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

Debated on Tuesday 20 July 2021

The Committee consisted of the following Members:

Chair: †Philip Davies

Ali, Rushanara (Bethnal Green and Bow) (Lab)

Betts, Mr Clive (Sheffield South East) (Lab)

† Caulfield, Maria (Lewes) (Con)

† Donelan, Michelle (Minister for Universities)

Duguid, David (Parliamentary Under-Secretary of State for Scotland)

† Glindon, Mary (North Tyneside) (Lab)

Jarvis, Dan (Barnsley Central) (Lab)

† Kyle, Peter (Hove) (Lab)

† Lewell-Buck, Mrs Emma (South Shields) (Lab)

Mak, Alan (Lord Commissioner of Her Majesty's Treasury)

Morris, Grahame (Easington) (Lab)

Morris, James (Lord Commissioner of Her Majesty's Treasury)

Pursglove, Tom (Corby) (Con)

† Richardson, Angela (Guildford) (Con)

Rutley, David (Lord Commissioner of Her Majesty's Treasury)

Throup, Maggie (Lord Commissioner of Her Majesty's Treasury)

† Tomlinson, Michael (Lord Commissioner of Her Majesty's Treasury)

Nicholas Taylor, Committee Clerk

† attended the Committee

Fourth Delegated Legislation Committee

Tuesday 20 July 2021

[Philip Davies in the Chair]

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

Before we begin I would like to remind Members that Mr Speaker has stated that the wearing of face masks is encouraged. Hansard colleagues would be grateful if Members sent their speaking notes to As people can see, there is no need to wear a jacket in this inclement, for a Yorkshire man, weather.

I beg to move,

That the Committee has considered the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 (S.I. 2021, No. 161).

It is a pleasure to serve under your chairmanship, Mr Davies. For record, the shadow children’s Minister is very sad not to be here. She was pinged last night, and has become part of the ping epidemic that is crossing the country. It is a pleasure for me to stand in her place.

Labour do not oppose the regulations, and I am happy to tell the Minister that we will not seek to divide the Committee. We are simply here to scrutinise the proposals, and I hope that the Minister can do us the courtesy of answering our many questions about them.

The Opposition support the principle of the regulations, as we believe that a ban on unregulated accommodation for children under 16 is right. We are talking about some of the most vulnerable children in our society. From my time as shadow youth justice Minister, I know that many of those children are known to local authorities, children’s services and youth offending teams. They are often the victims of crime and exploitation themselves. They deserve a guarantee that when they are in, or near, the care of the state, that care will be of the highest quality, meet their needs and support them as they grow, learn and prepare for adulthood.

The Government’s policy to end the use of independent and semi-independent care settings for under-16s is not just welcome, but long overdue, but I am concerned that that policy does not go far enough. By not reaching the thousands of 16 and 17-year-olds in the care system, the regulations risk creating an unfair, two-tier system of care that is arbitrary and not built around the needs of the child. Under the current proposals, a vulnerable child could suddenly find themselves in or moved to a new unregulated care setting on their 16th birthday; a setting that, according to the Government’s own policy, would not have been judged appropriate for them even a day beforehand. That seems highly reckless given the well known risks posed by child criminal exploitation in unregulated care settings. To use the age of 16 as the point at which a child’s entitlements change so dramatically seems to entirely arbitrary. There is nothing that fundamentally changes about a young person enough on the day that they turn 16 to suggest that unregulated care would suddenly become appropriate.

I would like the Minister to explain that decision in some detail. Can she tell me why the Government chose not to extend the regulations to all children under 18, as Labour believes should be the case? Can she explain why the cut-off of 16 is appropriate for a significant change in the care that a child could receive? Does she accept that that change would certainly appear to be entirely arbitrary to a child? Does she not believe that the care system should be built around the needs of vulnerable children, rather than an arbitrary age or date selected for the convenience of the regulations? In short, can she give me a credible explanation for the decision not to extend the welcome content of the regulations to all children under the age of 18?

Charities supporting vulnerable children, the Labour party and the Children’s Commissioner are all clear that extending the scope of the regulations to all children under the age of 18 would improve the care that children receive and make the system fairer and more consistent. Why does the Minister not act on that unjustifiable inconsistency? Perhaps she will argue that for some young people an independent setting is right when they are older, or that the quality of care could be just as good in an unregulated setting. However, it seems to me that her own policies show that that is unlikely to be the case, because the national standards for semi-independent and independent accommodation are significantly narrower than the quality standards to which regulated children’s homes are currently subject. For instance, the proposed standards for semi-independent and independent settings do not include the quality and purpose care, educational standards and health and wellbeing standards. Although I am sure that we all want unregulated accommodation to deliver on those standards, the reality is that under the current regulations such accommodation would not be required to do so. Such settings would still be part of the care sector, but subject to much lighter-touch regulation, with no clear justification for that.

Will the Minister take the opportunity to clarify why she believes that there should be a two-track system of regulation of children’s homes and accommodation, with a much lighter touch for some providers? Does she not see that this two-tier system risks some young people finding themselves in accommodation not suitable to their needs, which does not deliver the care and educational support that they so desperately deserve?

The Minister could address those shortcomings by establishing a fair and consistent regulatory framework, either by holding independent and semi-independent providers to the same standards as others, or by extending the ban in the legislation to cover all under-18s. Will she commit to doing that?

The Minister must also address questions about the implementation of the regulations, in particular regarding the support available to local government to provide appropriate placements for children. From early September, children under 16 will no longer be housed in independent or semi-independent settings. What additional support will local authorities receive to find appropriate care and accommodation for those children? We know that funding for local placements is already incredibly stretched, so has the Minister made an assessment of the costs local authorities will face in funding regulated placements for those children? Will her Department provide any additional funding to support them to do so?

The care that we provide to the most vulnerable children in our society speaks volumes about the priorities and principles of the Government of the day. And it affects the economy and safety of tomorrow. Today’s regulations do the right thing for some children, but leave others out in the cold. They create a two-tiered system of regulation that could be deeply unfair and create arbitrary outcomes based on the age rather than the needs of children in the care of the state. I hope that the Minister will listen seriously to the concerns raised by the Opposition, and acknowledges the substantial risks facing 16 to 18-year-olds in unregulated care settings. I hope that she will outline a plan to ensure that every child, whatever their age, receives the care needed to keep them safe and to realise their potential.

It is a pleasure to serve under your chairmanship, Mr Davies, and to follow my hon. Friend the Member Hove, who spoke from the Opposition Front Bench. However, I respectfully rise to speak against the regulations.

The Government spin on the regulations has really been something else. The line they take is that they are ensuring children of 15 years of age and below must live in setting where they receive care, but that is wrong, because what the statutory instrument really does is legislate to deny children aged 16 and 17 years of age—children in the care of the state—any care at all. Our social care system does not even do that to vulnerable adults in supported accommodation, and I am aghast that it is proposed for children. It is legitimising, encouraging and increasing the shameful practice of placing thousands of children in unregulated, unsafe hostels, bed and breakfasts, shared homes and caravan parks. Some children have even been placed in tents on campsites. All those settings leave them without any support and vulnerable to criminal abusers, drug gangs and sexual exploitation.

The SI creates a two-tier discriminatory system, because children in foster care can remain in that setting until they are 21-years-old, but those without a foster family are being told they their leaving age will not be 18, as it always has been, but now 16. How many children who have lived in unregulated accommodation has the Minister spoken to? I sincerely hope that it is none at all because if she has spoken to them, it makes what the Government are pushing through today even more shameful, because in those children’s own words they are literally just surviving, not living, and not being allowed to prepare for adulthood. They are not in education, they are not in employment, they are literally just surviving hour by hour.

The SI is nothing more than another step in a long line of attempts by the Government to shamefully deregulate the care of our most vulnerable children, to make it profitable for providers and ripe for further privatisation, because removing care removes extra costs.

The Association of Directors of Children’s Services has warned that the reforms could result in

“a number of unintended consequences”.

The children’s rights charity Article 39 has made an application to court for a judicial review of the proposals. Become, a national charity for children in care and young care leavers, has said that the Government have systematically

“failed to listen to young care-experienced people who have spoken out about the lack of security, stability and support they have experienced living in unregulated accommodation.”

I could never support any legislation that not only denies children the care they so desperately need, but actually makes them deeply unsafe. This is a shameful SI, and if given the chance, I would vote against it every single time.

It is a pleasure to serve under your chairmanship, Mr Davies.

Let me start by saying that the Government firmly believe that every child deserves a place to live where they feel safe and receive the care and support they need not only to survive but to thrive. To be clear, anything less is unacceptable. Having dedicated foster carers, excellent children’s homes and high quality semi-independent settings for older children who are ready for that and which is of the right quality are essential. Our care system should not be a one size fits all, but one that is based on the needs of children and young people. We therefore need a range of options for care placements and support that reflects the diverse needs of children in care and care leavers. Therefore, independent and semi-independent provision can be the right option for some older children, but let me be clear that that is an option only where it is of high quality and the young people are ready for it.

Such a setting can never be the right choice for children under the age of 16; children of that age should be placed in children’s homes—

What the Minister is saying is all very nice, but the SI we are discussing places children who are 16 and 17-years-old in unregulated accommodation where they are not safe. There is no safety mechanism to protect them. How on earth does the Government think that provision will make them safe, protected and cared for?

If the hon. Lady will bear with me, I will come on to how we are raising the quality of care, but she is free to intervene again if she wishes.

Children under the age of 16 should be placed in children’s homes or in foster care, which is why we have laid the 2021 regulations, which ban the practice of placing children under the age of 16 in unregulated independent and semi-independent settings from September.

We know that the number of under-16s placed in unregulated settings is relatively small, with around 100 placed nationwide at any one time, but we also know that this often involves children with the most complex needs. Let us be under no illusion, one child in such a setting is one too many, and the Government believe 100% that that is unacceptable.

I reassure hon. Members that we have been working closely with local authorities to understand better what leads them to place under-16s in unregulated provision, so that we can consider how best to support those authorities in the run-up to September, and beyond. That addresses a point raised by the hon. Member for Hove. We have updated statutory guidance, published on 8 July, to make it clear to all local authorities what is expected of them when the ban comes into effect in September. We know that some local authorities have already taken significant steps to reduce the use of unregulated provision, and in many cases have eliminated its use already. All local authorities, of course, must do the same in the coming months.

I know that the Opposition have raised concerns in the past that we are creating a two-tier care system, but that is simply not true. The 2021 regulations do not change the existing duties placed on local authorities to safeguard and promote the welfare of looked-after children in their care, to meet their needs and to ensure that there is sufficient accommodation. The needs of the child are paramount when making decisions about the right care placement.

Local authorities have statutory duties to meet the needs of children that they look after. To be crystal clear in response to some of questions asked today, where older children’s needs would be best met in a children’s home or in foster care, that is exactly where they should be placed. Banning the placement of children under the age of 16 in independent or semi-independent provision does not in any way establish an arbitrary point at which children in care are moved into such provision on their 16th birthday. I want to reassure the hon. Member for Hove and others on that point.

In fact, the majority of 16 and 17-year-olds will continue to be placed in children’s homes or in foster care. The latest data show that, as on 31 March 2020, there were more than 80,000 looked-after children and of those, 6,490 were living in independent or semi-independent provision, the majority of whom were over the age of 16. I want to reiterate that the Government are clear that independent and semi-independent provision can be the right option for some older children, but only where it is of high quality, and the young person is ready for that level of independence.

I am little bit curious because the Minister claims that this type of accommodation can work for some children, but the SI actually removes the current level of responsibility that the local authority has for those children by removing the national standards that are a requirement under Ofsted. Can the Minister explain exactly what the Government think is different between a vulnerable child who is 15 and one who is 16 or 17? That is the distinction that is being made in the SI.

There are many cases where semi-independent or independent provision for children aged 16 or 17 can be appropriate, for example, asylum seekers who are used to independent living or those children who are judged to be ready to learn to be independent. I am sure that my colleague, the Minister for Children and Families, would be only too delighted to meet the hon. Lady to discuss the matter further in detail.

It is important that we ensure that high-quality option is available to facilitate the development of young people’s independence as they prepare for adulthood and learning to live independently. We already set a high bar for the level of care that must be delivered in a children’s home or by a foster carer. That gives the provider and the commissioner of placements the confidence that those placements are high quality. We believe that it is only right that that standard is also met in independent and semi-independent provision for 16 and 17-year-olds. Further to the point made by the hon. Member for Hove, that is why the Government recently consulted on the introduction of national standards and an Ofsted-led registration and inspection regime for independent and semi-independent settings that accommodate 16 and 17-year-olds.

We are committed to designing that regime in partnership with the sector and care-experienced children and young people to ensure that it delivers the very best for children in the future. Through that consultation we sought views on what the national standards should cover, what the Ofsted regime should look like and how we should better the define the distinctions between care and support—often the dividing line between a children’s home and semi-independent settings.

I feel strongly that the views of young people should shape those vital reforms, which is why we also published a separate consultation aimed at children and young people with experience of care. We have also commissioned a series of focus groups with care experienced young people to complement the public consultation. The reforms will deliver lasting change for children of this country.

We understand that local authorities sometimes find themselves in positions where the most appropriate placement is difficult to access, a point raised by hon Members today. That is why we confirmed in February that we are developing plans, supported by additional investment, to support local authorities to create more places in children’s homes. That includes the £24 million investment announced in the spending review in November to start a programme of works to support local authorities to maintain and expand provision in secure children’s homes.

Although local authorities are responsible for ensuring that there are sufficient places, the Department for Education has supported local authorities through investing in new approaches to increase capacity. Crucially, we are also supporting projects to reduce the number of children needing to come into care in the first place. We have also invested in behavioural insights research to understand better why people choose to foster and adopt. We have also invested nearly £500,000 between September 2019 and March 2020 in seven partnerships to test new approaches to commissioning and sufficiency planning in foster care. A further £600,000 for four of those partnerships is ongoing from September 2020 to September 2021. We have invested £1million in adopter recruitment in 2020-21 and £84 million over five years through the strengthening families, protecting children programme in 18 local authorities, where evidence shows that that could reduce looked-after children numbers. We have also invested £17.2 million in the supporting families, investing in practice programme in up to 45 local authorities.

Crucially, the Department is also developing a new capital funding programme to aid local authorities to establish new children’s homes. We will finalise the details in the coming weeks, but we are proposing that local authorities will be able to bid for the funding through an open competition on a match-funded basis. That funding will be used by local authorities to establish innovative approaches to reduce over time the number of children needing care, address current shortfalls, including in geographic areas where fewer children have access to available local children’s homes, and ensure sufficient provision for children with more complex needs, or children on remand.

Finally, we have announced that the Government will legislate to give Ofsted additional powers to take action against illegal, unregistered children’s homes—homes that should be registered with Ofsted because they deliver around the clock care, but are currently unregistered. Ofsted can already prosecute those providers but we want it to have access to quicker, earlier legal steps to force providers to close or to register.

I assure hon Members that that legislation will be introduced at the earliest opportunity. I hope that I have reassured the Committee of the importance of those vital reforms. The Government are committed to delivering meaningful, lasting change for children in care and care leavers. I commend the 2021 regulations to the Committee.

This is one of those moments when the Opposition are put in a tricky position. We welcome the increased provision and regulatory safeguards for children under the age of 16, but we are frustrated that those same protections are not available to older young people.

We live in an age where young people are exposed to additional harms that simply did not exist in the past with the incredible rise of criminal exploitation of children—adults who exploit young people and bring them into criminal enterprise through endeavours such as county lines. The people who perpetrate those crimes are smart; they know the settings that house vulnerable children and they target them. That is why the Opposition are so keen that the maximum regulatory support and protection is in place for all young people who, by definition in these settings, are some of the most vulnerable in our society.

I am very grateful to my hon. Friend the Member for South Shields for bringing the voice of the most vulnerable to our deliberations in Committee. We will not push the motion to a vote because we believe that any move forward and any additional protection for any number of young people is something that we should never ever block, but we will push hard in the coming months of this Parliament to make sure that those same protections are extended to children of an older age.

Question put and agreed to.

Committee rose.