Children and Social Work Bill [HL]

Lord Watson of Invergowrie Excerpts

Tuesday 18th October 2016 Lords Chamber

Moved by

[Lord Watson of Invergowrie]

33: After Clause 9, insert the following new Clause—
“Profit-making and children’s social services functions
(1) Social services functions conferred on or exercisable by a local authority so far as those functions relate to children shall not be discharged by a body corporate that is carried on for profit.(2) “Social services functions” has the meaning given by section 1A of the Local Authority Social Services Act 1970.”

[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.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)]

My Lords, I would like to thank noble Lords for these amendments. I will speak about each one in turn, commencing with Amendment 33, which would prohibit profit-making in children’s social services functions, and then Amendment 35, which would put a duty on local government to report on several outcomes for vulnerable children and for the Secretary of State to publish an annual report on these outcomes.

I recognise that profit-making in children’s social care is a sensitive issue, and I entirely understand noble Lords’ desire to ensure that legislation is clear on this point. We believe that it is. There is already a clear legislative restriction on the outsourcing of children’s social care functions in the 2014 relevant care functions regulations. There are also restrictions on profit-making by adoption agencies through the fact that the Adoption and Children Act 2002 allows an adoption service to be operated only by a local authority or an organisation that is not carried on for profit. These restrictions as they stand in secondary legislation have exactly the same force as they would in primary legislation. Any attempt to remove them would need to be debated in both Houses. Therefore, although I entirely understand the intention, I do not think it is necessary to move this to primary legislation.

The noble Lord, Lord Warner, referred to the LaingBuisson event—an ideas-generating event exploring new approaches to service delivery. As he said, concerns were raised about profit-making in child protection, and these are reflected in the 2014 regulations to which I have already referred.

I understand, however, that there is some concern about whether Clause 29, the power to test new ways of working, could be used to reopen this matter. I have therefore tabled a government amendment that will explicitly rule out using Clause 29 for profit-making. This was never the intention behind the clause, but by including this amendment I hope to put the point beyond doubt.

On Amendment 35, the Government are committed to understanding what drives successful outcomes for vulnerable children. It is critically important that we collect data from local authorities and others to steer evidence-based and effective policy-making. The Government have already placed a duty on local authorities under Section 83 of the Children Act 1989 to provide information to the Secretary of State on their performance on a wide range of children’s social care functions, including on vulnerable children and care leavers. The Department for Education already publishes annual reports on the outcomes for vulnerable children, including their educational attainment and levels of absence and exclusion from schooling. For looked-after children, we also collect information from local authorities on offending, substance misuse, healthcare, and emotional and behavioural health. For care leavers, we publish information on their accommodation—

[Lord Watson of Invergowrie]

I welcome the information that the Minister has given us about the Children Act. However, can he say whether any of the headings listed in Amendment 35 appear in that legislation and whether any of them are reported on as things stand under that legislation?

[Lord Nash]

I will check that and come back to the noble Lord, either today or in writing.

For care leavers, we publish information on their accommodation and its suitability, as well as information on their participation in the labour market. Statistics are published annually.

As with national data, it is essential that local authorities collect the data they need at a local level to offer bespoke services to their communities. We know that many local authorities are making great progress on their data analysis capabilities. Noble Lords may be interested in looking at the Association of Directors of Children’s Services report, Pillars & Foundations: Next Practice in Children’s Services. The Department for Education is exploring ways of improving data collection on the experiences and outcomes for vulnerable children. Last year, for the very first time, we published factors identified by social workers in assessments of children, including parental and child risk factors. This helps us to understand the risk factors that are likely to lead to social work intervention with families.

I recognise that there is more we can do to make better use of data. Putting Children First, published in July, sets out the programme of work we are following to improve our data. We want to ensure that our data collections are focused on the most useful information without placing unnecessary burdens on local authorities. We are working with local government and with Ofsted to align different data requests and avoid duplication.

We also recognise that data collected by other departments or agencies offer the potential to gain a fuller understanding of the outcomes achieved by vulnerable young people. We plan to identify opportunities across government to align and analyse different data collections to understand trends and to target resources effectively. We are already working with HMRC, the Department for Work and Pensions and the Ministry of Justice. The Department for Education will soon run its first children’s services omnibus survey, which will include questions on children’s social care to gather information from senior leaders and managers in local authorities. This biannual survey will run initially for two years, enabling us to collect data to track changes. We expect the first results to be available in early 2017.

On the point raised by the noble Earl, Lord Listowel, I will write to him on that matter. I will also write to the noble Lord, Lord Watson, on the point that he raised.

I hope that the noble Lords, having heard that I am tabling a government amendment around profit-making and of the existing legal requirements and planned activity to report on outcomes for vulnerable children, will withdraw or not press their amendments.

[Lord Watson of Invergowrie]

I thank the Minister and look forward to receiving his letter. I note what he says about further legislation on profit-making not being necessary. As I have moved the amendment on behalf of the noble Lord, Lord Ramsbotham, I should just say that he asked whether the Minister would meet with him in advance of Third Reading. As the Minister is nodding, I take it that he accepts, so that is welcome.

The noble Lord, Lord Warner, mentioned the LaingBuisson report. The Minister may recall that I recently asked a Written Question on when the report was going to be published, and his response was something like “in due course”. It would be helpful if we could have it published before we return for day 2 of Report, which is nearly a month away. That would perhaps give us the ability to have a fuller debate. I think it is there; it just has not been published. If the Minister could push that along, that would be helpful.

I note what the Minister says about collecting data and that leading to evidence-based policy, which is something that I very much agree with. In terms of the information collected already, he seemed to suggest that the means were already there for the information mentioned in the amendment to be collected. When his letter is received, I will see whether that is the case. At the moment, there is still concern. Given the changes in this Act, and moving forward not least after today on mental health, we would like to see something measured as a benchmark against which we can measure progress. I am also interested to hear about the children’s services omnibus survey, and I think that will be widely welcomed. I look forward to the outcomes of that in a year’s time. On the basis of the Minister’s responses, I beg leave to withdraw the amendment.

Amendment 33 withdrawn.