Transition social workers need to understand the theories and techniques any social worker would use, child and adult social care legislation, and that adolescence is a distinct phase of development.
Challenges we face
Understanding adults’ and children’s social workOpen
An inescapable challenge for any service supporting young people who are preparing for adulthood is that it involves practitioners knowing about laws and policies relating to both children’s social care and adults’ social care. The two different branches of social work have separate knowledge and skills statements, and social work training typically encourages a degree of specialisation between children’s and adults’ services, meaning practitioners can quickly lose familiarity, and therefore confidence, with the laws and policies of the ‘other’ part of social work.
A good example of this is the Mental Capacity Act. It straddles the transition age bracket, as it kicks in when people turn 16. Nonetheless, children’s social workers supporting young people with disabilities report a lack of confidence in using it, not least because many are not trained to do so, on the assumption that it is for adults’ services to engage with. This lack of exposure to particular laws feeds into to attitudinal differences between children’s and adults’ services as well, which we shall look at more in Right values, skills and attributes.
Social workers need therefore to understand the legislation which shapes social care throughout the lifespan, but will also need to engage with the structures and policies of the education system, which can feel entirely unfamiliar. As we explore more in Supporting the person through the system, the transition social work role can also involve engaging with the switch from paediatric to adult healthcare, which brings in another area to grapple with. Even if we limit the knowledge a social worker needs just to laws, policies and local systems, there is a lot to absorb.
Children one day, adults the nextOpen
Social workers, employed by local authorities that divide services into children’s and adults’ departments, often view people through the same binary, child/adult lens. This is natural – our laws and systems reinforce it all the time. But the group of people who are preparing for adulthood are adolescents, and that is a distinct developmental phase. Clearly, social workers who support people with learning disabilities will be working with people whose development sometimes follows an atypical course, but it remains important that social workers understand that the people they are serving are not (except in law) simply children one day and adults the next, but are progressing through a period of change.
Making it better
Social workers need to understand the laws which shape the support that they offer to both children and young adults with learning disabilities. Four main laws operate here: for children, the Children Act 1989 and the Children and Families Act 2014; for adults (and for those approaching adulthood), the Care Act 2014 and the Mental Capacity Act 2005. Underpinning all of these is the Human Rights Act 1998, and a key message of the NSW work was that good social workers – supporting people of whatever age – have an understanding of the Human Rights Act, and the ability to use it to promote the rights and wellbeing of the people they serve.
To develop an in-depth understanding of these laws, there is of course no substitute for decent training and – more importantly – lived experience of putting the laws into practice. As a starting point, we set out here the main aspects of the laws, in particular those aspects which relate to people who are nearly or newly adults.
Children Act 1989/2004Open
- The Children Act 1989 still provides the basic legal foundation for promoting child welfare and protecting children from harm. It establishes the paramountcy principle – that a child’s welfare must be the paramount consideration in any decisions about the upbringing of that child.
- The Act creates two main categories of children requiring input: children in need (dealt with under Section 17) and children at risk of significant harm (dealt with under Section 47). All disabled children are automatically categorised as children in need, as are any children whose health or development would be impaired without the provision of additional support.
Assessing a child’s needs requires a systematic approach to gather and analyse information about children and their families, looking at:
- children’s developmental needs
- the capacity of parents and carers to respond appropriately to these needs
- the impact of wider family and environmental factors on parenting capacity and children.
- The way that agencies and organisations should work together to carry out their duties and responsibilities under this Act and other laws is set out in the 2018 statutory guidance ‘Working together to safeguard children’.
- The Act also sets the rules for the care and accommodation of looked after children – people in care, fostering or adoption placements. Many of these young people will be eligible for transition assessments as they prepare for adulthood.
- Volume 3 of the guidance and regulations underpinning the Children Act clarifies that local authority responsibilities to disabled care leavers are the same as to any other care leaver, and that the multiple services that may need to be offered to disabled care leavers should be as streamlined as possible.
- The Children Act 2004 created new structures and systems to shape children’s social care, and introduced a duty for local authorities, and partner agencies such as health and the criminal justice system, to collaboratively promote children’s and young people’s wellbeing, and to safeguard them where necessary.
Children and Families Act 2014Open
- The Children and Families Act 2014 covers a wide range of issues relating to family life, including fostering and adoption, parental leave and flexible working, free school meals, family justice and smoking near children.
- Part 3 of the Act deals with the reforms to the provision of support to young people with special educational needs and disability (SEND). This is the part of the Act we are most concerned with here.
- The SEND reforms replace statements of special educational needs with education, health and care plans (EHCPs). These are in place until a person leaves education, or turns 25, whichever is sooner.
- Under the Act, local authorities must support the development of children and young people with disabilities, and support them to achieve the best possible educational and life outcomes.
- Local authorities have duties to identify, and then address, the needs of any young person with SEND in their area.
- The local authority must consider conducting an EHC assessment if a child or young person with SEND, or their family, requests one, or if such a person becomes known to the authority.
- An assessment should focus on people’s aspirations, and draw on multidisciplinary input. It should determine if educational, health or social care support is to be provided to the child of young person, via an EHCP.
- EHCPs aim to provide a single plan addressing all of the social care, medical and educational needs of a young person with disabilities, and to have the wishes and aspirations of children, young people and families at the heart of these plans.
- Parents and young people have a right to request a particular educational provision, and the local authority has a duty to name this in the plan unless it believes it would not meet the person’s needs, would be incompatible with the educational needs of others, or would not be an efficient use of resources.
- Once a child passes the point at which it is compulsory to attend full-time education (the last day of the summer term of the year in which they turn 16), the Act classifies them as a young person, with rights to decide for themselves – subject to them having mental capacity – what outcomes and plans they wish to pursue.
- The Act creates a presumption in favour of mainstream education for children and young people with SEND.
- The Act promotes joint planning and commissioning between education, health and social care, at a strategic as well as an individual level.
- It creates a duty for a local authority to create a ‘local offer’ – the provision of information about services and support available in the area to children and young people with SEND and their families. The expectation is that the local offer will be a collaborative endeavour involving partner agencies, and children young people and families themselves.
- The Act is supplemented by a SEND Code of Practice.
Care Act 2014 Open
- The Care Act 2014 is the most significant social care law since the establishment of the welfare state. It replaces a patchwork of previous legislation and establishes the promotion of individual wellbeing as the primary duty of local authority social workers.
- This creates a duty to develop personalised support, as everyone will have a different conception of what constitutes their individual wellbeing. One-size-fits-all services are not the best way to meet people’s needs.
- The Act focuses on key concepts such as prevention and strengths-based approaches, and meeting needs through personal budgets and direct payments.
- Carers have significant new entitlements under the Act, to help them maintain their caring role while also enjoying things that are important to them.
- Good quality advice and information services, advocacy and commissioning, are all central planks of the Care Act.
- The Act requires local authorities to promote integration with the NHS and other key partners.
- Assessments under the Care Act should be offered whenever a local authority has reason to believe a person has needs. The assessment should be appropriate, proportionate, person-centred and focus on promoting wellbeing.
- The Act establishes a national minimum threshold at which people will be eligible for support. Instead of a council assessing levels of need, it will ask if people can achieve certain outcomes.
- Once an assessment has been made there is a duty on local authorities to produce care and support plans and to offer a personal budget. The Act also sets out a duty to review care and support plans to ensure that they continue to meet the needs of the person.
- Adult safeguarding is, for the first time, spelt out in the law in the Care Act. Local authorities must make enquiries if they believe an adult is, or is at risk of, being abused or neglected.
- The Act requires assessments of young people in transition to adults’ services when it is of ‘significant benefit’ for the young person to be assessed. There is no set time for this, but it must allow for decent planning to be done.
- An assessment must be done if it appears that a young person is ‘likely’ to have needs in adulthood; this applies even where those needs do not look like they would be eligible for adult social care support.
- Local authorities must make efforts to identify people who are not already known to children’s social care, but who may have needs in adulthood, such as young people with degenerative conditions, who are in out-of-area educational settings, or who are in the youth justice system.
- The Act creates greater flexibility about assessment and support to young carers and adult carers of children with disabilities.
- Under the Act, children’s services are required to provide services until adults’ services have had a chance to take over any care package (which should be on a person’s eighteenth birthday, except where circumstances prevent this). There should, therefore, never be a gap in the provision of necessary social care support
- See the transition chapter of the Care Act Statutory Guidance.
Care Act and Children & Families Act – how they overlap Open
There are important overlaps between the Care Act 2014 and the Children & Families Act 2014. There is recent excellent guidance on this overlap from our partners at Preparing for Adulthood.
Mental Capacity Act 2005Open
- The Mental Capacity Act creates a legal framework to support the right of people with impaired cognitive functioning to make their own decisions wherever possible, and where they cannot, to have their best interests at the heart of any decisions made on their behalf. It applies in England and Wales; Scotland and Northern Ireland each have separate mental capacity laws.
It is based on five principles, which are legally binding on those working with people who may lack mental capacity:
- people are presumed to have mental capacity unless and until it is established that they lack it
- people must be supported to make their own decisions as much as is practically possible, and until that has been done without success, a person cannot be held to lack mental capacity to make that decision
- if a person makes an unwise decision, that is not evidence that they lack the capacity to make that decision
- if a person does lack the mental capacity to make a decision, then any decision made on their behalf must be made in their best interests
- any decision must also be the least restrictive option that addresses the person’s best interests.
- These five principles apply to anyone from the age of 16. It is important to note, therefore, that people who are, in law, children, have the right to make their own decisions where they have the mental capacity to do so. This has obvious significance for the transition process.
- People who may lack the mental capacity to make complex decisions may well have the capacity to make simpler ones. Capacity is not a general term: it relates to the decision in question, at the time it needs to be made. Some people will be better able to make decisions at some times rather than others.
- For someone to be held to lack the mental capacity to make a decision, they have to be unable to understand, retain, weigh up or communicate the key information relating to that decision. If someone is unable to do any one (or more) of those four things, then they lack the capacity to make the decision. For the Act to apply, that inability to make the decision has to be because of an impairment in their mental functioning (e.g. learning disability, mental ill-health, drunkenness), whether that impairment is permanent, long-term, or temporary.
- When someone turns 18, they have the right to make a number of advance planning decisions, such as the setting up of Lasting Powers of Attorney, and the drawing up of Advance Decisions to Refuse Treatment advance decisions to refuse treatment.
- The Deprivation of Liberty Safeguards (DoLS) are part of the Act. DoLS provide mechanisms by which people who lack the capacity to consent to care arrangements which may be depriving them of their liberty can have their rights protected. These mechanisms are to change, under a new scheme called the Liberty Protection Safeguards (LPS), from 2020.
Human Rights Act 1998 Open
- The Human Rights Act 1998 incorporates into UK law the articles of the 1950 European Convention on Human Rights.
The articles of the Act are:
- Article 2 Right to life
- Article 3 No torture, inhuman or degrading treatment
- Article 4 No slavery or forced labour
- Article 5 Right to liberty
- Article 6 Right to a fair hearing
- Article 7 No punishment without law
- Article 8 Right to a private and family life
- Article 9 Freedom of religion
- Article 10 Freedom of expression
- Article 11 Right to protest and freedom of association
- Article 12 Right to marry
- Article 14 No discrimination
- Articles 1 and 13 are missing, because by passing the Convention into UK law, those articles – to have your rights respected and to have legal remedy if they are not – are held to have been met.
- All public authorities, and those carrying out work commissioned by public authorities, must uphold these articles, although we have seen in too many scandals (most recently the Whorlton Hall abuses revealed in 2019) that the human rights of people with learning disabilities are not respected as they should be.
- Each and every social worker should have a fundamental respect for the human rights of everyone at the heart of everything they do. Good social work is impossible without it.
- For more details on applying the Act in social care practice, see Human rights in health and social care (Equalities and Human Rights Commission).
This practice framework and guidance is focused on supporting young people with learning disabilities as they prepare for adulthood. Clearly, some of those young people will also experience mental ill-health to the extent that they become subject to the Mental Health Act, but because the Act is, at the time of writing (June 2019) undergoing a major review, and because the transition from Child and Adolescent Mental Health Services (CAMHS) to adult mental health (AMH) services is a different pathway to the one addressed here, we are not looking further at the Act. Useful links are however included in the Resources section below.Diagnoses
As well as the laws that frame what they do, social workers need to know about the issues and challenges facing the young people they are supporting. To a great extent, clearly, these will depend on the individual young person, and we look in more detail at really getting to know the individual in Focus on the person. But sometimes social workers – rightly wary of generalising, and perhaps anxious about medical terminologies – pay insufficient attention to the likely implications of a diagnosis of, for example, autism, Down’s syndrome, or Rett syndrome.
In particular, social workers in transition services should be prepared to learn about conditions which limit the life expectancy of many children, and which therefore may not often be supported in adults’ services; and about degenerative childhood conditions, where young people may not have had care and support needs in childhood, but have developed them as they enter young adulthood.
In many places, the services supporting people with learning disabilities bluntly divide them into children or adults. This is unsurprising; the law itself categorises everyone as a child or an adult, with the switch from one state to the other occurring on one’s eighteenth birthday. Social workers should understand, however, that this binary focus is often unhelpful. Adolescence is a distinct developmental phase. A 17-year-old is very different from a 7-year-old, whatever their condition or disability, and similarly an 18-year-old is not the mature adult that someone 30 years their senior may be.
Adolescence often brings with it certain behaviours, such as risk-taking. This, as Research in Practice for Adults (RiPfA) has recently demonstrated in its ‘Transitional safeguarding – adolescence to adulthood’ briefing, has implications for safeguarding which call for a more nuanced response than is allowed for by a child-one-minute, adult-the-next approach. Even where structures mitigate against it, social workers need to understand that preparing for adulthood is a process, not an event, and support people accordingly.
The changes to SEND provision have prompted many areas to move towards 0–25 teams for social workers, or for multidisciplinary professionals. As we comment elsewhere, there is no clear indication which team model works best for young people, but the 0–25 model would at least seem to mitigate against the stark child/adult changeover. Similarly, teams that include people with experience of children’s social work, and those with experience of working with adults, have the potential for useful sharing of knowledge and skills, and have been commented on favourably when we have spoken with social workers about how they best operate in this territory.
Of course, any social worker should be familiar with, and able to use, key theories and concepts associated with their work. Expounding on them here is beyond the scope of this resource, but approaches such as person-centred and strengths-based working; systems theories; ecological approaches; and task-focused work all have a role to play in supporting young people as they prepare for adulthood. Social workers should be aware of them.
- Promote social work understanding of key legislation: the Children Act 1989 (and 2004); the Children and Families Act 2014; the Mental Capacity Act 2005; the Human Rights Act 1998; and the Care Act 2014.
- Understand the overlaps between the Care Act and the Children and Families Act.
- Look beyond traditional training: consider shadowing, team discussions and mentoring as ways of building legal knowledge across and between services.
- Services must create time and opportunities for social workers to understand adolescence.
- Services must create time and opportunities for social workers to understand the different conditions experienced by the adolescents they support.
- Services should support a culture in which key social work theories and concepts are actively considered, debated and used.
- Team structures and systems should be considered which support a range of knowledge and experience, covering children’s and adults’ social work.
Legislation, statutory guidance, resources and tools
Legislation and statutory guidance
- Care Act 2014 (HM Government, 2014)
- Care and support statutory guidance (Department of Health and Social Care, 2018)
- Care and support statutory guidance: Chapter 16. Transition to adult care and support (Department of Health & Social Care 2018)
- Children Act 1989 (HM Government, 1989)
- Children Act 2004 (HM Government, 2004)
- Children and Families Act 2014 (HM Government, 2014)
- Guide to the Care Act 2014 and the implications for providers (Local Government Association, 2015)
- Human Rights Act 1998 (HM Government, 1998)
- Mental Capacity Act 2005 (Department of Health, 1998)
- Mental Health Act 1983: code of practice (Department of Health, 2015)
- Special educational needs and disability code of practice: 0 to 25 years: statutory guidance for organisations which work with and support children and young people who have special educational needs or disabilities (Department for Education and Department of Health, 2015)
- Working together to safeguard children: a guide to inter-agency working to safeguard and promote the welfare of children (HM Government, 2018)
- A quality- and rights-based framework for professionals involved in education, health and care plans (EHCPs) for disabled children and young people (RIP STARS, 2018)
- BASW human rights policy (BASW, 2015)
- Building independence through planning for transition (NICE and SCIE 2017)
- Care and support statutory guidance’: Chapter 16. Transition to adult care and support (Department of Health and Social Care, 2018)
- Extending personal adviser support to all care leavers to age 25: statutory guidance for local authorities (Department for Education, 2018)
- Knowledge and skills statement for approved child and family practitioners (Department for Education, 2014)
- Knowledge and skills statement for social workers in adult services (Department of Health, 2015)
- Mental health service transitions for young people (SCIE, 2011)
- The role of social care in implementing the Children and Families Act 2014: A two part guide for strategic leaders, frontline managers, social workers and staff working with children and young people with SEN/Disability age 0–25 (Council for Disabled Children, 2014)
- The young person's guide to the Children and Families Act 2014 (Department for Education, 2014)
- Transition from children's to adults' services: QS140 (NICE, 2016)
- Transitional safeguarding: adolescence to adulthood: strategic briefing (RiPfA, 2018)
- Working together to safeguard children: a guide to inter-agency working to safeguard and promote the welfare of children (HM Government, 2018)
- Care Act 2014 learning materials (Skills for Care, 2014).
- Guidance on changing organisations (British Institute of Human Rights)
- Human rights in health and social care (Equality and Human Rights Commission, 2018)
- Mental Health Act (NHS England)
- PfA factsheet: The Mental Capacity Act 2005 and supported decision making (Preparing for Adulthood, 2014)
- Safeguarding during adolescence: the relationship between contextual safeguarding, complex safeguarding and transitional safeguarding (RIP, 2019)
- Transitions in mental health care: a guide for health and social care professionals on the legal framework for the care, treatment and support of young people with emotional and psychological problems during their transition years (Young Minds, 2011)
- Using the Mental Capacity Act