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The Importance of Pathway Plans and Local Authorities’ Duties to Care Leavers

Oliver Studdert, Partner at Maxwell Gillott Solicitors, considers the obligations upon local authorities to children leaving their care

Oliver Studdert, Partner, Maxwell Gillott, Solicitors

 

 

 

 

 

 

 

 


Oliver Studdert, Solicitor and Partner, Maxwell Gillott Solicitors

There will come a time in the life of all young persons in the care of a local authority when they are ready to move on to independence, or reach an age at which they have no choice but to leave the care of the local authority.  A local authority has a continuing obligation to support to any child over the age of 16 who is, or has been, a "looked after child", until they are 21 (or 24 if they are pursuing a programme of education or training). The young person must be provided with support akin to that which a parent would normally provide to their child. This must be set out in a document called a pathway plan.

Two very recent cases in the High Court have addressed local authorities' duties with regard to pathway plans.  This article looks at the importance of pathway plans, what they should contain, and where local authorities are still going wrong.

Pathway Plans and Personal Advisors
The Children (Leaving Care) Act 2000 made a number of amendments to the Children Act 1989 in order to

"improve the life chances of young people living in and leaving local authority care.  Its main aims are:
To delay young people's discharge from care until they are prepared and ready to leave; to improve the assessment, preparation and planning for leaving care; to provide better personal support for young people after leaving care; and to provide the financial arrangements for care leavers." (Paragraph 1 Children (Leaving Care) Act 2000 Guidance).

Every 16 or 17 year old who has been looked after by a local authority for a period of 13 weeks or more since the age of 14, at least one day of which is after his 16th birthday, becomes entitled to leaving care provision.  This means that the social services department of the responsible local authority owes a duty to the young person to provide them with a social worker and a personal advisor1.  The social worker must carry out an assessment of the young person's needs in order to determine what advice, assistance and support the young person requires, both whilst they are being looked after, and once they cease to be looked after.  The local authority must also prepare a detailed plan called a "pathway plan" as soon as possible after the assessment. 

The personal advisor's role is essentially to act as a "go between" between the young person and the local authority.  Regulation 12 of the Children (Leaving Care) (England) Regulations 2001 sets out the functions of personal advisors.  Perhaps most importantly, their role is to provide advice (including practical advice) and support, but personal advisors should also participate in the young person's assessment, preparation of and reviews of the pathway plan.

Regulation 8(2) of the Children (Leaving Care) (England) Regulations 2001 provides:

"The pathway plan must, in relation to each of the matters referred to in the Schedule, set out –
(a) The manner in which the responsible authority proposes to meet the needs of the child; and
(b) The date by which, and by whom, any action required to implement any aspect of the plan will be carried out."

The Schedule identifies these matters to be dealt with in the pathway plan and review as being: 

  1. The nature and level of contact and personal support to be provided, and by whom, to the child or young person. 
  2. Details of the accommodation the child or young person is to occupy. 
  3. A detailed plan for the education or training of the child or young person. 
  4. How the responsible authority will assist the child or young person in relation to employment or other purposeful activity or occupation. 
  5. The support to be provided to enable the child or young person to develop and sustain appropriate family and social relationships. 
  6. A programme to develop the practical and other skills necessary for the child or young person to live independently. 
  7. The financial support to be provided to the child or young person, in particular where it is to be provided to meet his accommodation and maintenance needs. 
  8. The health needs, including any mental health needs, of the child or young person and how they are to be met. 
  9. Contingency plans for action to be taken by the responsible authority should the pathway plan for any reason cease to be effective. 

There have been a number of recent cases challenging the inadequacies of pathway plans.  In the author's experience, it is very surprising how many young people have never seen their plan, do not have a plan, or have never heard of their entitlement to one.  Of those who do have plans, the vast majority do not meet the high standards required in law.

Recent cases
The case of R(J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin); [2005] 2 FLR 860 demonstrated the importance of personal advisors for looked after children, and underlined at paragraph 45 the level of detail required in each pathway plan: "A pathway plan must clearly identify the child's needs, and what is to be done about them, by whom and by when.  Or, if another aphorism would help, a pathway plan must spell out who does what, where and when."

The case of R(G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin); 11 CCLR 280, 290 reiterated that an assessment must determine what the young person's needs are, and the plan must set out how those needs are to be met.

In the Caerphilly case Mr Justice Munby stated that "a care plan is – or ought to be – a detailed operational plan.  … but whatever the level of detail which the individual case may call for, any care plan worth its name ought to set out the operational objectives with sufficient detail – including detail of the "how, who, what and when" – to enable the care plan itself to be used as a means of checking whether or not those objectives are being met.  Nothing less is called for in a pathway plan."

In spite of this clear message to local authorities, the vast majority of pathway plans seen by the author remain nothing other than a short narrative about the young person's situation.  Frequently they lack any meaningful support plan, and fail to address the issues set out in the schedule referred to above.  There have even been instances where the young person has been given a blank pro forma for a pathway plan, and has been told to complete it themselves.

In the recent case of R(A) v London Borough of Lambeth [2010] EWHC 1652 (Admin); [2010] 2 FCR 539, judicial review proceedings were issued where a local authority had failed to carry out an assessment and to provide a pathway plan for a former relevant child¹.  Following the issuing of proceedings, the local authority did complete an assessment and a pathway plan, but the claimant sought to challenge the lawfulness of that plan.  In what Mr Justice Kenneth Parker recognised to be a "somewhat exceptional order" Mr Robin Purchas QC (sitting as a deputy High Court judge) granted permission but also ordered the defendant "to produce a plan for the claimant's future accommodation and associated support within 21 days…".  Mr Justice Kenneth Parker assumed that the permission judge must have taken the view that the initial plan was so deficient that a new plan was required.

There are in fact two judgments in this case. The first judgment, of 7 July 2010, does not deal with the lawfulness of the amended plan as a result of the emergence, at the final hearing, of the fact that the personal advisor, as opposed to a social worker, had conducted the review of the plan2.  The Caerphilly case makes clear that a social worker must be responsible for the initial drafting of the plan, but in the Lambeth case, the local authority argued that no such requirement existed in respect of pathway plan reviews. Giving judgment, Mr Justice Kenneth Parker held that a personal advisor may legitimately take the initiative in relation to a review, and may play a very active role in the review, but may not, on his own, carry out the review. 

This is extremely significant, as relevant and former relevant children are, as a general rule, not provided with a social worker.  While this judgment does not require local authorities to allocate a social worker to be in regular contact with such young people, it does require a social worker to be brought in with regard to every review and to monitor and oversee all pathway plans.

This is very important, not least because a personal advisor will not have the authority to make any financial decisions as to what is available to meet a young person's needs, whereas a social worker will. It should also act as a procedural check to ensure that all pathway plans are properly reviewed at least every six months and to make sure that service provision of children in care is prioritised as opposed to being placed at the bottom of the pile. Many young people have expressed to the author that it is very important for them to have the support of a social worker at such a critical time in their lives.

As a result of this judgment, the local authority was required to draft a new pathway plan which they did. Mr Justice Kenneth Parker invited submissions following completion of the new plan. The claimant argued that the plan still fell a long way short of the required standards.

Mr Justice Kenneth Parker gave judgment on this point on 7 October 20103.  He held that the amended plan "does not adequately set out a proper operational plan. The document does little more than state the present financial position of the claimant. It does not purport to analyse what the claimant's likely future financial needs will be nor does it adequately specify how such identified needs may be met" (paragraph 6). A similar finding was made in relation to accommodation, the other of the two most important matters in this case.

This makes it absolutely clear just how detailed a pathway plan must be in order to be a lawful plan, expanding on the "detailed operational plan" as referred to by Mr Justice Munby in the Caerphilly case.

The two Lambeth judgments sandwiched the case of R (Birara) v London Borough of Hounslow [2010] EWHC 2113 (Admin).  This case involved a 22 year old former relevant child.  The local authority had sought to cease the claimant's support, suggesting that as her pathway plan had not agreed to a programme of education beyond her 21st birthday, no continuing leaving care duties were owed. In finding that the claimant's previous pathway plans were inadequate, Mrs Justice Dobbs stated at paragraph 54:

"In my judgment, a pathway plan should live up to its name.  It should be a document which sets out the pathway to the achievement of the agreed goals.  The plan should set out the start and the end of the path, identifying points along that path which represent the steps to be taken and in due course taken, and objectives to be achieved and in due course achieved.  Each review of the plan would show therefore the point along the path which the young person had reached, an evaluation of the progress made, the further steps to be taken and modification to the steps or targets if deemed necessary.  An examination of the plan would enable the reader to see the progress made from start date and ultimately to finish."

As with the second of the Lambeth judgments, this again crystallises the absolute specificity which is expected to be included in a pathway plan.

Why is a Pathway Plan so Important?
Most young people in and leaving care do not have the benefit of parental support to guide them.  For these young people, the local authority should be fulfilling the parental role, and providing for the young person as if it were the natural parent.  It is well documented that very few university students are care leavers, and the statistics demonstrate that care leavers make up a far higher than average percentage of those out of employment and those in custody. Unless these young people are helped to further their studies or to find work, they are far more likely to cause a much greater financial burden on the state in the long term. The cost of a prison place is well documented and those out of work will be reliant on state benefits.

Many young people leave care without the support to which they are entitled, unable to find suitable housing, education and employment.  If pathway plans are as detailed as they should be, then the young person will, at the very least, be able to identify the steps that he needs to take in order to achieve his goals.  He will have named people to turn to, people who are able to help him to complete application forms, and are aware of the different support providers available and can arrange access to them. The difference to a young person between having no pathway plan or a bad pathway plan, to having a lawful, detailed plan, is enormous and, as was recently made apparent from the reported story of the death of care leaver, Andrea Adams, the lack of support and planning can lead to tragic consequences4.

As is set out above, there are a number of different matters which need to be dealt with in a pathway plan. These will often change as the young person gets older. It may be that less support is required, but there will also be times where unexpected issues arise whereby previously unidentified needs must be met. The Court of Appeal has very recently held in the case of R (SO) v London Borough of Barking and Dagenham [2010] EWCA Civ 1101 that a local authority can have a general duty to provide a former relevant child with accommodation where his welfare requires it. Therefore, should a former relevant child find himself homeless or in unsuitable accommodation, social services may find that a duty to accommodate arises.

Change?
Following the first of the Lambeth judgments, the National Care Advisory Service (NCAS) has drafted policy guidance5.  This looks at the first Lambeth judgment and reveals that the Department for Education is currently reviewing the statutory guidance for local authorities on how to support care leavers, outlining the process for reviewing pathway plans and the functions of the personal advisor, taking into account recent case law. Hopefully this will provide local authorities with a clear description of what they must be doing to ensure they are complying with their legal duties.

The vast majority of people in the looked after care and leaving care systems do not know about their rights and entitlements.  They are not told about the significance of a pathway plan, and what it entails.  Without this information, it is very difficult for them to challenge the content of the plan, and they simply assume that the local authority will be doing everything that it should.  Where challenged, most local authorities will take steps to ensure that a pathway plan is provided or amended as requested. However, unless local authorities are held accountable for failing to produce lawful pathway plans, the situation will not change.  In order to ensure that some of the most vulnerable people in our society achieve their goals, it is critical that they are adequately supported from start to finish.  A young person's support should not cease the day they leave care, or the day they turn 18.  Although the legal framework is there to prevent this from happening, it appears that the support is simply not being provided.  There needs to be a much greater emphasis on the importance of regular reviews and reassessments of young people's needs, making sure that the young people are supported adequately every step of the way.  When they finally do move on into total independence, they should be set up and well on their way to achieving independence.  Until this happens, unfortunately, there are likely to be many more cases along the lines of those above.

With the looming governmental cuts, local authorities are going to be even more reluctant to assign time and money to those young people who do not demand that they receive the support to which they are entitled, and it will become even more important than before to make sure that young people are made aware of their rights. By ensuring these vulnerable young people get the support they need now, local authorities will be saving public spending in the future.

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Oliver Studdert is a Partner at Maxwell Gillott Solicitors and was the solicitor with conduct of both the Lambeth and Birara cases.

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Footnotes
[1] The personal advisor must be separate to the social worker to prevent any potential conflict arising. 
[2] Regulation 9 of the Leaving Care Regulations requires that the responsible authority review a pathway plan either at the request of the young person or their personal advisor, or at intervals of not more than 6 months. 
[3] R (A) v London Borough of Lambeth [2010] EWHC 2439 (Admin) .
[4] The Guardian, Thursday 8 July 2010 http://www.guardian.co.uk/society/2010/jul/08/andrea-adams-care-leaver-death-inquest 
[5] http://www.leavingcare.org/data/tmp/6175-13084.pdf