In all the excitement of Care Act Day, it is important not to lose sight of the fact that important provisions of the Children and Families Act 2014 for parent carers of disabled children and young carers also come into force today (1 April 2015).
I plan to blog about the duties to young carers contained in both the Children and Families Act and Care Act shortly. However this post aims to answer a simple question which I have been asked a number of times – what’s the point of the new parent carer’s needs assessment (PCNA) introduced by section 97 of the Children and Families Act?
One thing is crystal clear – there is no new right to services for parent carers of disabled children, as there is for family carers of disabled adults under the Care Act. What we have for parent carers of disabled children is a new assessment duty – and one that should lead to a better informed decision about the holistic package of support that disabled children and their families need.
Section 97 inserts three new sections into the Children Act 1989 with effect from today (1 April):
- Section 17ZD is the assessment duty. It requires that a local authority must carry out a PCNA where it appears to the authority that the parent carer may have needs for support or the authority receive a request from the parent carer to assess, and the local authority are satisfied that the disabled child and family are eligible for support under section 17 itself. Given the broad definition of ‘disabled‘ children in need under section 17(10)(c) and (11) and the fact that support can be provided for any family member of a disabled child under section 17(3), this second requirement is unlikely to prove a problem. Nor is there any requirement for parent carers to be providing a particular level or intensity of care; any parent carer who requests a PCNA is entitled to one – indeed as with the Care Act assessment duty local authorities must proactively seek out parent carers who may have needs for support and offer them an assessment (a point reinforced by sub-section 14). The only exception to the duty to assess is if a ‘care-related assessment’ has already been carried out and the needs have not changed – unlikely given the dynamics of family life generally and particularly with disabled children.
- Section 17ZE, which supplements the assessment duty by:
- Making clear that providing care includes providing practical or emotional support (sub-section 2);
- Allowing for the PCNA to be combined with any other assessment of the parent carer or disabled child (sub-section 3). However in my view this should only be done with the agreement of all concerned, including the disabled child where they are capable of giving or withholding consent;
- Allowing for regulations to be made to supplement the duty (sub-section 4). However as at 1 April 2015 no such regulations have been made.
- Section 17ZF, which is titled ‘Consideration of parent carers’ needs assessments‘. This is the ‘so what?’ duty – having done the PCNA, what are the local authority supposed to do with it? The answer is that they must ‘consider the assessment and decide‘:
- Whether the parent carer has needs for support in relation to the care which he or she provides or intends to provide;
- Whether the disabled child cared for has needs for support;
- If A and / or B applies, whether those needs could be satisfied by services which the authority may provide under section 17; and
- If yes, whether or not to provide any such services in relation to the parent carer or the disabled child (emphasis added)
So the high point of the PCNA duty is a duty to decide whether or not to provide services to meet the needs identified through the assessment. This falls some way short of the duty to meet eligible needs created by section 20 of the Care Act for family carers of disabled adults.
Importantly however, in carrying out every PCNA the local authority must have regard to the well-being of the parent carer and the need to safeguard and promote the welfare of the disabled child cared for and any other child for whom the parent carer has parental responsibility; section 17ZD(10). ‘Well-being’ here has the same meaning as under the Care Act and so is very broad. This should mean at least that the ‘holistic’ assessment of disabled children required by the Working Together statutory guidance is strengthened by a specific assessment of the needs of their primary carer(s).
There are however a number of further problems with PCNAs:
- The most obvious problem is that they are only available for parent carers. Luke Clements has described this as the ‘grandparent problem‘ (see p53). In order to ensure that non-parent family carers still have a right to an assessment, section 1 of the Carers (Recognition and Services) Act 1995 is remaining in force. As Prof Clements notes, ‘The 1995 Act creates a higher assessment threshold for carers than does the Children & Families Act 2014, section 97 (ie the ‘regular / substantial care’ requirement and the obligation on the carer to request an assessment)‘. This ‘solution’ is therefore messy at best.
- A second fundamental problem is the complete absence of read-across between the PCNA duties and the key duty to provide disabled children with social care services, which is found in section 2 of the Chronically Sick and Disabled Persons Act 1970. This may not be a problem in law, as the case law is clear that local authorities discharge their duties under the CSDPA 1970 by carrying out their functions under section 17 of the Children Act 1989. However it will almost certainly be a problem in practice, as local authorities will be well aware that the section 17 duty is owed generally to children ‘in need’ and does not give rise to an individual right to services for a particular child or family – so said the majority in the House of Lords in the Barnet case. So we may see local authorities wrongly assuming that neither the PCNA or a child ‘in need’ assessment for a disabled child can lead to services as of right to the child. Any misapprehension to this effect needs to be corrected urgently. It is true that services under the CSDPA 1970 can only be provided to the child not the parent – but as we have seen one of the functions of the PCNA is to determine what level of support should be provided to the child.
- There are now far too many social care assessment duties for disabled children, young people and their family carers. At the last count we have:
- The implied duty to assess disabled children as children ‘in need’ under section 17 of the Children Act 1989, as governed by the Working Together statutory guidance;
- The duty to carry out an assessment of education, health and care needs under section 36 of the Children and Families Act 2014 – the route in to an EHC Plan;
- The PCNA duty in section 17ZD of the Children Act 1989;
- The duty to assess all family carers in section 1 of the Carers Act 1995; and
- The Care Act transition assessment duties for both disabled young people and carers – which will be the subject of a later post.
This may not even be a complete list – for example it seems the parent carer’s assessment duty in section 6 of the Carers and Disabled Children Act 2000 is still in force, although this would appear to have been made redundant by the advent of PCNAs. Such a lengthy list of assessment duties doesn’t seem to me to be a sensible approach to making sure the needs of disabled children and families are met in a streamlined way.
So at best there is only a qualified welcome to PCNAs. They are far from pointless as they should inform the service provision decision for the disabled child in their family context. However their impact will depend to a great extent on whether local authorities comply with the spirit not just the letter of the new obligations – which is a central theme across all the new reforms.
Comments on emerging practice re PCNAs welcome below.