Children and Social Work Bill [HL]

Baroness Pinnock Excerpts

Tuesday 18th October 2016 Lords Chamber

[Lord Watson of Invergowrie (Lab)]

My Lords, the noble Lord, Lord Ramsbotham, has been called away and has asked me to move Amendment 33, which I am pleased to do, because I shall speak also to Amendment 35 in my name in the group.

Clause 29 refers, some would say euphemistically, to “different ways of working”, and others have spoken of the need for “innovation”, both of which are essentially code for exempting local authorities from some requirements hitherto imposed by children’s social care legislation. We hold strongly to the view that child protection and wider social care should not be run by an organisation seeking to make a profit. That is why we joined Liberal Democrat and Cross-Bench Peers, as well as the right reverend Prelate the Bishop of Durham, in Committee, demonstrating the breadth of support for that requirement to appear in the Bill.

The Minister has consistently been asked to explain what problem Clause 29 is designed to address. I have to say that from our point of view he has been unable to do so. At the briefing on this part of the Bill held last week, the Children’s Minister was also unable to come up with a convincing answer. A representative from three London boroughs highlighted one aspect of their joint operations, but it did not seem to be in an area in which they were constrained from operating as things stand. Indeed, those London boroughs were in a list of local authorities that I read out in Committee, all of which have been able to innovate within existing legislation.

However, I do not want to pre-empt the argument that we will advance when we come to consider Amendment 54, tabled by the noble Lord, Lord Nash, on our second day of Report on 8 November, so I will say no more about the detail of that just now.

In Committee, the noble Lord, Lord Ramsbotham, acknowledged that an amendment seeking to give extra force to an existing regulatory ban on profit-making in children’s services by enshrining it in primary legislation did not sit easily in a group of clauses headed “Care and adoption proceedings in England and Wales” but, he added, neither did any fear that the Government might use Section 1 of the Children and Young Persons Act 2008, which enables the social care functions of a local authority to be discharged by a body corporate, to defy that ban. Such a fear was articulated by the Association of Directors of Children’s Services, as well as many other organisations delivering children’s services, which, in its response to a 2014 consultation on draft regulations concerning a significant extension to children’s services that could be outsourced, strongly rejected any profit motive in their provision. The association wrote:

“Decisions taken about a child’s life should only ever be based on what is”,

best for,

“the child as assessed by skilled and qualified social workers and the courts system. These decisions cannot, and must not, be subordinate to the pursuit of financial profit”.

The Government’s response at the time included the insertion of a prohibition on profit-making into the final regulation of those services that could be outsourced, and the Minister assured noble Lords at Second Reading that the Government had no intention of lifting that ban. However, many in your Lordships’ House, not to mention the plethora of organisations which have contacted noble Lords since the Bill was published, feel a distinct sense of unease that his assurance sits awkwardly with Clauses 29 to 33, which allow local authorities to opt out of some of the provisions in existing regulation and legislation.

In his recent review, Sir Martin Narey questioned profit-making, despite the fact that the Government repeated their assurance on the ban in their submission to him. As events in July demonstrate, Ministers come and go, often unexpectedly, and government policy changes abruptly as a result. I need only mention the words “grammar schools” as proof of that. There have been too many government U-turns in recent history for any noble Lord to feel entirely comfortable that all will be well with the ban on profit-making service deliverers in future.

The simplest way to assure practitioners and noble Lords who feel the same way as I do on the issue would be for the Minister to confirm that the Government will reconsider their refusal to enshrine their regulatory function in the Bill. I would therefore be grateful if he would agree to take the matter away for further consideration and come back to me before Third Reading. I should say that when I say “me”, I mean the noble Lord, Lord Ramsbotham.

Amendment 35 has been resubmitted and is of the type that has a habit of surfacing regularly, because it seeks to get the Government to collect and collate information, publish a report and submit it—and, by extension, themselves—to Parliament to be held to account. It could be said that that is fairly basic democracy, but rarely do the Government agree. They usually cite some bureaucratic reason for being unable to comply. On this occasion, it is primarily an attempt to ensure that local authorities, rather than the Government, are held to account. If the Government are not minded to accept this amendment, then perhaps the Minister will inform noble Lords how he intends local authorities to be benchmarked. How are they to be measured in terms of how they deliver services to children in and leaving care? If there are no known outcomes, how is progress to be measured?

The Government have conceded that children’s services in some areas are not delivering the best possible outcomes for vulnerable children. Society as a whole has a responsibility to do better for these groups of children. If the Prime Minister was serious about wanting to create a country that works for everyone, these are exactly the type of young people whom she needs to focus on, because they are those who all too often get left behind. Ministers have identified improving outcomes as a priority and this is the driver for the DfE innovation programme and for the controversial innovation clauses, which as I said will be debated next month. However, the only way to measure whether innovation is working is to have an outcomes framework with annual reporting obligations. That would enable comparisons as to how different local authorities were performing and test whether different models for delivering social services are, or perhaps more importantly, are not working. It would also allow good practice to be identified and—crucially—to be shared.

The most important aspect of the outcomes highlighted in Amendment 35 is that they are about children’s well-being and life chances. This must be at the heart of any innovation, however that is described and no matter the context in which it is operated. It is essential that we make sure that changes are not made solely or even mainly for the sake of efficiency savings, which is tempting at a time of increasing demand and decreasing resource. I beg to move.

[Baroness Pinnock (LD)]

My Lords, it seems to me fairly demeaning that the state cannot collectively care for vulnerable children without resorting to a profit motive. In all the private meetings we have had with Ministers in regard to the Bill, we have been reassured that there is no background intention on the part of the Government to enable services to be outsourced to give a profit motive. That would require a change in legislation. The period of changes that we are now undergoing needs guarantees and I point to a report that I believe was in the Guardian newspaper a couple of days ago, which refers to Sandwell Council having been ordered to contract out its children’s services. It will mean,

“that services, including child protection investigations, making applications to the courts to have children removed from their families and the management of children in need plans will be outsourced to an independent organisation, and accountability will only be back to the council through a contract”.

I thought we would have learned enough from the academisation of schools to know that contracts do not necessarily provide sufficient accountability, either for financial management or—certainly not—for providing services in the best interests of children. We are talking about the most vulnerable children. As far as I can find out, no other country allows this sort of intrusion by a private company into the lives of vulnerable families, and decisions about the welfare and protection of children to be taken by private companies which are not directly accountable to the state, either to the Government, or in this case to local authorities. It raises a fundamental principle. As we have discussed at great length throughout the Bill, we are all very concerned to provide the best possible protection and care for vulnerable children. However, we are possibly undermining that by allowing and enabling the outsourcing of children’s services for a profit motive, which by its very nature may result in children not being first and foremost in the mind of the company undertaking the work.

For those reasons, we totally support the amendment in the name of the noble Lord, Lord Ramsbotham. We hope that the Minister will be able to give a categorical assurance that the outsourcing of children’s services for profit will not take place, and that, failing that, he will include such an assurance as an amendment at Third Reading.

[Lord Warner (CB)]

My Lords, I shall speak to Amendments 33 and 35, to which I added my name. It is very clear from the Bill that government Amendment 54 is much narrower than Amendment 33. I do not want to get into the detail of that amendment—we will discuss it in due course—but it relates only to the power-to-innovate section. From my reading of the Bill, it does not have the more general effect that the amendment of the noble Lord, Lord Watson, does. So there is still an issue, even if one accepts the good offices of the Government on Amendment 54.

Perhaps we might explore a little more the issue of profit. We started to do this in Committee and I think that we got into a bit of a muddle. I am not a staunch supporter of public monopolies, so I do not have a problem with a degree of competition. I was at the event that LaingBuisson organised for the department on the whole issue of market-making, particularly in relation to failing organisations. I am not sure whether the Government have ever published the report that LaingBuisson produced—but it certainly did produce a report. I spoke at the conference, where there was a strong feeling that there were certain functions that needed to be carried out by a state body. I think that the question of whether you could contract out some of those services to a not-for-profit social enterprise or a voluntary organisation started to get a bit fuzzy, but there was a very strong core feeling that some of the services charged with statutory child protection were not areas that you could contract out. Then we went through a range of services where people were more or less comfortable with the idea of a degree of profit-making.

Here, it is important to be very clear about what we mean by profit-making. I mean profits that are available to be distributed to the shareholders of the organisation. I do not think that we could run very good services for children in their entirety if we did not accept some voluntary organisations running the services on a contract basis. However, that is on the basis that they are perfectly entitled to create a surplus in some of their activities in order to reinvest that money in the services they provide. That is a perfectly reasonable proposition, and we certainly do not want to put anything in the Bill that stops people having a contract with local authorities, not to make profits in the well-understood sense of profits to be distributed to shareholders but to run the services efficiently so that they can engender some kind of surplus that can be reinvested to make the services better, particularly as demand for some of those services increases over time. So the Government need to come clean about what happened when they had this interest and set LaingBuisson loose on the whole market-making issue, because it has raised a great deal of concern in the wider world of children’s social care about their intentions. A little more clarity on what they are in this area would be very welcome.

--- Later in debate ---

[Lord Warner]

My Lords, we now turn, slightly later at night than I would have liked, to Amendment 40 in my name, which seeks to encourage the Secretary of State to cover in guidance what happens when the actions of a court have implications for the way that a local authority discharges its safeguarding responsibilities but these cannot be considered by the new Child Safeguarding Practice Review Panel.

I have framed this amendment in the way I have because of my considerable concerns about what happened in the tragic case of Ellie Butler, who was placed by the court with her father, who brutally murdered her some months later. We went over that ground in Committee and I am grateful to the Minister for the letter he wrote to me on 9 September—I think he copied it to other Members who spoke in those Committee debates. However, that letter raises more questions than it answers.

Leaving aside the devastating consequences of the judge’s error of judgment—for which, incidentally, I would say a social worker would have been publicly crucified—the case raised some serious systems issues that the new review panel apparently cannot explore, because the Government are ruling that it would be unconstitutional for the panel to review the conduct of a judge. Yet the Minister’s letter makes it clear that the guidance in Working Together, published in 2015, does not specify that the judiciary is exempt from the serious case review process. We have here a conflict between what the Government’s guidance says and what the Minister is saying during the passage of the Bill.

This ruling by the Ministry of Justice that it is unconstitutional seems to mean that no learning can take place from erroneous behaviour by the courts. This is particularly important in this case, because of the judge’s rulings in relation to the local authority, which I think has also been discussed between the London Borough of Sutton, the MoJ and the Minister’s department. The judge’s ruling in relation to Ellie Butler meant that the London Borough of Sutton, which had been responsible, with some success, for protecting Ellie became debarred from exercising the safeguarding responsibilities conferred on it by Parliament. Sutton had been exercising its statutory duty to safeguard children in the borough—a duty, as I say, conferred on it by Parliament.

However, the judge appointed two private independent social workers to review the local authority’s decision-making. These seem to have advised that it was safe to place Ellie with her parents, a diametrically opposed view from that of the local authority which had been safeguarding this child. These social workers, commissioned by the court, appear to have had no background experience of Ellie’s situation and to have been a small partnership without the back-up resources and supervision, including legal resources, of a local authority. My understanding—the Minister may want to confirm or deny this—is that entities such as those independent social workers are unregulated. They will be on the register as a social worker but we know no more about them. They are on a panel list but there is no regulation, as I understand it, of partnerships of independent social workers. I would be grateful if the Minister and his department can tell me whether that is correct.

It gets worse, because the judge also seems to have ruled that the local authority should desist from contact with the family, thereby effectively debarring it from discharging its obligations to safeguard Ellie—or, indeed, the other child who, as I understand it, was in that household. Again, I understand that the various agencies were also told to remove information about the father from their records. This is all in the public arena. I am not making this up; it is what happened in this particular case. Sadly, history suggests that there may well be other Ellie Butler cases of some kind, which is why the Government are setting up a very important Child Safeguarding Practice Review Panel at the national level.

If the Government are to set up a new and more powerful national child safeguarding review panel, which I and I think other Members of this House totally support, it seems somewhat bizarre to prevent it exploring behaviour in the courts that could put vulnerable children at serious risk. For example, how are the courts to learn the errors of their ways and be provided with guidance and training? Perhaps as worrying is the clear lesson from this case that a court can apparently set aside a statutory duty placed on local authorities by Parliament to safeguard children in their area. To say the least, this is a very confusing situation in which to place local authorities and their hard-working social workers.

I know that there is supposed to be, or may have been, a meeting between the London Borough of Sutton and the President of the Family Division, but I am most intrigued about what the Family Division will do regarding this case. Will it give guidance to judges? Will it affect the training of judges in cases of this kind? Who knows? What we now have is a cloak of silence over what happens in the courts when something goes badly wrong.

My belief is that the Government should at the very least accept an amendment of the kind that I have produced. It would require the Secretary of State to make it clear in guidance what actually happens if the courts are to be excluded from the work of the new safeguarding review panel. How are social services departments to behave and learn from that experience? What relationship will there be with the Ministry of Justice and the courts for learning from mistakes, which will from time to time inevitably be made in the courts? Judges are human beings and not perfect. From time to time, they make mistakes. At the least, we have to make it clear in the guidance that goes out to local authorities about this new panel how they should deal with a situation of the kind that arose in this case. I beg to move.

[Baroness Pinnock]

My Lords, I thank the noble Lord, Lord Warner, for raising this issue. It looked a fairly innocuous amendment when I read it in the Marshalled List but out has come a really powerful case, based on an actual case that went before the courts, for a change in the Government’s legislation. So far as I can tell, there have been no answers as a result of that appalling tragedy, which was partly brought about by the judgment of the courts. The noble Lord, Lord Warner, is challenging the Government to be as responsive to errors in the courts as they are to errors in social services safeguarding practices. There is a case to be answered and I look forward to the Minister’s response.