Children and Social Work Bill [HL]

Lord Warner Excerpts

Tuesday 14th June 2016 Lords Chamber

[Lord Warner (Non-Afl)]

My Lords, this is an important Bill but, if I may say so, it is also something of a ragbag of a Bill, requiring careful and detailed scrutiny, given the concerns that have been expressed today.

Before turning to my concerns, I want to say a couple of words about my perspective. I was a director of social services in Kent in the 1980s and early 1990s, and was involved in implementing the landmark Children Act 1989. This was Conservative legislation, crafted with great care and consultation by the Department of Health—not an approach, I suggest, much in evidence with this Bill. More recently, I was the children’s social care commissioner for Birmingham City Council between March 2014 and May 2015, which gave me some interesting insights into the workings of the Department for Education.

We should be very clear about the context of the Bill. It is being considered by Parliament when the number of looked-after children is increasing unrelentingly. At the end of March 2015 it was over 69,000, compared with over 65,000 four years previously. The NSPCC has shown that the number of children at risk of abuse was 570,800 at the end of 2013-14—the highest number since these data started to be collected in 2010, although it is almost certainly higher now. The number of children in the child protection system has increased by 80% since 2002. However, local authority expenditure to cope with this inexorable rise in workload is going in the wrong direction. Planned expenditure on children for 2015-16 was less in cash terms than it was in the previous year, and there are serious workforce problems.

The latest government figures on the number of social workers to cope with this rising workload are depressing. There are 26,500 full-time equivalent children’s social workers in post, but nearly 5,000 of those are agency workers. The average turnover rate is 16% nationally but can be nearly 25% in some places, such as London. In scrutinising the Bill, we owe it to social workers to bear in mind that perspective. We have to consider whether any proposed changes are properly thought through and costed and ensure that they would not disrupt further a workforce and system under great pressure.

I turn to my major area of concern, which is Part 2, about which concerns have been expressed very succinctly by the Constitution Committee. This is part of a Bill which is framework in nature and gives very wide powers to the Secretary of State totally to reshape social worker regulation and professional development. Part 2 asks us to take a great deal on trust, especially when we remember the rash abolition in 2010 of the former system of social work regulation under the auspices of the General Social Care Council as part of the coalition Government’s bonfire of the quangos. The regulatory pieces then had to be rather hastily put together again in 2012, when regulation of social workers was passed to the Health and Care Professions Council, the HCPC. Now, the Government want to have another go with an ill-thought-through change, when, as far as one can see, the HCPC has done and is doing rather a good job.

The HCPC is currently conducting a public consultation on proposed amendments to the standards of proficiency for social workers in England. Consultations so far suggest that no major changes are required, and draft revised standards will be considered by the council in September. At that point, the council will start work on strengthening standards of education and training, including practice placements. We are entitled to have reasonable confidence in this body because the independent body that oversees the work of all health and care regulators—the Professional Standards Authority —says that the HCPC has consistently been among the best performing regulators within its statutory framework and against the standards of good regulation in annual performance reviews. It also has the lowest annual retention fee of all professional regulators.

It beggars belief that DfE Ministers now want to take wide powers to throw all the social work regulatory cards up in the air again, particularly when Department of Health Ministers have made no criticisms of the PSA or the HCPC. Moreover, as I understand it, Department of Health Ministers are discussing with interested parties a public consultation on new legislation in this area following a Law Commission report on the legislation covering all health and care professions, including social workers. This could well be followed by a draft Bill, which might be the subject of pre-legislative scrutiny by both Houses of Parliament.

What light can the Minister shed on how Part 2 fits into this wider piece of work going on in government? Why do DfE Ministers want to set up a totally new body for social workers, rather than build on the work of the existing regulator? What consultations have they had with Department of Health Ministers and officials and the professional bodies concerned? What are their dissatisfactions with the current regulators, and what estimate have they made of the costs of implementing Part 2, given that it cost about £18 million—and that was some time ago—to shut down the GSCC and transfer its functions to the HCPC?

Part 2 also has the rather puzzling feature that a DfE children’s Bill seems to give the Secretary of State for Education sweeping powers to amend the regulation of social workers who work with adults—currently, as I understand it, the responsibility of the Health Secretary, who is of course, as we have often debated in this Chamber, trying to integrate health and adult social care. Have I missed a machinery of government change somewhere along the way? I say frankly to the Minister that, as things stand, I will want a lot of convincing that Part 2 should stay in the Bill, and I will want to test opinion on that issue across the House when we get to Committee.

Part 2 is not my only concern. I do not have time to go into a great deal of detail but, like others, I am unclear how the provisions on corporate parenting in Clause 1 are a massive improvement on similar provisions in the Children Act 1989. I certainly do not think that, as others have said, they are drawn sufficiently widely to cover all the services that looked-after children need both when in care and when they leave care. We need to widen the scope of Clause 1 if it is to stay in the Bill.

Although I welcome the idea of personal advisers, I have a number of concerns. First and foremost is the whole issue of vetting and ensuring that they are fit persons, given the current concerns to protect vulnerable young people from predatory adults. We do not want to create a field day for groomers. Also, we must ensure that personal advisers have the training, skills and supervision to do a good job. We need to explore in Committee how we ensure proper training and vetting for personal advisers and the possibility of a register.

Finally, there is Clause 15, which a number of people have mentioned, with a new power to test different ways of working. I have been around in public services for a long time, and it is pretty unusual to try to legislate for innovation. However, if that is what the DfE wants to try, we need to ensure that, in doing so, it and the local authorities do not sweep away the range of children’s safeguards and rights that have built up over many years—indeed, over many decades. I would find it helpful if the Minister could set out in writing a description of the kinds of obstacles that are to be swept away and what rights would be eliminated as a consequence. In the absence of more convincing detail, I think we will want to explore in Committee some form of independent scrutiny of any proposals falling under this power before they are approved.

I assure the Minister that this is not an exhaustive list of my concerns, which I will want to pursue in Committee. Because of the way that the Government have organised business, I, and I suspect others, will be putting down tomorrow my first tranche of amendments.

--- Later in debate ---

[Lord Nash]

My Lords, I very much welcome all the contributions that were made to the Second Reading debate today. I am heartened that there is a great deal of consensus on our ambition to improve the lives of vulnerable children and those leaving care and on the improvements we hope to make to the quality of children’s services throughout the Bill. All the contributions to the debate have been, as always, very well informed and constructive, reflecting the considerable expertise and experience which exists across the House in relation to children and their journey through life. This expertise will be invaluable when we come to look at the clauses in the Bill in more detail in Committee.

I will not be able to cover all the points made by noble Lords but I will try to cover as many as possible. Starting with the general scrutiny of the Bill, a number of noble Lords raised their wish for the House to be given adequate time and information for the Bill to receive detailed scrutiny in the House. I share this wish. I very much welcome the expertise of the House, of which this debate is a great example. The Bill will receive the usual detailed scrutiny in Grand Committee. We have also already made arrangements for detailed briefing sessions and discussions on parts of the Bill, the first of which will take place tomorrow. I hope that noble Lords will take advantage of these meetings.

I am also happy, along with my ministerial colleagues and officials, to meet any noble Lords to discuss the Bill if they would find this useful. I am also happy to reiterate our commitment to publishing indicative draft regulations and policy statements before clauses containing delegated powers are debated in Committee, and I am glad that this has been welcomed by a number of noble Lords across the House, including the noble Lord, Lord Hunt, just now.

Turning to some comments by various noble Lords concerning the delegated powers in the Bill, as I said at the start of this debate, I do not want to get into a long discussion on secondary legislation now, but the noble Lords, Lord Watson and Lord Ramsbotham, were both, I am advised, wrong about the number of delegated powers in sections of the Bill. In the case of the noble Lord, Lord Watson, as I said at the outset, and as mentioned by my noble friends Lady Shephard and Lord Lang, Clauses 20 to 40 actually contain only two new delegated powers and one extension of an existing power proposed. This is vastly different from the suggestion by the noble Lord that there were 29 delegations of power.

To explain this further and to assist the noble Lord in looking again at his assessment, he will wish to note that delegations of power appear in Clauses 20 and 39, with an extension of an existing power in Clause 40. Remaining clauses in this part explain the use of the new powers and the purposes to which they will be put, including safeguards such as requiring the Secretary of State to consult on regulations and lay the consultation report before Parliament. It is simply not correct to label each of these clauses a new delegated power.

Similarly, the noble Lord, Lord Ramsbotham, referred to the number of powers in Clauses 15 to 19 and counted five delegated powers in this section. There is, in fact, only one delegated power in Clause 15; the remaining four clauses flesh out that power, including inserting a sunset provision and requiring consultation. The Government are firmly of the view that delegated legislation is the most appropriate vehicle to set out the role and operations of the new regulator. We must be able to update the legal framework to reflect changing professional standards and improvements in working practices. This is also in line with recent advice from the Law Commission on regulatory reform, which emphasised the need for this type of flexibility in the exercise of a regulator’s functions. It is also in line with the approach adopted by the Labour Government in 1999. At the time the 1999 regime was put in place, the Labour Government were happy that was an appropriate use of a delegated power. Again, we will be publishing policy statements and draft regulations for this area before Committee and I am, of course, more than happy to meet noble—and noble and learned—Lords to discuss this part of the Bill if they would like to do so.

Turning to the substance of the Bill, first, I want to respond to the concerns raised by a number of noble Lords, including the noble Lords, Lord Watson, Lord Ramsbotham, Lord Wills and Lord Warner, the noble Baronesses, Lady Pinnock, Lady Massey, Lady Meacher and Lady Walmsley, and the noble Earl, Lord Listowel, about the innovation clauses: Clauses 15 to 19. The noble Lord, Lord Watson, raised the spectre of for-profit. In 2014 we brought forward legislation preventing profit making, where local authorities delegate child-protection functions, and we have no intention of revisiting that position. Where a local authority delegates children’s social care functions, Ofsted will still inspect them as part of local authority inspection and hold the council to account for the quality of those services. All applications to the Secretary of State will be assessed on a case-by-case basis. In addition to consultation by both the Secretary of State and the local authority, this will include Ofsted, the Children’s Commissioner and local authority partners.

It may be helpful if I touch on a few examples of where this power to innovate might be applied and where local authorities might apply for exemptions. The first concerns family and friends carers. It is recognised that a carer who is either a family member or a friend is typically the best option for a child, but too often it is hard to get such a carer approved to the same standard as a professional foster carer, particularly within the 16-week time limit. Exemption could allow local authorities to trial making placements for children that put the child at the centre of the decision, prioritising their needs and their attachment to family and friends, without unduly sacrificing the safeguards in place for the child.

Secondly, there is strong consensus in the sector that in low-risk cases the role of the independent reviewing officer brings no additional benefit. Exemptions will allow local authorities to trial redirecting IRO resource differently—for example, to more complex cases—while reducing the number of additional people a young person does not know at their review, which is a known concern, in more straightforward cases.

Thirdly, there is criticism that adoption and fostering panels which are only advisory add little value and can often delay the process of approving prospective carers. Exemption could allow local authorities to trial removing a potentially invasive and unnecessary requirement from one of the many layers of checking, leaving the agency decision-maker who currently makes the decision to exercise their professional judgment.

A number of noble Lords, including the noble Lord, Lord Watson, and the noble Baroness, Lady Pinnock, praised Leeds for its good work. It is, indeed, one of our partners in looking at Clauses 15 to 19, and is itself hoping to make use of the power to innovate.

The noble Lord, Lord Watson, talked about the importance of care leavers receiving advice about leaving care well in advance of that event. The noble Baronesses, Lady Benjamin, Lady Howe and Lady Bakewell, and others talked about the importance of advice for care leavers. Indeed, this was raised by a number of young people yesterday and is exactly the sort of advice that should be covered in the local offer. Two particularly impressive young people yesterday said that their local authority offered a passport to independence, setting out all the things that young care leavers need to know.

The noble Lord, Lord Watson, the right reverend Prelate the Bishop of Durham and others mentioned the importance of kinship care and foster care, which we, of course, recognise. In 2011, we published Family and Friends Care. Under this guidance local authorities must publish their approach to promoting and supporting the needs of children living with family and friends. The Government have also taken action through regulations to strengthen and encourage arrangements for long-term foster care. Our emphasis then, as in this Bill, is to promote stability in children’s lives.

The noble Baronesses, Lady Pinnock and Lady Hughes, talked about money. The amount spent on child protection and social care has remained steady since 2010. This is not necessarily about the amount of money spent but also the way it is spent. The best provision is not necessarily the most expensive. We hope that the power to innovate will demonstrate that.

My noble friend Lady Shephard made very good points about individual responsibility and mentioned good practice in Trafford. Trafford is, sadly, the only local authority in the country whose services and support for care leavers have been rated as outstanding. Obviously, we would like many more local authorities to aspire to that level of success. She also mentioned Norwich for Jobs, of which I am aware. I am delighted to hear that it is now bringing that programme to NEETs.

The noble Baroness, Lady Pinnock, asked about apprenticeships for care leavers. Employers receive full funding for the training costs associated with an apprenticeship. This has been extended to care leaver apprentices up to the age of 24. We will now go further and extend this to 25.

A number of noble Lords, including the noble Lord, Lord Watson, the noble Baronesses, Lady Tyler, Lady Walmsley and Lady Howe, and the right reverend Prelate the Bishop of Durham, spoke about corporate parenting. The local authority has statutory responsibility for the care of looked-after children and care leavers, and therefore in law is the corporate parent. However, we recognise that other agencies will also have an interest in, and potentially an impact on, the lives of children in care and care leavers. That is why under our wider care-leaving strategy we are promoting a care leaver covenant which will encourage other agencies and organisations to adopt the principles and have regard to them in their planning and decision-taking. Importantly, the fourth principle also sets out a requirement on local authorities to work with local partners to ensure that young people can access their services.

The noble Baroness, Lady Howarth, and the noble Lord, Lord Bichard, talked about the lack of success that often results from government departments joining up. I acknowledge that but this Bill is an example of good joint working between the DfE, the Department of Health and the Home Office in particular. The Social Justice Cabinet Committee has also had a number of discussions on and with care leavers to ensure that their needs are well understood across government.

The noble Baronesses, Lady Hughes and Lady Benjamin, the noble Lords, Lord Wills and Lord Bichard, the noble Earl, Lord Listowel, my noble friend Lady Stedman-Scott and others talked about the importance of personal advisers and whether it was sufficient to leave it to the child or young person themselves to request an adviser. This is an extremely good point which I would like to go away and reflect on. We had hoped that the local offer would make it absolutely clear to all care leavers that they have this expectation, but I would like to consider this further.

The noble Baroness, Lady Hughes, talked about an overreaching look at things in legislation and whether we could look more widely. The legislation is, of course, only part of the solution: practice is absolutely key and a great deal of work is focused on this. Many noble Lords, including my noble friend Lord Farmer, the noble Lord, Lord Warner, and the noble Baroness, Lady Howarth, raised the matter of personal advisers. Minister Timpson has asked officials to conduct a review of the personal adviser role, to determine whether the functions should be amended to give more emphasis to the mentoring and befriending aspects of the role. He has asked for this review to be undertaken at pace, so that its findings are available to inform further thinking as the Bill proceeds through Parliament. It will cover areas such as consistency, relationships, quality and requirements.

My noble friend Lord Farmer, the noble Earl, Lord Listowel and the noble Baronesses, Lady Hughes, Lady Massey and Lady Hodgson, talked about the importance of early intervention and early years. I could not agree with them more: they made some extremely good points. I would be delighted to set up a meeting between the noble Lords and Minister Gyimah, who is responsible for this area, to discuss this further. The noble Baronesses, Lady Meacher and Lady Walmsley, and the right reverend Prelate the Bishop of Durham talked about the circumstances where a national review might be called for. I would like to reflect on this more. Concerns were raised about the distress of good social workers whose cases are considered by this kind of panel. I assure noble Lords that the panel will in no way focus on individual blame, but only on issues which may lead to timely improvement at national level. I note the concerns of the noble Baronesses, Lady Walmsley and Lady Pinnock, that lessons learned from national reviews trickle down to the local level.

The noble Baroness, Lady Walmsley, and the noble Lord, Lord Bichard, raised questions about the dissemination of learning, concerns about the two-tier system and the criteria for national reviews. The dissemination of findings from reviews is critical. That is the role of the proposed What Works centre for children’s social care. The centre will build a robust evidence base and share learning on what does and does not work. The noble Baroness, Lady Massey, made an extremely important point about the importance of social skills. She might be interested in a report just out from Harvard, a copy of which I can provide her with. It states that all new jobs in America created over the past 10 years have gone to people with the essential social and life skills, and predicts that this is likely to continue in future. She also asked about our definition of coasting schools. This will be laid before Parliament in the autumn, after this year’s exam results are published. On life skills, in our recent White Paper we have placed greater importance on building character and resilience in every child. We will also significantly expand the National Citizen Service and expect schools to give every pupil the chance to take part.

The noble Baroness, Lady Young, asked about records access. The Children Act 1989 statutory guidance sets out the requirements which local authorities must follow in relation to care records. It states what records should include and that they should be kept for 75 years. That Act requires local authorities to give access to records to people authorised by the Secretary of State and guardians appointed by the court. The noble Baroness, Lady Hughes, talked about the removal of a duty under the Children Act 1989 to publish information. I do not believe that there is such a removal. It is simply that an existing duty to publish certain information relating to care leavers has been incorporated into the local offer provisions. I am happy to give her more clarification on that if she would like it.

The noble Lord, Lord Ramsbotham, referred to the report by the noble Lord, Lord Laming. We welcome this report on an important topic. We are clear that no child living in a children’s home should be criminalised for behaviour that would not concern the police if it happened in a family home. The Government have asked Sir Martin Narey to review residential care and he will make recommendations on criminalisation. We have also asked Charlie Taylor to conduct a review of the youth justice system. He will report back in the summer with recommendations on how to improve the treatment of young people in care.

The noble Baronesses, Lady Tyler and Lady Massey, the noble Earl, Lord Listowel, my noble friend Lady Hodgson and the noble Baronesses, Lady Walmsley, Lady Benjamin and Lady Howe, talked about mental health. Children’s mental health is obviously extremely important, particularly in relation to children in care, and the Government take the issue very seriously. Last year we published Future in Mind, setting out our vision for transforming children’s mental health services, including local transformation plans setting out the mental health services in place to meet the needs of looked-after children. We are backing this with £1.4 billion over five years and we have agreed that an expert group on the mental health of looked-after children will look into the issue of specialist assessment.

The noble Lord, Lord Ramsbotham, mentioned the UNCRC report in relation to the Bill. We recognise the importance of the committee’s work and the Bill formed part of the evidence that we prepared for it. We are now looking closely at the report. He also mentioned life chances. He is right to say that the Bill supports the life chances agenda and to emphasise the need to make sure that the two dovetail. On unaccompanied minors—a point also raised by the noble Baroness, Lady Massey—DfE officials are working and will continue to work closely with the Home Office. We recognise that unaccompanied minors have wide-ranging needs and we are working closely with the local government sector to ensure that they receive appropriate support that reflects their needs and experiences, and which do not place disproportionate pressure on the services of any individual local authority.

There was also a question about children going missing from education and about their exploitation. The noble Baroness, Lady Howe, particularly raised the issue of unaccompanied asylum-seeking children. We take the issue of missing and absent children extremely seriously. That is why last year we placed a duty on councils to offer an interview to children who return from going missing within 72 hours and, for the first time ever, have collected national data on all children who go missing from care, not just those missing for 24 hours. We have strengthened care planning and children’s homes regulations, including requiring all homes to ensure that they have clear policies on preventing children going missing, and responding when children do go missing, in line with local police protocols on missing persons.

The plight of unaccompanied asylum-seekers is of course different from that of children who have been taken into care as a result of their domestic situation. Many are aged 16 or 17 and, as several Members have noted, have experienced long and difficult journeys to reach the UK. Some have witnessed terrible events. Their needs can of course vary hugely from individual to individual. Such children also tend to be concentrated in a few locations around the country, which can put additional pressure on those local authorities’ services. Kent, for example, now faces a shortage of places for its own children who need to be taken into care. The Government are working closely with the local government sector and individual local authorities to ensure that the needs of these children can be met by a much wider group of local authorities. That exercise is under way and the Government are providing additional funding to support those placements, and to ensure that appropriate support can be provided.

A point was made about extending the visits of virtual school heads to FE colleges—I think it was made by the noble Baroness, Lady Hughes. If a child is looked after, the virtual school head champions their education regardless of the education setting.

The noble Lord, Lord Warner, talked about the HCPC and our plans to take responsibility for social workers away from it. This is not a criticism of the work of the council, as I said earlier, but it regulates 16 professions and we believe that social work requires a different model of regulation—one that is specific to this unique and challenging profession and puts it on a par with other high-status professions. We will work closely with the HCPC to ensure that we maintain what works well under the current regulatory framework. This is a joint approach by DfE and the Department of Health for children and adult social services.

The right reverend Prelate the Bishop of Durham, my noble and learned friend Lord Mackay and the noble Baroness, Lady Pitkeathley, talked about a college of social work. Indeed, until recently the Government supported an attempt to establish such a college with £8.2 million. Unfortunately, the college struggled to attract the members it needed and, in any case, this is no substitute for independent, professional standards and regulations. Public protection will remain a central objective of the new regulator. As for the concerns of the noble Baroness, Lady Pitkeathley, about costs, we do not anticipate any immediate changes to the registration fees paid by social workers.

The noble Lord, Lord Wills, talked about whistleblowing. Although Public Interest Disclosure Act protections cover only directly employed foster carers, there are already wider requirements for fostering services to have complaints procedures and whistleblowing policies in place. Standard 21.11 of the fostering services national minimum standards is clear:

“Current and prospective foster carers”,

must be able to,

“make a complaint about any aspect of the service which affects them directly”.

It is also clear that records must be kept of,

“representations and complaints, how they are dealt with, the outcome and any action taken”.

A number of noble Lords asked why we are creating new offences. There is in fact little here that is new: the current legislation already provides the power to create offences in secondary legislation to support the regulation of social workers. The provisions we have made in this Bill are in fact considerably narrower in scope than those that exist in the primary legislation at present. They will enable the creation of a small number of offences that, as now, we judge essential to protect the integrity of the regulatory process.

My noble friend Lord Lang of Monkton and the noble Baroness, Lady Dean, asked about confidential information requested by a panel under Clauses 11 and 14. The Bill does not prevent those asked for information from asserting legal or medical privilege. The panel would need to consider any such assertion against the need for the information, and it is also important to note the care that the panel would take with such information in its consideration with regard to publication. The Bill does not include a power for the panel to compel the provision of information, although public bodies may be required to do so as a result of judicial review. We are currently considering whether additional powers of enforcement would be appropriate and will bring forward a suitable amendment if that is deemed necessary.

The noble Baroness, Lady Howarth, talked about the assessment of the SEND local offer. The noble Baroness rightly noted the parallels between the care leaver offer and the SEND local offer introduced in the Children and Families Act 2014. It is still early days, of course, but we are optimistic about its impact. I do not have any data with me, but the anecdotal feedback I have received is very positive.

My noble friend Lord O’Shaughnessy asked whether the categories of ceased to be looked after and previously looked after were the same. I can assure him that they are the same. He also raised some points about designated teachers, what works and other matters which I will reflect on and on which I will respond to him. I am grateful for his encouragement to be bold on the question of the power to innovate.

In conclusion, I agree entirely with the excellent comments by the noble Baroness, Lady Tyler, and the noble Lord, Lord Bichard, about the difficulties facing social workers in their vital jobs. We are determined to do everything we can to make the lives of social workers less difficult and to raise both the level of support for them and their status.

[Lord Warner]

I am sorry to interrupt the Minister in his flow, but he has had a good run at it. Could he say a little more about how the Government are going to answer the very specific question that a number of us raised about Part 2? Could he ensure that we have a joint briefing with Department of Health Ministers so we understand what the Government are doing in this area? As of now, the Minister is asking us to have a clause stand part debate on each of Clauses 20 to 40 so that we can get to the bottom of what the Government’s thinking is in this area.

[Lord Nash]

I will not say any more now in view of the time, except that I would be delighted to host a joint briefing on the matter. I am grateful to all noble Lords for their contributions to today’s debate and look forward to Committee.