Children and Social Work Bill [HL]

Baroness Wheeler Excerpts

3rd reading (Hansard): House of Lords
Wednesday 23rd November 2016 Lords Chamber

[The Earl of Listowel]

My Lords, the noble Baroness cited articles from the United Nations Convention on the Rights of the Child. One article which is very important to me is Article 39, which sets out the right for children who have suffered trauma, whether through war or through family abuse, to receive therapy and all the support needed to recover from such trauma. That article speaks directly to the amendment tabled earlier by the noble Baroness, Lady Tyler. If this amendment had been incorporated into legislation 10 years ago, perhaps we would not now be discussing how we have ignored the mental health of looked-after children during the past 10 years. We would have respected the UNCRC and already delivered the services. I am grateful for the sympathetic message that the Minister of State for Children, Edward Timpson, has given the noble Baroness, Lady Walmsley.

[Baroness Wheeler (Lab)]

My Lords, as the House will know, we on these Benches have given our support on this important issue both in Committee and on Report. We strongly agree with the principle that the UN Convention on the Rights of the Child should be incorporated into statute. We support the call for this from the Joint Committee on Human Rights, the Equality and Human Rights Commission and the Children’s Rights Alliance for England, and agree with the strong case put forward by the noble and learned Lord, Lord Woolf, and other noble Lords today and at previous stages. We fully understand why the amendment has been put forward today.

However, we do not support the case for incorporating the amendment at this late stage in the Bill. Instead, we would prefer discussions and work to continue through to the Commons stages. Noble Lords have heard from Ministers during debate on the Bill that the Government are committed to the UNCRC and are working on their response to last year’s UN committee report on the rights of the child and on addressing the serious concerns raised by it.

We understand that they have also said that they are “sympathetic” to the Scottish model of legislation, placing a duty on Ministers to report on impact and improvements to children’s rights, and have begun discussions with both the Scottish and Wales devolved Governments on their experience of how the different models of legislation recently adopted in their respective countries are operating. They are also having discussions with the Children’s Commissioner and have underlined to government departments across Whitehall and to local authorities and other public bodies that consideration of children’s rights should be at the centre of policy-making and implementation.

However, we do not have from the Government a comprehensive and clear plan and programme of how this work is being brought together into a coherent, proactive strategy for addressing the UN committee report’s concerns and for taking this work forward. The Government urgently need to commit to this, with clear proposals and timescales, particularly for evaluating how the Scottish and Wales models are working and for full consultation with local authorities and other public bodies on how they might implement the “have regard” or the “reporting” duties. Obviously, ongoing dialogue with UNICEF and CRAE is vital, as is discussion on the legal issues and implications underlined by the noble and learned Lord, Lord Woolf.

The Government cannot just keep referring to the need to avoid bureaucracy and tick-box assessments—we all want to do that, and we do want that sort of approach from the Government in how they respond to the UN committee. What we need instead is a strategy that will achieve consistency and action across government and local authorities and address the huge variation across the country in how outcomes and impact on children’s rights are currently assessed.

There is already strong evidence that the measures taken in both Scotland and Wales are having a meaningful and practical effect on children’s lives. We know that this is how the change in mindsets and culture that we all want can be brought about. I look forward to hearing from the Minister how the Government plan to take this work forward in the light of today’s discussion on the amendment so that progress can be made before the Bill commences its Commons stages.

Children and Social Work Bill [HL]

Baroness Wheeler Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 8th November 2016 Lords Chamber

Moved by

[Baroness Wheeler]

52: After Clause 28, insert the following new Clause—
“Whistleblowing arrangement in relation to looked after children and children at risk
The Secretary of State shall issue a code of practice on whistleblowing arrangements which can be taken into account by courts and tribunals when the issue of whistleblowing arises in public bodies providing social services and children’s services, and local authorities, in relation to looked after children and children at risk.”

[Baroness Wheeler (Lab)]

My Lords, I will speak also to the rest of the amendments in this group on behalf of my noble friend Lord Wills, who is unfortunately unwell and not able to be here.

These amendments all aim to increase the protection for whistleblowers. These issues were discussed extensively at both Second Reading and in Committee, so I hope that we will not need to rehearse the arguments again today at length. On my noble friend’s behalf I thank the Minister and his ministerial colleague in the House of Commons, Margot James MP, and their officials for the way in which they have engaged with the issues. They devoted a great deal of time and attention to the dialogue with my noble friend, and he has underlined that they have been fair and open-minded throughout. As a result, he commented that this has been a model of how public policy should be developed in legislation and that it does the Government credit.

The importance of whistleblowing in exposing malpractice and wrongdoing and improving the delivery of public services is widely accepted. Whistleblowers have some protections but they need more. These amendments seek to provide extra protection for those working in organisations covered by the Bill.

Amendments 52 and 72 require the Secretary of State to issue in relation to the organisations covered by the Bill a code of practice on whistleblowing arrangements which can be taken into account by courts and tribunals when the issue of whistleblowing arises. Such a statutory code of conduct sends out to all organisations a powerful signal about the importance that Parliament attaches to providing adequate protection for whistleblowers to help drive necessary cultural change within organisations to encourage whistleblowing. As such, it is a more powerful protection for whistleblowers and acts more effectively in promoting a culture of transparency than the voluntary code of conduct promoted by the Government.

Amendments 53 and 73 provide improved protections for whistleblowers who are job applicants in the organisations covered by the Bill. As we discussed in Committee, this is a critical gap in protections for whistleblowers as job applicants are not considered workers and so do not receive the protections afforded under the Public Interest Disclosure Act. If an individual is labelled a whistleblower, it can be difficult for them to get work because they can find themselves blacklisted— not through a formal, centralised database but informally. The excellent Public Concern at Work campaign has cited a number of such cases where an informal and insidious blacklisting of former whistleblowers has taken place in the recruitment and selection process.

The Government have recognised this anomaly and, following the Francis report into the Mid Staffordshire NHS trust, introduced new protections for whistleblowing job applicants, but only for those working in the NHS. There is no logical reason why such protections should be so restricted, and Amendment 53 addresses this anomaly for those working in organisations covered by the Bill.

As noble Lords will know, my noble friend Lord Wills has moved a similar amendment on several occasions in the past and it has been resisted by Ministers on the grounds that they require more evidence that it is needed—so this time, the amendment recognises those concerns by seeking to give the Secretary of State a power to introduce such protections. This is on the assumption that, if and when such evidence is produced, the Secretary of State will issue the appropriate regulations. There is no provision for what sort of evidence will be required to persuade the Secretary of State to act in this way, but all recent experience in the organisations covered by the Bill suggests that it will be forthcoming.

The amendment seeks to take advantage of a relatively rare legislative opportunity to ensure that, as soon as it becomes even clearer that these protections are needed, the Government can act rapidly to implement them. Amendment 53B seeks to achieve the same effect as Amendment 53, but restricts its scope to children’s social care in an effort to meet any concerns about the scope of the Bill. I beg to move.

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I therefore hope the noble Baroness has been reassured by our engagement on this important matter and the action we are prepared to take, and will be happy not to press the amendments in this group.

[Baroness Wheeler]

My Lords, on behalf of my noble friend—and on my behalf—I am very grateful for the support we have received on all sides of the House from your Lordships on this issue and for the Minister’s response. Obviously, we are disappointed that he did not feel able to accept Amendments 52, 53, 72 and 73. On the issue of the need for a statutory code of practice, my noble friend made a strong case for this; indeed, the Public Concern at Work commission underlined that the code should be “rooted in statute”, thereby underlining that protection for whistleblowers is a statutory requirement with parliamentary enforcement. We agree with that. However, we welcome the Government’s commitment for a review of the working of the current non-statutory guidance next year and I hope the Minister will be able to provide the House with more information on this in due course, including reassurance that any review will be independent and will fully utilise the expertise available from leading organisations in this field.

However, I am delighted that the Minister has felt able to accept Amendment 53B. It is a real step forward —perhaps not as far as we would have wished, but it is progress nevertheless. Again, I thank the Minister and his colleagues in the other place on my noble friend’s behalf. There is still much more work to be done and there is a need for a continuing dialogue about when this power will now be added to the Bill and when it will be exercised. The Minister will be in no doubt that my noble friend means business in pursuing this important issue. I beg leave to withdraw the amendment.

Amendment 52 withdrawn.

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Moved by

[Baroness Wheeler]

53B: After Clause 28, insert the following new Clause—
“Children’s social care: pre-employment protection of whistle-blowers
(1) Part 5A of the Employment Rights Act 1996 is amended as follows.(2) In the Part heading omit “in the Health Service”.(3) In section 49B, in the heading, at the beginning insert “The health service:”.(4) After section 49B insert—“49C Children’s social care: regulations prohibiting discrimination because of protected disclosure(1) The Secretary of State may make regulations prohibiting a relevant employer from discriminating against a person who applies for a children’s social care position (an “applicant”) because it appears to the employer that the applicant has made a protected disclosure.(2) A “position” means a position in which a person works under—(a) a contract of employment, (b) a contract to do work personally, or(c) the terms of an appointment to an office or post.(3) A position is a “children’s social care position” if the work done in it relates to the children’s social care functions of a relevant employer.(4) For the purposes of subsection (1), a relevant employer discriminates against an applicant if the employer refuses the applicant’s application or in some other way treats the applicant less favourably than it treats or would treat other applicants for the same position.(5) Regulations under this section may, in particular—(a) make provision as to circumstances in which discrimination by a worker or agent of a relevant employer is to be treated, for the purposes of the regulations, as discrimination by the employer;(b) confer jurisdiction (including exclusive jurisdiction) on employment tribunals or the Employment Appeal Tribunal;(c) make provision for or about the grant or enforcement of specified remedies by a court or tribunal;(d) make provision for the making of awards of compensation calculated in accordance with the regulations;(e) make different provision for different cases or circumstances;(f) make incidental or consequential provision, including incidental or consequential provision amending—(i) an Act of Parliament (including this Act),(ii) an Act of the Scottish Parliament,(iii) a Measure or Act of the National Assembly for Wales, or(iv) an instrument made under an Act or Measure within any of sub-paragraphs (i) to (iii).(6) Subsection (5)(f) does not affect the application of section 236(5) to the power conferred by this section.(7) “Relevant employer” means any of the following that are prescribed by regulations under this section—(a) a local authority in England;(b) a body corporate that, under arrangements made by a local authority in England under section 1 of the Children and Young Persons Act 2008, exercises children’s social care functions;(c) a person who, as a result of a direction under section 497A(4) or (4A) of the Education Act 1996 as applied by section 50 of the Children Act 2004 (local authorities in England: intervention by Secretary of State) exercises children’s social care functions;(d) the council of a county or county borough in Wales;(e) a person who, as a result of a direction under any of sections 153 to 157 of the Social Services and Well-being (Wales) Act 2014, exercises children’s social care functions;(f) a council constituted under section 2 of the Local Government etc (Scotland) Act 1994.(8) A “local authority in England” means—(a) a county council in England;(b) a district council;(c) a London borough council;(d) the Common Council of the City of London (in their capacity as a local authority);(e) the Council of the Isles of Scilly;(f) a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009.(9) “Children’s social care functions”— (a) in relation to a relevant employer referred to in subsection (7)(a) to (c), means functions of a local authority in England under—(i) any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970 so far as relating to those under the age of 18;(ii) sections 23C to 24D of the Children Act 1989, so far as not within sub-paragraph (i);(iii) the Children Act 2004;(iv) any subordinate legislation (within the meaning given by section 21(1) of the Interpretation Act 1978) under the legislation mentioned in sub-paragraphs (i) to (iii);(b) in relation to a relevant employer referred to in subsection (7)(d) or (e), means any functions relating to the social care of children in Wales that are prescribed by regulations under this section;(c) in relation to a relevant employer referred to in subsection (7)(f), means any functions relating to the social care of children in Scotland that are prescribed by regulations under this section.(10) The Secretary of State must consult the Welsh Ministers before making regulations under this section in reliance on subsection (7)(d) or (e) or (9)(b).(11) The Secretary of State must consult the Scottish Ministers before making regulations under this section in reliance on subsection (7)(f) or (9)(c).(12) For the purposes of subsection (5)(a)—(a) “worker” has the extended meaning given by section 43K, and(b) a person is a worker of a relevant employer if the relevant employer is an employer in relation to the person within the extended meaning given by that section.”(5) In section 230(6) (interpretation of references to employees, workers etc) for “and 49B(10)” substitute “, 49B(10) and 49C(12)”.(6) In section 236(3) (orders and regulations subject to affirmative procedure) after “49B,” insert “49C,”.”

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[Baroness Wheeler]

My Lords, I again offer the support of these Benches for Amendments 69 and 71, the case for which has been comprehensively set out and argued today by the noble Baroness, Lady Walmsley, and other noble Lords, and in the debate in Committee. Like other noble Lords, I am grateful for the excellent briefings and guidance from the Children’s Rights Alliance for England, the Equality and Human Rights Commission and the Joint Committee on Human Rights. All three bodies underlined the key opportunity presented by the Bill to promote the rights and well-being of children in care and care leavers by placing a statutory duty on public authorities to have due regard to the UN convention.

Like other noble Lords, I hope that the Minister has reflected on his assertion in Committee that a statutory UNCRC duty would not have any real impact on children’s lives. He knows that the 2010 ministerial commitment to give due consideration to the CRC in all new legislation and policy has not led to the widespread change in mindset and culture across government departments that he acknowledges is vitally needed. Implementation of the Written Ministerial Statement has been both piecemeal and ad hoc, as we have heard.

The CRAE freedom of information discovery, and the single Department for Education example across government of any detailed analysis of the CRC and children’s rights being undertaken—and then only on one Bill—show just how far away we are from children’s rights routinely informing the development of law, policy and everyday practice nationally and locally. Indeed, the EHRC has pointed out that the DfE did not go into the level of detail that would have been expected had the statutory obligation been in force. For example, it did not look at the numbers of children affected or of those disproportionately affected, or provide a sufficient level of evidence to explain how conclusions on projected impacts had been reached. I look forward to hearing the Minister’s view of the experience of embedding children’s rights in law in Scotland and Wales, because there is strong evidence, as noble Lords have underlined, that the measures taken in both countries are starting to have the meaningful and practical effect he seeks.

Under Amendment 71, a children’s rights framework would embed the CRC within children’s services and public authorities working with children and families in England. Although many local authorities make reference to the CRC, few have an explicit child rights plan or strategy in place, and there is limited knowledge and understanding of the value of the child rights impact assessment as a key tool. A consistent approach to policy and practice is needed, using the CRC as a framework with nationally available guidance and support.

In a period of unprecedented cuts to public and local authority services, using the CRC to help safeguard children’s rights and ensure a rights-based approach to services is more important than ever. The CRAE has emphasised that too many children continue to experience daily systematic violations of their rights. Just last week we saw Shelter’s shocking report estimating that at least 121,000 homeless children in England, Scotland and Wales face Christmas in stopgap lodgings—the highest figure since 2007.

As the noble Lord, Lord Ramsbotham, underlined, this year’s report from the UN Committee on the Rights of the Child expressed serious concern at the impact of the Government’s recent fiscal policies and allocation of resources, and the disproportionate effect on disadvantaged children. I hope the Government will seize the opportunity presented by these amendments to address these very worrying concerns.

[Lord Nash]

My Lords, I am grateful to noble Lords for their amendments and for raising the important matter of the United Nations Convention on the Rights of the Child. This Government recognise the importance of the UNCRC and are fully committed to giving due consideration to the articles when making new policies and legislation. I also reassure noble Lords that one of the top priorities for this Government is the safety and well-being of children. In July, the Department for Education set out its vision of how reform of the children’s social care system will bring about improved outcomes for all children, particularly the most vulnerable.

At a local and national level, listening to the voices of children when determining what policies to develop, how those polices should be implemented and what services should be developed, should be second nature to us. Indeed, the Children Act 1989 requires that the local authority shall give due consideration to the child or young person’s wishes and feelings, having regard to their age and understanding, when taking decisions about them. We believe that the way to promote children’s rights is for strong practitioners locally to listen to children and to act in ways which best meet their needs. A duty alone will not do that, and risks practitioners focusing on the wording of the legislation rather than on practice. The Government will consider how best to strengthen compliance with the convention in a way which promotes better practice and a culture of focusing on children’s rights. In doing so, we will pay close attention to what is happening in Scotland and Wales.

Noble Lords will know that earlier this year in Geneva, the UK was commended for great strides made in legislation and in guidance to ensure that all children are protected from harm. Since the summer, the Government have reaffirmed their commitment to the UNCRC through a Written Ministerial Statement from the Minister for Vulnerable Children and Families. This reinforced our view that to achieve implementation of the UNCRC, every department across Westminster must be proactive in considering children’s rights in policy-making. This was followed up with a letter from the DfE Permanent Secretary, Jonathan Slater, to his counterparts across government, challenging them and all their officials to keep the principles and conventions of the UNCRC at the centre of their policy-making and implementation, and to engage children and young people in the process. We are talking to the Children’s Commissioner about how she might hold the Government to account in this respect. It is important that officials are equipped with the right knowledge and skills to make sure they can reflect children’s rights within a policy framework, and we are looking at how to introduce a cross-Whitehall learning and development programme to help officials develop the best policies that take account of children’s rights and work effectively for children.

Noble Lords who have tabled these amendments clearly have considerable expertise and experience in this area, and they raise a very important point about whether more can be done in England to ensure that children’s rights are reflected adequately in our policy-making and implementation. I am grateful to noble Lords for tabling these amendments. I emphasise, however, that introducing new duties is not a step to be taken lightly. There are a number of additional steps we could consider, and we are keen to explore the benefits of the different potential approaches before deciding what further action might be taken. We therefore intend to revisit the significant action already taken to embed the UNCRC across Whitehall and beyond, and consider where there are opportunities to go further to better achieve the outcome we all want: for the rights of children to inform our policy thinking and service delivery.

Children and Social Work Bill [HL]

Baroness Wheeler Excerpts

Tuesday 18th October 2016 Lords Chamber

[Lord Nash]

My Lords, I shall speak first to Amendments 43 and 44, which concern changes to Clause 13. These changes remove the duty on local authorities to notify the Child Safeguarding Practice Review Panel of deaths of children in regulated settings and of looked-after children. Under the original wording of the clause, notifications would have been required irrespective of whether these children had been abused or neglected. I assure noble Lords that this in no way weakens the scope of the panel’s powers. All cases where the local authority knows of or suspects abuse or neglect, including of looked-after children and of children in regulated settings, such as children’s homes and secure institutions, must still be notified to the panel under the general duty to notify cases of death or serious harm. These amendments will mean that cases for which the panel has no specific remit should not be notified.

The addition of a new notification criterion under new Section 16C(1)(b) clarifies that it is the responsibility of the local authority where the child is normally resident to notify when a child dies or is seriously harmed while outside England and when abuse or neglect is known or suspected. This responsibility to notify when the child dies or is seriously harmed while outside England will provide local authorities with clear accountability for notifying such events.

I should stress that “outside England” includes where the incidents occur in the devolved Administrations as well as overseas. I should also stress that local authorities will be obliged to notify only incidents of which they are aware and which they know or suspect meet the criteria. The provision will enable the panel to consider potentially serious events that occur outside England. The amendment also makes clear which local authority is responsible for notifying relevant events that take place within England. By making the local authority in which an incident occurs responsible for the notification, it is more likely that incidents will be notified swiftly.

Amendment 44 is a technical change in response to changes made by Amendment 43. The removal of paragraph (d) of new Section 16C(1) means that the requirement for regulated settings to be given a meaning in regulations is redundant.

I shall speak also to Amendments 49, 50 and 51, concerning child death reviews. Amendment 49 provides further clarification of the scope of the child death review arrangements. It will explicitly enable child death review partners to review the death of a child not normally resident in their local area in order to ensure that improvements can be made, especially in the area where the death occurred. Amendment 50 is a minor technical amendment to allow for the introduction of Amendment 49. Amendment 51 sharpens the terminology of what should be reviewed and analysed by child death review partners by making it clear that they should review the death or deaths relevant to the welfare of children in the area or to public health and safety.

Clarifying the powers of the child death review partners to enable them to review the deaths of children not normally resident in the area will increase the opportunities for improvements in learning with regard to child deaths. For example, if a child normally resident out of the country dies as a result of an accident in a play area in an English local area, it is currently unlikely that the learning from that death will be disseminated to the local area in which the child died. We want to improve the opportunities for local areas to identify what more can be done to reduce the risks of any child dying, whether or not they are normally resident in the relevant local area. These amendments will clarify the responsibilities of child death review partners to do this where they consider it appropriate. I beg to move.

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister for his introduction to this group of amendments and I will be brief. As we stated in Committee, we broadly welcome the section on the child death reviews, and now these amendments that address the outstanding issues and concerns that were raised. In particular, we note the Government’s response in Amendments 43 and 44 to the Delegated Powers and Regulatory Reform Committee’s concerns in its first report on the Bill that the Bill should contain a definition of the regulated settings in which a child death would trigger a notification to the safeguarding practice review panel. The committee rightly underlined that the definition of regulated settings would be fundamental in determining the scope of a local authority’s duty to provide information about cases to the panel.

The Minister, in his response letter of 11 October to the committee, and now in Amendment 43, has, in our view rightly, come to the conclusion that a broader definition under Clause 13 of notification by local authorities to the panel of a child’s death or of serious harm should also apply to looked-after children and children in any other regulated setting. Amendment 44 therefore removes the reference to regulated settings from the Bill, and we welcome this.

Amendment 49 enables child death review partners to review child deaths taking place in an area where children are not normally resident. We welcome this, too, in addition to the related powers that they will have to seek and analyse information related to such cases. The Wood review into the role and functions of local safeguarding children’s boards and children’s deaths overview panels highlighted the substantial problems in gathering and analysing data on child deaths. This proposal, combined with the general obligations that will be imposed with regard to gathering, providing and reporting will, I hope, begin to address this important issue.

Amendment 43 agreed.

Children and Social Work Bill [HL]

Baroness Wheeler Excerpts

Monday 11th July 2016 Grand Committee

[The Earl of Listowel (CB)]

My Lords, this of course brings back memories of the home for adults with learning disabilities that was so well documented on the “Panorama” programme a while ago. While I support the principles that the noble Lord has just laid out, I would point out that many people working in this area nowadays will be working for private businesses. Most children’s homes are in private hands and many foster care agencies are now private, so in that sector there may be well laid-out regulations regarding whistleblowers. Perhaps the Minister could write to us, or have further conversations, to reassure me, at least, that there are whistleblowing protections for those working in the private sector with vulnerable children.

[Baroness Wheeler (Lab)]

My Lords, we are very pleased to support this group of amendments, to which my noble friend Lord Watson has added his name. My noble friend Lord Wills has made a strong case for seizing the opportunity under the Bill of extending the whistleblowing arrangements and protections currently applicable in the NHS to those working in public bodies providing social services and children’s services, and local authorities, in respect of looked-after children and children at risk of harm, and well as to social workers. The Francis report into the Mid Staffordshire NHS Trust was the trigger for enhancing important whistleblowing protections in the NHS, and it is right that we now have similar effective arrangements covering the provision of vital social services.

Under Amendments 127 and 137, which would bring in new clauses after Clauses 14 and 26, the Secretary of State would be required to issue a code of practice on whistleblowing arrangements that could be taken into account by courts and tribunals when whistleblowing arises in public bodies providing social services and employing registered social workers. My noble friend rightly refers to the whistleblowing commission’s code of practice for employers, workers and trade unions, published by the charity Public Concern at Work, which could provide the model or framework for the proposed code. It would also underline that protection for whistleblowers is a statutory requirement with parliamentary enforcement. The commission’s recommendation was that the code should be “rooted in statute”, and we support that.

Current protections offered to staff who challenge poor standards of care, both those covering widespread systemic failure and those involving day-to-day concerns about unsafe or poor practice, are certainly inadequate for those making disclosures in the public interest. The joint Community Care/UNISON workplace zone on whistleblowing underlines that many social workers and care professionals are too afraid to blow the whistle on poor practice. Their regular surveys of social workers give detailed accounts of staff trying to report their concerns, only to come up against bullying colleagues, managers with what they refer to as “selective hearing” and processes that protect the organisation over its staff—the pervasive and powerful organisational culture that my noble friend has identified as operating in workplaces, particularly in large-scale institutions where you have to be very brave and persistent to raise concerns.

The CQC’s quick guide to whistleblowing and the Ofsted reports on whistleblowing about safeguarding in local authority children’s services would give little comfort and reassurances to potential whistleblowers regarding their future security and career. Ofsted has no regulatory powers to investigate whistleblowing complaints but can use them as a trigger to bring forward inspections of council services. The CQC guide outlines clearly the procedures to take but its preface stresses to the staff member raising the issue:

“We don’t have any powers to protect you from action taken against you by your employer”.

The proposed code of practice on whistleblowing arrangements, with the enforcement of the Secretary of State providing guidance that can be taken into account by courts and tribunals, would help to provide reassurance to potential whistleblowers and provide practical guidance to both employers and staff.

Amendments 128 and 138 specifically address the discrimination that whistleblowers who have made a protected disclosure under the Employment Rights Act 1996 in their previous employment can face when applying for a job. The current exclusion of job applicants not considered workers under the Public Interest Disclosure Act can result in whistleblowers being blacklisted and finding it virtually impossible ever to get work again. As noble Lords have stressed, this situation should not be allowed to continue.

One of the key provisions of whistleblowing policies is the requirement for employers to provide assurance to the worker that he or she will not suffer detriment for having raised a concern—in other words, to make every effort to provide protection to whistleblowers who feel they may be vulnerable. These amendments would help to address the current gaps in providing the protection that whistleblowers urgently need and deserve.

[Baroness Pinnock]

My Lords, I shall not repeat what many other noble Lords have said about whistleblowing, but confirm that we on this side totally support what has been said and the amendments that have been tabled.

Children and Social Work Bill [HL]

Baroness Wheeler Excerpts

Monday 4th July 2016 Grand Committee

Moved by

[Baroness Wheeler]

41: Clause 2, page 2, line 41, at end insert—
“(2A) A local authority in England must conduct an assessment of the services required to meet the needs of care leavers in relation to—(a) health and well-being;(b) education and training;(c) employment;(d) accommodation;(e) participation in society.(2B) The results of the assessment must be published online.(2C) A local authority in England must provide services that meet the needs identified in the assessment carried out under subsection (2A) and which also meet the national minimum standard.”

[Baroness Wheeler (Lab)]

My Lords, our Amendments 41, 42 and 45 to Clause 2 and Amendment 54 to Clause 3 aim to make the local authority offer to care leavers a firm, proactive commitment to support rather than the you-approach-us emphasis currently in the Bill. We strongly agree with the Alliance for Children in Care and Care Leavers that the Bill does not go far enough to make a real difference to young people’s lives and that strengthening the local offer to all care leavers up to the age of 25 is a key opportunity to transform the standard of support that care leavers can expect. Our Amendments 47 and 74A deal with this important entitlement issue.

Noble Lords underlined the need to ensure the high standards of support for children in care and care leavers, as well as the best opportunities and access to the services that can help reduce the inequalities they face and set them on a positive path to the future. Amendment 41 places a statutory duty on the local authority to carry out an assessment of the services to meet care leavers’ health, well-being, education, training, job, housing and social participation needs, backed up by the duty to provide those services.

Together with other noble Lords, we stressed the need for a national minimum standard of care for the quality and extent of services which should be offered to care leavers. Amendments 41 and 43 emphasise this. 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.

As part of these considerations on the importance of minimum service standards, I briefly for the record draw on the experience and findings of a recent major project, New Belongings, in which I was privileged to take part. It was a three-year project funded by the Department for Education and overseen by the Care Leavers’ Foundation. It involved both elected and staff leadership, practitioners from local authorities and care leavers. Its vision was to work with local authorities to improve outcomes for care leavers by using the care leavers’ experience and wisdom to shape and make decisions about the services that should be provided.

The project’s second phase ended in April. The finishing touches are currently being made to its final report, and it is being independently evaluated. Some 28 local authorities in England took part, covering 90% of all care leavers aged 19 to 21. They worked mostly in clusters, which was invaluable in developing local plans and in sharing and learning from each other. Key requisites and criteria from the outset were that the project had the personal and active support of the chief executive and the council leader. That was crucial. They signed up to the care leavers’ charter and undertook to work with local businesses to offer opportunities and support to care leavers.

Local authorities listening actively to care leavers through regular surveys and engagement through a care leavers’ forum was also at the heart of the project. Care leavers need to be central to decisions about services—decisions about them as individuals and about overall services to care leavers. This ability to listen, the quality of engagement with the care leavers’ forum and the real commitment of senior council leadership to corporate parenting were, together with the effectiveness of personal advisers, the three main factors contributing to improved outcomes for care leavers in the majority of the project clusters.

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[Lord Nash]

The answer to that is yes.

[Baroness Wheeler]

My Lords, I thank the Minister for his response and for undertaking to look at the New Belongings project. He is right: there is a dissemination event for the project on Friday. It is very widely subscribed, I look forward to it and I am sure that a number of noble Lords and others here will be attending.

I am disappointed that the Government do not consider the need for a statement of minimum standards. Many local authorities do not have the support or resources to work out what is needed, so national standards and national guidance are very important. I understand what the Minister says about raising the bar and aiming high, but the reality is that many authorities struggle to reach the bar at all. This goes back to the issue of consistency of approach and avoiding variations in standards across the country that the noble Lord, Lord Ramsbotham, and others have referred to.

The introduction of the local offer arrangements in themselves do not necessarily lead to a step change in improvements. Detailed consideration needs to be given to how they will operate in practice, what impact they will have and how we can ensure that the offer is there for all and not just for some, depending on where they live. Minimum standards for services and the important issue of extending offers to care leavers up to the age of 25 are important, and I am grateful that the Minister said that he would look at this again. I shall read his comments very carefully but we will certainly return to these matters on Report.

Amendment 41 withdrawn.

--- Later in debate ---

[The Earl of Listowel]

My Lords, I omitted to say that there seems to be a real issue in the United States, France and this country about a large section of the population feeling left out. The success of globalisation has in many ways simply left them behind. This would be one helpful measure to ensure that those at the bottom of the heap are better treated and feel better treated.

[Baroness Wheeler]

My Lords, Amendments 75 and 135 have been comprehensively argued and we have a great deal of sympathy with the intention to include in the Bill reference to the UN Convention on the Rights of the Child to promote the rights and well-being of children in care and care leavers. As the noble Baroness, Lady Walmsley, pointed out, general duties on the Secretary of State exist in relation to health and education, so it is important to consider this issue in the Bill.

Specifically on the UNCRC’s latest report, the Minister underlined at Second Reading that the Government fully recognised the importance of the committee’s work and were looking closely at the report. The report has again warned, as we heard, of the growing and disproportionate impact of austerity and spending cuts on disadvantaged children. It would be helpful if the Minister explained further his thinking on the report and what are the Government’s plans for responding to it.

We recognise the importance of upholding the rights of children in care and care leavers and on ensuring their well-being. Establishing at the end of Clause 3 a duty for the Secretary of State to promote the rights of children and young people covered by the Bill in accordance with the convention and other relevant legislation reinforces the commitment to provide the services that care leavers need. It also defines well-being, which we asked for, and to include physical, mental health and emotional well-being; the skills needed to contribute to society; and the importance of social and economic well-being, for which we have all recognised the need.

The provisions in Amendment 135 would be particularly important if Clauses 15 to 19 remain in the Bill. The Minister knows that there are deep concerns at the wide-ranging scope of these clauses, which we will debate on later amendments. This amendment would place a duty on public bodies and any person providing children’s services of a public nature to have due regard to the UN convention, particularly in functions relating to safeguarding or promoting the welfare of children—it is vital for this protection to be included if the scope of Clause 15 is as wide-ranging as is currently feared—and for regular reports to be published on how the requirement is being met.

Importantly, the amendment refers to this report as needing to be in a format “accessible to children”. In this context, I commend the valuable programme of work currently being undertaken by Coram Voice to find out from young people in care themselves what well-being being actually means to them. Its survey of children in care, Your Life, Your Care, began last year and aims at measuring the quality of their care experience and their own sense of well-being under what it calls the four Rs—relationships, recovery, resilience-building and rights, which very much resonate with the issues and approaches that have come up under the Bill. It can be used to help local authorities demonstrate how they are meeting Ofsted requirements, for example: what they are doing well and what they could improve.

Amendment 76, tabled by the noble Baroness, Lady Bakewell, and supporting the Joseph Rowntree Foundation call for the Secretary of State to have power to introduce a social justice premium grant to local authorities for services or grants for care leavers, reflects the need to find responses to the huge funding pressures faced by local authorities and the impact of the scale of the cuts in recent years. The overall aim of improving care leavers’ life chances and closing the gap between them and children who have not been in care is certainly one we all fully support. The Joseph Rowntree Foundation underlined that this policy is in the early stages of development ahead of the application of its anti-poverty strategy later this year and we look forward to seeing further work on this. The aim of basing the grant and calculations of harm over the care leaver’s lifetime is also laudable but a very challenging proposition.

Overall, it is worth emphasising that further premiums or special funding at the Secretary of State’s discretion, however welcome in the current context, are not the answer to medium or long-term funding problems. Local authorities must be adequately resourced to undertake the work and responsibilities placed on them, and Labour is strongly committed to achieving that. If we listen to care leavers themselves to help shape their services to them, as we all advocate, we know that worrying about money, fear of not being able to pay the bills and getting into debt that can never be paid off is at the heart of a lot of the problems they face.

Queen’s Speech

Baroness Wheeler Excerpts

Wednesday 3rd June 2015 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, I shall speak about the NHS and fully endorse the deep concerns of a number of noble Lords at how promises in the gracious Speech such as closer working integration, seven-day working and better access to GP and mental health services can be met in the light of the scale of the huge financial and quality challenges facing the NHS, and while social care continues to take such a heavy burden in cuts.

Today, however, I shall speak about NHS specialised services and rare diseases, which present a major challenge to the NHS on no lesser a scale than some of those already referred to. In so doing, I declare an interest as chair of the Specialised Healthcare Alliance, a cross-party coalition of more than 100 patient-related organisations supported by 16 corporate members, which campaigns on behalf of people with rare and complex conditions. The alliance works closely with Members across parties. The noble Earl, Lord Howe, the former Lord Speaker, the noble Baroness, Lady Hayman, the noble Baroness, Lady Jolly, and my noble friend Lady Pitkeathley are all past chairs or vice-chairs of the alliance, so I am part of an illustrious bunch. They have all been strong advocates for quality and coherent specialised healthcare services. Of course, this House has a proud record of pioneering the development of national commissioning and standards for specialised services, under the Health and Social Care Act 2012.

Collectively, tens of thousands of people call on these services for conditions such as HIV, cystic fibrosis, multiple sclerosis, muscular dystrophy, epilepsy, haemophilia, leukaemia and other cancers and renal dialysis, among many others. Alliance membership thus ranges from the larger charities such as Macmillan and the Cystic Fibrosis Trust through to smaller charitable organisations, established by people with close personal experience of a condition and covering such diseases such as Niemann-Pick and Guillain-Barré syndrome. Medium-sized charities in the alliance’s membership support patients requiring complex but not uncommon care. The Terrence Higgins Trust, the National AIDS Trust, the Brittle Bones Society and Roald Dahl’s Marvellous Children’s Charity are just some of these.

Specialised services are a vital part of the NHS, affecting large numbers of patients and their families and often providing the last resort in the care pathway. The annual budget is £14.6 billion, accounting for more than 10% of the overall NHS budget. Services include some of the most advanced technologies and procedures, playing a crucial role in fostering innovation in clinical expertise and service provision. The challenges and opportunities facing specialised services reflect those facing the NHS as a whole. Commissioning and accountability for standards of care are the main two of these.

First, there have been considerable financial pressures on NHS England’s specialised commissioning budget in recent years, arising principally from inaccurate budget-setting based on flawed assumptions about historic spending prior to the last NHS reforms, alongside an overspend in the cancer drugs fund and some increase in specialised activity on the part of providers. Fortunately, the budget is now in balance, but deep concerns remain that new and not-so-new service developments have stayed in the long grass of NHS England’s decision-making structures for an unforgivably long time. In April 2013, NHS England promised a rapid review of the principles underlying its investment decisions in specialised care. Two years on, a not-so-rapid review is belatedly nearing completion, but it took a legal challenge to prompt NHS England into action. In the mean time, patients have been unable to access a whole range of treatments, causing huge concern and anxiety, and in some cases jeopardising their health. Moreover, in future, patients will still need to await the deliberations of NHS England on new services and treatments. I hope the Minister acknowledges that NHS England needs urgently to refine its policy-making processes and ensure that they become robust, timely and efficient, as per the wishes of the patient and the clinical community.

Secondly, and fundamentally, the Health and Social Care Act made NHS England accountable for prescribed specialised services following the confusion and inertia that previously surrounded local budget-holding and accountability, which was vested in primary care trusts. NHS England is now pursuing “collaborative commissioning” for specialised services with local CCGs. Its March guidance on this subject contained mutually contradictory statements, endorsing the role of mandatory national service specifications but also a direction of travel towards place-based—that is, local—commissioning. Although the need for collaboration between NHS England and CCGs to ensure integration between services is fully recognised, this must not be at the expense of NHS England’s clear accountability for the specialised commissioning budget and prescribed services.

We know from NHS clinical commissioners that CCGs will not be bound by national specifications or commissioning policies where they hold the budget for specialised services. IVF, where less than 20% of CCGs commission in accordance with NICE guidelines and an increasing number do not commission at all, shows the potential vulnerability of specialised services in this region. No assurances have been given as to where the budget will lie in 2016-17. NHS England has confirmed that it will develop proposals for place-based budgeting for 2016 and onwards for consideration later this year. This stands in stark contrast to the endorsement of national standards in the earlier commissioning guidance. It is also fundamentally counter to the wishes of the patient community and cross-party consensus under the 2012 Act.

I hope the Minister can reassure the House that the provisions of the 2012 Act will be adhered to in the future provision of specialised healthcare. Pooled resources and expertise must be retained for specialised commissioning at national level. This is absolutely essential to the maintenance of national service standards and clinical access policies across the country, and to providing the services that patients need, depend on and deserve.