Statutory Duties under Sections 85 and 86 of the Children Act 1989

1. Introduction

This document explains the responsibilities of the local authority and other agencies in relation to Sections 85 and 86 of the Children Act 1989 which were established to ensure that safeguards are in place for vulnerable children living away from home.

This was introduced to ensure that the following children are brought to the attention of Children’s Social Care in the local authority where they are ordinarily resident. It was designed to also ensure that Children’s Social Care in the local authority area where the provision is situated are aware of those children.

Sections 85 and 86 are intended to apply to children:

• Who are not looked after;
• Are not resident at boarding school where they return home at holiday time;
• Are usually accommodated outside the local authority where they are ordinarily resident;
• Are accommodated by a health agency, local education authority, care home or independent hospice/hospital; and
• Are accommodated for a consecutive period of at least 3 months.

2. Section 85

This applies to children and young people accommodated in England by Health Authorities and Local Education Authorities for a consecutive period of at least 3 months or with the intention to accommodate the child for such a period. The organisation who has arranged the provision – (the accommodating authority e.g. local authority, health authority, Integrated Care Board) shall notify the Director of Children’s Services (DCS) of the local authority where the child is ordinarily resident (the responsible authority) that they are accommodating the child. The accommodating authority shall also notify the DCS of the responsible authority when they cease to accommodate the child.

The responsible local authority has duties following notification of accommodation to:

1. Take such steps as are reasonably practicable to determine whether the child’s welfare is adequately safeguarded and promoted while they are accommodated by the accommodating authority;
2. Consider the extent to which (if at all) they should exercise any of their Children Act functions in respect of the child.

3. Section 86

It differs from Section 85 in a number of ways:

This applies to care homes and independent hospitals.

It places a responsibility on the provider of the placement (the person ‘carrying on the establishment in question’) to notify the DCS of the local authority where the provision is situated. Notification is required where a child is provided with accommodation in a care home or independent hospital for a consecutive period of at least 3 months, or with an intention to so accommodate. The provider must also notify the DCS when they cease to accommodate the child.

It is an offence not to notify the DCS as provided above.

The duties of the local authority following notification are to:

1. Take such steps as are reasonably practicable to determine whether the child’s welfare is adequately safeguarded and promoted while they are accommodated in the provision;
2. Consider the extent to which (if at all) they should exercise any of their Children Act functions in respect of the child.

4. Process in Calderdale

It is usual for placements under Section 85 and Section 86 to be used for children who are not looked after. (For Children Looked After, there are statutory arrangements in place under Care Planning regulations).

Usually these specialist placements are for children and young people with severe/complex mental health conditions who may not be known to the local authority’s Children’s Social Care service and where the local health service provider (e.g. ICB, CAMHS) has purchased the placement.

In order to ensure compliance with these duties and support good practice, we have agreed the following procedure to be followed by Calderdale MBC where notification is received that a child ordinarily resident in Calderdale is accommodated as above in an external specialist placement:

1. A notification received by Calderdale MBC shall be forwarded to MAST (to whom the responsibility is delegated from DCS). A contact will be recorded at that point;
2. MAST will log the information and inform the SEND team. (N.B. the SEND team will be asked to reimburse the costs of education irrespective of whether the child is subject to an EHC plan);
3. The placement provider should inform MAST, or if the case is allocated the relevant team/SW of any CETR ( Care, Education and Treatment review) or CPA ( Care \Programme approach) to be held in order to promote good information sharing;
4. A Child and Family Single Assessment will be opened which will determine what action is necessary to discharge the duties of the local authority as set out above, including allocation to a social worker;
5. If the child remains long term in the placement, the placement should be visited within 3 months and then at 6 monthly intervals thereafter. It is in the interests of the child that each visit should be carried out where possible by the same social worker in order to offer a consistent relationship.

Where a child who is ordinary residence is in Calderdale is placed in an external specialist placement outside of Calderdale, the accommodating authority will notify the DCS in the local authority where the placement is and what are procedures will be e.g. content and Timing of Notifications.

Notifications to Children’s Social Care will contain the following information:

• Childs name;
• Childs date of birth;
• Child’s address immediately prior to admission (or that of mother immediately prior to delivery);
• Date of admission to hospital;
• Ward/Department;
• Name and contact details of parents/carers.

The notifying authority will also inform the parents/carers that the information has been disclosed to Children’s Social Care.