Children and Young Persons Act 2008 (Relevant Care Functions) (England) Regulations 2014
(Limited Text - Ministerial Extracts only)
Read Full debate
Lord Nash
That the Grand Committee do consider the Children and Young Persons Act 2008 (Relevant Care Functions) (England) Regulations 2014.
Relevant documents: 5th Report from the Joint Committee on Statutory Instruments, 5th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, these regulations are permissive in intent. They would enable local authorities in England to delegate to third-party providers a range of social care functions, so far as those functions relate to children. This would modify the current position set out in Section 1(2) of the CYPA 2008, which already allows local authorities to delegate functions relating to looked-after children and care leavers. These regulations would enable local authorities to decide to delegate other functions, including those relating to early intervention and child protection to providers operating on a not-for-profit basis.
At present, there are few options open to local authorities that wish to consider alternative ways of managing their social care functions. Apart from the limited powers of delegation already in existence relating to looked-after children, the only circumstances in which alternative delivery plans are currently possible are those where an authority is failing and subject to intervention by the Secretary of State under Section 50 of the Children Act 2004. It cannot be logical that only where a local authority fails are such flexibilities available.
I should also make it clear that several local authorities are now waiting eagerly for the passing of these regulations; they are gearing up to innovate and are anxious to make progress with their plans. These forward-looking local authorities are ambitious to improve their services and their ways of working, and these regulations would enable them to fulfil these aspirations. I anticipate that, over time, others will begin to consider how the new freedoms might support their own improvement strategy. As noble Lords will recognise, in too many local authorities improvement is all too urgently needed. The Government are having to intervene in one in seven authorities.
During the consultation on the draft regulations, it was asserted that only the public sector should carry out functions such as child protection. I simply do not believe that this is the case—not with the potential of the voluntary and charitable sector, and the proven success of public service mutuals or the number of public sector failures so clearly before us. I am by no means saying, “Public sector bad, private sector good”. What I am saying is that there should be a willingness and an openness to look at different approaches and options. That is the possibility opened up by these regulations.
Noble Lords will be aware that the consultation elicited widespread and ardent comment. That is entirely appropriate for such an important measure. The number of responses was very high, at 1,315, and there were several petitions and an e-campaign, which resulted in some 58,000 e-mails. By far the most responses to the consultation related to the question of privatisation and profit-making, which was the sole focus of the petitions and the e-campaign. The Government have responded both swiftly and decisively to these concerns by making a significant modification to their original proposals and amending the draft regulations to rule out the possibility of profit-making. This change has been widely welcomed.
It was not the Government’s original plan to include such a restriction, nor was it our intention to see widespread delegation of children’s social care to profit-making companies. The local authorities that are currently exploring their plans in detail are not looking to set up facilities that entail profit-making, so this amendment will not hamper their plans. Of course, this policy never concerned privatisation. This is a permissive agenda, not a centralising regime.
Noble Lords will know that the Secondary Legislation Scrutiny Committee has drawn these regulations to the special attention of the House and raised particular concerns about the consultation arrangements. First, the SLSC said that the consultation proposals were not clear. The volume and sharp focus of the responses show that they were. One might argue that the responses to the consultation were overwhelmingly about an issue that was not the focus of the Government’s plan. Nevertheless, under the original proposals profit-making would have been possible, so those commenting were making an entirely valid point. We have listened to those responses and made changes accordingly.
Secondly, the timescale for responses was deemed to be too short. It may be that a longer consultation would have been preferable, yet in the light of the number of responses and the degree of public scrutiny that the proposals received, my view is that the timescale for responses did not hamper proper scrutiny. Our desire to open up opportunities as soon as possible to local authorities that are seeking them drove the timescale and, on balance, I think that we have been able to bring forward valuable proposals in good time, while allowing significant and influential representations to be made.
On a much less prominent question than that of profit, some during and since the consultation have questioned the evidence base for this change. It is of course true that the direct evidence base for something that has to date not been possible is limited. Noble Lords may be aware that under the Children and Young Persons Act 2008 the previous Government enabled a small number of pilot social work practices to be set up. These were small, practitioner-led practices taking responsibility for specific cohorts of children on behalf of the local authority. The evaluation of the first few social work practices identified evidence of positive change for looked-after children and care leavers. It is true that the evaluation found variation across the pilot sites, but it none the less showed that the practices operated at least as well as, if not better than, the control authorities.
In addition, the Government’s wider mutuals programme has seen the benefits to services, both to the staff working in those services—through reduced absenteeism and staff turnover—and in savings and efficiencies linked to significant improvements of user outcomes. There are now 100 public service mutuals already delivering more than £1.5 billion-worth of public services in sectors such as health and youth services. Local authorities will be able to apply to the Children’s Social Care Innovation Programme for support to make use of the new freedoms that the regulations would allow, and the impact of activities funded through the programme will be robustly evaluated.
These regulations will enable a positive change in the delivery of children’s social care services. They will establish a framework in which local authorities can make their own innovative decisions on how best to manage their children’s social care functions. The experienced and well respected charity, Action for Children, said:
“The freedom to outsource children’s services will allow local authorities to innovate and improve support provided to families”.
That is exactly what we are aiming to achieve and I commend the regulations to the House.
Lord True (Con)
My Lords, I declare an interest as leader of Richmond Council which, along with the Royal Borough of Kingston, has been one of the authorities using the freedoms extended by the previous Government under the 2008 Act. We have established jointly a community interest company, a social enterprise, called Achieving for Children, to deliver these services across the two authorities. When I say “we”, I am referring to a Conservative and a Liberal Democrat authority working together and seeing the opportunity—as we saw it—to improve services. Therefore, I greatly welcome the Minister’s announcement that this is to be extended. It will certainly be welcomed by the professionals in our authorities working on behalf of young people.
It is right that the Minister put beyond doubt the fears raised about privatisation. For my own part, I do not think that the private sector or private carers are incapable of providing professional, high-quality care, but given the response to the consultation, I think my noble friend has acted wisely, as always, in that regard. I hope that that having been done, everybody from all sides will be prepared to put wind behind this and to give support to the professionals involved. This is not about privatisation; certainly it was never about privatisation in the case of my authority or Liberal Democrat Kingston. It is certainly not about moving away from a public service ethos. That is fundamental and held dear by all those who work in the community interest company. Nor is it about a move away from democratic accountability. The local authorities remain statutorily responsible. Our outstanding director of children’s services, Mr Nick Whitfield, who is the chief executive of Achieving for Children, remains statutorily responsible. As I see it, it is freeing up professionals to think differently and to innovate without the constraints that local authority procedures can sometimes cause. It provides freedoms to allow them to maximise the value of the contributions they make, to create new partnerships and fundamentally it puts the professionals who know better than anybody in the driving seat of how to achieve the best outcome for those involved. Local authorities remain ultimately accountable—indeed, the next business contains a whole range of requirements that remain on local authorities.
The regulations will allow the completion of movement of staff into the community interest company. That is an important signal and it is very practical that all staff can be managed in one way and are not having to be transferred under TUPE back from one activity to another when the range of activities ought to be part of supporting young people and part of a seamless whole. I hope that if it agrees to these regulations the Committee will put it beyond doubt that this approach is sanctioned as an appropriate way to provide children’s care.
The launch of Achieving for Children was attended by people from all political parties. I think everyone there was inspired by the professional vision and dedication of those involved and indeed by the speeches made by the young people who saw hope in what was being brought to them and hope in this future. Let us not be afraid to be creative. Let us not be afraid to experiment in improving care while retaining the basic public service needs and statutory responsibilities that continue. I hope that we will support the regulations and I thank my noble friend for bringing them forward.
Lord Nash
I am grateful for noble Lords’ contributions and to my noble friend Lord True for his points, which, given his experience, carry particular weight. I very much welcome the innovation behind Achieving for Children, whose launch I was privileged to go to. As my noble friend said, the presentations made at that launch, particularly by young people, were powerful.
The noble Earl, Lord Listowel, made a number of comments. I am grateful for his welcome for the intent behind the proposals and that he is taking some comfort from the changes made to the adoption regime by the previous Secretary of State for Education. The noble Earl made a good point about the capacity and quality of the workforce in social care. We are determined to raise the status of social work and to attract highly qualified people into it. We have a wide programme of reform of social work under way. Sir Martin Narey reported recently on improving social work training, the chief social worker is bringing strong leadership to the system and we have new training programmes in Frontline and Step Up to Social Work to attract the best to the profession.
The noble Earl mentioned the possibility of fragmentation of services. There is no intention for this to happen. Indeed, we have seen examples, such as Achieving for Children, where we may, in fact, see consolidation of services into single structures. He made a very good point on the importance of the contract. It will be for local authorities to give extremely careful thought to the structure of the contracts to make sure that they lead to quality care and that the KPIs are well thought out and not too short term. His points about engaging with young people are well made. The consultation process received comments not directly from young people but from organisations representing them, including Barnardo’s, Kids Company, Children England and many others.
I am grateful to the noble Baroness, Lady Hughes, for her support. She is of course vastly more experienced than I am on this subject, as it was part of her brief as a Minister while it is not directly part of mine. Local authorities will retain overall accountability for provision and they will be able to gain access to random sampling under the contracts they put in place with their providers. They will also have their own complaints procedures in place, which will be there for parents to go through.
Ofsted’s common inspection framework makes provision for taking a sample of looked-after children’s cases where functions have been delegated. It considers the experience of these children as it would any others in the care system when making judgments on an authority’s effectiveness. Ofsted will speak directly to children and families. It is important to be clear that where functions are delegated, the authority remains the corporate parent and is responsible for the children in its care through its management of the contract with the provider of social services. There is a single inspection framework that looks at the effectiveness of services for children in need of help and protection, looked-after children and care leavers. In addition, there are separate inspection frameworks to ensure high standards for those providing residential placements of various kinds. The same inspection arrangements apply regardless of whether functions are delegated.
Neither we nor Ofsted believe that registration adds particular value to the system. The registration process can be only relatively light-touch and may imply a more robust validation or assurance process than is intended. There is also potential duplication of effort as many of the key checks are those that would automatically be carried out by local authorities as part of their contractual arrangements with the provider. There is no relationship between registration and Ofsted inspection. Ofsted will inspect third party provision as part of its normal inspection arrangements.
I admire the noble Baroness’s suspicion about putting the not-for-profit element beyond doubt. Someone from my background of course believes passionately that the profit motive is always, in every case, a very good discipline. However, as noble Lords can see from the consultation, we have bowed to the responses on this. There is no intention to allow for any back-door profit-making in this. In the academies programme we have in place very clear regulations to ensure that anyone in any kind of governance arrangement with an academy cannot make a profit. Of course it will be possible for a large organisation to set up a not-for-profit subsidiary, but I find it hard to believe, given the risks involved in the provision of services of this kind, that it would be worth doing that on a not-for-profit basis. We will make sure that this is not any kind of back-door arrangement to make a profit on the sly.
I hope that I have dealt with all the points made by noble Lords, but if I have missed anything I will be delighted to write to them. We do not expect an immediate flood of delegated arrangements as a result of these regulations. I have indicated that a few local authorities are waiting in the wings, and we think that others will develop their thinking over time. The regulations will allow the freedom and flexibility for new arrangements to come into place over time and have the real potential to improve services for vulnerable children. That is the framework we are putting in place, underpinned by both an unchanged system of local authority accountability and a robust Ofsted inspection framework. I hope that noble Lords will support the regulations.