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Session 1999-2000 Publications on the internet Other Bills before Parliament Arrangement of Clauses (Contents) |
| Children (Leaving Care) Bill [H.L.] |
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These notes refer to the Children (Leaving Care) Bill [H.L.] Children (Leaving Care) Bill [H.L.]——————————
EXPLANATORY NOTESINTRODUCTION1. These explanatory notes relate to the Children (Leaving Care) Bill [H.L.] as brought from the House of Lords on 23rd May 2000. They have been prepared by the Department of Health, with input from the Department of Social Security, the Scottish Executive and the National Assembly for Wales in order to assist the reader of the Bill and to help inform debate upon it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not intended to be a comprehensive description of the Bill, so where a clause or part of a clause does not seem to require any comment, none is given.
SUMMARY AND BACKGROUND3. This Bill implements the proposals set out in the consultation document Me, Survive, Out There? - New Arrangements for Young People Living in and Leaving Care published in July 1999. The consultation document set out detailed proposals for improving the life chances of young people living in and leaving local authority care. It followed up the White Paper Modernising Social Services (Cm 4169) and The Government's Response to the Children's Safeguards Review (Cm 4105), both published in November 1998. These documents both included a commitment to legislate when Parliamentary time allowed to create new and stronger duties on local authorities to support care leavers up to at least 18.
4. The provisions of the Bill except clause 6 (exclusion from welfare benefits) and clause 8 (interpretation, etc.) extend to England and Wales only. Clauses 6 and 8 also extend to Scotland.
5. The Bill's main purpose is to help young people who have been looked after by a local authority move from care into living independently in as stable a fashion as possible. To do this it amends the Children Act 1989 (c.41) to:
New financial regime6. The Bill simplifies the existing arrangements for financial support of eligible young people. At present, young people who leave care at 16 can claim welfare benefits. Depending on their circumstances these might be Income Support, Housing Benefit or income-based Job-Seekers Allowance. However the stringent rules surrounding these benefits and the fact that these young people are likely not to be well informed about the way the system operates means that in practice they may have difficulty claiming. At the same time, the fact that this source of funds exists provides an incentive on local authorities to encourage young people to leave care and fend for themselves. However the Government believes that these vulnerable young people need more comprehensive personal support rather than simply cash alone. The trend shows increasing numbers of young people leaving care early. The proportion of care leavers aged 16 to 18 who leave care at the age of 16 increased from 33% in 1993 to 46% in 1998. One of the aims of the Bill is to reverse that trend.
7. To this end the Bill places local authorities under a new statutory duty to support these care leavers and at the same time removes entitlement to these means-tested benefits from "eligible" and "relevant" children. In England a ring-fenced budget will be created made up of: -
b) the existing sums spent by social services departments on this group of young people; and
c) money from the Children's Services Special Grant and the Children First programme.
8. The money contained in this budget will be distributed to local authorities by the Department of Health to support these young people whether they stay in care or elect to live independently. The National Assembly for Wales will determine how its resources are to be distributed to local authorities in Wales.
9. These measures are intended to ensure that vulnerable young people receive the care and help they need to grow into independence. Local authorities provide far higher levels of support than simply cash, especially when they work across Departments to fulfil their role as corporate parents. They will be able to ensure that young people in and leaving care are suitably accommodated, supported and advised according to their needs, rather than simply given money and obliged to fend for themselves.
Exceptions10. Regulations will provide for exceptions to the removal of benefits rule. It is envisaged that these will provide for cases such as lone parents and disabled children who would be able to claim benefits even if they were living with their parents. These young people will otherwise be eligible for the new arrangements under this Bill.
OUTLINE OF THE EXISTING LAW11. All statutory references are to the Children Act 1989. A child is a person under the age of 18 (section 105).
12. A "looked after" child is a child who is provided with accommodation by a local authority in the exercise of its social services functions, or who is in its care under a care order (section 22(1)). There are many social services functions which may involve the accommodation of a child, but the most important are contained in sections 20 (general powers and duties to accommodate children in need) and 21 (duty to accommodate children on remand or in police protection).
13. There is a general duty under section 20(1) to accommodate all children in need of accommodation. Additionally, by section 20(3) a local authority is under a duty to accommodate any child in need in its area over the age of 16 whose welfare the local authority consider is likely to be seriously prejudiced if they do not provide him with accommodation, and by section 20(5), a local authority has the power to provide accommodation in a community home for those aged over 16 and under 21 if it considers that to do so would safeguard and promote their welfare.
14. The general duties of local authorities towards children in need are set out in section 17, and their duties towards children in need they are looking after are set out in sections 22, 23, and 26 of the Act. In a nutshell, the duties towards looked after children are to safeguard and promote their welfare (section 22(3)(a)), to provide them with accommodation and maintenance (section 23(1)), to review their cases regularly (section 26(1)) and to provide a system for dealing with complaints (section 26(3)). Before making any decision about a looked after child a local authority must consider the wishes and feelings of the child and his family, and his background characteristics (section 22(4) and (5)).
15. Aftercare duties towards formerly looked after young people and other "qualifying persons" aged 16 and over are contained in section 24. Local authorities may (or in some cases must) advise, befriend and assist these young people, and help certain of them with education, employment and training. If a qualifying person is under the age of eighteen, section 24 after care duties may overlap with the general duty under section 17 towards children in need. Once they are over 18, only section 24 (and section 20 (5)) duties apply
COMMENTARYCLAUSE 1Eligible children: preparation for leaving care16. This clause amends Schedule 2 to the Children Act 1989, inserting new paragraphs 19A, 19B and 19C after paragraph 19 to impose duties on local authorities towards children whom they are looking after.
19A17. Paragraph 19A restates the duty at present in section 24(1)
19B18. Paragraph 19B introduces the concept of the eligible child. Sub-paragraph (2) defines the eligible child as one who has been looked after for a prescribed period after a prescribed age, and is aged 16 or 17. The current intention is to provide in regulations that in order to qualify for this new package of support, a person must have been in care for at least thirteen weeks after the age of 14. This period need not be continuous but could be aggregated from more than one episode of care. In order to avoid including young people who may have been looked after as infants and happen to return briefly to care after they are 16, regulations will specify the age above which episodes of care count towards the qualifying period.
19. Sub-paragraph (3) provides for regulations to be made to include or exclude particular groups. For example, it is possible that some local authorities might try to sidestep these new arrangements by discharging children from care at 15. Should this turn out to be the case it would be possible to include this younger group within the category of eligible children.
20. Conversely, there are some other groups of young people for whom this package of care would not be appropriate. Some young people normally live at home with their families and are only looked after for short periods of respite care in order to give their carers a rest. These periods of respite care could amount to thirteen weeks or whatever period is prescribed, but the Government believes that these young people are the responsibility of their families and should not become subject to this new regime.
21. Similarly, care leavers who successfully return to their families should become their families' responsibility and should not remain within this new regime. Sections 24, 24A and 24B (see Clause 4) will continue to apply to them.
22. The mechanism for determining what support the authority will provide will be the needs assessment and the pathway plan provided for in sub-paragraph (4). Pathway plans are defined in new section 23E (Clause 3). Guidance and regulations will be issued on the detail of the pathway plan. It is envisaged that it will dovetail with and in due course take over from the care plan which the authority will have made in respect of the child. It will be prepared by the authority with the child and other key people such as his parents, social worker and Young Person's Adviser. The Pathway Plan will represent an agreement between the child and the authority as to what his needs are, what his future plans are, and how the authority will support him to meet his needs and fulfil his plans. Wherever possible, therefore, the Pathway Plan is to be jointly prepared and agreed by the child and the authority. It will set out a career path with milestones such as education, training, career plans, a planned date for leaving care and where and how he will live thereafter. It will set out the support which the local authority will provide at all stages of the plan, while he is being looked after and when he leaves care and sets up home independently.
23. The plan will be reviewed regularly (sub-paragraph (5)). It is envisaged that this will mean at least every six months or more often if needed. These reviews will provide the opportunity to update and revise the plan, adding more detail to the later stages which may be sketchy to begin with. A child might perform better than expected at school, for instance, and his plan be amended to include a degree course. If so, the authority's planned support would also be updated.
24. Sub-paragraph (6) allows for a streamlining of any reviews which fall due for a given child, so that they can all be carried out together. Sub-paragraphs (7) and (8) provide for regulations to be made about assessments.
25. New paragraph 19C is self-explanatory.
CLAUSE 226. Clause 2 amends section 22 and inserts new sections 23A to 23C into the Children Act. These sections impose new duties on local authorities towards children and young people formerly looked after by them.
27. Subsection (2) amends section 22 of the Children Act to allow local authorities to provide accommodation for a child who has left care without the fact of their doing so classifying him as still being "looked after".
The responsible authority and relevant children28. Subsection (3) amends the heading before section 24 of the Children Act to read
Advice and assistance for certain children and young people
as the new provisions which follow affect young people aged over 18 as well as children under 18.
New section 23A29. It is hoped that the provisions in this Bill will encourage more children in care to remain looked after until they are 18. However there is to be no compulsion on them to do so. This section and new section 23B therefore provide for those aged 16 and 17 who choose to leave care. New section 23A defines relevant child and the responsible authority.
30. By subsection (2) a relevant child is defined as a child of 16 or 17 who would have been an eligible child had they stayed in care but who has chosen to leave. Subsection (3) makes parallel provision to that made in paragraph 19B(3) for eligible children.
31. Subsection (4) defines the responsible authority as the one which last looked after the child. This is to ensure continuity of care and to avoid the difficulties which have arisen in cases where local authorities have been reluctant to provide after care support to care leavers in their area who were formerly looked after by another authority.
32. Subsection (5) allows for regulations to make English or Welsh authorities responsible for children who had been looked after by a Scottish local authority, if they come to England or Wales. If regulations are made under subsection (3)(a) to make such children a new category of relevant children, this power is needed to ensure that they have a "responsible authority" under this Bill. These regulations are therefore intended to ensure that English and Welsh authorities are able to take responsibility for Scottish children under these circumstances.
33. Until such time (if any) when Scottish legislation is enacted, English children who move to live in Scotland will continue as now to be able to claim social security benefits in Scotland. Scots children who move to England will not become eligible or relevant children but will be able to claim benefits as now.
New section 23B34. New section 23B sets out the duties of the responsible local authority towards relevant children.
35. Section 23B(1) places a duty on a local authority to keep in touch with relevant children, wherever they choose to live. This takes account of the fact that this group of young people tends to be very mobile.
36. Subsections (2) to (7) impose duties to provide a personal adviser, a pathway plan based on a needs assessment, and to conduct regular reviews of the plan, for relevant children as for eligible children. Some of these duties towards relevant children will in practice be continuations of those delivered to them as eligible children in care.
37. Subsection (2) requires the local authority to appoint a personal adviser for each relevant child, should they not already have done so.
38. By subsection (5) regulations may be made about the needs assessment which will inform the pathway plan required by subsection (3). Subsection (6) sets out some of the specific matters which may be prescribed in regulations. The assessment will be carried out in the context of subsection (8) which sets out the local authority's duty to safeguard and promote the child's welfare.
39. Subsection (8) establishes the local authority's duty to meet the needs of a relevant child. The local authority must provide the child with maintenance and suitable accommodation. Other forms of support which may be appropriate may be prescribed in regulations. This Bill aims to ensure that children leaving care can expect to receive the same sort of support from their responsible authority as a child might expect from his parents. This might be moral support through a crisis or practical support such as help with driving lessons, if being able to drive were necessary for the child to secure employment.
40. Subsection (9) makes it clear that support for relevant children may be given in cash as well as in kind. Where appropriate such cash support may be given regularly; the circumstances need not be exceptional.
41. Subsection (10) allows regulations to be made about the meaning of suitable accommodation. This might mean setting out that these young people are not to be accommodated in unsuitable areas (such as a red light district), even if property there is cheap and available. The regulations will also provide for checks to be carried out on potential landlords or other providers of accommodation in the light of the vulnerability of these young people.
42. Subsection (11) places a duty on a local authority to take reasonable steps to trace a relevant child if they have lost touch with him. This duty holds until the child reaches his 18th birthday and so ceases to be a relevant child. It is intended that this should ensure that a child cannot simply disappear and be forgotten.
43. By subsection (12) existing section 17(7) to (9) is applied to any assistance which may be given. This requires the local authority to take account of the means of the child and his parents, and permits it, depending on their means, to require some or all of this assistance to be repaid.
44. Subsection (13) provides that subsections (4) and (5) of section 22 of the Children Act apply to decisions taken under this new section. This means that the local authority must, so far as is reasonably practicable, ascertain and give due consideration to the wishes and feelings of the child, his parents and other people deemed to be relevant in his case, and must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.
New section 23C45. New section 23C sets out the duties of the responsible authority towards a former relevant child.
46. Subsection (1) defines a former relevant child as one who qualified for the new arrangements for support under this Bill either as an eligible or as a relevant child. Subsection (2) provides that that the responsible authority must continue to keep in touch with a former relevant child. Subsection (3) requires the responsible authority to provide him with his personal adviser and his pathway plan
47. Subsection (4) imposes a duty on the responsible authority to assist a former relevant child (a) with the expenses associated with employment; (b) with the expenses associated with education and training; and (c) to provide him with general assistance. Subsection (5) provides that the assistance provided under subsection 23C(4)(c) can be given in kind or, exceptionally, in cash. In each case the duty is to provide assistance to the extent that the young person's welfare (or, where relevant, his educational or training needs) requires it.
48. Subsection (6) sets out how long these duties run, which is till the former relevant child's 21st birthday. However, subsection (7) provides that if a former relevant child is being assisted with education or training pursuant to his pathway plan, that duty to assist lasts to the end of the agreed programme of education or training, even if it runs beyond the young person's 21st birthday. The duties set out in subsections (2) and (3) also extend to the end of the programme.
49. Subsection (8) requires the responsible authority to disregard any interruption in the young person's attendance on a course provided that he resumes it as soon as is reasonable. Subsection (9) requires the responsible authority to provide vacation accommodation, or funds to secure it, for a former relevant child whom they are assisting with full-time higher education under subsection (4)(b), should this be necessary.
50. Subsection (10) applies the provisions as to the means of the young person and his parents, and the repayment of any assistance, as applies to assistance under at section 17 of the Children Act and elsewhere in this Bill.
CLAUSE 3Personal Advisers and Pathway Plans51. This Clause inserts new sections 23D and 23E setting out the detail of personal advisers and pathway plans after new section 23C.
New section 23D52. By subsection (1), regulations may be made to allow other individuals aged between 16 and 21, such as children who have received respite care, to have personal advisers in addition to those children and young people listed in paragraphs (a) to (c) whom this Bill entitles to a personal adviser.
53. Subsection (2) provides for regulations about the functions of advisers appointed under this Bill. Guidance will covers, amongst other things, how the Young Person's Adviser is to be selected and what to do should the relationship between the child and the Adviser break down.
New section 23E54. New section 23E deals with the content of pathway plans for the different groups of children and young people who are to have them. It provides for regulations to be made giving more detail of what they are to cover and how they are to be reviewed.
CLAUSE 4Advice and assistance for certain children and young persons aged 16 or over55. This Clause restates and amends section 24 of the Children Act and divides it into four (24, 24A, 24B and 24C) to make it simpler to follow. It amends it in particular to take account of the new concept of the responsible authority and to increase local authority responsibilities to assist care leavers with higher education.
Section 2456. Subsections (1) to (3) restate the definition of a person qualifying for advice and assistance. This definition also includes relevant and former relevant children as defined by new section 23A and 23C.
57. Subsection (4) establishes a new duty on a local authority to keep in touch as they think appropriate with any child whom they have looked after. This duty is intended in practice to apply to those formerly looked after children who are not included in the new duty to keep in touch in sections 23B or 23C.
58. Subsection (5) defines which local authority is to be responsible for providing services (the relevant authority) to a person qualifying for advice and assistance. By subsection (5)(a) the relevant authority for formerly looked after young people is in all cases the authority which last looked after them. By subsection (5)(b) for other young people qualifying for help under section 24 the relevant authority will be the one in whose area they are living.
New section 24A59. Section 24A restates with amendments the powers and duties of local authorities in respect of qualifying persons at present found in section 24(4) to (7) and (10).
60. Subsection (1) places a duty on local authorities to consider whether a qualifying person meets the conditions set out in subsection (2).
61. Subsection (2) sets out the conditions, which are (a) that the qualifying person needs help of a kind which the local authority can give him, and (b) in the case of a qualifying person who was not looked after by a local authority, that the local authority is satisfied that the person who was looking after him is not in a position to offer the help. Subsection (2)(b) rephrases the condition in existing section 24(5)(b) in a way which, taken with the new definition of a relevant authority at new section 24(5)(a), is intended to solve the difficulties of interpretation which have arisen over out of area placements.
62. If these conditions are met, subsection (3) states that if the qualifying person has been looked after by a local authority or a voluntary organisation, the relevant authority must advise and befriend him. In other cases, it may do so. This is a restatement of the provision made by existing section 24(4).
63. Subsection (4) empowers an authority under these circumstances also to provide assistance, which may according to subsection (5) be in kind or - though this is to be for exceptional cases only - in cash.
64. Subsection (6) applies existing section 17 (7) to (9) to any assistance which may be given. This requires the local authority to take account of the means of the child and his parents, and permits it, depending on their means, to require some or all of this assistance to be repaid.
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