The Children (Scotland) Act

Under the Children (Scotland) Act 1995 local authorities have a general duty to safeguard and promote the welfare of children who are in need in their area. [1]

A 'child' for the purposes of Part 1 of the Children (Scotland) Act is a person under the age of 18, unless specifically stated otherwise.

Local authorities are required to undertake a pathway assessment and produce a plan to assist all young people in the process of leaving care. [2]

Young people aged 16 and 17 in need of accommodation, who are not care leavers, may be given assistance in kind or, in exceptional circumstances, in cash [3] or accommodation. [4]

A local authority has a general duty to safeguard and promote the welfare of children in need. [5] Case law suggests that there is no power to provide accommodation under section 22, [6] although local authorities do have the power to provide financial assistance. [7] It may be possible for this to be used, for example, to help a young person access accommodation by paying a deposit and rent in advance.

In addition a local authority has the power to make payments to disabled people aged 16 or 17 or to their parents or carers in lieu of services provided under section 22. This allows the disabled young person or their parent/carer to arrange for the provision of services themselves. [8]

A local authority has a duty to provide accommodation to a 16 or 17 year old who requires such help because: [9]

• no-one has parental responsibility for her/him

• s/he is lost or abandoned

• her/his parent or carer is prevented, for whatever reason, from providing suitable accommodation or care. 

It covers children who reside in the area or who are 'found within' the local authority's area. This duty thus applies even where the young person has no obvious connection with the local authority. In this situation the local authority providing accommodation must notify, in writing, the authority where the young person is ordinarily resident. That local authority may, at any time, take over the provision of accommodation. [10]

A local authority also has the power to provide accommodation to any other child within their area if they consider that to do so would safeguard or promote her/his welfare. [11] The trigger to any assistance should be that the young person is seen as a child in need of such provision.

Accommodation provided could include different types of residential homes or any other arrangement that seems appropriate to a social work department. [12] A person with parental rights or responsibilities cannot object to the local authority providing accommodation to someone of 16 years or over if that young person agrees to be provided with accommodation. [13]

The Children (Scotland) Act does not specify the standard or suitability of the accommodation to be offered. However the local authority does have a duty to ascertain the young person's wishes regarding accommodation and to give consideration to them. [14]

A local authority has the power to provide accommodation to any person within their area aged at least 18 and under 21 if they consider that to do so would safeguard or promote her/his welfare. [15]

Since 1 April 2004, (and under section 29 of the Children (Scotland) Act 1995), all care leavers who are compulsorily supported by the local authority must be provided with an assessment of their needs. [16] Young people who are supported by the local authority on a discretionary basis must be provided with an assessment of their needs if they apply to the local authority to do so. [17] A compulsorily supported care leaver is defined as a care leaver who is aged 16, 17 or 18 and who must be provided with advice, guidance and assistance by a local authority because they had been looked after at the time they were aged 16 or subsequently. [18]

A discretionary supported care leaver is defined as a care leaver who is aged 19 or 20 whom the local authority has agreed to provided with advice, guidance and assistance because they were in need and they had been looked after at the time they were aged 16 or subsequently. [19] The housing department should be involved in contributing to the development of planning to meet the housing needs of young people leaving care. [20]

The assessment of needs is part of the leaving care pathway process set out under the Children (Scotland) Act 1995 and its subsequent amendments and regulations. [21] The regulations set out:

• the assessment process

• the factors to be included

• the timescales

• the appeal mechanism for decisions.

In carrying out the duties under section 29, any prospective care leaver or any care leaver who has been compulsorily supported and does not already have a pathway plan has to be assessed using the method set out in the regulations. [22] This duty would apply until the young person reached the age of 19 years when they would no longer meet the criteria for a compulsorily supported person.

Unless the local authority is satisfied that the young person's welfare does not require it, compulsorily supported care leavers must be provided with advice, guidance and assistance. [23] Social work departments have the power to provide advice, guidance and assistance to discretionary supported care leavers if they have made an application and are deemed to need it. [24] This includes care leavers who were previously looked after by a local authority in England or Wales. [25]

A local authority has a general power to provide help in kind or in cash. [26] It might be possible for this power to be used, for example, to help a care leaver access accommodation by paying a deposit and rent in advance.

If it is deemed necessary, a local authority shall assist a supported person by providing the person with, or supporting them in, suitable accommodation. [27] The regulations define suitable accommodation and set out the following aspects that must be covered: [28]

• As far as reasonably possible, the accommodation must be suitable with regard to the young person's needs including health and any needs as a result of disability.

• The authority must be satisfied that the landlord or provider is suitable.

• So far as reasonably possible, the authority must take account of the young person's wishes and views, and education, training or employment needs.

Local authorities must assist all supported young people who are in full time further or higher education by providing suitable accommodation or paying them enough to enable them to secure suitable accommodation during vacation, if their term time accommodation is not available at that time. [29]

From 1 April 2004 there is a duty on social work departments to provide regular financial support to care leavers who are under 18 years old, who ceased to be looked after when they were over school age, and who were looked after away from home for over 13 weeks since they were aged 14. [30]

These young people should receive a package at least the equivalent of the Department of Work and Pension benefits available to 16 and 17 year olds at any particular time. [31] Normally this support will only be available to young people who do not live with their family. However a young person living with their family who would have been entitled to receive social security benefits but for the operation of section 6 of the Children (Leaving Care) Act 2000, may receive assistance from the local authority. [32]

The regulations also state that the local authority shall provide the assistance that it considers necessary, either in cash or in kind, to a compulsorily or discretionary supported young person until their pathway assessment and (if appropriate) pathway plan, have been completed. [33]

The financial support will be based on individual circumstances but would be expected to include the cost of rent, utility bills, food/household goods, laundry, insurance, clothing travel and leisure. [34]

From 1 April 2004 compulsorily supported care leavers cannot claim Housing Benefit, income-based Jobseeker's Allowance (JSA), income-based Employment and Support Allowance (ESA), or Income Support. The social work department will be her/his primary source of income. Lone parents, or those who are unable to work because of illness or disability, will still be able to claim Income Support, income-based ESA or income-based JSA, but not Housing Benefit. [35]

A local authority has a general duty to safeguard and promote the welfare of children in need, and so far as it is consistent with that duty, promote the upbringing of such children by their families. [36] However where families containing a child in need apply for assistance, case law in England says that there is no duty on social work departments to provide accommodation for the parents as well as the child. The section 25 duty to provide accommodation applies to the child only. Offering to house only the children is an option. [37] A parent is not obliged to accept this option. If a social work department wishes to remove a child against the wishes of her/his parents it must obtain a court order. Courts are only likely to grant a child protection order removing a child when there is reasonable cause to believe that the child is likely to suffer significant harm if s/he is not removed. [38] It could be argued that social work departments might still have the power to provide financial assistance to the family as a whole to secure accommodation. [39]

The Supreme Court in England held that whether a local authority is liable to pay damages for failing to protect 'children in need' accommodated with their family under English law (section 17 of the Children Act 2019) from harm caused by third parties neighbours, known to the authority to have perpetrated anti-social behaviour against the family for years, depends on whether the authority specifically assumed responsibility for their safety and welfare, and therefore owes them a common law duty of care to protect them from harm caused by third parties. [40] While it is well established that a local authority owes a common law duty of care to a child who has been taken into care, [41] in the absence of a care order a local authority does not owe a duty of care at common law merely because it has statutory powers or duties under the Act, even if by exercising those powers or duties it could prevent harm being suffered. However, a local authority and its social workers may owe a duty of care to protect from harm in the same circumstances where the principles applicable to private individuals or bodies would also impose such a duty, for example where they have created the source of the danger or assumed responsibility to prevent a person from suffering harm.