SED/1167

13 January 1988

Dear Colleague

DISABLED PERSONS (SERVICES, CONSULTATION AND REPRESENTATION) ACT 1986: COMMENCEMENT OF SECTION 13

Summary

1. This circular draws the attention of local authorities to the implementation of section 13 of the Disabled Persons (Services, Consultation and Representation) Act 1986 with effect from 1 February 1988, and gives guidance as to the effect of its provisions. Circular SWSG5/87 offered advice on the other sections of the Act which apply in Scotland.

Section 13

2. Section 13 deals with the assessment of disabled children and young persons with special educational needs in Scotland. It places new duties of information sharing on education authorities and authorities with social work responsibilities, building on existing arrangements under the Education (Scotland) Act 1980. The new provisions on assessment however apply only to children with records of special educational need who are disabled within the terms of the Chronically Sick and Disabled Persons Act 1970 as amended by section 12(1) of the 1986 Act implemented on 1 June 1987: the new definition in this section serves to clarify the fact that the local authority’s particular duties in this regard apply to the same clientele of disabled persons as is covered by the definition of "persons in need" in section 94(2) of the Social Work (Scotland) Act 1968. In providing such children with a formal right to an assessment of social work needs the provisions call for close co-operation between education and social work authorities in assisting with the transition from full-time education to adult life. The detailed provisions are described in the following paragraphs.

General Effect

3. At present, education authorities are under a duty arising from section 65B of the Education (Scotland) Act 1980 to carry out a future needs assessment of recorded children between the ages of 14 and 15 years 3 months. Social work authorities are expected to contribute to assessments and will receive a copy of the assessment report if they have an interest in the child’s welfare. These arrangements serve to alert local authority social work departments to the possible needs of children leaving school but do not place any specific duties on social work departments to consider their own role in meeting the child’s future needs.

4. Section 13 of the 1986 Act builds on the above procedures to create a 4-stage system of exchanges on children who are disabled between the education authority and the local authority with social work responsibilities (which means in practice between 2 departments of the same authority) and places a new duty on the local authority to assess needs in its own sphere. Arrangements for future needs assessments of children who are recorded remain unaffected otherwise except as regards paragraph 4.4 below. These stages, which correspond to the headings of paragraphs 6-19 below are, as follows:

4.1 Before making the future needs assessment, the education authority must approach its social work counterpart to establish which children who are recorded as having special educational needs are disabled: the Record maintained by the education authority is to be noted accordingly.

4.2 The social work department is required to assess the disabled child’s needs for social work services and to make a report. The assessment is required to take place when the child is between the ages of 14 and 15 years 3 months.

4.3 The education authority is required to consider when the child or young person is likely to leave school and to record this on the future needs assessment report.

4.4 Thereafter both agencies have a duty to keep the cases on which reports have been made (of future needs and social work needs respectively) under consideration and to review as appropriate.

5. These provisions create the framework for close working relationships between education and social work authorities. It should be understood however that the new requirements do not affect existing powers and duties under the Education (Scotland) Act 1980 or social work legislation respectively. In particular, section 13 of the 1986 Act has no effect on the rights of parents and young persons under the 1980 Act.

Opinion as to a Child being Disabled

6. Section 13(1) requires the social work authority to give the education authority an opinion as to whether or not a child who, in accordance with section 60 of the Education (Scotland) Act 1980 is recorded as having special educational needs, is disabled. The education authority will request that opinion prior to making the future needs assessment report as required by section 65B of the 1980 Act, when the child is between the ages of 14 and 15 years 3 months. There will, as indicated in paragraph 4 above, be children who are the subject of future needs assessments but are not disabled and are not therefore subject to the requirements on assessment for social work services identified in paragraphs 11-14 below.

7. The requirement on education authorities to complete the future needs assessment within a fixed period as above means that the local authority’s opinion as to disability must be asked for and provided in good time. While it may be possible in some cases for social work authorities to reach an opinion on disability from information already available, there will usually be some need to discuss the child’s circumstances with others including teachers and educational psychologists as appropriate as well as with parents, and to meet and talk to the child. If medical information or opinion is seen to be required beyond what is already available, this should be obtained through the child’s general practitioner and the appropriate health board services: but the decision as to whether or not the child is disabled requires to be taken by the authority itself in the same was as decisions on whether a person is a "person in need" for the purposes of section 12 of the Social Work (Scotland) Act 1968.

8. The extent of direct involvement by the parents or the child in this and subsequent assessment procedures will be at the discretion of the local authority in accordance with good practice and the particular circumstances at the time. In any event, parents and others responsible for the child should be fully informed of the requirement for the social work department to give an opinion and of the conclusion which is reached. Many parents will clearly see an opinion that their child is disabled as being in his or her best interests though, exceptionally, others may have a different view. The close co-operation of parents should be sought even if difficulties are envisaged. The local authority through its social work department must form and communicate an opinion as to the child being disabled whether or not parents wish to be involved: where difficulties with parents arise it may have to reach its opinion on the basis of the information available from other sources.

9. When in the opinion of the social work authority a child is disabled, section 13(2) requires that the education authority should be informed and should note this on the record of educational needs maintained under section 60(2) of the 1980 Act and the future needs assessment report.

10. The above arrangements will apply to the vast majority of cases of recorded children. A small number, however, whose circumstances change late in their school life may require different treatment. This is provided for under section 13(3) which provides for cases (a) where an education authority find it necessary to record needs in the case of a child or young person for the first time after period during which the assessment of its future needs would have had to be prepared (ie between the ages of 14 and 15 years 3 months) or (b) where a child or young person who was not disabled at the time the future needs report was made subsequently appears to have become a disabled person. In either of these situations the education authority must, notwithstanding that the normal time for a future needs assessment may have passed or an assessment may already have been made, ask the local authority social work department for an opinion as to whether the child or young person is disabled and, if so, note the record of needs and the future needs assessment report.

Assessment of Disabled Child’s or Young Persons’ Need for Social Work Services

11. Section 13(4) provides that where the social work authority have given their opinion that a child or young person is disabled they must thereupon make an assessment of his or her needs for any services due or available (immediately or otherwise) under the welfare enactment’s (see paragraph 13 below). Unless there is a request not to do so in the circumstances referred to in paragraph 19 below, such an assessment must be carried out while the child is aged between 14 and 15 years 3 months: this is the period within which the future needs assessment is already required to take place within which the future needs assessment is already required to take place as mentioned in section 65B(2) of the 1980 Act. Where exceptionally the child is recorded after that period or there has been a change of circumstances as provided for in the preceding paragraph, the assessment should take place as soon as reasonably practicable, with particular reference to the expected school leaving date where this is imminent but, in any event, within 6 months from the time the social work authority’s opinion was sought (subsection 4(b)). In all cases, the social work authority is required to make a written report based on the assessment.

12. Assessment of need for specific social work services as above and the preparation of a report involves developing the needs assessment into a comprehensive social care plan in line with current views on good practice. It is clearly desirable that this assessment should be closely related to the future needs assessment made by the education authority and it is envisaged that these assessments may in many, if not most, cases be made jointly. This should reduce as far as possible the burden on parents and the child, at what may be for them a time of considerable stress, and also minimise administrative requirements. It will of course be for the 2 authorities to decide precisely how this might be achieved, and whether there would be scope for developing joint records. Carrying out separate assessments is not precluded where that is felt to meet individual circumstances, though it is not envisaged that this is likely to arise very often.

13. The "welfare enactments" referred to in section 13(4) are defined in Scottish terms in section 16 of the Act as comprising Part III of the National Assistance Act 1948, section 27 of the National Health Service (Scotland) Act 1947, the Social Work (Scotland) Act 1968, section 2 of the Chronically Sick and Disabled Persons Act 1970 and sections 7 and 8 of the Mental Health (Scotland) Act 1984. While the duty to assess is related to services which can be or must be provided under these enactments, authorities are not precluded from focusing on other aspects of the welfare needs of disabled persons in their reports or from extending assessment arrangements to cover other agencies with an interest in, or responsibility for, meeting them. It is suggested that consideration be given as appropriate to conducting the assessment on this broader basis.

14. The future needs assessment is focused primarily on educational matters rather than social work needs, though it may frequently be appropriate to take into account wider social factors. Advice on the conduct of these assessments is contained in the guidance note appended to SED Circular No 1087 of 9 December 1982, copies of which were sent to Directors of Social Work. This indicates that social work departments have a part to play in that regard. In combining assessment procedures for the purpose of paragraph 12 above authorities will need to have regard to their respective duties to produce reports stemming from the assessment and to the fact that they are separately responsible for the action which may be necessary to implement them. A simple and consistent approach to informing parents of the outcome of the authority’s consideration of cases of either kind is obviously desirable. The guidance in circular 1087 deals with the position in relation to future educational needs reports and social work authorities will normally wish to deal with assessments on the need for social work services in the same way. Early consideration will be given to revising and expanding the guidance in circular 1087 so as to cover the responsibilities of both education and social work authorities in this field.

Recording and Notification of Expected School Leaving Dates

15. Section 13(5) requires the education authority to insert in the future needs assessment report a note of the date when the disabled person is expected to leave full-time education at school or at a further education establishment. Six months before that date they are also obliged to copy the future needs assessment to the social work authority as provided for by section 65B(6) of the 1980 Act. In the absence of a report they are required to give written notification to that authority. this should ensure that social work departments will be informed in all cases of the date that the disabled young person will be expected to leave full-time education. (This information may in some cases already be known to the social work department, eg where it is working with the person and the family to prepare the way for a change in the arrangements involving new social work services or social help.)

16. Section 13(6) caters for the situation where the education authority did not send a copy of the future needs assessment report to the social work department or otherwise notify them of the expected date of leaving education at the appropriate time: this could be either because the child ceased to receive full-time education before the report could be sent or because of a failure by the authority to make arrangements as referred to in section 13(5). In either event they must make good any omission to send a report or other notification as soon as reasonably practicable.

17. Some young people who have been identified as disabled stay on beyond their 18th birthday in order to complete a course of full-time education in a school or college of further education and could fall outside the scope of the notification procedure. Where such people have continued in full-time education since the age of 16, authorities will normally wish to accord them the same consideration as they would have enjoyed under section 13(4) had they elected to leave full-time education before the age of 18.

Review Procedures

18. Section 13(7) requires the education authority and social work authority to keep under consideration the cases of children who are the subject of future needs assessments or assessments of needs in terms of section 13(4) respectively, and to review the information in the reports on them as and when they consider it appropriate but the question of whether or not to review in particular instances should be addressed on a structured basis arising from the arrangements for keeping cases under consideration. There would need to be clear grounds for any decision not to review a case at all, or not to review the in response to a particular change of situation (including a request for review from the parent). A review may be of particular importance in connection with the decision whether or not a young person should remain at school after school age, and authorities will no doubt bear in mind how rapidly a report made when a child was aged 15 or less may become out of date. There will commonly be positive advantage in education and social work authorities acting in close contact in this regard particularly where joint assessments were made in terms of paragraph 12 above and, in many cases at least, in their relating reviews of both types (and particularly that of the future needs assessment) to reviews of the record of educational needs made under section 65A of the 1980 Act. Co-operation should be designed to benefit the parents and child and maximise the return from the use of resources.

Request not to be Assessed for Social Work Services

19. Section 13(8) qualifies the duty of the local authority with social work responsibilities to make an assessment under section 13(4) by providing that it shall not be under any such duty if requested not to make the assessment by the young person when aged 16 years or more, or by parents of a child under that age or of a young person who is unable to make such a request himself on account of physical or mental incapacity. In responding to any such request the social work authority should be ready to convey to the parent or young person as the case may be any possible implications for the child should they not proceed with the assessment. There is nothing to prevent the authority, the parent or young person from deciding or suggesting that an assessment should be made at a later date, whether for the purposes of section 13 or to establish a need for any other services for which a specific need is felt to exist at the time (eg in terms of section 2(1) of the Chronically Sick and Disabled Persons Act 1970).

Disabled Children Already the Subject of a Future Needs Assessment

20. Section 13 as a whole applies only to children in school as they become due for a future needs assessment. This means that the first group of children in whose cases assessment by social work authorities under section 13(4) and the arrangements leading to this are a statutory requirement will be those reaching the statutory school leaving age of 16 in 1990. The implementation of section 13 of the Act will, however, inevitably raise certain expectations among the parents of other disabled children who are still at school and among some of the children themselves. There will be disabled children with records of special needs who leave school or approach school leaving age in 1988 and 1989 and authorities are requested to consider to what extent it may be possible, within the constraints of the resources available to them, to make arrangements fully to children leaving at or before the end of the present school year. It is to be hoped that rather more might be done for those leaving in 1989.

Resources

21. It is recognised that implementation of section 13 will have resource consequences for local authorities in both the short and long term. The short term resource consequences can, the Government believe, be accommodated within the planned level of provision for social work expenditure in terms of the RSG settlement for 1988/89 which shows a 1.5% increase in real terms over authorities’ social work budgets for 1987/88. The resource consequences for later years will be taken into consideration in future RSG settlements.

Action

22. Authorities are asked to bring this circular to the attention of relevant staff both in social work and educational department who are involved in the provision of services to disabled young people or the recording of children with special eduactional needs. They should also consider what arrangements are necessary for giving effect to the provisions outlined above both in regard to children who become the subject of a future needs assessment on or after 1 February 1988 and, at their own discretion, those older children referred to in paragraph 20 above. In particular, it is suggested that early discussions are held between the education and social work authorities with a view to establishing procedures for the operation of a concerted approach to the discharge of the duties imposed by section 13 as a whole.

Contact Point

23. Please direct any enquiries about this Circular to Miss Mary Forker, Social Work Services Group, Room 44, James Craig Walk, Edinburgh EH1 3BA

(telephone 0131 244 5456).

Yours faithfully

GAVIN ANDERSON