Commentary on Sections Part 11 – Continuing Care Section 67 – Continuing Care: looked after children
165.Subsection (1) of section 67 inserts a new section 26A after section 26 of the Children (Scotland) Act 1995. This new section details the provision of continuing care to those who cease to be looked after children. Subsection (4) of new section 26A defines “continuing care” as meaning the same accommodation and other assistance as was being provided for the person by the local authority immediately before they ceased being looked after.
166.Subsection (1) of new section 26A provides that this section only applies where an eligible person ceases to be looked after by a local authority. Subsection (2) defines an “eligible person” as a person who is at least sixteen years of age and is not yet such higher age as may be specified. By virtue of new section 26A(12), “specified” means specified by order made by the Scottish Ministers which will be subject to affirmative procedure (see new subsection (11)(b)).
167.Subsection (3) of new section 26A provides that, subject to subsection (5), the local authority must provide the person with continuing care. Subsection (6) provides that this duty lasts, subject to subsection (7), until the expiry of such period as may be specified by order made by Scottish Ministers (subject to affirmative procedure by virtue of subsection (11)(b)).
168.Subsection (5) of new section 26A provides that the duty to provide continuing care does not apply if the accommodation the person was in immediately before ceasing to be looked after was secure accommodation; was a care placement and the carer has indicated to the authority that they are unable or unwilling to continue to provide the placement; or the local authority considers that providing the care would significantly adversely affect the welfare of the person.
169.Subsection (7) of new section 26A provides that the duty to provide continuing care ceases if: the person leaves the accommodation of the person’s own volition; the accommodation ceases to be available; or the local authority considers that continuing to provide the care would significantly adversely affect the welfare of the person. Subsection (8) provides that the situations in which accommodation ceases to be available include: in the case of a care placement, where the carer indicates to the authority that the carer is unable or unwilling to continue to provide the placement; in the case of a residential establishment provided by the local authority, where the authority closes the establishment; or in the case of a residential establishment provided under arrangements made by the local authority, where the arrangements come to an end.
170.Subsection (9) of new section 26A provides that the Scottish Ministers may, by order: make provision about when or how a local authority is to consider whether providing or continuing to provide the care would significantly adversely affect the person’s welfare; modify subsection (5) so as to add, remove or vary a situation in which the duty to provide continuing care does not apply; or modify subsection (7) or (8) so as to add, remove or vary a situation in which the duty to provide continuing care ceases.
171.Subsection (10) of new section 26A provides that, if a local authority becomes aware that a person who is being provided with continuing care has died, the local authority must as soon as reasonably practicable notify the Scottish Ministers and Social Care and Social Work Improvement Scotland.
172.Subsection (11) provides that an order made under this section may make different provision for different purposes and is subject to the affirmative procedure. Before making an order under this section, the Scottish Ministers must consult each local authority and such other persons as they consider appropriate.
173.Subsection (2) of section 67 amends section 29 of the 1995 Act by adding a new subsection (2A) which provides that subsections (1) and (2) of section 29 do not apply to a person during any period when they are being provided with continuing care under new section 26A. This means that a person receiving continuing care under new section 26A cannot also receive aftercare support under section 29 of the 1995 Act at the same time. However, if the duty to provide continuing care to that person ceases for one of the reasons set out in new section 26A(7) of the 1995 Act that person will then be able to apply for aftercare support under section 29 of the 1995 Act as amended by section 60 of the Act.