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Legal rights and coronavirus: Care leavers and young people transitioning to adult social care

Sophie Wells, solicitor in the human rights team, discusses the effect of the Coronavirus Act on young people in care or with care and support needs and states that while the Act has not changed the rights of care leavers, it is bad news for children transitioning to adult social care.

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Sophie is a solicitor in the Human Rights department. She acts in a variety of matters that include representing bereaved families at Inquests and individuals in the Court of Protection.
The Coronavirus Act 2020, which was rushed through Parliament in recent weeks, has been greeted with dismay by vulnerable adults and children and those who support them.
 
However, there is one group of young people whose rights, contrary to the government’s guidance, have not been diluted: local authorities’ duties towards care leavers have not been modified by the Act. 
 

The rights of care leavers
 

Schedule 12 to the Coronavirus Act contains the provisions modifying the powers and duties of local authorities in England and Wales in relation to the provision of care and support.
 
However, Schedule 12 makes no reference to sections 23A-24D of the Children Act 1989, which set out the powers and duties which local authorities have towards children as they exit the care system and begin their adult lives. 
 
The duties which local authorities have towards the care leavers, include: 
  • A duty to keep in touch;
  • If they have lost touch, a continuing duty to consider how to re-establish contact and to take reasonable steps to do so; 
  • A duty to appoint (and continue the appointment of) a personal advisor for each care leaver;
  • A duty to assess the care leaver’s needs for advice, assistance and support, prepare a Pathway Plan for them and keep that Pathway Plan under regular review; 
  • Unless satisfied that it is not necessary, a duty to maintain the care leaver, including by providing or maintaining them in suitable accommodation;
  • If the child is to continue to live with their foster parent after they reach adulthood, a duty to provide the former child and their foster carers with advice, assistance and support, including financial support to the foster carer.
 
The Coronavirus Act says nothing about these duties so it follows that these duties have not been modified. It therefore seems that there is no legal basis to the government’s guidance that: “Local authorities should continue to do their best to meet statutory duties such as providing personal advisers to care leavers and preparing or reviewing pathway plans. We do recognise the additional pressure local authorities are under, and if they need to alter the support they are able to offer care leavers during this period, they should assess their needs and prioritise the most vulnerable.” 
 
If local authorities don’t meet their statutory duties to care leavers they will be acting unlawfully. 
The rights of children in need transitioning to adult services
 
The position for young people who will require care and/or support from adult social care is bleaker. 
 
Paragraph 5 of Schedule 12 to the Coronavirus Act removes local authorities’ duties to assess:
 
  • Children who are likely to have care and support needs after they turn 18;
  • Young carers who are likely to have support needs after they turn 18; and
  • Carers who are likely to have support needs after the child they care for turns 18.
 
Paragraph 15 to Schedule 12 of the Coronavirus Act strips away the ‘safety net’ offered by s.17ZH(2)-(4) and (6) of the Children Act 1989. These provisions previously ensured that a local authority would continue to provide services until: 
 
  • it had decided it was not under a duty to carry out a needs or carers assessment; or 
  • it had completed an assessment (whether before or after the child turned 18) and, having completed that assessment, had reached a conclusion about whether there were needs for care and support and, if there were; 
    • had begun to meet those needs; or 
    • had decided it was not going to meet them (whether because those needs did not meet the eligibility criteria or for some other reason).
 
The removal of this safety net is very concerning. That said, there may be some steps that can be taken to avoid this potential cliff edge:
  • there may be recourse using the Human Rights Act (although these arguments are notoriously difficult); 
  • it may be possible to make public law arguments that fairness and rationality require some form of assessment: how can a local authority fairly and rationally conclude that due to COVID-19 they cannot provide care and support services for young people or their carers when they have not assessed what those needs are and how they can potentially be met?
 
If you believe that a child or carer may not be getting the care or support they require, you can seek legal advice. It may be that you or they can seek to challenge this.  

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