Children Living Away from Home

SCOPE OF THIS CHAPTER

Sections 85 & 86 CA'89 place a duty on Local Authorities (LA) to assess the safety and welfare of children living in residential education or hospital provision for any continuous period exceeding/or likely to exceed 12 weeks.

The legislation is aimed particularly at ensuring the safety and support needs of disabled children and young people and those accessing Tier 4 specialist in-patient care as a result of severe and/or complex mental health conditions that cannot be adequately treated by community CAMH services.

The responsible LA has a duty to take such steps as are reasonably practicable to determine whether the child's welfare is adequately safeguarded and promoted while they are in one of those settings, and to consider whether there is a need to exercise any functions under the CA'89 with respect to the child or young person.

This chapter was added to the manual in March 2021.

1. Determining the Responsible Local Authority

Where the establishment in which the child or young person is residing is in the public sector (e.g. NHS hospital, local authority residential special school), "responsible authority" means:

  • The local authority within whose area the child or young person was ordinarily resident immediately before being accommodated; or
  • Where the child or young person was not ordinarily resident within the area of any local authority, the local authority within whose area the accommodation is situated.

Where the establishment in which the child or young person is residing is in the private sector (e.g. private hospital, care home), the "responsible authority" means (s.86 CA'89) the local authority within whose area the establishment is situated.

Where the child or young person is residing in a private establishment but funded by a public sector organisation, e.g. a Clinical Commissioning Group (CCG), then this will fall within section 85, rather than section 86, and the 'responsible authority' will be the authority within whose area the child or young person was ordinarily resident immediately before being accommodated in the hospital.

2. Notification to the LA on Admission

Upon admission, NHS England or the setting, i.e. Residential 'special needs' schools (joint or single agency funded, 'in' and 'out' of area) including maintained and non-maintained boarding schools, Hospitals, including small 'local' hospitals and independent/private hospitals and Psychiatric units including private and voluntary sector units and those that treat young people with severe mental health needs, must notify the LA where the child or young person normally resides.

Notifications are required as soon as a child or young person is going to be/likely to be resident within a setting for 12 weeks or more and when a child is discharged after a 3-month period.

3. Content of the Referral

The setting Provider will seek consent from the parents/carers to share information with Children's Services and to make the referral. In the event of there being safeguarding concerns, the notifying body will inform the parents/carers that the information has been disclosed to Children's Services.

Notifications to Children's Services must be made using the Cambridgeshire and Peterborough Multi-Agency Referral Form.

Discharge planning should commence immediately on admission and be led by the Provider.

Day 1

All Section 85 referral notifications will be processed by the Customer Service Centre and sent directly to the Children's Social Care Assessment Team in the area where the child or young person normally resides. A Management Oversight record must be made, to include when the child or young person will be seen and actions. Where the child's needs (for the purposes of the CA'89) have not been assessed by any local authority in the past twelve months, the social worker must visit within 5 working days of the referral. If the child already has a social worker, the referral will be passed to them to progress.

Within 5 working days

Children's Social Care (CSC) will seek the consent of the parents/person with Parental Responsibility to undertake a C&F Assessment. The worker will open a C&F Assessment on Liquid Logic and visit the child or young person. The child is to be seen (alone where possible/appropriate). The social worker will determine the child's wishes and feelings about the accommodation, whether their welfare is adequately safeguarded and promoted, whether further additional visits are required in order to safeguard and promote the child's welfare, the need for additional services to promote contact between the child or young person and his/her family; and any other steps that should be taken by the local authority in exercising its functions under CA'89 to safeguard and promote the child's welfare.

Timescale for completion of the C&F Assessment is 35 working days.

Follow CIN/CP process Quick Guide:

4. Outcome of the C&F Assessment

If the worker is satisfied that the child's welfare is safeguarded and promoted within the setting and there is no need to exercise any function under CA'89, the outcome of the assessment, being no role for CSC must be shared with the parents/carers, referrer and any other involved agency and the case will be closed.

If the assessment determines that there is a role for CSC a Child in Need (CIN) Child in need of Protection (CP) or a Plan under the Chronically Sick and Disabled Person's Act (CSDPA) 1970, will be developed and based on the Early Help or C&F Assessment. The completed C&FA may be used to help inform the Care Programme Approach (CPA). The CPA is a package of care that may be used to plan mental health care. The CPA is carried out by a health professional, with input from other involved agencies.

Visiting Arrangements

Following the first visit, subsequent visits will be at a frequency as determined by the child or young person's status as a CIN or CP case. Under CIN, visits may be at intervals of not more than 6 weeks. In addition, the social worker must visit whenever reasonably requested to do so by the child or young person and whenever satisfied that circumstances require them to be visited in order to safeguard and promote their welfare. Under CP, the child will be seen a minimum of every 2 to 4 weeks, or as set out in the CP Plan.

Assessment and Discharge Planning

It is anticipated that children and young people will have a range of needs and the LA, together with the Provider will determine who the lead agency will be. The provider should refer to CSC and where applicable other services so that there is a timely and planned assessment that identifies the child's ongoing needs during and post admission.

Within 14 Days of admission

The In-patient Lead Clinician from the setting where the child is being treated will co-ordinate a meeting between social care, Community CAMHS and any other services, to co-ordinate preliminary discharge planning discussions. It is expected that this will cover the anticipated length of stay. This meeting could be combined with Child in Need or Core Group meetings.

Where disagreements arise surronding roles/responsibilities and the level of input from services that are unable to be resolved, such matters must be referred to the respective line managers within 24 hours to resolve the disagreement to prevent delays in discharge.

Every 4-6 weeks

Discharge planning reviews will take place every 4-6 weeks and will be arranged and co-ordinated by the Provider. Reviews should involve the commissioner responsible for the child or young person's care and treatment, underpinned by a clinician and expert by experience. These are individuals, carers or families who are experienced in inpatient admissions and discharges into the community.

The C&F Assessment will be carried out by a social care professional, together with health and multi-agency partners. If the assessment identifies the child is in need of further support, i.e accommodation, the social care professional will obtain the appropriate agreement to fund from the Assistant Director. The case will subsequently be presented to the Access to Resources Panel (ART) for a suitable placement. When a placement has been identified, a placement CRP will consider the split and costs i.e. some costs are split between CCG, Children's Social Care and Education.

The Care Programme Approach (CPA) should determine whether the child is likely to be placed into accommodation by the Local Authority and confirm the proposed placement costs. Where these are identified, actions must be taken to authorise the costs, or arrange a Mental Health Tribunal to ensure no delay in discharge. The In-patient Lead Clinician from the setting must remain involved until such time as s.117 MHA'83 planning is concluded. If the outcome of CAF has determined there is an ongoing role for CSC, the allocated Social Care professional would also remain involved.

Where the child or young person detained has a Learning Disability or Autism diagnosis, their care and treatment review will be undertaken by NHS England. The child must be supported by the appropriate representative to ensure that their views are heard and they can be helped to be discharged into the community. Where their review identifies that the services required for discharge are not available, recommendations and a clear plan outlining actions, timeframes and responsibilities must be set out.

The child or young person should be kept informed and central to the assessment and planning process. Their views alongside those of the parent/carer should be recorded. Where the young person is 16 or over, their consent to include their parent/carer must be sought (if they have capacity to provide such consent).

Consent

The child/young person may refuse S117 Aftercare services. Where this arises it must be discussed with them and their advocate/representative to understand why.

Under the Family Law Reform Act 1969, all young people over the age of 16 are presumed to have the capacity to consent to surgical, medical or dental treatment and to associated procedures, such as investigations, anaesthesia and nursing care. However, this presumption does not mean that a young person is able to make the relevant decision and their capacity to consent to the proposed care/treatment must be assessed.

If the young person appears to lack capacity to consent, the Mental Capacity Act 2005 (MCA'05) applies. The MCA'05 Code of Practice (2020) uses 5 Principles to assess capacity:

  • Presumption of capacity;
  • Support to make a decision;
  • Ability to make unwise decisions;
  • Best interest;
  • Least restrictive.

It is the responsibility of the setting providing care or treatment to assess the young person's capacity. The person undertaking this role must follow the MCA'05 principles and make sure that the actions they carry out are in the young person's best interests. They must make every effort to work out and consider the young person's wishes, feelings, beliefs and values – both past and present. In addition to consulting the young person, the person assessing capacity will consult the parents/person with parental responsibility and any other person involved in their care and support.

Where there are disagreements about the care, treatment or welfare of a young person aged 16 or 17 who lacks capacity to make relevant decisions, every effort should be made to resolve these and this may be achieved through a Best Interests meeting. Where all efforts to reach an agreement have been exhausted and depending on the exact circumstances, the case may need to be heard in the Family Courts or the Court of Protection. The Court of Protection may transfer a case to the Family Courts, and vice versa.

Please refer to CCC and PCC's Capacity and Consent Procedure.

Click here to see further information around the Mental Capacity Act 2005 - Code of Practice 2020.

Education

Education during inpatient stay remains the responsibility of the Local authority, and led by the Vitual School who are required to ensure that this is in place throughout the duration of the inpatient admission. Where education is not secured, it should be reported via the Virtual School to the CSC Director for Education.

Legal Status

Children or young people looked after under s.31 CA'89, will remain as such during their detainment under the MHA83 (ammended 2007). Children or young people looked after under s.20 CA'89 will cease to be a Looked After upon detention under the MHA'83.

Social Workers supporting children or young people under s.31 CA'89, will remain involved. They are required to ensure that the care plan is reviewed and that upon discharge the LA remains responsible for their accommodation. The Social Worker must inform the IRO of significant matters.

Where they are leaving care the young person is entitled under the Leaving Care Act to support; including a personal advisor and Pathway Plan. However, there is no duty on the LA to provide accommodation for those leaving Care.

Where the child or young person is subject to Licence or Notice of Supervision to Youth Offending Services and is transferring back to custody or released from hospital, the Department of Health Procedure for the Transfer from Custody of Children and Young People to and from Hospital under the Mental Health Act 1983 in England guidance must be applied:

Section 117, Mental Health Act 1983

Section 117 sets out the responsibilities between Clinical Commissioning Groups (CCG) and CCC and PCC in relation to children and young people entitled to Section 117 aftercare. Aftercare services should:

  • Meet needs arising from or relating to the individuals mental disorder; and/or
  • Reduce the risk of the individual's mental disorder deteriorating leading to readmission to hospital.

Aftercare services include services that meet a need arising from/relating to the mental disorder for which the child or young person was detained. Aftercare services should serve to reduce the deterioration of the person's mental condition (overall mental state) and therefore reduce the risk of the person being re-detained for the original condition or other.

The duty to provide after-care services continues as long as the patient is in need of such services. In the case of a patient on a Community Treatment Order (CTO), after-care must be provided for the entire period they are on the CTO, and continue past this if needed.

Where the child or young person is under s.117 and therefore in receipt of aftercare services, their placement/package of support must be agreed at the relevant decision making panel.

The discharge plan must clearly set out which services are to be provided under s.117 aftercare, and which are not provided under s.117, and which body should finance them. The CCG should be invited to all discharge planning meetings.

The discharge plan must outline which services are s.117 aftercare services. If there are mental health or physical health needs 'left' that are sufficiently complex that extend beyond the remit of universal services, Continuing Care applies. Continuing Care is an additional package of care that goes beyond what is routinely available from GP practices, hospitals or in the community commissioned by CCG's or NHS England. This approach also avoids multiple assessments.

The Continuing Care framework supports CCGs in determining if a child's needs are such that they require a package of Continuing Care. It provides advice based on existing practice across the country on undertaking a holistic assessment of the child or young person's needs. CCGs have autonomy as to how they fulfil this function, and what process they adopt.

This framework covers young people up to their 18th birthday. Thereafter, the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care and the supporting guidance and tools should be used. There are significant differences between children and young people's Continuing Care and NHS Continuing Healthcare for adults. Although a child or young person may be in receipt of a package of Continuing Care, they may not be eligible for NHS Continuing Healthcare or NHS funded Nursing Care once they turn 18.

Full information on Continuing Care and NHS Continuing Healthcare can be found below:

All discharges must comply with organisational statutory responsibilities, which includes CPA, Review, and sign off by the Director of Children's Services where the young person is 16 or 17 years old. Upon discharge the Social Worker will remain in contact for as long as the young person has assessed and eligible needs.