care and Support services start to be provided under the adult provisions, or when the child (and their parents) have been informed in writing of the decision not to provide any adult services.

Where there are delays in the transition process, children's services and Adult Care and Support must agree how they can work together and avoid unnecessary funding disputes, minimising any disruption and anxiety for the young adult and their carer/family.

Where there is a dispute about funding, the service providing support immediately before the young adult’s 18th birthday should continue to fund on a without prejudice basis until the dispute is resolved. In most cases, this would be children’s services.

Note: If the young adult has needs that are found to be not eligible for Adult Care and Support, any services being provided by children’s services can cease unless Adult Care and Support intends to use its powers to meet ineligible needs, If this is the case, services must continue until Care and Support Planning has taken place and those services have been arranged.

Funding when there is an EHC Plan

When there is an existing Education, Health and Care Plan (EHC Plan) that is to be extended past the age of 18 (up to the age of 25), the Local Authority should ensure that any Care and Support services they have arranged to meet the educational outcomes of the plan remain in place for its duration.

Where the young person has an additional need for services above those being provided to meet the educational outcomes of the EHC Plan, children's and adult services need to agree who will meet these needs.

When the EHC Plan ends, arrangements should be made for the transition to adult Care and Support services to be completed.