This briefing looks at The Children and Social Work Bill during the summer recess of 2016. It has been through House of Lords Grand Committee stage and is due at Report stage in October. Requests by Lords for meetings and written evidence from the government are likely to be met over the summer but outputs of these are not available at the time of writing.

Context

It is worth noting that the Bill is progressing at speed against a backdrop of changing parliamentary responsibilities. Lords emphasised strongly at Grand Committee stage that they would have wished for more time to scrutinise the Bill before debating it, and the government themselves seem to admit that it was prepared rather quickly, with extra evidence and detail for its provisions being added along the way. The new Prime Minister took office in July and replaced the then Secretary of State Nicky Morgan with Justine Greening. Edward Timpson, who is very committed to the Bill and especially the Corporate Parenting Principles, continues in the DfE with the new title of Minister for Vulnerable Children and Families. His brief includes CAMHS and, whilst it remains to be seen whether amendments to include duties on health agencies in the Bill will be passed, it’s possible Edward Timpson would now be able to negotiate these with the Department of Health.

The Joint Committee on Human Rights has published a set of robust questions challenging the government to justify the process and the provisions of the Bill and to strengthen its protection of children’s rights. The deadline for a response has passed but no response from the government has been published as yet.

Below we look at developments in the three areas addressed in our Second Reading briefing.

The Corporate Parenting Principles

(Hansard discussion in full.)

As Children England explained in our second reading briefing, the Corporate Parenting Principles lack teeth and application to all the agencies who should behave like corporate parents towards children in care.

Peers welcomed the Principles but expressed concerns very similar to ours. Lord Watson said “Corporate parenting should mean the full and active involvement of the formal and local partnerships needed between local authority departments and services and associated agencies responsible for working together to meet the needs of looked-after children and young people as well as care leavers. Recognising that different component parts each have a contribution to make is critical to success.”

Peers also reflected that unless the principles were worded more robustly, local authorities who wanted to do their best as corporate parents might nevertheless be obliged to cut corners in times of stretched budgets.

Several amendments proposed by the Lords sought to extend the Corporate Parenting Principles, including

  • Extending the principles to health bodies, schools, housing organisations, the criminal justice system, central government departments, the Secretary of State and ‘relevant partners’
  • Making the wording of the principles more robust (‘must’ rather than ‘have regard to’)
  • Making the wording of the principles more explicit to include mental health and social, emotional and educational outcomes, and to recognise children’s different backgrounds, abilities and experiences
  • Adding principles on legal advice, financial education, recovery and keeping siblings together

All amendments were rejected by the government at Grand Committee stage. Lord Nash, leading the Bill, expressed the government’s ambition to give local authorities simple principles that support a culture change and can be interpreted flexibly in practice. He also cited existing legislation that gives local authorities and other bodies a duty to co-operate for children in care.

Amendments so far for Report Stage:

Lord Watson has proposed a duty for local authorities to co-operate with Clinical Commissioning Groups, chiefs of police and other bodies to be defined in regulations.

Baroness Tyler has proposed a new clause to follow the Corporate Parenting Principles which would oblige local authorities to support the recovery of children in care by conducting initial and ongoing assessments and producing a pathway plan and support for their mental health.

 

Local Offer for Care Leavers


(Hansard discussion in full)

Children England’s main concerns about the provisions on local authorities’ offer for care leavers are that without a strategic needs assessment of care leavers in the area, services provided and publicised won’t respond directly to the needs of care leavers, and that as with the Corporate Parenting Principles, for the offer to be robust it should apply to other statutory agencies. We are also supportive of calls by the Alliance for Children in Care and others to improve the provision for extending support for care leavers to the age of 25 by emphasising the obligation of the local authority to offer the support, rather than the young person to request it.

In Grand Committee, peers proposed extensive amendments for making the local offer better researched, more collaborative and more substantive, although concerns were also expressed about the extra resources the local offer might require.

Baroness Wheeler said “The Bill currently requires local authorities simply to publish a list of the services they provide. This will not address the need for proactive support for care leavers or ensure that they have the information and advice underlined in previous amendments. What is needed is a national offer to serve both as a framework and as an undertaking about the availability of services across the country.”

Amendments discussed at Grand Committee stage reflected Children England’s priorities and included:

  • Extending the duty to central government departments
  • Extending the offer to include services for financial education and relationships
  • Requiring local authorities to conduct an assessment of services required to meet the needs of care leavers and to provide those services
  • The publication of a national minimum standard of services for care leavers, informed by the New Belongings pilots
  • Support for care leavers to access and understand the information in the local offer
  • Extending all support for care leavers to a new age limit of 25 (from 21) and placing the duty to offer it on local authorities, rather than on care leavers to ask
  • Making the role of the Personal Advisor subject to regulations on training, standards and publicity
  • Improvements to benefits for care leavers

Again, all amendments in Grand Committee were withdrawn or rejected by the government. Baroness Evans said the current review of the Personal Advisor role would establish what changes are needed to reinforce this role. The outline of the local offer doesn’t need to include exhaustive topics, she explained, because “the local authority will have the flexibility to include other subject areas that it thinks should be part of its local offer.”

Lord Nash said “an additional requirement to assess the services required to meet the needs of care leavers would be overly prescriptive. Rather, these matters will be detailed in the guidance that my department will produce.”

Whilst he called a duty to actively offer Personal Advisor support to every care leaver ‘disproportionate’ Lord Nash said “I should like to reflect further on this in discussion with local authorities and over the next few months before we return on Report.” He also confirmed that in the review of PAs “we will consult all relevant parties”.

Amendments so far for Report Stage:

Lords Watson and Hunt have proposed

“The Secretary of State must publish a national minimum standard setting out the quality and extent of services which must be offered as a minimum by a local authority under its local offer for care leavers. ( ) Before setting the national minimum standard, the Secretary of State must take advice from health, local government, housing and education bodies on the requirements for such a standard.”

 

Power to test new ways of working


(Full Hansard discussion)

Children England’s extensive concerns about the Bill’s provision allowing a local authority to seek exemption from specific children’s social care legislation are detailed in our briefings linked to above. Our position is that Clauses 29 – 33 (previously 15 – 19) should be deleted from the Bill. At Grand Committee stage, we were extremely supportive of an amendment to put the profit-ban into primary legislation – both as a matter of principle and as a precaution against Clause 29 enabling local authorities to become exempt from the secondary legislation currently protecting children’s services from the profit motive.

We have facilitated meetings for children’s organisations concerned about this section of the Bill and will continue to do so, whether or not a single concerted lobbying position and action plan can be made or not. Organisations stating public opposition to Clauses 29 – 33 currently include BASW, Article 39, Family Rights Group and CoramBAAF and coverage of sector concerns have appeared in The Guardian, Children & Young People Now and Community Care.

Government rationale

These provisions are intended to allow individual local authorities to innovate, with the aim of either ‘improving outcomes’ or ‘improving efficiency’.  The provisions build on the ‘culture of innovation’ promised in the Innovation Programme and subsequently the government’s paper Putting Children First which suggest there is a need to ‘free’ social care from legislation and regulation that’s preventing excellent practice. The drive to allow legal exemptions is said to be coming from the Partners in Practice local authorities, who are seen as examples of innovation by the government. However, nothing published so far gives examples of any primary legislation that is preventing local authorities from innovating. The government has confirmed that the other provisions of the Children and Social Work Bill would be drawn within scope for Clause 29 – so a local authority could seek exemption from the Corporate Parenting Principles.

On request, the government has given a small number of very specific examples of legislation that local authorities have suggested are stopping them from innovating.Article 39 has published a convincing refutation of them here.

Edward Timpson has said in an interview that the government has ‘no intention’ of the Bill enabling profit-making companies to deliver children’s social care functions. Chief Social Worker Isabelle Trowler strongly supports the ‘new ways of working’ provisionsand so far has not taken on board any of the concerns expressed to her by various children’s champions.

Grand Committee stage

Article 39 also summarised the powerful arguments by Peers against these clauses in Grand Committee.

Amendments proposed at Grand Committee included:

  • Putting the profit-ban into primary legislation
  • Questioning whether the clauses should stand part of the Bill
  • The establishment of an independent review panel established to consider whether any such exemptions or modifications are likely adversely to affect legislative safeguards or rights of children approved by Parliament
  • Consultation of children and young people
  • Protection for the Corporate Parenting Principles from the scope of these provisions
  • A duty on public authorities to regard, and publish progress in meeting, the United Nations Convention on the Rights of the Child

Lords have requested evidence of the ‘blockages’ in primary legislation that local authorities would seek exemption from in order to ‘innovate’ and been promised a meeting over summer with the Practice Partner local authorities to hear first-hand how the provisions would help them innovate. Lord Watson has also requested written evidence.

Amendments so far for Report Stage

  • Putting the Profit ban into primary legislation, as proposed at Grand Committee stage
  • A duty to report on outcomes for children in need, children in care and care leavers, covering local authorities and the Secretary of State

It is likely that additional amendments will include further safeguarding measures such as a duty to consult local children and families before seeking an exemption and more duties on monitoring and reporting by local authorities using an exemption. There is also likely to be another ‘stand part’ amendment seeking the removal of clauses 29 – 33 from the Bill.

Main arguments for clauses 29 – 39 being removed from the Bill

While each organisation concerned about clause 29 will have specific examples of how it jeopardises the children they work with and the legislative protections they rely on to defend and advocate for those children, there seem to be six overarching arguments against allowing the clauses to proceed as they stand:

  1. Clause 29 isn’t necessary for innovation – it’s necessary for cuts
  2. Children’s social care legislation is children’s rights – not a bureaucratic burden
  3. Chaos would ensue – there are no limits to the time, scale and scope of the changes that could be made
  4. It would cause constitutional disruption
  5. It doesn’t reflect what children actually think and feel
  6. It doesn’t reflect local authority realities – what they want is more support, not freedom from the law

There are many examples of local authorities innovating to achieve better outcomes for children – without needing any suspension of legal duties – including Leeds, Trafford and areas where the New Beginnings project has been running.

Next steps

Amendments are still being developed by and with Peers for Report Stage in October, and we await the evidence being provided by local and central government that justify clauses 29 – 33. Article 39 is developing a website to gather evidence against the need for the clauses and to mobilise opposition. Many children’s organisations intend to support a ‘stand part’ amendment while others may support different amendments aimed at making these clauses safer for children.

Representatives of the children’s sector have been invited to a meeting with Partners in Practice local authorities to hear examples of innovation that justify clauses 29 – 33 of the Bill. This meeting will take place before Report Stage and inform subsequent activities.

If you would like to be involved in the sector’s effort to improve the Children and Social Work Bill’s impact for children, let us know. Specific things to look out for are

  • Opportunities to share evidence, case studies and support on Article 39’s CSW Bill website
  • Further briefings from Children England
  • Campaigns to raise awareness amongst MPs and their constituencies when the Bill gets to the House of Commons

 

For more information, contact

Chloë Darlington
Policy and Campaigns Manager
Children England
chloe.darlington@childrenengland.org.uk
020 3597 6296