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.
Important to know

Significant benefit will generally be at the point when any needs for Care and Support the child may have as an adult can be predicted reasonably confidently. A range of other factors will also determine whether the timing of the assessment is of significant benefit, including:

  1. The stage the child has reached at school and any upcoming exams;
  2. The time it may take to carry out an assessment;
  3. The time it may take to plan and put in place the adult Care and Support;
  4. Any relevant family circumstances; and
  5. Any planned medical treatment

The purpose of the assessment is to understand what the child's needs are now and what their needs are likely to be after the age of 18.

Important to know

A child's needs assessment is one type of 'transitions assessment'. The other types are the 'young carer's assessment' and the 'child's carers assessment'.

A child's needs assessment is not the same as a 'needs assessment' carried out with people who are 18 years or above. It is more of a preparatory assessment and there is no requirement to apply the national eligibility criteria.

The Local Authority can only undertake the assessment if the child:

  1. Has the mental capacity to (from age 16) or is competent to (under age 16) consent to a child's needs assessment being carried out; and
  2. Consents to the child's needs assessment being carried out; or
  3. Does not have the mental capacity to or is not 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.
Important to know

Competent to Consent: For young people below the age of 16, the Local Authority needs to establish their competence to consent to the assessment, using the test of 'Gillick competence'. A judgement must be made about whether they are able to understand the proposed assessment.

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.

Parental Responsibility

Where the child requiring a child's needs assessment is under the age of 16 and is not competent to consent, a person with parental responsibility will need to be involved in their assessment. If there is no person with parental responsibility available (or appropriate in the eyes of the Local Authority) an independent advocate must be provided.

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; or
  2. Listed on the child's birth certificate.

A 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 person with parental responsibility must:

  1. Provide a home for the child;
  2. Protect and maintain the child;
  3. Discipline the child;
  4. Choose and provide for their education;
  5. Agree to their medical treatment;
  6. Look after their property;
  7. Name the child.

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).
Important to know
It doesn't matter whether the child is receiving services from children's services or not. Any child is entitled to an assessment so long as they have a likely need and the assessment would be of significant benefit to them.

The Local Authority should also be proactive in identifying young people who meet the criteria for an assessment. The Care Act recognises that it is highly likely that young people who are in receipt of 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 valid reason not to.

5. Refusal of a Child's Needs Assessment

Refusal by the Child

A child who is deemed to have mental capacity, or who is competent to consent to a child's needs assessment can refuse to have an assessment unless they are deemed by the Local Authority to be experiencing, or be at risk of experiencing abuse or neglect. If this is the case the Local Authority must carry out the assessment.

Where a child 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 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 consider indicating when it would be of significant benefit to carry out the assessment and then make the necessary arrangements to do so when this time comes.

Where an assessment has been declined the child (or person making the request) must be advised that a further request can be made in the future should circumstances change, and any further request must be considered by the Local Authority on the basis of the available information at that time.

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:

  1. 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.

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 deemed to lack mental capacity or is not competent the information above must be provided to their parent/s.

Important to know
Under the Care Act where the child who has been assessed is not yet 18 the duty to prevent, delay or reduce needs for Care and Support does not apply. However, the duty to provide information and advice does apply and one of the things that information and advice must be given about is how to prevent, reduce or delay the development of Care and Support needs.

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 as an adult needs assessment as it stands, or whether to carry out any further assessment so as to be able to reach a decision about eligibility.

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 adult assessment outcome.

If a child's needs assessment has not been completed

If for whatever reason 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.

The transfer to Adult Care and Support

The Care Act does not expect a young person to move from children's services to Adult Care and Support services as soon as they turn 18. As such there is no obligation for local authorities to do so. Instead, the move should be planned and staged over several weeks, months or even years depending on the needs of the child.

The young person and their parent/s must be fully involved in any decision about when and how to transfer their support and services 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.

Ongoing support from children's services

Both the Care Act and the Children and Families Act allow for local authorities children's services to continue providing all/some services and professional support to a young adult beyond the age of 18 if this is what will best support them. Children's services and Adult Care and Support must agree how they can work together in this situation and avoid unnecessary funding disputes, minimising any disruption and anxiety for the young adult and their family.

Examples of situations when it may be beneficial to the 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 a 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 foster placement for a young adult is extended beyond the age of 18 (all local authorities must have a Staying Put policy to ensure that transition for care leavers reflects transition for other young people).

Provision of Existing Services when there is an EHC Plan

When there is an existing EHC Plan that is to be extended past the age of 18 (up to the age of 25) children's services should ensure that any services they have arranged to meet the outcomes of the plan remain in place for the duration of the plan.

Where the young person has an additional need for services above those being provided to meet the 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 transfer of those needs to adult Care and Support. The services being provided must continue until adult Care and Support has established needs, eligibility and arranged any support required.

Provision of Existing Services when there is not an EHC Plan

When an agreement has been reached about the timeframe for the transfer to Adult Care and Support the Local Authority must make sure that the young adult does not experience a gap in care. Under both the Care Act and the Children and Families Act any services being provided before the young adult was 18 must continue to be provided until any adult Care and Support processes conclude either:

  1. That the young adult does not have any needs for Care and Support; or
  2. That the young adult has eligible needs for Care and Support that the Local Authority must meet under its duty; or
  3. That the young adult has needs that are not eligible, but that the Local Authority intends to meet under its power.

In all cases Adult Care and Support must be allowed time to plan how to meet the young adult's needs with them and arrange any support and services (including facilitating access to support and services that will be provided by organisations external to the Local Authority) before any existing services are ceased.

Neither the Care Act or the Children and Families Act defines whether children's or adults services should meet the costs of providing existing services past the age of 18 to allow for Adult Care and Support process to be carried out. What is clear is that funding disputes should be kept to a minimum to avoid anxiety to the young adult and their family. To this effect the Local Authority should agree and make necessary arrangements in advance to clarify funding responsibilities in this situation.