Protection of Vulnerable Groups (Scotland) Act 2007 (Consequential Modifications) Order 2011

Baroness Jones of Whitchurch Excerpts

Tuesday 25th January 2011 Grand Committee

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, I formally welcome the noble Baroness, Lady Jones of Whitchurch, to her new post. I look forward to working with her as I did with her predecessor, the noble Baroness, Lady Morgan of Drefelin, on issues such as today’s debate and more generally.

The order makes amendments to support new vetting arrangements in Scotland that were created under the Protection of Vulnerable Groups (Scotland) Act 2007, to which I will refer from now on as the 2007 Act. Scottish Ministers have recently announced that their new scheme will be launched on 28 February 2011. The order is required to help them with the successful operation of their new arrangements and to make sure that we have the sharing of information across borders. Specifically, the order will enable the Independent Safeguarding Authority to provide information to Scottish Ministers for the purposes of their functions under the 2007 Act, and makes a necessary amendment to the Data Protection Act 1998.

This instrument focuses on amendments to the Safeguarding Vulnerable Groups Act 2006 and, as I said, the Data Protection Act 1998. The changes that the order would make to both pieces of legislation are of a technical nature and are being sought so that the scheme created under the 2007 Act can commence as intended, with effect from 28 February.

If I may, I will say a few words about the scheme created under the Safeguarding Vulnerable Groups Act 2006, which would apply in England and Wales, which is commonly referred to as the vetting and barring scheme. Last May, the Government stated their intention to,

“review the criminal records and ‘vetting and barring’ regime and scale it back to common sense levels”.

On 15 June last year, the Home Secretary announced that the intended start to registration would be halted so that the scheme could be reviewed with the aim of making it more proportionate. On 22 October 2010, we announced the terms of reference for the review of the vetting and barring scheme, alongside those for the criminal records review. I am aware that many noble Lords will be keen to know the outcomes of these reviews and I can confirm that the Home Secretary will announce those outcomes very soon. This announcement will propose changes to both the vetting and barring scheme and criminal records regimes, but I am afraid that today I am not able to provide more details or pre-empt the Home Secretary’s announcement.

I would like to make clear that the changes this order makes do not affect the review of the vetting and barring scheme and should not be seen as an indication of any changes to vetting practices within England and Wales. We do not wish to interfere with the wishes of the Scottish Government to proceed with their scheme as planned and so we are making these changes to existing legislation solely to ensure that there are no barriers to the launch of their scheme on 28 February.

Turning to the detail of the order, noble Lords will note that it makes amendments to two Acts of the Westminster Parliament. The first deals with the provision of information by the Independent Safeguarding Authority, otherwise known as the ISA, to Scottish Ministers for the purpose of their functions under the 2007 Act. The second relates to an amendment to the Data Protection Act.

The ISA has, since 2009, been the central body responsible for the barring of unsuitable people from prescribed work with children or vulnerable adults across England, Wales and Northern Ireland. The work of the ISA is focused on making decisions as to the suitability of certain prescribed individuals to work with vulnerable groups and barring those for whom there is a strong indication that they pose a risk to those groups. Its work involves a combination of considering referrals from bodies such as employers, local authorities and voluntary organisations, and looking at those individuals for whom there are grave concerns. It also holds the responsibility for the barring of individuals who have been either convicted or cautioned for a limited range of serious offences.

It is worth emphasising that the decision-making powers of the ISA extend only to England, Wales and Northern Ireland. A separate body, Disclosure Scotland, an executive agency of the Scottish Ministers, has responsibilities for barring decisions in Scotland. The legislation in each of the home territories recognises the bars imposed in the others. However, in order to ensure that the decision-maker in the relevant jurisdiction has all pertinent information available to it, it is vital that the ISA and Disclosure Scotland are each able to make relevant information available to the other where necessary.

This order therefore makes it possible for information relevant to the barring process, which the ISA has gathered, to be shared with Scottish Ministers. This sharing of information cross-border is necessary for the effective working of the Scottish scheme and, particularly in light of mutual recognition of bars, we believe that it is right for the ISA to provide Scottish Ministers with this information.

The second provision, the amendment to the Data Protection Act 1998, extends the current protection that Section 56 of this Act gives to individuals by covering records held under the 2007 Act. This will, for example, protect individuals who have obtained criminal records data under the 2007 Act from Scottish Ministers by use of a subject access request from being forced to reveal that data to an employer. As such, this is an important safeguard which is already in place in relation to the barring schemes in England and Wales and in Northern Ireland and we support the amendment which will give individuals in Scotland the same protection.

The order is drafted so that it would come into force on the day after the day on which it is made. If Parliament approves this order, we intend to have the order come into force in time for the launch date of the Scottish 2007 Act scheme. While the changes this order brings are of a technical nature, it is important that we do not stand in the way of the devolved Administrations exercising their right to govern in accordance with their stated wishes. It is in that spirit that I commend this order to the Committee. I beg to move.

[Baroness Jones of Whitchurch]

I thank the Minister for his kind wishes and look forward very much to working with him constructively in the future. I thank him, too, for his explanation of the technical nature of the order and the purpose behind it.

The order builds on the important legislation introduced by the previous Government across the UK in response to the Bichard inquiry, which followed the tragic murders in Soham in 2002. As we heard, the Protection of Vulnerable Groups (Scotland) Act 2007 was Scotland’s response to the recommendation for a registration scheme for those working with children and vulnerable adults. We fully support this consequential order and the intentions behind it. Again, I understand that the Minister has underlined its technical nature and that some of the changes and information we request might be more pertinently directed to the Home Secretary when further announcements are made after the review.

In advance of that, I have two questions that the Minister may be able to answer today. First, given the enormous sensitivity of the information contained in the children’s and adults’ barred list, what steps are in place to guarantee the confidentiality of the information provided by the Independent Safeguarding Authority and Disclosure Scotland to Scottish Ministers? Secondly, how is it proposed to store the information? I am sure the Minister will be aware of the stories that blight all Governments about such sensitive information going astray. I would be grateful if he would confirm that proper protection is in place for the storage of that information.

Secondly, the regulatory impact assessment refers to the need for a post-implementation review to measure the time taken to process applications. As the Minister will know, this has been an ongoing source of frustration, particularly for those applying for jobs working with children. It is also potentially frustrating for volunteers who find that their attempts to help out with fairly simple tasks in schools and youth clubs are put on hold while their applications are processed. It may be that the Home Secretary can comment on this, but in advance of that, can the Minister say whether there is anything in the order that might lead to further delays in processing these applications?

[The Duke of Montrose]

Can I ask my noble friend a couple of points on these measures? First, he explained in some detail how the order will allow Disclosure Scotland to obtain information from the Independent Safeguarding Authority in England. Is mirror legislation already in place to allow the ISA to obtain information from Disclosure Scotland? He said that it would be, but I do not know whether it is already. Secondly, is there any way of distributing the costs of obtaining this information between the different devolved authorities? It is an advantage that each authority has access to the other’s material, but there is a danger that it could be interpreted that there should be a monthly update and they would swap the latest information. In that way, each would have an up-to-date database, but again there is the question of security, which has also been raised by the noble Baroness, Lady Jones.

Breaks for Carers of Disabled Children Regulations 2011

Baroness Jones of Whitchurch Excerpts

Tuesday 25th January 2011 Grand Committee

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, although this instrument marks an important step forward in helping to provide breaks for the carers of disabled children, I am very conscious that this Government are following in the footsteps of the previous Government and of those, many of them in this House—particularly the noble Lord, Lord Rix, whom I am pleased to see, and of course my noble friend Lady Walmsley—who I know have campaigned tirelessly for many years to advance the rights of disabled children. Therefore, it is only right that I should start by paying tribute to all those whose work has led us to this point and to what I hope will be agreement on the next practical step forward.

We know that many in our House speak with huge authority on this subject, as well as from personal experience. I have neither of those qualifications, but it is impossible to listen to them and to the experiences of others and not understand that for many families a short break is almost literally a lifeline. At the very least it provides the opportunity to do the kind of things that most of us are able to take for granted.

The Children and Young Persons Act 2008 amended the Children Act 1989 in order to ensure that short breaks were placed on a statutory footing for the first time. These regulations are being made in order to provide further detail to local authorities about how that duty must be performed. Not only do they set out clearly the range of short breaks that must be offered by local authorities but they also require local authorities to have regard to the needs of different types of carers and to make all that information available to parents and carers. This is, we think, an important step along the road towards better support for the families and carers of disabled children, and I believe it is for that reason that the proposed regulations have been warmly welcomed by the organisation Every Disabled Child Matters.

Short breaks do not, of course, just provide parents and carers with a chance to have some time to do something else; they can also provide an opportunity for disabled children to spend time with a different adult or with children of their own age, helping them to feel more independent or learn something new. That is why we have been clear in these regulations that short breaks should be offered to parents not just as an emergency intervention when things have got really bad but as a way of providing support more generally as part of a package of things to make life a little more tolerable.

However, what seems to have become clear over the years is that short breaks benefit families only if they genuinely provide respite. It is no good, for example, offering a child an hour at a specialist group every week if it is a three-hour round trip to get the child there in the first place and the parent has to sit in the car during the break because it is too far from home to drive back. It is no good either if the only break offered is during the week or if the child’s parent is fine during the week but struggles to cope during school holidays.

That is why it is so important that these regulations are clear that a range of breaks must be in place at different venues and at different times of the day, week and year. I am sure that noble Lords will agree that the service would be meaningless without the flexibility for breaks to be matched to the needs of those families in the local authority’s area. I believe that in most areas parents are beginning to have more of a say about the kind of breaks which really make a difference for them and, crucially, their children, with the result that we are seeing the introduction of all sorts of new breaks.

In addition, Together for Disabled Children, which supports the delivery of short breaks in local areas, reports that there is a link between good engagement by parents in the design of the service and value for money. That is one reason why we have said that we want local authorities to provide information to parents about the services available and to consult them about those services. The short breaks services statement will mean that many more parents can see what is on offer and challenge their local authority where they do not think that the offer is good enough.

The Government are also clear that, in providing a short breaks services statement, local authorities will need to make an assessment of local needs and what local parents want. We know that the opportunities and offers will be different in different areas, and we want local authorities to continue reflecting this in what they offer to disabled children and their parents.

I know that noble Lords will be aware that in December the Department for Education announced that through the early intervention grant it would make more than £800 million available to local authorities over the spending review period for the provision of short breaks. That funding marks an increase from this year and will increase modestly in each year of the spending review. I know that there are questions, to which I am sure we will come, about the ring-fence, but I am sure that noble Lords will agree that in a difficult economic climate this increase is an earnest of our intent and a sign that we are keen to build on the good progress made by the previous Government.

The Department for Education will also publish guidance to accompany these regulations. We are working with a group of local authorities to produce practice guidance, which will provide local authorities with more detail about these regulations, as well as provide good examples of where services have been well received. The guidance document will be published as soon as possible once these regulations have been made. I am sure there will be broad agreement on the importance of providing this detail to local authorities. We believe that these regulations will help to ensure that short breaks services are an important part of the support available to carers and parents of disabled children. I beg to move.

[Baroness Jones of Whitchurch]

My Lords, I thank the Minister for his explanation of the purpose behind the regulations. As he acknowledged, the issue of breaks for carers was taken extremely seriously by the previous Government, which set out the groundwork for these regulations in the Children and Young Persons Act 2008 and set in train a major investment in support for disabled children through the aiming high for disabled children programme. Our main concern now is to ensure that the progress, the investment and the momentum created by the previous Government are maintained.

The whole issue has come to the fore in the very sad case reported in the press last week of Riven Vincent, who has asked her local authority to take her severely disabled child into care as she can no longer cope because of the lack of respite care. Although this single case has hit the headlines, we can be sure that many other parents are struggling with similar crises in their lives. It is therefore vital that we get the provisions right and relevant to meet the known needs of the estimated 700,000 disabled children in England.

The Government have changed the original intent of the legislation in a number of key ways, including: removing the ring-fencing of the funds, to which the noble Lord has already referred; the monitoring and assessment via the children and young people’s plan; and granting greater autonomy to local authorities to interpret their responsibilities in this area. I hope that the Minister will be able to reassure me that the priority for breaks for carers envisaged in the Act will be maintained.

I have a number of questions for the Minister. First, the department’s own impact assessment states:

“We consider that where LAs indentified and funded their own delivery support, only high performing LAs would continue to improve, leaving a mixed picture of services for families in need”.

Can the Minister reassure me that there will be a comprehensive breaks service across the country rather than the rather patchy service suggested by his department?

Secondly, there was considerable pressure on local authorities to prepare for the duty that would have come into force in April 2011, and a great deal of progress has been made. Can the Minister give an assurance that the Government’s new emphasis on local autonomy will not let local authorities off the hook, so that they are forced to give this issue priority rather than responding to vocal local pressures from electors to fund other issues?

Thirdly, how will the Government monitor progress? What information will be collected centrally and how will the quality of local services for the carers of disabled children be assessed?

Finally, how will the Government ensure that the needs of the most vulnerable families are protected, given that disabled children are much more likely to live in poor housing and be in the lowest income groups? For example, children from BME families are the least likely to access the services currently available. Is there not a danger that services will be provided only to those who shout the loudest and not to those who are the most vulnerable and least able to stand up for themselves and argue for provision in their area?

I hope that the Minister will be able to reassure me on these points.

[Lord Rix]

My Lords, I welcome the introduction of these draft regulations by the coalition Government. As your Lordships may be aware, in March 2008, along with the noble Lord, Lord Adonis, I tabled an amendment to the then Children and Young Persons Bill on this matter. The amendment created a new duty for local authorities to help parents caring for disabled children by providing them with breaks from their caring responsibilities. As the Minister has already kindly stated, my involvement in the campaign for short breaks for disabled children has lasted for many years. I think I introduced a Private Member’s Bill about short breaks as long ago as 1994. It went through the Lords but crashed in the House of Commons. I know that representatives from across the disability sector, including Mencap, of which I am president, and Every Disabled Child Matters, will welcome the introduction of these regulations.

The case for this new duty could not be stronger, and I welcome the £800 million identified by the Government over the next four years to help local authorities provide these short breaks. However, when faced with the competing demands of filling potholes, weekly rubbish collections and street cleaning, I fear that the temptation on local authorities to spend money for short breaks in other areas could be very seductive. That is why I would have preferred to have seen these funds ring-fenced for the specific purpose of short breaks, perhaps with a provision also to address the needs of all disabled people, including adults. It is important to remember that for many parents of disabled children, their responsibilities as carers will continue long after their sons and daughters have grown up. This is particularly the case for adults with profound and multiple learning disabilities, where the case for short breaks is arguably even stronger. However, I acknowledge that this is probably a debate for another day.

As we have been reminded, the pressure on funds for short breaks and respite services received much attention only last week, when we saw a great deal of coverage in the national media about Riven Vincent, a mother who asked for her six year-old daughter, Celyn, to be placed into care after she received a letter from Bristol social services informing her that no more respite care would be available. This extremely unhappy story highlights why it is so important for the parents of disabled children to have regular access to short breaks. Despite the pressure of cuts to services, we must ensure that the funds announced by the coalition Government reach their intended audience, together with the new duty on local authorities to provide short breaks. Can the Minister assure me that these funds will be used for those whose needs are addressed by these regulations?

[Lord Hill of Oareford]

I am grateful for the comments made and for the general welcome for the detail of the regulations. I am glad to have had the endorsement of the noble Lord, Lord Rix, and I am grateful to my noble friend Lady Walmsley for her typically probing and detailed questions, some of which I will have to come back to, if she will allow me. I will circulate the letter to those who have an interest in the matter as she raised important questions about monitoring.

There is broad agreement and I am happy to respond to the noble Baroness, Lady Jones of Whitchurch, who said that she wanted reassurance that we will build on the momentum that has started and the work that the previous Government have done. I accept fully the point that as arrangements bed down, we will want to ensure that they work well on the ground. The ring-fence has concerned many. There is a tension operating between wanting to give local authorities more freedom to provide services that they think are best, and which best match the needs of local people. We need to bear in mind that the needs of carers in a sparse rural area like Cornwall will be different from those for families in more dense urban areas. We are keen to have flexibility, and it flows from there that we want to give that discretion to local authorities.

I hope to provide some reassurance that there is a statutory duty on local authorities to provide those services. On the publication of the statements, I agree with my noble friend that a website is one way of disseminating information but not the only one. Generally, we will all in our different ways want to make sure that people are aware of their rights and the opportunities open to them. I hope that the provision of information and the shining of a spotlight will bring healthy pressure to bear on the providers of services and make sure that they are of high quality. I accept that we need to keep a careful eye on that. It is not enough just to construct a system, but not see how it operates in practice. We will all have a common interest in pursuing that.

My noble friend Lady Walmsley asked about guidance which will be published very soon. The department has been working on it with local authorities and, as part of the guidance, two local authorities have come up with a draft statement of the services that they provide, which we will disseminate widely. One of the arguments in having a non-statutory approach to the guidance is that one can keep it flexible and keep updating it to take account of circumstances on the ground. Services will develop and we can learn from best practice in different parts of the country. We want to keep things flexible to make sure that those lessons are learnt.

On the point about the obligation and duty on local authorities, Regulation 5 requires local authorities to have regard to the views of carers. The guidance will deal with questions of quality. Overall, I welcome the points made about the benefits of these regulations. Some of the broader concerns raised about how things will work out in practice I accept and understand, and we will work to address them.

I will follow up any specific points that I have not addressed and circulate the responses but I hope that, given the support that these regulations have received from voluntary groups and those concerned in this area generally, the Committee will approve them. I have great pleasure in commending them to the Committee.

[Baroness Jones of Whitchurch]

Before the Minister sits down, I hope that I may gently press two points that I raised. He may wish to reply to them in writing but I would certainly like an answer at some point. First, if we are not careful, those who provide a good service at the moment will carry on providing a good service and those who do not will carry on providing not such a good service. I am not sure where the impetus is for the new scheme to raise standards across England. Where is the impetus to raise standards across the board? There is a danger that we will carry on having unfair distribution.

Secondly—I ask this question in innocence as much as anything because I do not know the answer—how will the £800,000 be monitored? Will there be a mechanism in place to see how a local authority spends it? Is there any mechanism in place to identify what proportion of the money actually goes into breaks for carers, or are the Government just relying on the good will of local authorities to follow up their statutory duty?