FOI success for Article 39 – social care market study

On 10 February 2022, the Competition and Markets Authority finally released correspondence to Article 39, which we requested on 26 February 2021 using the Freedom of Information Act 2000.

The Competition and Markets Authority had refused to release the information, relying on the exemption in section 31(1)(g) of the Freedom of Information Act 2000.

Article 39 complained to the Information Commissioner, and we were told in January 2022 that a senior case officer had been allocated to investigate our complaint.

Article 39 pursued this freedom of information (FOI) request because we believe in honesty and transparency within public service. When the Chair of the Care Review wrote to the Competition and Markets Authority requesting a market study, he stated in his letter that the Children’s Commissioner and the Communities and Local Government Select Committee had previously made the same calls. We wanted to explore, through our FOI request, what (if any) preparatory work had been undertaken by the Competition and Markets Authority before it launched its study on 12 March 2021.

The Competition and Markets Authority published its final report on 10 March 2022. It is available here. This is therefore the right moment for Article 39 to publish the information we have elicited.

The information we are now able to put into the public domain, below, shows ‘behind-the-scenes’ communications between Department for Education officials (including those working on the Care Review) and the Competition and Markets Authority in the lead-up to the launch of the study on 12 March 2021.

NB: We did not include the Children’s Commissioner for England in our FOI request to the Competition and Markets Authority since we had previously obtained documents from that office which showed the Competition and Markets Authority and the Commissioner’s office had liaised over the Commissioner’s review of private provision, and that the Competition and Markets Authority had suggested (in September 2020) that the Children’s Commissioner make a specific recommendation that “the CMA carry out a market study”. This recommendation did, indeed, appear in the Commissioner’s November 2020 report (available here).

Our FOI request, 26 February 2021

This is a Freedom of Information Act request. Please provide the following: 
1) Copies of correspondence, for the period 1 January 2020 to 12 March 2021, between the Competition and Markets Authority and officials within the following organisations in respect of the CMA’s market study of children’s social care provision:
– Children and Young People’s Commissioner Scotland
– Children’s Commissioner for Wales
– Department for Education
2) Copies of correspondence, for the period 1 January 2020 to 12 March 2021, between the Competition and Markets Authority and the lead reviewer of the children’s social care review, Josh MacAlister, in respect of the CMA’s market study of children’s social care provision.

Below we share the most pertinent information obtained from the Competition and Markets Authority on 10 February 2022. The names of senior civil servants were released by the CMA, but we have decided not to publish them.


8 September 2020

Competition and Market Authority emails the office of Children’s Commissioner for Wales:

“[We are] currently scoping a possible market study that would look at private provision of children’s home places in England as part of a recommendation from Westminster CHLG [Communities, Housing and Local Government] committee last year. This is due to concerns around increasing prices for local authorities and supply failing to expand to meet demand. The regulator (Ofsted) and the Children’s Commisisoner for England have supported this request.

“As part of the scoping we would also wish to consider to what extent a study would focus on children’s homes vs looking at fostering.

“If we were to do a study, we would be likely to look at the drivers and predictability of demand, the current state of supply in the market, and any barriers to entry and expansion. The outcome would be likely to be recommendations to government(s) and/or local authorities.”

A meeting is arranged.

12 October 2020

Competition and Market Authority emails the office of the Children and Young People’s Commissioner for Scotland providing similar background information as in the email above to the office of Children’s Commissioner for Wales.

A meeting is arranged.

6 November 2020

Competition and Market Authority emails the Department for Education:

“… As you will be aware, the HCLG [Housing, Communities and Local Government] Committee has called on the CMA to investigate the market for children’s residential care. Privately, Ofsted have approached us on this issue, and we expect the Children’s Commissioner’s Office to publicly call for us to do this work in the near future.

“We are seriously considering launching a market study in this area in the coming months (N.B. not public information). We feel that the skills and experience of the CMA (e.g. as displayed in the care homes market study) could bring some useful clarity to the issues of insufficient supply and rising prices in this area. While the CMA is operationally independent and chooses its own market studies, we recognise that as the most likely outcomes of a MS are often recommendations to government, it is really important for us to understand how any work we do would fit in with the wider policy context and how our recommendations can be best timed and pitched to make a positive impact.

“… I am keen to understand how a market study could dovetail with the Care Review and how you would view our key scoping questions (England vs Cross-UK and children’s homes only vs also include fostering).”

A meeting is arranged.

18 November 2020

Competition and Market Authority emails Department for Education officials thanking them for the meeting and confirming a further meeting:

“… We’ll look forward to seeing your list of possible areas for economic/financial analysis; as discussed, a sense of your relative priorities here would be very useful to us. As we work up our proposed scope it will be very helpful to check in with you and get your advice.

“Absent any sudden movements on wider events, early January might be a good point for us all to check in with a further meeting…”

4 December 2020

Competition and Market Authority emails Department for Education, Ministry for Housing, Communities and Local Government and Ofsted stating the “scoping work on children’s social care continues to go well”. Asks for advice on best contact within Her Majesty’s Treasury and asks for thoughts on “whether any/all of fostering, residential schools, secure accommodation or unregulated accommodation should be in scope” in addition to children’s homes. Also asks about Care Review.

A meeting is then arranged in mid-December, which officials from Her Majesty’s Treasury also ask to attend.

11 December 2020

Email exchange with Ofsted over the Competition and Market Authority having access to the names of all children’s homes. Ofsted explains the legal position in respect of who can have access to this list.

8 January 2021

Email from Department for Education to the Competition and Market Authority asking for an update, expressing “huge support” and noting “I continue to believe we have a unique opportunity to use CMA’s expertise to make a real difference for children and that the forthcoming care review and SR [Spending Review] provide us with the perfect landing points, but I’m conscious timing will be a challenge…”.

8 January 2021

Reply from the Competition and Market Authority:

“In terms of our work, we are pushing ahead according to our original timetable, but obviously the latest COVID developments may play into that … Our Exec Committee meets on 27 Jan, so by that point at the latest we should have a clear view on whether we are still on course for the planned timetable.

“Obviously one consideration that will be relevant to that decision will be the desire to fit sensibly with the timings of the Care Review…”

Offers to share the draft “launch document” which “sets out our proposed scope as well as the broad issues we plan to cover”.

11 January 2021

Reply from the Department for Education, confirming a meeting and thanking Competition and Market Authority for opportunity to see the “draft scope and planned timetable”. Explains that “timings are tricky” because Treasury is “really keen that the Care Review provide an initial product that feeds into the multi-year SR [Spending Review]”. Notes the “very recently appointed chair (to be announced very shortly) and their team are provisionally aiming for June for that”.

22 January 2021

Email from Devolved Nations Team in the Competition and Market Authority. Recipient name and organisation redacted. Concerns unregulated provision in Scotland.

25 January 2021, 10.58am

Email from Department for Education to Competition and Market Authority, expressing thanks for the meeting the previous Friday (21 Jan). The Department for Education official sets out their thoughts on why “there is a strong argument to include the fostering market in the investigation”:

“There is growing evidence that the fostering market is developing in the same way as the children’s homes market. With growth coming from private providers, and with a few companies controlling a significant proportion of the overall number of placements. In the year ending March 2020 the number of LA foster carers fell by around 1,500 (4%) while the number of IFA [Independent Fostering Agencies] grew by 430 (2%). On 31 March 2020, there were 14,995 fostering households within the IFA sector. Around half of these (7,652) were registered with IFAs that are owned by the 6 largest providers of IFA places in England. These top 6 companies therefore account for 51% of all IFA households., and 18% of fostering households nationally.

“[A] number of companies run children’s homes and fostering agencies. For many this is a market about providing placements of many different types, rather than just sticking to one type of placement. We also see this from an adult and children’s care placement perspective. With some providers operating in both areas. Given fostering is such an important part of the overall market that children’s homes operate in, I do think there would be a lot of value in including fostering.

“I hope the above is helpful. I know you have been in touch with [name of official, member of Care Review] this morning and as discussed it would be great if you could let me know if you think a letter setting some of this out would be helpful.”

25 January 2021, 1.37pm

Email from Competition and Market Authority tot he Department for Education:

“… In light of your discussion with [name] on Friday, and the points you make in your email, we are reflecting again on the scope of the proposed market study. We are meeting with our governance Board later this week and will discuss with them…”

The email notes resource and work pressures and notes, “Although we are keen, it isn’t definitely the case that we have the resource to to the case now…”

A request for a further meeting the following week is made, and “If that works for you, could you please hold off sending any letter in the meantime?”.

25 January 2021, 3.21pm

Chair of Care Review writes to the Chief Executive of the Competition and Market Authority.

This letter was published a couple of hours later on Twitter by the Chair of the Care Review, who said: “I’ve written to the @CMAgovUK asking them to open an investigation into aspects of the children’s social care ‘market’. It would provide important evidence for the Independent Review of Children’s Social Care”. (The tweet and letter can be found here).

28 January 2021

Reply to the Chair of Care Review from the Chief Executive of the Competition and Market Authority:

“… while we need to consider carefully which market studies to undertake, there are clear indications that the children’s social care market is not working as well as it should. We are therefore actively considering the case for future work in this area.

“CMA colleagues have been in contact with members of your Secretariat, which has been a very helpful route to discuss the issues you raise. Should the CMA decide to launch such a study we will, of course, keep closely engaged with your team.”

11 February 2021

Email from Department for Education to Competition and Market Authority, expressing thanks for the meeting the previous week and asking for an update.

12 February 2021

Reply to Department for Education from Competition and Market Authority, stating the CMA Board had (on 10 Feb) “approved our proposed study with a wide scope, to cover residential and fostering in England, Wales and Scotland”.

Gives confidential information about the planned launched in March 2021, sent the draft ‘Invitation to comment’ document (which CMA uses to invite initial views on proposed studies; the final version was published on 12 March 2021 and can be found here) and states information is not to be shared more widely at this stage, including with the Care Review.

26 February 2021

Email from Department for Education to office of Children’s Commissioner for England, stating a Department for Education official has previously communicated the CMA plans. Informs the office that the launch date will be 12 March and asks about the possibility of [redacted] providing a supportive statement. Email states:

“They [CMA] are keen to line up some supportive statements, particularly as there are already sensitivities around private sector involvement in children’s social care – they don’t want this to become seen as the CMA encouraging more private sector provision. Obviously with the launch date being [redacted] that’s not great timing! What are your views on this? Do you think that is something [redacted] would want to support?”

Provides a brief overview of the scope of the market study.

1 March 2021

Department for Education officials return comments on the draft ‘Invitation to comment’ document, following a recent meeting with CMA.

Of the comments made by Department for Education officials, the following appear to have been accepted by CMA:

  • Changing a reference to local authorities purchasing children’s homes places, to being responsible for providing – either themselves or through purchasing – all placements.
  • Changing a description of who provides children’s homes – local authorities, for profits and third sector – to local authorities, private sector and third sector. The comment from Department for Education noted: “Private as opposed to for profit? the use of ‘for profit’ rather than private providers feels weighted terminology – we know some make profit but many others are private but not money making enterprises”.
  • Added information about government’s ban on unregulated, care-less accommodation for children in care aged 15 and under.
  • Deleted a reference to foster carers “working independently”. The comment from Department for Education noted: “Would be concerned about this phrasing which is slightly misleading. They are not workers and they are certainly not independent. They are offering a highly regulated service and are subject to frequent scrutiny and reporting. They could not, for example, be compared to childminders in the way they function”.
  • Added Independent Children’s Homes Association into a paragraph naming key stakeholders.
  • Deleted a sentence about perceived concern about damage to Ofsted ratings for those homes which accept children who have been “turned down” by other providers. The comment from Department for Education noted: “I agree that some providers have concerns about this (and would probably express it the same way you have) regarding their rating being ‘damaged’. However, I’m uneasy about the wording as it sounds like they are putting the Ofsted rating above the needs of the child and/or it is the child’s fault. I think the issue is more that if a home can’t meet a child’s needs and keep that child safe, Ofsted isn’t going to look favourably on this as it wouldn’t be in the child’s best interests…” Then refers to recent blog written by Ofsted’s Director of Social Care.
  • Added unregulated provision in summary of theme one: nature of supply.
  • New question on whether the nature and location of providers affects how they operate.
  • The varying needs of children acknowledged in a question about commissioning.
  • Possibly the inclusion of a question around possibility of “perverse incentives” on local authorities and others in respect of regulation. The comment from Department for Education noted: “Important here to consider the disparity in regulation around fostering – LA fostering services are not inspected separately nor do they receive a judgement. There is no way to compare, via the regulator or anywhere else, the quality of LA fostering services with IFA”.

4 March 2021

Email from Children’s Commissioner’s office stating they “rarely include a supportive quote in others’ releases. Instead, we’d like to support on social media on the day”.

11 March 2021, 5.02pm

Competition and Markets Authority emails Department for Education its final documents and states the launch will be 7am next day.

11 March 2021, 5.35pm

Email from Department for Education to Competition and Markets Authority, thanking the CMA lead for the information and noting that a request had gone to communications team for “Minister Ford / DfE to tweet support for the review after it launches tomorrow”.

What this shows – our analysis

1. There was close collaboration between the Competition and Markets Authority and the Department for Education, including those working on the Care Review, prior to the launch of the market study in March 2021.

2. It cannot be said that the market study was launched at the request of the Chair of the Care Review.

We knew from a previous FOI request to the Children’s Commissioner for England that the Competition and Markets Authority had asked in September 2020 that the Commissioner include in its forthcoming publication a specific recommendation that the CMA establish a market study. That recommendation was made in November 2020.

The correspondence released to us by the Competition and Markets Authority shows scoping work from September 2020.

3. We maintain that the Competition and Markets Authority was wrong to seek to rely on the section 31(1)(g) exemption in the Freedom of Information Act 2000 – that release of the information to Article 39 would be likely to prejudice the exercise of its statutory functions.