Article 39 has today (7 July 2021) submitted a complaint to the Information Commissioner’s Office following the Competition and Market Authority’s refusal to release correspondence it had with the following public authorities before it launched its market study on children’s social care earlier this year:
- Department for Education
- Chair of the Children’s Social Care Review, Josh MacAlister (the Freedom of Information Act applies to the review via the Department for Education)
- Children and Young People’s Commissioner Scotland
- Children’s Commissioner for Wales
The correspondence requested relates to the period 1 January 2020 to 12 March 2021. The end-date was chosen so as not to interfere with the market study itself, which was launched by the Competition and Markets Authority on 12 March 2021.
The Competition and Markets Authority confirms it has correspondence from the named public authorities. In respect of the Children’s Commissioners in Scotland and Wales, the correspondence appears to be limited to notifying them of the market study’s launch.
Article 39’s Director, Carolyne Willow, said:
“There is huge public interest in the Competition and Markets Authority’s study on children’s social care, not least in relation to profit-making around children’s homes, foster care and the increasing use of unregulated accommodation for children in care. It is only right that correspondence between this body and the Department for Education and the Chair of the Children’s Social Care Review is released, so we can see how well children’s rights were considered at the early stages.”
The Competition and Markets Authority claims its effectiveness will be “substantially impaired” if it is unable to have confidential communications ahead of launching market studies. Article 39 contends that the correspondence requested only relates to public authorities who themselves are subject to the Freedom of Information Act 2000, and so would already be operating in a culture of transparency and accountability.
In our complaint to the Information Commissioner, we state that the Competition and Markets Authority has not considered the high level of public concern about the degree of profit made in children’s social care, particularly in respect of children in care, and the importance of transparency in the scoping of the market study, which we believe followed a children’s rights investigation by the Children’s Commissioner for England (also a statutory body).
We previously sought and received (in April 2021) correspondence from the Children’s Commissioner for England, which published a report on private provision in children’s social care in November 2020. This report recommended that the Competition and Markets Authority undertake a market study of the children’s social care sector.
The information we received from the Children’s Commissioner for England showed:
- The Competition and Markets Authority was sent a draft of the Children’s Commissioner’s report on private provision in August 2020.
- In September 2020, the Competition and Markets Authority suggested rewording of the Commissioner’s recommendation relating to its work, as follows: “In terms of the call for the CMA to collect more information, we wondered if you wanted to be more specific. While we can request information under our general duties, in a situation like this we would only have statutory information-gathering powers once we had launched a market study. It might therefore be more specific to request that the CMA carry out a market study. You could also suggest any specific areas you think we should consider”.
- Also in September, the Competition and Markets Authority was sent the amended recommendation – “The CMA should undertake a market study of the children’s social care sector. It is imperative that the Government and local authorities understand how competition constrains prices in the sector and, where it doesn’t, what the alternatives are”. The following day it confirmed that “The recommendation to us makes sense”.
- Other than the email correspondence, which ended the week before the Children’s Commissioner’s report was published (with the amended recommendation above), the Competition and Markets Authority had not responded to the November 2020 recommendation. (The Children’s Commissioner for England has a statutory power in s3(7) Children Act 2004 to require a written response to recommendations made in reports).
We have also received information from the Children’s Commissioner for Wales since making public our freedom of information request to the Competition and Markets Authority.
On 25 January 2021, the Chair of the Children’s Social Care Review, Josh MacAlister, published on Twitter a screenshot of an email he had sent to the Competition and Markets Authority requesting it establish a market study on children’s social care. In this email, the Chair referred to previous calls by the Children’s Commissioner for England and a parliamentary select committee for such a review.
The Competition and Markets Authority launched its market study on children’s social care on 12 March 2021. More information about the study, and submissions made to it, can be found here.