The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021

Lord Watson of Invergowrie Excerpts

Monday 22nd March 2021 Lords Chamber

Moved by

[Lord Watson of Invergowrie]

That this House takes note of the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 (SI 2021/161).

Relevant document: 47th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[Lord Watson of Invergowrie (Lab)]

My Lords, these regulations are the subject of a take-note Motion today for two reasons: first, due to the concerns expressed by the Secondary Legislation Scrutiny Committee in drawing the regulations to the special attention of the House over the need for the Government to introduce the additional protections for older children, to which they have committed, at the earliest opportunity; secondly, because we are extremely concerned by the decision contained in the regulations to prohibit the use of unregulated accommodation only for looked-after children aged 15 and younger, and not for children aged 16 and 17.

The regulations follow a DfE public consultation, begun in February last year, on regulating semi-independent and independent accommodation for children in care and care leavers. It appears to have been stimulated by the shocking revelations contained in the BBC “Newsnight” report, “Britain’s Hidden Children’s Homes”, in 2019.

Children’s homes should be a safe haven, but a decade of Conservative local authority cuts and poor regulation have left far too many children at risk of neglect and exploitation. The Government should have acted to protect children from increased threats during lockdown, but instead Ministers used the pandemic as an excuse to water down their rights—action which the courts subsequently found unlawful.

Now the DfE is about to consult on national standards for unregulated accommodation for 16 and 17 year-olds in care, intending that it should become regulated via an Ofsted-led registration and inspection scheme, though there has as yet been no indication what that might look like. The consultation did not mention that these standards would have to omit any requirement to provide care to 16 and 17 year-olds. However, that is what will happen, because establishments which provide children with care and accommodation must register as children’s homes and be inspected by Ofsted.

These regulations formally create a two-tier care system, which could lead to a situation where provision to children is based on age rather than need. In effect, it will reduce the leaving care age to 16. It might be imagined that the meaning of the legal term “in care” was beyond doubt, yet these regulations will legitimise the absence of care for 16 and 17 year-olds who are, I repeat, in care.

Six months ago, the Children’s Commissioner published a report on children in care living in unregulated accommodation that reiterated concerns about vulnerable children being exploited and abused. The commissioner recommended that the use of semi-independent and independent provision should be made unlawful for all children in care, stating unequivocally:

“No child under the age of 18 should be placed in an unregulated setting. All children aged under 18 should receive care, rather than support. As such, there should be a requirement that any setting they are placed in is regulated as a children’s home.”


Those are words that we fully and enthusiastically endorse. It would be instructive if the Minister would reveal the DfE’s view on which looked-after children it believes are able to manage without care; does it consider that an absence of care is legitimate for those children for whom a family court has made a care order? Further, in relation to the department’s assessment of how the under-16 ban may affect children aged 16 and 17, has the department undertaken equality and/or child rights impact assessments?

There is also the vital question of the safety of these young people, not an issue of which the DfE is unaware. Two months ago, in response to a freedom of information request by the children’s rights charity, Article 39, the department published data on children who have died or been seriously harmed following abuse or neglect within the family or other settings in what are termed “serious incident notifications”. These numbers may seem small in relation to the 6,480 16 and 17 year-olds recorded in March 2020 as living independently or semi-independently, but even one such case, be it harm, far less a death, is one too many. It is important to stress that under international law, a person under the age of 18 is regarded as a child. The same law pertains in this country.

As the Secondary Legislation Scrutiny Committee report points out, 73% of unregulated settings are privately run; that is to say, for profit. They are private companies doing very well out of vulnerable children without the checks and balances that are seen in other care settings. The financial opportunities available can attract entrants to the market with little or no knowledge of children’s care, with the result that in some settings, children are not kept safe. A number of children’s charities are capable of delivering, perhaps in conjunction with local authorities, proper care to 16 and 17 year-olds, were they not priced out of the market. I am not alone in believing that the care we are considering today is too important to be left to the vagaries of the market, but I know that the office of the new Children’s Commissioner is keen to explore that possibility with children’s charities. Will the Minister say whether the DfE will offer encouragement to them in such an approach?

The DfE maintains that there is a place for independent and semi-independent provision where it is of high quality and that such a placement is desired by the older child and would be consistent with their welfare. However, the evidence shows that these conditions are rarely met. As the Children’s Commissioner commented in the report to which I referred earlier, even the very few 16 and 17 year-olds who feel that they are ready to start becoming more independent are likely at some point to require assistance that meets the threshold for care rather than support, as the coronavirus crisis has demonstrated.

Anne Longfield also registered her particular concerns about the lack of resources available to many local authorities, which has caused a lack of sufficient places across the whole system. These issues were highlighted by the committee in its report, which said

“there is a risk of low-quality provision given the significant financial pressures on many local authorities and the considerable costs of high-quality support for children.”

The Government have just launched an independent review of the children’s social care system. It is essential that the review understands and addresses why increasing numbers of children are being placed in unregulated settings. I hope that it will conclude that every looked-after child should have the legal right to receive care until at least their 18th birthday.

Two weeks ago, it was announced that the Competition and Markets Authority is to undertake an inquiry into the supply, price, commissioning and regulation of children’s homes, fostering and unregulated accommodation placements, along with the environment for investing in services. Apparently, one of the questions it will consider is whether profits for private providers are at the expense of quality of care in the children’s social care market. That certainly is a question worth asking, although it does seem rather strange that the inquiry will take place in parallel with the independent review of children’s social care that has just begun. Can the Minister say how, if at all, the two might support each other?

In closing, I want to ask what the Minister and her department intend to do in respect of the five recommendations made by the Children’s Commissioner in her report last year. I have mentioned the questions of independent care for those aged under 18 being made illegal and the need to ensure quality for young people in unregulated settings. In addition, Anne Longfield called for urgent action to increase the capacity of care across the system, which is a fundamental issue. However, it comes down to an increase in resources, and for the Minister to point out, as I suspect she might, what has already been spent or committed is not enough. Considerably more resources must be made available to ensure adequate care and it is to be hoped that the independent review will not be constrained in its recommendations by an expectation that it can bring about substantial change within existing resources. That is not just a pipe dream—it would be a major failing of young people in care, whether they are above or below the age of 16. The committee’s report said

“we urge the House to seek assurance from the Minister that any legislation needed to introduce the additional protections for older children to which the Government have committed is introduced at the earliest opportunity.”

I now invite the Minister to do that and I look forward to her response. I beg to move.

--- Later in debate ---

[Lord Watson of Invergowrie (Lab)]

My Lords, I thank the noble Lord, Lord Russell of Liverpool, the noble Baroness, Lady Tyler, and the Minister for their contributions to this debate, which has been one of quality, if not quantity. I think that is due to the relatively short notice given. Others would have wanted to participate, and I hope they read the report of the debate with interest.

The noble Lord, Lord Russell of Liverpool, made an important point about data not being readily available. He mentioned the research carried out by the Office of the Children’s Commissioner to find information that was not to hand. However, many children’s charities are also assiduous in collecting information that, I think it reasonable to say, we might have expected the Department for Education to have collected and made available.

I would like to echo the comments of the noble Baroness, Lady Tyler, in paying tribute to those organisations that have prepared briefings for this debate, namely Article 39, Home for Good, Just for Kids Law and the Children’s Rights Alliance for England. Given that none of us, apart from Ministers, has personal support staff, the contribution of those and many other organisations in this and other debates in enabling the Government to be more effectively held to account should not be underestimated.

The noble Lord, Lord Russell, also mentioned the previous Children’s Commissioner’s recommendations and touched on one I was unable to mention because of the time limit. I am referring to the role of the independent reviewing officers, who oversee and scrutinise the care plans of children in care. The recommendation by the commissioner that independent reviewing officers should visit placements before children are placed there to assess their suitability is important, and I hope it will be adopted by the department.

Like the noble Baroness, Lady Tyler, I have been encouraged by the remarks of the new Children’s Commissioner, Dame Rachel de Souza, since she took up her post a few weeks ago, not least in relation to the children remaining in care until the age of 18. I have to say, in passing, that her predecessor set a high standard; I am hopeful that she will do the same, and I wish her well.

It was humbling to hear the Minister recount her personal experience of living independently at the age of 16. I cannot imagine what that must have been like. Clearly, it has not held her back. I would like to think that every other young person in that situation would emerge with such distinction. However, that is rarely the case, although, for many young people, remaining in care between the ages of 16 and 18 is often the crucial difference in enhancing their life chances.

The Minister’s response to the questions that I and others put to her were encouraging in some respects, but the regulations are another example of the Government managing a crisis and not finding a solution to it. I would like to think that we will look at a long-term plan whereby the children’s care sector is not just better resourced but better organised. I am hopeful the review that is under way will point in that direction, because these young people deserve better, and we can do better on their behalf.

Motion agreed.