Police, Crime, Sentencing and Courts Bill (Second sitting)

Debate between Steve McCabe and Alex Cunningham

Committee stage
Tuesday 18th May 2021 Public Bill Committees

[Chair]

Anyone else? I will go to Mr Cunningham, you have about 10 minutes.

[Alex Cunningham]

Q Fine. Thank you, that is helpful. Clause 36(10) of the Bill says that

“In this Chapter—

“adult” means a person aged 16 or over”.

Given the wealth of evidence on maturity, do you think that the section and other provisions of the Bill that address sentencing 16 and 17-year-olds are appropriate?

Stephanie Roberts-Bibby: I go back to my original answer in which we are clear that the age in law for children is up to 18. We absolutely promote a child-first youth justice system which means that children up to the age of 18 should get treated as children, as they are in law. The evidence base in the debate about maturity strongly suggests that brain development continues until the age of 25, and indeed some evidence shows that it may extend to 28 for males in particular. We would absolutely continue to champion the idea that children should be sentenced as children until their 18th birthday.

Mental Capacity (Amendment) Bill [ Lords ] (Fifth sitting)

Debate between Steve McCabe and Alex Cunningham

Tuesday 22nd January 2019 Public Bill Committees

[Alex Cunningham]

I understand the hon. Gentleman’s point. Unfortunately, we have to cover everybody with an amendment such as this, otherwise we end up with exclusions left, right and centre. We cannot afford to have exclusions. If an advocate is in place, there is no additional problem associated with that. At least the person has some chance of representation.

[Steve McCabe]

I think the Minister covered the point made by the hon. Member for Halesowen and Rowley Regis when she cited the small number of situations she thought could be distressing or problematic—I presume that is what the hon. Gentleman was thinking about. That is exactly the sort of thing that the code of practice is supposed to cover. Is that not exactly what we would expect? On the one hand, the Bill clearly legislates in broad terms for what is and is not acceptable, and on the other hand, the code of practice gives the back-up information for professionals, so that they can recognise the sort of situation to which the hon. Gentleman refers.

[Alex Cunningham]

That is most certainly the case. I go back to my Second Reading speech. This is about the individual. This is about one of the most serious things we can do as a nation to somebody—take away their liberty. We should do anything and everything we can do to ensure that they have every single piece of support before that decision is taken, effectively, to lock them up. I agree with my hon. Friend.

I was quoting Age UK, which believes that everybody should have access to an advocate and that a person who chooses not be represented can then opt out. The quote continues:

“This will greatly improve the Bill and give clarity to the cared for person and the responsible body.”

Mencap believes, as I do, that independent advocacy is vital to help vulnerable people to understand and exercise their rights under the law. We have had several examples of that this morning.

Rethink Mental Illness is also on board with the amendment. I appeal to the Minister to provide an opt-out approach, which would greatly improve this Bill, as others have said, and give clarity to service users and providers.

I mentioned care home managers, but the risk of independent hospitals being responsible for assessments is another concern about the Bill, and as we said the other day, we hope the Minister will ramp up the assurances in this area. I have another real-life example for her. A man was held in hospital for almost a year—with no advocate for 10 months. He was angry because he wanted to go back to his two-bedroom home, but the local authority wanted him to move into accommodation with 24-hour support and to not return home. The reason given was that the brother had moved into the spare room at the cared-for person’s home and there had to be a spare room for any overnight carer, should the man return home.

What did the advocate find out by talking to the cared-for person? They found that, when he had been living at home, he had been sleeping in a chair in the lounge while his brother had his room and his carer had the spare bed. Then he had fallen and not been found for two days, as a succession of carers had failed to attend. The cared-for person’s statements were not taken into account by the social worker involved. If they had been, the process might have been very different. The man needed an advocate from day one.

The case eventually went to court, and the judge accepted evidence from the advocate and ordered the cared-for person to be returned home—[Interruption.] Bless you!

--- Later in debate ---

[Alex Cunningham]

I find it incomprehensible that any emergency authorisation would need to last longer than 14 days. An emergency is just that: it is a serious, unexpected and often dangerous situation requiring immediate attention. That is my online dictionary definition. Once that emergency has been dealt with and the dangerous situation averted, the normal approach should then be adopted. Why on earth would the authorities need to detain a person for many weeks on end without carrying out that full assessment under the law? I suspect the Minister agrees that emergency authorisations would not need to be in place for very long, so everything would be fine and there would be no risk to the person involved. Sadly, nothing in this Bill nails that down. I hope she will have no problem providing us with a guarantee, or supporting this amendment—the real guarantee—to limit that duration of emergency authorisation to 14 days.

We must always take every opportunity to make sure that every precaution is there to ensure that those under emergency authorisations have safeguards and protections. We have been talking about it for days on end. Those authorisations are to be in place so that a person cannot face an indefinite order against them. Not just those of us on the Opposition Benches think that. No fewer than 200 people from my constituency have either commented on this Bill or have signed a petition through 38 Degrees calling for the kind of safeguards in the Bill for which we have been arguing. They are worried about the further erosion of an individual’s rights by the clause if it is not amended.

At every point in this Bill I have posed myself this same question: what does it mean to younger people—the 16 and 17-year-olds—who are captured by it? As I read it, a young person could be detained under these emergency powers. We have talked about insufficient safeguards for young people and parents under the Bill. Who knows how long it could be before they are fully assessed, even when the views of their parents or others were taken into consideration?

According to the Law Society, the Bill

“gives wide-ranging powers for depriving a person’s liberty through emergency authorisations for unlimited periods of time where a ‘vital act’ is deemed necessary. We believe this is unlawful.”

What action will the Minister take to ensure that such actions are not unlawful, as suggested by the Law Society? Although she said that the risks being taken in the care of vulnerable people are simply not there, she needs to convince us or support the amendment. The Law Society goes on to support the amendment in its evidence submission, saying that a

“time limit of 14 days is essential to prevent abuse in accordance with case law”.

Members have spoken at length and given full examples of how the Bill and proposed amendments could play out or have played out in the real world. It is also vital that we take note and address the issues that may arise outside this place in regards to any legislation introduced by us. Imagine the danger we could be unwillingly putting vulnerable people in if we do not pass the 14-day authorisation limit. A person under such an authorisation could be left for months and denied their freedom with no one having carried out a full assessment, perhaps because it is in the best interests of the person that has assessed them or not assessed them—a care home manager or an independent hospital director. Whatever it is, we have a duty of care over those deprived of their liberty under the measures. The Bill falls short of ensuring that we properly protect and safeguard them.

We have debated authorisation renewals. This measure falls into a similar category in that we should provide adequate checks to ensure that people are not needlessly deprived of their liberty for any unnecessary time. I am not convinced we are there yet. Within those 14 days there is an expectation that an adequate, comprehensive assessment will be carried out to determine whether the cared-for person meets the authorisation conditions. If it is more than 14 days, who is going to tell us when it will happen?

[Steve McCabe]

I do not know whether I am being a bit paranoid about this, but is there a danger that this could become the easy get-out clause? It will be a bit complicated to get all the parties together and carry out a proper assessment, but it will not be as difficult to get someone to say, “Ah—there’s an emergency.” That way, they have dealt with the paperwork in one fell swoop and they have the person where they want them. If there are no safeguards, it will become the clause that will bypass the rest of the legislation, because this is where people will go when they do not want to put in the work or they feel too hard pressed to do it.

[Alex Cunningham]

I share my hon. Friend’s paranoia. I do not understand why we would put any barriers at all in the way of people’s having a proper assessment within a reasonable time. Detaining someone for 14 days is effectively locking them up for 14 days. It means depriving them of their liberty and there may be no real necessity. An assessment, as quickly as possible, is essential.

Of course, if we allow those authorisations to go on for longer than 14 days or any other reasonable timeframe, we are putting people at risk of abuse, as the Law Society has said. I say to the Minister that we must put vulnerable people first. We must always put the individual first. We must have the safeguards in place, because to do anything else is to risk their liberty, and that is a risk I am not prepared to take. I hope she accepts the amendment.

[Caroline Dinenage]

Clause 2 allows caregivers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition. The clause enables a care home to place restrictions on the person for their own protection ahead of an authorisation being approved. That interim legal cover will be decision-specific and it will be targeted to life-sustaining treatment and care or to a vital act. Once those acts are completed, the conditions no longer apply and legal cover for depriving someone of their liberty ends.

In that way, the clause replicates clause 4B of the Mental Health Act 2005, already in DoLS. The emergency authorisation system applies in exactly the same way when a court application being made relates to a deprivation of liberty. There is no evidence at this time that it would lead to any lengthy deprivation of liberty, and the provision of the Bill builds on an existing and well-understood provision. The previous system also included an urgent authorisation. That has gone because it was used too often and its time limit was ineffectual.

Under the Bill, the legal cover is provided simply for as long as the life-sustaining care is needed and no longer. It is therefore a limited power and a better safeguard. An emergency is defined as a situation where there is an urgent need to act and it is not “reasonably practicable” to make an application under the liberty protection safeguards to the Court of Protection or under part 2 of the Mental Health Act. It was carefully considered by the Law Commission, which looked at the inclusion of a time limit and decided against it. We agree with its conclusion that a time limit could encourage care providers to aim for the time allowed rather than to adhere to best practice for that case and that person, which is certainly what we have seen in some urgent cases.

Given the seriousness of depriving someone of their liberty, it should be limited to the shortest possible timescale and should reflect the huge range of causes that it can be required to cover. The amendment would create a blunt, one-size-fits-all approach, rather than allowing us to reflect the different approaches called for.

Mental Capacity (Amendment) Bill [ Lords ] (Third sitting)

Debate between Steve McCabe and Alex Cunningham

Thursday 17th January 2019 Public Bill Committees

[Alex Cunningham]

Age UK agrees with my hon. Friend’s point and proposes an extension to it, through the involvement of an AMCP every time a family member objects, or if the cared-for person has no family members to object on their behalf. Does he agree with that position?

[Steve McCabe]

Absolutely; I agree entirely. That makes more sense than the way I have been saying it.

I accept that the amendment is clumsy and not well drafted, but I hope that it is clear that, more than anything, we need to hear—all the better if it happens before our proceedings conclude—and then see in black and white a cast-iron guarantee that the arrangements will not be used in a way that ends up being detrimental to the interests of the person about whom we should be most concerned. That is the purpose of the amendment. We can have some confidence that all those conditions have been appropriately and properly satisfied only if we have confidence that a professional with the appropriate experience, knowledge and skills, who is valiantly independent and capable of looking at it in the round, has been a key component of that decision.

Mental Capacity (Amendment) Bill [ Lords ] (Second sitting)

Debate between Steve McCabe and Alex Cunningham

Tuesday 15th January 2019 Public Bill Committees

[Steve McCabe]

I beg to move amendment 47, in schedule 1, page 11, line 17, at end insert—

“(d) the arrangements are in the cared for person’s best interest,

(e) less restrictive options have been considered,

(f) appropriate weight has been given to the cared for person’s feelings and wishes as best as these can be determined.”

This amendment is designed to pursue the issue of a person being deprived of their liberty as a last resort and only if it is in their best interest and a reasonable effort made to determine their wishes and feelings.

In suggesting these additions to the clause, I will return to the matters I raised this morning, because it seems to me that it is crucial that we in this Committee are as confident as any Committee ever can be that the arrangements will prove to be for the benefit of and in the best interests of the vulnerable person, and not for the convenience of the agency or the authorising body. It seems to me that, as the pressures grow on various professionals, the temptation is to interpret legislation for the convenience of the agency, as opposed to the interests of the individual. Consequently, it would be helpful and send an absolutely clear signal about the Government’s intentions if the Minister were to include in the clause a statement that the authorisation must be in the person’s best interests. That would make it crystal clear that there could not be any room for doubt or any other agenda or issue to intrude.

I recognise that paragraph 12(c) of new schedule AA1 to the Mental Capacity Act 2005 says that the arrangements must be “proportionate”, and I guess that the Minister will tell me that my fears will, therefore, not be realised, but I was thinking about that during the break and wondered whether “proportionate” could be interpreted as “suitable” rather than “necessarily in the best interests of the person”. It is quite possible in a hospital or a local authority setting to make proportionate arrangements that are suitable.

I am sure every member of the Committee deals with housing cases in local authorities every day of the week, where the local authority says that it has been proportionate in its decision about allocating a property, particularly given the constraints on the properties it has. It will certainly be a proportionate decision, but whether it is necessarily in the best interests of the person is open to debate. I simply say to the Minister that I am not wholly convinced that the two terms are exactly the same. Likewise, I do not know that, in a situation where “proportionate” meant “suitable”, it would necessarily indicate that all other less restrictive options have been properly considered, examined and then excluded. I am thinking of an elderly person who suffers a degree of confusion, or a brain-injury victim. If there is a lack of home care or day care in the area in which they reside, there may be a temptation to go for another option regarded as proportionate based on those considerations, rather than on what is in the best interests of the person, and to rule out more coercive options.

In such a situation, it might be perfectly possible for that elderly person or brain-injury victim to be properly and well cared for with the support of a dear relative, if that relative had access to realistic respite care to give them a break from time to time, and if the cared-for person had their care supported by reasonable access to home care and day care services. If that were the case, it would be wrong to restrict that person’s liberty not because less restrictive options had been considered and ruled out, but because the available care options in the area were inadequate and nothing had been done to try to address that.

That would be a classic example of a decision being made to suit the immediate economic interests of the agency or the environment in which the person happened to reside. It would not be about what was wholly in the best interests of that person. It would certainly not be because appropriate consideration had been given to less restrictive options. It would be proportionate, because in that situation “proportionate” was interpreted to mean “convenient” or “suitable”, rather than anything else. That is why I raise this matter.

[Alex Cunningham]

I am interested in my hon. Friend’s argument. It shows why, regardless of which part of the organisation or process we are dealing with, it is essential that there is an independent person involved in the process, whether that is to deal with a private hospital or a care home. There must be an independent person who can be an advocate and supporter for the person in care, rather than it being left to a care home or independent hospital to decide what is best for them.

[Steve McCabe]

I agree and I think that will be a recurring theme. As I tried to indicate this morning, the divide is between a person’s precious liberty and the need to prove good care and protection for an individual. The whole reason we are here discussing this Bill and the Minister wants to change existing legislation is that it is thought not to be adequate and to provide appropriate independent overview and scrutiny. I certainly agree with that.

--- Later in debate ---

[Barbara Keeley]

I very much agree with my hon. Friend. I understand the Minister’s difficulty with the code of practice. She has told us that it would have to be laid before both Houses, but the difficulty here is that the Government are trying to remove from the Bill provisions that strengthen safeguards, and are thus making those safeguards weaker. As I said earlier, I do not understand why this is happening at all; I do not understand why we would be expected to accept it or to think it was a good idea.

A code follows what is in statute, and sets it out in lay terms and at length, but it would not exist if the obligation in law was not clearly set out. I do not want the Minister to change obligations for information, yet that is what she appears to be doing. I want to make it clear that, for Labour Members, the right to information before authorisation must be on the face of the Bill. It cannot be something added to the code of practice—even if we could see it now, and the trouble is we cannot—because it would not be a right.

There is existing case law about the Mental Capacity Act code of practice. In 2018, in the case of NHS trust v. Y, the Supreme Court said:

“Whatever the weight given to the Code by section 42 of the MCA 2005, it does not create an obligation as a matter of law to apply to court in every case.”

I think that says it all, really.

Paragraph 13 is the right approach in the case of this Bill. Furthermore, a number of Labour amendments, including amendments 17, 40 and 41, which we will come to later, would strengthen the duty on the responsible body to promote appeals.

[Alex Cunningham]

Again, it is a pleasure to serve under your chairmanship, Mr Austin. This Government amendment—this move to remove paragraph 13 from the Bill—leaves me and others seeking much more information on what exactly is intended. I did not really hear from the Minister what I needed to know. It was a very short introduction to the debate, given the fact that this was long debated in the other place. The Lords brought forward the amendment to the Bill, which is now part of the Bill, with good cause. I am concerned that it has been dismissed quite quickly.

My hon. Friend the Member for Birmingham, Selly Oak talked about the code of practice. It is critical that we have the reassurance that if we are going to have to depend on the code of practice, we know what it will say. Therefore, I ask the Minister whether she will, rather than just depending on dumping this stuff into a code of practice, make a commitment today to come back during our conversations over the next few days or on Report and spell out specifically how we can be assured that the items and protections in the Lords amendment, which is now part of the Bill, will be covered? How will she guarantee that what the Lords achieved with that amendment will be fulfilled on Report?

[Steve McCabe]

I am not sure whether I have understood this correctly. As my hon. Friend the Member for Worsley and Eccles South outlined her concerns, I tried to understand how someone could ever be confident that their wishes and feelings had been fully taken into consideration if they did not get the information explaining what was happening to them until after it had happened. How is that possible?

[Alex Cunningham]

It is totally impossible. If someone does not have the information, how can they make an informed decision? Likewise, people who advocate for someone, whether parents, relatives or whatever, cannot do that if they do not have that information. If there is no information, it cannot be acted on.

I made my career out of journalism, public relations and communications.

--- Later in debate ---

[Alex Cunningham]

The Minister is nodding her head, which is very good news. She has given me that reassurance, so perhaps I do not need to continue with this particular line of questioning.

We should be very careful that a communication issue is not missed prior to an authorisation being recorded. Just because somebody cannot communicate in the same way that we can does not mean that they cannot communicate.

[Steve McCabe]

I do not want to disrupt my hon. Friend’s flow. It is very good to see the Minister nodding her head, but is that the same as an assurance that there will be an obligation? It would be easy to suggest that a person is not very communicative, but that would not be quite the same as acknowledging that the person has some speech and language difficulty. A hard-pressed individual making a rapid assessment might not arrive at that conclusion unless it was absolutely clear that they were obliged to check out that area.

[Alex Cunningham]

That is most certainly the case. The Minister will forgive me if I mention resources again. If people are hard-pressed, we should perhaps have more resources in the system to deal with that. My hon. Friend is perfectly correct, and I take some comfort from the Minister’s nodding. I do not so much like the bits where she shakes her head, but I like it when she nods. I think that that may indicate that she will be able to address the issue I raised at the beginning of this short speech and come back to us, either here in Committee or on Report, to spell out exactly how the protections will be covered elsewhere if they are removed.

--- Later in debate ---

[Alex Cunningham]

During today’s debate I have already raised concerns about independent hospitals, and about care home managers and their potential role in depriving people in their care of their freedom. I know that my hon. Friend the Member for Worsley and Eccles South has addressed that comprehensively, but I hope that I can still add some value to the debate.

Even if there was some way in which the Government could justify the role of care home managers as outlined in the Bill, there is still a huge number of reasons why the sector would struggle to deliver what Ministers want it to. My hon. Friend has talked about the fact that finances in care homes are very much on the margin—they could be bust one day and make a bit of profit the next. However, some care homes do not even have care home managers. In hundreds of others across the country, the level of competence of managers in running care homes is alarmingly poor. We have some of them in my constituency. We have some great managers, and we have some excellent care homes, but we also have some that fall into the “inadequate” or “requires improvement” categories on inspection. It is not good enough for us to consider handing over this level of responsibility to people who might not be competent, or might not even be there in order to carry out the work.

On the CQC website, 2,550 care homes are listed as requiring improvement, with a further 223 deemed “inadequate”. Some of them are very large homes, but let us say that each one has an average of just 25 people in their care. That would mean that some 70,000 elderly people in care are being failed by the system. Leadership in those homes is one of the reasons they are being failed, and CQC reports bear that out time and again.

I know that that is symptomatic of a broken adult care system that has been neglected by the Government. I am sure that the Minister wants to wring my neck when I start talking about resources again, but it is about inadequate resources. Even after allowing councils to hike council tax to boost the social care budget, there is still insufficient money in the system. Profit-taking companies are often failing to provide adequate care, citing as the reason that they cannot afford to do so.

The system is in danger of failing further, as care homes close and the number of people requiring residential support increases. How on earth can the Government justify placing this most important duty on care home managers, asking them to play a central role in depriving the people in their care of their freedom? Given that the system is broken, that thousands of care homes are not anywhere near the required standard, and that in many cases there is no one competent—or no one at all—in the home, who will fill the gaps and deal with deprivation of liberty issues there? There may be other reasons why someone needs to do the work planned for the care home managers. If there is no care home manager, who are the Government expecting to carry out these assessments? Those managers do not want this duty, so what happens if a care home manager says, “I am simply not prepared to do this work; I do not want this responsibility”? Again, who will pick up that work? Will it fall on the local authority, the local GP commissioning group, or the health board?

[Steve McCabe]

Is not the reality that if the scenario my hon. Friend has depicted comes to pass, we will have a different backlog? We will have gone through this whole exercise and, rather than having fixed this system, we will have transposed one problem for a different one with exactly the same impact.

[Alex Cunningham]

Indeed that is the case. There are probably thousands of people in the system at this time who are illegally detained, or whose freedom has been denied them; we can do without additional problems of the sort that my hon. Friend describes. I talked about the fall-back position: if there is nobody in the care home who can do this work, and it does fall back on the local authorities or some other organisation, they are already dealing with very strained budgets and an overload of work, so how do we fill that gap? Again, I ask the Minister how she will ensure that these organisations have the resources that they need, even if the duplication that she was describing earlier in the day is sorted out and the systems run far more effectively. I am aware that if our amendment is successful and these duties do not sit with care home managers, the bill for work by these other organisations will be all the greater. Again, how on earth will that be funded?

Of course, the system can work. I cite the case of the north-east of England, where the DoLS system probably works better than in other parts of the country—albeit that local authorities have chosen to take the political decision I talked about earlier. However, that is letting other services down because they feel that they must protect the interests of people whose liberty is at risk. I will return to my point about the north-east a little bit later, as I want to go back to the topic of care home managers. Does not the Minister agree that most of them should be working to improve or maintain their CQC ratings and all that comes with that, rather than carrying out those assessments of individuals in their care?

I intervened on the shadow Minister to talk about charges. Some care homes may even charge a self-funder an administration fee for the assessments. Who says that is fair, right, or proper—Members can use whatever word they like? Who on earth governs that, and who is protecting the person who is having to shell out the cash? What is to stop a care home manager from unnecessarily charging fees for “administration purposes”? Who is there to say otherwise? I said this morning that we need to protect the public purse and the purses of those who live in these establishments; this is another example of that. One of the pieces of written evidence we have received comes from a collective of organisations, including the Registered Nursing Home Association and Care England. It says:

“There is no reason for singling out care home managers for extra responsibility, over their colleagues in other care settings, except for to transfer significant costs from struggling local authorities to struggling care homes. The effect will inevitably be that some providers who continue in the sector…pass on the costs to the affected residents.”

My hon. Friend the Member for Nottingham North discussed that.

So there we are: care home associations do not want the responsibility of assessments; the persons involved will not want the care home to have that responsibility; and we Labour Members, who probably matter less than them, do not want care homes to have responsibility for assessments, so why are the Government continuing to push this? Any opportunity a care home manager has to improve their organisation’s financial outlook is bound to be considered. That is all the more reason why it should not be their job to carry out assessments for a person when they have a vested interest—and a financial interest, at that. The Alzheimer’s Society also has a concern; it argues that we urgently need clarification of the role of care home managers, and how to protect the independence of the person being cared for. That is currently dealt with by best-interests assessors. My council of Stockton-on-Tees has raised concerns with me about the fact that the decision as to the necessity of assessment still appears to rest with care homes.

I thank Angela Connor and Natalie Shaw from the Stockton DoLS team for taking the time to talk to me about their work and how it will be affected by the Bill. They provided me with some follow-up notes, for which I am very grateful, because in one hour they built my understanding more than all the reading that I had tried to do. Like others, they posed many questions. Where is the quality assurance? Who is going to check that what they are doing is both correct and within the law? Despite the obvious conflict of interest, local authorities rely on assessments made by a care home manager, including allowing care home managers to carry out a consultation to determine a cared-for person’s wishes.

Between 2013 and 2018, there was a 5,000% increase in the number of applications under the Mental Capacity Act that my local authority received. Stockton-on-Tees Borough Council created the DoLS team in 2014 to manage the applications. As I said earlier, we are quite lucky in the north-east because there has been a regional arrangement in place that means that mental health assessors are paid a fixed fee of £175 for three assessments—buy two, get one free—and best-interests assessors are paid £175, again for three assessments.

As I mentioned earlier, the number of completions of DoLS in the north-east was higher than in the rest of the regions, and applications are taking a shorter time to process. Dedicated DoLS teams have been established across the region. Independent assessors are used, and that raises awareness with managing authorities. Yet the Alzheimer’s Society tells me that the Bill would remove the post of best-interests assessor; part of their responsibility will shift to care home managers, who I think are ill equipped to perform the role. The DoLS team in Stockton tell me that they believe that the Government’s proposals will lead to a diluted assessment.

I agree with what the Minister said this morning about ending the duplication of assessments, cutting out waste and targeting limited resources where they are most needed, but that must not be done by diluting the assessment process. I am interested to hear what the Minister has to say to address the concerns of so many stakeholders in this area.

The Government’s proposals, under which care home managers, who are held responsible for providing care, are also responsible for assessment, are not in the best interests of the person affected. I do not believe that the Government intended to create this clear conflict of interest. If care managers are not to be removed from the process entirely, I hope the Minister will outline in detail exactly how this serious situation is to be avoided. We may have to rely on information provided later. A code of practice is all very well, but we need the detail now. If we do not have the assurances we require, how on earth can we support the Bill?

Mental Capacity (Amendment) Bill [ Lords ] (First sitting)

Debate between Steve McCabe and Alex Cunningham

Tuesday 15th January 2019 Public Bill Committees

[Alex Cunningham]

My hon. Friend spells it out very clearly. I get very anxious when I see parents shut out. People come to see me when children are being taken into care—though I know that that is not necessarily directly applicable to this Bill. They are often in tears or do not understand the system; they are not being properly consulted. Anything that we can do in the Bill to give protection in this specific area is very important, so I welcome what my hon. Friend just said.

Mencap confirmed in its briefing that:

“We believe that there are some situations in which the LPS system will not be the appropriate framework to authorise interventions. For example, where young people’s care arrangements include physical restraint, we believe more scrutiny would be required and should therefore be undertaken by the courts.”

Those are the protections and safeguards that we need to consider while providing care to under-18s. My local authority of Stockton-on-Tees has raised its own concerns that including 16 and 17-year-olds in the legislation is likely to contribute to increased workforce pressure in any given local authority. One area that it has particularly flagged is the possible impact on foster carers. Would this lead to a reluctance among foster carers to come forward? Has the Minister considered what happens for other people who care for children who are not with their families? The measures proposed in our amendments go a long way to providing the protections needed. They are the very least of what we should be doing to protect vulnerable young people.

Although I have spoken mainly about 16 and 17-year-olds being included in the Bill, their access to an AMCP and the development of other protections, I support the notion that access to a genuinely independent AMCP should be standard—not the exception—for every person. I do not think that the Government amendments go far enough. Why would that not be standard? Are there financial reasons? My hon. Friend the Member for Nottingham North has already started the conversation about that. Is it a case of expense or resource? Will the Government make sure that we have not only the resources in the system to deal with this, but the training and even the career development for people to move into this area?

AMCP work is not inexpensive and there is no doubt that anything in the Bill that involves local authorities, commissioning groups or health boards and their teams is bound to have a considerable financial impact on them. If it were left to me and other Opposition Members then local authorities, commissioners and health boards would have even greater responsibilities on them, and therefore even greater increased cost. We must not lose sight of that. I am sure that there will be other opportunities to talk about resources and what already works, but for now I would welcome hearing from the Minister not just about the protections that she sees as necessary to the Bill, particularly for young people, but how she will ensure that the various bodies involved in delivering them will have the financial and staff capacity to deal with the work they need to do.

[Steve McCabe]

It is a pleasure to serve under your chairmanship, Mr Austin. I want to make a brief contribution, particularly on amendment 37.

If I may say so, the Minister was rather dismissive in her contribution. It has become evident in the past hour that the real challenge for the Bill will be to provide an affordable and worthwhile set of arrangements that guarantees that people who genuinely need care and protection get it, but that protects individuals’ liberties at the same time. We do not want to end up putting the wider establishment’s interests first and the individual’s second.

The Minister said that she was anxious not to put too much in the Bill, because that might expose it to challenges about what had been left out. Conversely, the Government cannot put too little in the Bill and ask us to rely on a non-existent code of practice. As legislators scrutinising legislation that will have a massive impact on the liberty and human rights of some of the most vulnerable people in our society, we need to ensure that the Bill is fit for purpose; I notice that Sense, an organisation with a lot of experience of many people who will fall within the Bill’s remit, takes the view that it is not. We need to be certain that we have the balance right, rather than tipping it in favour of the authorities or institutions—the people with power, effectively—against the interests of vulnerable people.

I know that the Minister’s intention is to streamline the process, but if she succeeds in streamlining it by flouting the legitimate liberties of some of our most vulnerable people, it seems to me that she is exposing the system to some risk. Disability Rights UK fears that one of the Bill’s dangers is that it

“takes the rights of disabled people backwards.”

Support for Care Leavers

Debate between Steve McCabe and Alex Cunningham

Thursday 16th November 2017 Westminster Hall

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship this afternoon, Mrs Gillan.

First, I congratulate the hon. Member for Brentwood and Ongar (Alex Burghart) on securing this debate. I am pleased that we are united in recognising that we can all do more to give care leavers the best possible start to their adult lives. If the hon. Gentleman never says anything important again in this House, he said something important today: “Young people in care are our children”. That is a very important statement. I find it quite difficult to find much to disagree with in his speech, although the Government’s success is perhaps not quite as rosy as he thinks. In fact, his speech offered real challenges to the Government and I will go on to offer some of my own.

My hon. Friend the Member for Birmingham, Hall Green—

[Steve McCabe]

Selly Oak.

[Alex Cunningham]

It says “Hall Green” here. I looked it up specially. I am sure that my hon. Friend is correct and I am wrong. He has spent a lot of his time championing looked-after children in this place, and I congratulate him on and thank him for that. He mentioned that these young people are full of potential. All young people are full of potential; we just need to give them the extra support they need to achieve that.

The hon. Member for North Ayrshire and Arran (Patricia Gibson) talked about services being developed with the knowledge of the young people involved. I agree with that, and it is something we tried to do when I was a councillor in Stockton. She went on to give shocking statistics on the number of former care leavers in the criminal justice system. That is all the more reason for us to do much better.

I thank the hon. Member for Colchester (Will Quince) for his work with the all-party parliamentary group for ending homelessness. The study it did focused on care leavers. I have spent a lot of my life trying to get people to focus more on care leavers, and it is great that we see that happening across the piece. He talked about the importance of them having the security of their own home, and I agree with that.

This subject is close to my heart. Although it is not my particular brief, I am pleased to be here today. I was the lead member for children’s services in Stockton. I very much enjoyed the time I spent with care leavers, even if I was left wondering how as a corporate parent I could do more for the likes of them, bearing in mind that they would be cast out into the wider world much younger than my own two sons, John and Andrew, who opted to leave home in their mid-20s. John and Andrew returned home, and I am always pleased to see them, but that is not an option for care leavers.

The situation that stuck out the most for me in recent years was not a young person from Stockton—it was when I met a young woman during a visit by the then Education Select Committee to deepest Kent. She was a care leaver and told of being all but abandoned in her room at a hostel and having to regularly put up with men braying at her door asking her to party with them. She was frightened. She felt at a loss as to what to do next, and she lacked the necessary support to get on with her life. As MPs, we are not formally corporate parents, but that does not mean we cannot recognise that, even though care leavers at 18 may be legally adults, there are many ways in which they need much more support than an average 18-year-old, who most likely has the support of a family. We can play our part in giving them that. We can start with the opportunity to move into high-quality training and employment opportunities—something we want for our own children and grandchildren. The rates of young people not in education, employment or training are too high, with care leavers almost three times less likely to be in education, employment or training at the age of 19. That figure can no doubt be associated with an often unstable journey through the care system. Other Members have described that.

Progress has been made over the past 20 years, and that is worth reflecting on. The Labour Government took the Children (Leaving Care) Act 2000 through Parliament, which created the role of the personal adviser. While it is fair to say that the provision is not perfect—local authorities still struggle to maintain this level of service with shrinking budgets—in its day it was a real innovation. In 2009, the Labour Government introduced a requirement for all care leavers at university to receive a £2,000 bursary from their local authority.

It is not just Labour that has improved provision. In 2014, the coalition Government created the role of the virtual school head, whose job it is to promote the educational achievement of looked-after children in each area. I welcomed that. It was something we had been doing in Stockton. I welcomed the decision by the last Government to extend the provision of local authority support from 21 to 25 through the Children and Social Work Act 2017.

My own borough council, Stockton, has an excellent reputation for delivering for vulnerable people. It has removed the requirement for care leavers to pay council tax for a period of time while they are adjusting to their new independent life. Others have followed suit, and I wonder whether the Minister could encourage more to do likewise.

We all owe a debt of gratitude to the Children’s Society. Members have spoken about it and other organisations, such as Barnardo’s, and thanked them for their work with care leavers and the briefings and statistics they provide us all with. Statistics have been in evidence in the debate. We know that 40% of care leavers aged 19 to 21 are not in education, employment or training, compared with 14% of all other 19 to 21-year-olds. Outcomes under the Work programme for care leavers were significantly worse than for others. They were around half as likely to spend the minimum amount of time doing work experience within a 12-month period than peers aged 18 to 24 claiming jobseeker’s allowance.

The Department for Work and Pensions could do a lot more to improve the way the social security system works for care leavers. That cohort is five times more likely to face benefit sanctions than their peer group. The system of personal advisers introduced by Labour was a positive step, but the Children’s Society has highlighted that there is often a lack of co-ordination between personal advisers and work coaches. It has called for early warnings to be used when considering a sanction for a care leaver and for no sanction to be imposed without the personal adviser being notified. Will the Government look at that, and innovative schemes such as the one in Trafford, where there is a protocol between the DWP and the local council that allows for two-way communication between a care leaver’s personal adviser and work coach on their claim?

The Children’s Society also argues that sanctions should be at a lower rate, as for 16 and 17-year-olds, and be for no more than four weeks. What is the Minister’s view on that? Another idea is that the DWP could send reminders of jobcentre appointments to young people by text or WhatsApp. The NHS does that already because of the cost of missed appointments. Care leavers do not have parents to prompt them to attend, so that might be something they could benefit from in particular.

For many who have recently left care, and those about to do so, their first experience of applying for benefits will be with universal credit. If the Government do not do something to help, they could face the same severe negative impact that universal credit is having on people and their wellbeing. In August 2017, the Children’s Society report on care leavers and the benefits system highlighted that the DWP introduced a marker to identify care leavers on the labour market system used by DWP staff to ensure that they received more tailored support. My hon. Friend the Member for Birmingham, Selly Oak (Steve McCabe) spoke about that. There does not appear to be any such marker for universal credit, so will the Minister tell us what plans there are to change that?

Universal credit has also had implications for 18 to 21-year-old care leavers who are subject to the youth obligation, which effectively means increased conditionality compared with legacy benefits. They receive intensive work-focused support from the start of their claim. That may be positive, as it is not a good thing for young people to start their adult life with a prolonged period of unemployment. However, care leavers may face more challenges at that stage in their lives than the vast majority of their peers, so will the Government look at how they can pause that intensive search for work if the young person needs more time to attend to the other issues in their lives?

Under universal credit, the leaving care team cannot begin to set up the claim until the young person has turned 18, so payment will not be received for at least five to six weeks. This afternoon in the main Chamber we have been talking about universal credit, and Conservative Members themselves were saying that the period needed to be much shorter. The Minister could help to support local authority leaving care teams carrying out the administrative work to set up a claim four to six weeks before the young person leaves care, so that they will receive payment without delay. Will the DWP also provide more training for jobcentre staff to support care leavers, and work with local authorities to provide training for personal advisers so that they can understand universal credit better and make care leavers in their charge aware that alternative arrangements are possible?

In its briefing, the Children’s Society also highlighted that care leavers might lose up to £45 from housing benefit when they turn 22 as a result of the existing rules on the shared accommodation rate of local housing allowance. Other Members covered that in detail. Finding affordable housing is already a severe problem for young people, so it is important that the impediments are addressed. A Centrepoint survey found that 26% of care leavers have sofa-surfed and 14% have slept rough. Stability in housing has to be one of the most fundamental needs in ensuring stability in people’s lives.

The cross-departmental leaving care strategy stated that the Government would look into extending the age at which young people switch from the single bedroom rate of local housing allowance to the shared accommodation rate when living in private rented accommodation, which is a reality for many, given the shortage of social rented properties. Local housing allowance rates have been frozen until 2020, so a delay to the age at which care leavers begin to receive the shared accommodation rate—which can be £30 less per week—is particularly urgent. That move to a lower rate of support does not occur in a vacuum. It happens at a time when young people are only entitled to a lower rate national living wage, and at an age when their entitlement under universal credit is noticeably lower. That cut in monthly housing support eats into already stretched budgets, putting tenancies at risk and causing stress and anxiety.

Can the Minister share with us her assessment of the case for delaying the cut in the move to the shared accommodation rate from 22 to 25? I also ask her how the DWP could ensure that care leavers get the meaningful financial education they need. Many of us want it to be universal for all young people, but I would suggest that care leavers could do with a bit of extra help to ensure that they do not get into debt. If they do get into debt, they need even more robust support. I would be interested in her view on the breathing space being proposed in the Financial Guidance and Claims Bill for care leavers. That would halt creditors imposing interest charges and extra fees, which only worsen the debt.

I hope, and am sure, that the Government will listen to all the points made today, and act to show that we are all on the side of care leavers and want them to realise their full potential. I just hope that the Minister, like every individual who has spoken this afternoon, will become that real champion for care leavers.