Extraordinary positions being taken about supporting parenting – by children’s and adult services directorates within the same council, who should be co-operating under the Care Act!

A query received recently from someone who understands the power of legal literacy is worthy of wider circulation, to my mind.

A council’s senior manager has said that Adult Services won’t help a person with a disability with parenting, because that’s a service for the child, and should be paid for by the Children’s departmental budget.

Oh dear. That manager clearly hasn’t had Care Act training, or nodded off during the bit on the eligibility regulations. Ability to achieve, in relation to the outcome (or domain) of:

(j) carrying out any caring responsibilities the adult has for a child (- ie parenting or even less informal responsibilities, given that it doesn’t actually SAY parenting) is now, explicitly, one of the 10 regulations-based criteria for eligibility for adults’ services.

If one is eligible by reason of not achieving in two or more of those domains, and consequential significant impact is acknowledged then there is no option: the council must fund the need.

HOW it funds the need – through children’s or adults’ budgets – is down to internal decision-making, because the duty is a corporate one – but the Care Act requires co-operation between internal budget holders and concrete silos around budgets are the antithesis of co-operation.

In terms of deciding internally which budget SHOULD take the hit, I don’t think that the manager in questions ‘gets’ the legal concept that given it’s been put explicitly into the eligibility regulations for adult social care under the Care Act – and given that the Care Act is ONLY about adult social care (please note, other than in exceptional circumstances) – it virtually MUST be for adult services to pay to meet the need. Saying it should come out of the children’s budget is a bit like saying ‘managing toileting’ and managing nutrition’ isn’t for adults services to pay for – it’s for the public health budget or the tourism catering budget!!

Yes, the Care Act is about funding care and support for over 18 year olds, but support with parenting IS  precisely that – care and support for over 18 year olds who are parents, and thus have parental responsibilities which their condition might make them less able to shoulder – even though the child is the ultimate beneficiary.

One way of making sense of this is to consider the policy idea behind this: I think that it is that the council will co-operate as a whole, and work together to minimise the need to use care proceedings in relation to children, since that will only cause more mayhem than is proportionately necessary, in the lives of children whose welfare is affected by parents with less than ideal parenting capacity.

Behind the scenes the council could agree any basis it likes for how to fund this sort of input, but in legal terms, from the perspective of the customer’s legal rights, the Adult Services Director has no option but to regard the directorate as under a Care Act duty, if inability to achieve in relation to that specific domain (plus one other) and consequential significant impact have been assessed.

Indeed, if only that one eligibility domain has been assessed as one where there’s inability to achieve, adult services professionals should be aware of the residual power that exists to meet needs even if they are not formally eligible.

All anyone needs to do here is to write and explain the stance being taken to the council’s Monitoring Officer (the head lawyer in charge of governance) and it would inevitably be sorted out immediately because the stance being taken that the children’s department should pay, would involve their exercising a power, by dint of adults’ services failing to discharge a duty, and so it’s not even arguably defensible.

There ARE powers to help children in the Children Act, if, for instance, the child is a child in need, under s17.  That provision enables services to be provided to the parent, for the benefit of the child, but this provision is a power only. The use of this power is usually reserved for financing support for children with disabilities, and even that usage is unfamiliar to some children’s teams, who think of a child in need as being a child ‘at risk’, and thus don’t even want to consider using s17, separately, to spend money – through ingrained fear of triggering aggravation about child protection, when in fact there are just much more obvious needs on the part of the child, that could be met and which should be being funded. A child with a disabled PARENT could be treated as a child in need, OR a child ‘at risk’, if there was evidence of risk, but avoiding that situation is why supporting the parent has been put into the Care Act, instead.

Finally, in s62 of the Care Act, there is a residual power to provide services to the carer of a child who is still a child, in the context of a transition assessment having been done – but only after considering usage of s17 of the Children Act in any event – which is a hint that the child who is in need should look to children’s services first.

 

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

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