Category: Children and Social Work Bill

Sad day for children’s rights

Members of Parliament on the Committee scrutinising the Children and Social Work Bill have voted to allow the exemption clauses back in. These will allow individual councils to be excused from any number of legal duties towards vulnerable children and young people for up to six years.

The Children’s Minister repeated today that the purpose of these ‘trials’ is to test whether duties could be removed across the whole country.

All of the Conservative MPs on the Committee voted with the Children’s Minister, Edward Timpson MP.

All of the Labour MPs voted against the Minister’s amendments, led by Shadow Children’s Minister, Emma Lewell-Buck MP.

The result was a 10-5 vote.

The Committee has published the evidence it received on the exemption clauses. It received 46 submissions. Of these:

  • 43 were AGAINST the clauses & 2 more expressed concerns about the clauses
  • 1 SUPPORTED the Government (from the Local Government Association)

Carolyne Willow, Article 39’s Director, said:

“We expected the clauses to be pushed back into the Bill, since the Government has a majority on the Public Bill Committee. That doesn’t take away the sadness and astonishment that children’s universal legal protection could be snatched away with such ease.

“The Together for Children campaign against these clauses continues to grow and we will not stop pressing for Green and White Paper consultation. That shouldn’t be asking for too much, when you consider that this is about the protection granted by Parliament over the past eight decades to the most vulnerable children and young people in our country.”

Also today, the Committee voted 10-5 in support of Government amendments to change the law so that looked after children who are locked up for welfare reasons can be detained under the Children Act 1989 in Scotland.

Such placements are occurring because there are not enough places in England (there’s been a 21% reduction in capacity between 2010 and 2016).

Article 39 opposes this major change to the law. We are supporting the Shadow Children’s Minister’s amendment which would bring an end to the powers in 2019. We believe this would give the Government enough time to resolve the apparent crisis in children’s secure care. 

OUR EVIDENCE TO PUBLIC BILL COMMITTEE – EXEMPTION CLAUSES (updated after discussion with the Department for Education, which confirmed the limitation of their revised clauses)
OUR EVIDENCE TO PUBLIC BILL COMMITTEE – SECURE ACCOMMODATION

9 January Community Care piece on exemption clauses, by Article 39’s Director.

Children’s legal protection under threat

This Tuesday (10 January), Members of Parliament on the Public Bill Committee considering the Children and Social Work Bill will be asked by the Government to reinstate its power to break up children’s law.

The House of Lords deleted this part of the Bill on 8 November 2016.

The Government’s plan was to hand the Education Secretary, Justine Greening MP, the power to remove individual council’s legal duties towards vulnerable children and care leavers. The original clauses would have allowed the removal of virtually every duty made to protect, care and support vulnerable children and care leavers since 1933 – at the request of local authorities. The Education Secretary would have also had the power to force legal opt-outs on struggling councils.

After the Government’s defeat in the House of Lords, the Children’s Minister, Edward Timpson MP, tabled amendments to reinstate the power to break up children’s law, in order to test different ways of working.

The Government says these trials, which could last for up to six years, will test whether legal duties towards children and young people can be removed across the whole country.

The Minister’s amendments keep four sections of the Children Act 1989 and two sections the Children Act 2004 safe from exemption. The Department for Education describes these as “core legal duties”. We agree with this description. However, children’s law which appears to be outside the DfE’s definition of core legal duties, and therefore could be exempted for up to six years as a test for national deregulation, includes (this is not an exhaustive list) local authorities’ duties to:

  • Prepare a care plan for every child who is the subject of care proceedings
  • Provide accommodation to children they are looking after
  • Provide welfare reports to the family courts
  • Maintain children whom they are looking after (besides providing them with accommodation)
  • Fulfil requirements pertaining to the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption
  • Fulfil requirements as an adoption agency
  • Follow minimum weekly allowances set by the Government for foster carers
  • Attend youth courts in respect of children they are looking after who have been charged with an offence
  • Make direct payments to the parents of disabled children, and to 16 and 17-year-old disabled young people
  • Provide support to disabled children
  • Assess the support needs of disabled children as they approach adulthood
  • Assess the needs of young carers, and the needs of parents of disabled children (in order to provide services to which these families are entitled under s17 of the Children Act 1989, which has been saved from exemption)
  • Co-operate with housing authorities and bodies to support homeless families and homeless teenagers
  • Allow children in their care to have reasonable contact with their parents
  • Consider placing looked after children with their parents or family and friends carers who are approved foster carers (the assessment of such carers could also be relaxed)
  • Place looked after siblings together, so far as is reasonably practicable
  • Make placements for looked after children which do not disrupt their education or training, so far as is reasonably practicable
  • Ensure, as far as is reasonably practicable, that the accommodation a disabled child is placed in meets his or her needs
  • Provide accommodation for children in police protection
  • Arrange for the children they care for to have a medical assessment, and to ensure looked after children receive medical and dental care and treatment
  • Visit children they look after
  • Check the welfare of children accommodated in boarding schools, residential schools and colleges, private and state-run hospitals and care homes in their area
  • Appoint independent visitors to looked after children
  • Offer advice, assistance and support to care leavers
  • Have a ‘Staying Put’ arrangement, whereby young people in foster care can remain with their carers until the age of 21
  • Appoint an independent reviewing officer (IRO) to each child they look after to: monitor the performance by the local authority of their functions in relation to the child’s case; participate in any review of the child’s case; and ensure that any ascertained wishes and feelings of the child are given due consideration by the local authority
  • Review the care and progress of looked after children, seeking the views of the child and their parents (among others) and considering a number of matters including the child’s contact with their family, their education, health and identity needs
  • Review a looked after child’s case before they move them to a different placement (unless the move is urgently required to safeguard the child’s welfare)
  • Have a complaints procedure with an independent element
  • Appoint independent advocates so children can be heard and their rights protected
  • Appoint at least one independent person to review the case of a looked after child held in secure accommodation
  • Follow a wide range of requirements, including arrangements for the protection of children, when they are running fostering services
  • Appoint a Director of Children’s Services and a lead elected member for children’s services.
Article 39 is one of nearly 50 organisations urging MPs to reject the Government’s amendments.

More than 107,500 members of the public have signed an online petition calling for councils not to be excused from their legal duties.

Two-year limit urged on legal change to secure accommodation

Article 39 is supporting an amendment to the Children and Social Work Bill, which would force a review of expected changes to the law on placing looked after children in secure accommodation in Scotland.

Since the introduction of secure units more than 30 years ago, the law has required that looked after children only be placed outside England and Wales with the consent of the child and their parent (with some limitations). In December, Children’s Minister Edward Timpson tabled amendments to the Bill that would remove this requirement.

Section 25 of the Children Act 1989, which permits the detention on welfare grounds of looked after children in England and Wales, does not apply to Scotland. However, several children have been placed using different legal orders, due to the lack of places available in England. Timpson’s amendment would allow secure accommodation orders to be made under the Children Act 1989, and children from England to be sent to Scotland. The right to secure accommodation reviews has not been extended, so will not apply to children placed in Scotland under the 1989 Act.

New Clause 27, tabled by Shadow Children’s Minister Emma Lewell-Buck MP, would bring an end to these changes by 2019. This would allow for consultation with children, families and professionals and independent research.

There has been a 21% reduction in secure accommodation places available in England between 2010 and 2016.

Article 39’s Director, Carolyne Willow, states:

“Looked after children who end up detained on welfare grounds are extremely vulnerable. Sending them to Scotland because there are insufficient places in England should only be seen by Ministers as an emergency, stop-gap measure that, frankly, has been caused by poor adult planning. In the vast majority of cases, children’s welfare and happiness relies upon them being placed close to their family, friends and professionals who have been supporting them. It is inevitably much more difficult for social workers and independent reviewing officers to meet their obligations to children when they are placed so far away.”

The amendments will be considered by the Public Bill Committee in the House of Commons on Tuesday 10th January.

Updated briefing on Children and Social Work Bill

Following last week’s revelations that LaingBuisson has advised Ministers on how to achieve “whole system” outsourcing in children’s social care, we have updated our briefing for Members of Parliament.

MPs debate the Children and Social Work Bill for the first time this afternoon.

Our updated briefing summarises the LaingBuisson advice and highlights the possible links with exemptions from statutory duties. We note the Government’s response that it will not compel local authorities to outsource all of their children’s social care services or allow profit-making organisations to deliver them. This does not explain:

  • where exemptions from statutory duties fit in the Government’s strategy to stimulate the market in children’s social care;
  • why, if Ministers had rejected wholesale privatisation of children’s social care services in June 2014, that same month LaingBuisson was commissioned to research ways of developing the capacity of private companies and the voluntary sector to deliver these services?
  • how the Chief Social Worker for Children and Families, a senior civil servant, could be so intricately involved in research that makes radical proposals (mandatory outsourcing and privatisation) which Ministers reject?
  • why there was a two-year delay in publishing the report.

We conclude that, if Ministers intend to pursue the exemptions policy, there should be Green and White Paper consultation so that the rationale (and any evidence) for them can be widely shared, including with children and young people; answers can be given to the many questions and concerns expressed since the Bill was published; and Ministers can explain how fragmentation of children’s law fits (or doesn’t fit) with stimulating the market in children’s social care.

Read our updated briefing here

Secret report on future of children’s services finally published

After a two-year delay, the Department for Education (DfE) has published the report it commissioned from LaingBuisson and Cobic, which sets out how children’s social care services can be moved out of local authority control.

The DfE Advisory Panel, consisting of Professor Julian Le Grand, Professor of Economics, London School of Economics; Alan Wood, then President of the Association of Directors of Children’s Services; and Isabelle Trowler, Chief Social Worker for Children and Families in England, encouraged LaingBuisson and Cobic to be “bold” and “ambitious”. Trowler is the only social care professional on the Innovation Programme Investment Board, which hands out innovation funding to local councils and others. She has been the lead champion of testing out deregulation in children’s social care, which could be boosted by a Bill currently in Parliament.

Article 39 pressed for publication of this report, since we believed it might explain why the Government included radical measures in the Children and Social Work Bill to allow individual councils to be excused from their statutory duties in children’s social care.

Yesterday’s publication of the report shows we were correct to suspect links between the review and the exemption clauses, which were knocked out of the Bill by Peers last month. Members of Parliament begin debating the Bill on Monday.

The report points to:

  • a clear appetite from a number of significant providers to enter new areas of the market including assessment and safeguarding [children] as long as it is underpinned by a clear policy direction from national government services and a sensible approach to costs and risk sharing”

    “There is strong interest by incumbents active in existing markets for looked after children (foster care, children’s homes and social work staffing agencies) to expand their range of business into ‘Assessment and Care Planning Services’ processes”

    “lack of direct experience [within profit and voluntary sectors] of delivering Assessment and Care Planning Services”

    These are policy areas the Government and a select number of councils have proposed as candidates for exemptions from local authority duties. The plan is for exemptions to be ‘trialed’ with innovation funding, presumably to enable independent contractors to develop their experience.

  • the willingness of independent contractors “to play the long game if consistent government support and requisite provisions were in place”

    This confirms our fears that exemptions from statutory duties were to be used as a stepping stone to children’s social care services being moved wholesale from council control.

On privatisation, LaingBuisson and Cobic conclude:

“Although the current policy direction by ministers is not to generate a whole-scale marketisation of children’s social care, we concluded that it is hard to envisage how significant additional capacity and diversity could be created without more services being exposed to market forces”.

The two companies complain about the “reluctance by local authorities to engage the market and a lack of incentives for them to purchase services externally”.

They state there is “strong evidence of endemic ‘in‐house first'” practices in relation to local authorities seeking to place children they look after with their own foster carers and in their own children’s homes. They consider ways of overcoming this.

Discussions took place with companies in September and October 2014, revealing independent contractors perceive three main barriers to “market entry”: reputational risk; commercial risk; and risk that government policy might change. The report states:

“One private equity investor we spoke to described this as a ‘Marmite test’ – some organisations will be highly averse to the risk of front‐page scandals if something goes wrong. Others are more phlegmatic.”

And:

“The large, broad‐based outsourcing companies we spoke with said they were highly averse to reputational risk and would be unlikely to be early entrants to this market. In order to address this, government would need to be clear about the levels of responsibility, liability and accountability they would require from companies taking on the delivery of children’s services.”

Despite the fear of reputational risk, LaingBuisson and Cobic state:

“We found a number of examples of suppliers demonstrating a keen interest in entering into complex and difficult child protection markets provided that accountability and responsibility was clearly articulated and risk appropriately shared.”

And:

“two large providers were confident that there were enough good quality social workers available across England to deliver social care services via external companies.”

LaingBuisson and Cobic dispute the general consensus that independent providers will not be attracted to running children’s services that carry high risk:

“experience in other health and social care segments does not support the view that independent sector suppliers limit their interests to easy to deliver services. While that can happen, for example in elective surgery under ‘choose and book’, which is set up in such a way to allow independent sector providers to offer only the slots they wish to, there are other areas where the entire history of independent sector provision has been to supply specialised services for patients who are difficult to place. The most prominent example is mental health hospital provision.”

The report includes a review of outsourcing in the United States, Canada, Australia and New Zealand. LaingBuisson and Cobic explain:

“most overseas governments intent on outsourcing have developed market capacity by issuing a regulation requiring certain specific services to be outsourced to a third party outside of state government. This has been achieved successfully in parts of the USA, New Zealand and Australia and has also been applied in both the NHS and adult social care in England and most recently in the National Offender Management Service. This mechanism could be rolled out in children’s services in England along similar lines… [It] could commence with the outsourcing of those services where there is already an established market, such as fostering placements, residential placements and adoption services, extending into other areas of provision.”

Central government forcing councils to hand the majority of their children’s services funding to independent contractors is one approach considered in the report. This is what happened in adult social care in the 1990s, LaingBuisson and Cobic explain:

“A requirement to outsource a proportion of the service could also be stipulated along the lines of the 1993 single transitional community care grant where 85% of expenditure was ring‐fenced to the independent sector.”

They advocate “multi‐year” contracts “calculated on the predicted levels of population and service demand. As a consequence commissioners and providers are able to focus on improving processes and activities to achieve outcomes, with additional rewards for achieving the desired outcomes”.

They recommend Children’s Trusts become Children’s Commissioning Trusts – “autonomous not‐for‐ profit commissioning organisation[s]” which only provide services to children and families “as a last resort”. The Trust would “sub‐contract out support assessments for children, retain the decision‐making function (as it must) as to what support to provide to a child, and then engage a third party support provider to actually deliver the service”.

This model, LaingBuisson and Cobic explain, would require the Trust “to retain significant expertise on the control of its statutory functions”. It goes on, however: “If the children’s trust was to be created under a direction by the Secretaries of State there would be no such restriction to prevent onward delegation”.

The report also states:

  • “There are no truly large-scale organisations, i.e. with revenues in excess of £1bn per year” operating in children’s social care
  • Local authorities who are not struggling to meet their responsibilities to children could outsource their functions and “retain a thin commissioning and contracting function alongside all statutory responsibilities, with the functions being delegated to the trust”.  Under this voluntary model,“the Secretary of State could still reserve the right to remove the statutory responsibilities from the local authority and make the trust accountable to the Secretary of State”
  • the current Trust model (2014) has “fundamental impediments”, including that they “have not been subjected to any market testing or procurement competition prior to contract award”; they are “in market terms, single monopolistic providers within a given geographical area with a guaranteed income stream and are free from any external competition”; and they are not forced “to market test or commission the services they provide and they continue, as do local authorities, to be conflicted in their roles of both provider and commissioner”. LaingBuisson and Cobic conclude: “while we are optimistic that the trust model has the opportunity to provide a more social work focused model, we do not see it as a significant lever engaging the independent sector or leading to a growth in the market”
  • Action for Children and Barnardo’s “on the face of it appear to be absorbing approaching half of English councils’ £441m (2012/13) spending on children’s social care supplied by voluntary sector providers”.

The DfE’s response to the 2014 report, also published yesterday and dated December 2016, states:

“this is an independent report and, in a number of areas, it goes beyond government policy. For instance, it sets out an option for how regulation might compel all local authorities to outsource all or a proportion of services. We will not be implementing this option… We want to support improvement by freeing up good local authorities to be innovative with the solutions they put in place, not by compelling them to outsource. We therefore reject those options which would either centralise the delivery of children’s social care services, such as the option to establish a National Children’s Social Care Commissioning Board, or allow profit- making organisations to deliver them.”

Article 39’s Director, Carolyne Willow, states:

“This suppressed report shows we and others were right to fear a hidden agenda on the exemption clauses. LaingBuisson and Cobic have told government that independent contractors are willing to play the long game in waiting for councils to hand over the majority, if not all, of their children’s social care services. But first they need to develop their experience in key areas of working with children and families and supporting and monitoring the welfare of children in care. This fits exactly with the types of plans for exemptions from statutory duties we have been hearing about.

“This explosive report underlines in thick red pen the risk to children of Parliament allowing individual councils to opt out of their legal duties. We hope Members of Parliament will be robust in their defence of children’s social care rights, and refuse to allow the clauses to be reinstated in the Bill.

“The Chief Social Worker for Children and Families has a vital and unique role in championing the rights of children and young people who depend on laws and the state to protect, look after and support them when their families are unable to do so. Since she had a pivotal role in recommending and steering this review, we believe it is now incumbent on Isabelle Trowler to set out her own vision for excellent children’s social care services.”

The report and the Government’s response can be viewed here.

The LaingBuisson project team comprised:

William Laing, CEO, LaingBuisson
Malcolm Newsam, Cobic Consultant Advisor
Elaine Redding, Cobic Consultant Advisor
Andrew Smith, Director of Finance, Cobic
Dr. Nicholas Hicks, Chief Executive, Cobic
Marie Tucker, Cicada Services