Children and Families Bill

Memorandum submitted by the Local Government Association (CF 19)

The Local Government Association (LGA) is the national voice of local government. We work with councils to support, promote and improve local government. We are a politically-led, cross party organisation which works on behalf of councils to ensure local government has a strong, credible voice with national government. We aim to influence and set the political agenda on the issues that matter to councils so they are able to deliver local solutions to national problems. The LGA covers every part of England and Wales, supporting local government as the most efficient and accountable part of the public sector.

Summary

1. Councils want the very best for children and young people and will have a central role to play in implementing many of the provisions in the Bill. We therefore want to make sure the Bill gets it right and secures the best outcomes for all our children and young people. Whilst the LGA welcomes many of the provisions in the Bill, we still have a number of concerns about measures in the legislation. In particular:

1.1 We think that the provisions in clause 3 which could allow the Secretary of State for Education to remove councils from the recruitment and assessment of adopters are unnecessary, heavy-handed and risky. It is the wrong solution and risks making things worse for children and adopters.

1.2 We are also concerned that the Bill may not maximise the opportunity to reform the Special Educational Needs (SEN) system because it does not put measures for sufficient accountability in place. As it stands, the Bill means that local authorities will be held to account for organisations over which they have no control, particularly health bodies.

2. Adoption: The central consideration in any adoption decision must always be what is in the best interests of each individual child.

2.1 We are particularly concerned by t he Government’s solution to the adopter shortage outlined in clause 3 because it will not actually solve wider problem. Removing 80 per cent of the capacity in the system to recruit and approve adopters when we have a massive shortage is illogical and dangerous. Voluntary Adoption Agencies (VAAs) themselves say they cannot make up the capacity and this approach risks more harm than good. In addition:

2.1.1 The clause does not provide any criteria for use of this sweeping power, nor requires its use to be justified.

2.1.2 It ignores that where there are problems in the system, the sector is already addressing it and is contrary to the Government’s own localism argument.

2.2 The Government has not produced robust evidence that delay caused by the search for a "perfect ethnic match" is a widespread problem for which legislative change is required. We do believe that ethnicity should be one issue balanced amongst all considerations, not an overriding factor.  Both the Government’s and the House of Lords Committee’s draft clauses would support this approach as the best interests of the child will remain at the heart of decisions about adoption. Both retain the requirement in the Adoption Act 2002 for the court or adoption agency to have regard to, inter alia, "the child’s particular needs" and "the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant".

2.3 Clause 4 provides for the use of personal budgets for adoption support services. Councils already promote personal budgets widely for use by many service users in other areas of social care, but with the pilots not having been completed, we believe there needs to be time taken to evaluate the impact around adoption. We seek reassurance that a decision on commencing these clauses will not be taken until the findings from the pilots are available and able to inform implementation.

2.4 Councils take their responsibilities towards looked after children very seriously. Every local authority in England already has arrangements in place to deliver the function of a Virtual School Head: to fulfil their duty to promote the educational achievement of looked after children. The provisions in clause 9 are therefore unnecessary. A duty on schools to co-operate is vital for the promotion of educational achievement of looked after children. Therefore, we want to see the Bill strengthen requirements on schools, as the direct providers of education, to cooperate with councils on the delivery of this duty. This approach would have greater impact by strengthening the partnership needed to improve educational outcomes for children.

2.5 The adoption provisions apply to England only. The LGA seeks clarity from the Government about the impact on adoptions across the England and Wales border.

3. Family Justice Review: Councils are dedicated to putting children first and those in care need to be saved from the years of uncertainty created by the current court system. The LGA supported the Family Justice Review and welcomes Government measures to speed up the system.

4. Special Educational Needs: Councils want the very best for children and young people and are pleased to have responsibility for all young people with special needs and welcome the central role they will play. However, if outcomes are to improve, it is vital that councils have the legal, administrative and financial means to carry out their new duties.

4.1 We also think that the provisions for Education, Health and Care (EHC) Plans should be extended to children and young people with disabilities that fall within the definition of ‘children in need’ under the Children Act 1989 but who do not have a special educational need or those who are aged 18 or have their needs met by adult social care services who will have a statutory Care Plan under the draft Care and Support Bill.  Councils already have a duty to carry out care assessments. We do not think two entirely separate systems and different timetables for health and care provision for children do not have SEN is helpful.

4.2 Local authorities will be held to account for organisations over which they have no control and are currently the only organisations included in the Bill that can end up in court. There is currently no right of appeal in the Bill against decisions made by Clinical Commissioning Groups (CCGs), or other NHS bodies even though they have a duty to make healthcare provision for children and young people with special educational needs. This means that a child’s parent or young person may appeal against decisions made by local authorities about the special educational provision in an EHC Plan, but not about the healthcare provision the Plan. Healthcare provision which is made ‘wholly or mainly for the purposes of education’ is, according to the Bill, to be treated as special educational provision, so councils can be taken to court for something over which they have little or no control.

4.3 We welcome the Government’s announcement, made in a Department for Education Press Release, dated 5 March 2013, that it will place a legal duty on Clinical Commissioning Groups that will mean they will by law have to secure services in EHC plans. We look forward to seeing further detail on this announcement and hope that it will alleviate some of our wider concerns related to the legislation. As drafted, the Bill contains duties placed on local authorities that are not mirrored with health provision, which ties in with our concerns about accountability. It is not clear how the NHS Commissioning Board and Clinical Commissioning Groups can be held to account and challenged if they do not deliver the provision set out in an EHC Plan. There is no mechanism for local authorities to enforce health bodies’ compliance.

4.4 It is very important that the requirements for the Local SEN Offer are flexible enough to take account of parent and young people’s choice so that they can understand their entitlements and allow for them to express a preference for specific provision. Local authorities are already required to publish information about a range of services that they provide or secure, including the SEN provision made from school and local authority budgets and information about parent partnership services. The work underway by the SEN Pathfinders and other agencies should be used to inform any common framework for the Local SEN Offer which may be set out in Regulations, particularly to address the provision that will need to be made available in schools and colleges to support pupils with low to moderate SEN without EHC Plans. It is vital that local authorities should have the freedom to respond to local circumstances to meet the needs of children and young people in their area.

4.5 We are concerned that the Bill creates expectations that it may not be possible to meet. Parents of children with SEN and young people with SEN need to understand their entitlement to services across the age range of 0-25 years old. The provisions currently lack clarity, particularly in relation to the 19-25 year old offer. This risks creating a more adversarial system if parents pursue entitlement to education up to the age of 25 when in many cases an EHC Plan will end sooner than that as young people will be ready to make the transition to adult life at differing ages.

4.6 Any changes to SEN provision needs to be seen in the context of a time when councils are facing cuts of 33 per cent over the Spending Review period and there are changes to High Needs funding. The LGA is discussing this with the Department for Education and wants to make sure that budgets match projected demand.

ADOPTION AND CHILDREN LOOKED AFTER BY LOCAL AUTHORITIES (Clauses 1 – 9)

5. Local government is committed to the children in its care and to making improvements to the adoption system. The LGA is already working closely with the sector and the Children’s Improvement Board (CIB), on improving the adoption system and local performance.

6. Clause 1: Fostering for adoption

6.1 Councils already make use of this practice. The proposed clause should lead to greater uptake, though the central consideration in any adoption decision must always be what is in the best interests of each individual child.

6.2 Prospective adopters that choose to take this route will also need to be fully aware of the implications and supported throughout.

6.2 Fostering for adoption increases stability for children; however it remains essential to progress measures to reduce the significant delay in the courts, to reduce uncertainty for the child (and birth parents and prospective adopters) and for those who are not being fostered for adoption.

7. Clause 2: Ethnicity and Matching

7.1 The Government has failed to present robust evidence that delay caused by the search for a "perfect ethnic match" is a widespread problem for which legislative change is required. The House of Lords Select Committee on Adoption Legislation found that overall, the evidence it received did not suggest that this is such a significant problem that legislative change is necessary.

7.2 Anecdotal examples indicate that where problems may have occurred, it is an issue of practice, rather than legislation. We do believe that ethnicity should be one issue balanced amongst all considerations, not an overriding factor.  Both the Government’s and the House of Lords Committee’s draft clauses would support this approach as the best interests of the child will remain at the heart of decisions about adoption. Both retain the requirement in the Adoption Act 2002 for the court or adoption agency to have regard to, inter alia, "the child’s particular needs" and "the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant".

8. Clause 3: Recruitment, assessment and approval of prospective adopters

8.1 We would strongly encourage the Committee to support amendments which would delete this Clause from the face of the Bill. Giving the Secretary of State power to remove local authorities from the adopter assessment and approval process is unnecessary, heavy-handed and risky. This is because:

o It is the wrong solution for the adopter shortage problem and risks making the system worse for children and adoptive parents. VAAs only provide around 20 per cent of adopter recruitment currently. To seek to remove the other 80 per cent of capacity in the system would be counter-productive, running serious risks of creating more delay for children in finding an adoptive home. It also risks fragmenting the system as councils remain responsible for placing children for adoption and matching them with families. Adoptive families say they like the consistency of support from a social worker through the whole process.

o the Government has recognised that many adoption services provide an excellent service and are very effective at recruiting sufficient adopters to meet local need. The problems lie mainly in the disincentives in the system , which deter councils from recruiting more adopters than they need in their local area. The LGA is already working with SOLACE and ADCS on sector-led plans to overcome these systemic barriers and improve performance where necessary

o The clause does not provide any criteria for use of this sweeping power, nor requires its use to be justified.

o The Secretary of State already has sweeping intervention powers, making this power unnecessary.

8.2 Our concerns are shared by Barnado’s: writing in the Independent, Janet Grauberg, their UK Director of Strategy, said that "the solution does not fit the problem, and in fact risks causing more harm than good.  An indiscriminate approach to ‘compulsory contracting out’ of adoption services by government could potentially create more instability and delay in the system, not less." [1]

9. Adoption support services: Personal budgets

9.1 Councils already promote personal budgets widely for use by many service users in other areas of social care, but with the pilots not having been completed, we believe there needs to be time taken to evaluate the impact around adoption. We are concerned that putting this into legislation is premature, given that pilots have not yet started and the impact is unknown. We seek reassurance that a decision on commencing these clauses will not be taken until the findings from the pilots are available and able to inform implementation.

10. Adoption Register

10.1 The impact of giving greater access to prospective adopters needs further consideration. We are concerned that it has the potential to be counter-productive if people become disappointed and disillusioned with the system, due to very high numbers of adopters wanting to adopt one particular child.

11. Wales

11.1 The adoption reforms apply to England only. The LGA seeks clarity from the Government about the impact on adoptions across the England and Wales border.

12. Virtual School Heads

12.1 The Bill enacts a previously announced policy of requiring all councils to have a VSH in order to promote the educational achievement of looked after children. As corporate parents, councils recognise the importance of helping children to overcome the trauma experienced before they came into the care system and supporting them to achieve good educational outcomes. Every local authority in England already has arrangements in place to deliver the function of a Virtual School Head and fulfil their duty to promote the educational achievement of looked after children. A duty on schools to co-operate is vital for the promotion of educational achievement of looked after children. Therefore, we want to see the Bill strengthen requirements on schools, as the direct providers of education, to cooperate with councils on the delivery of this duty. This approach would have greater impact by strengthening the partnership needed to improve educational outcomes for children.

Family Justice Provisions (Clauses 10 – 18)

13. Expert Evidence

13.1 The LGA welcomes provisions in clause 13 for limiting the use of expert evidence and recognises the importance of social work reform in improving skills of professionals and courts’ confidence in them.

14. Limiting the length of proceedings

14.1 The focus on limiting the length of proceedings via the 26 week timescale in clause 14 will be important in reducing delay for children. Changes to culture and working practices must of course also sit alongside structural and legislative change. Councils, courts and other partners in some areas are already working together to improve local working.

15. Children’s Improvement Board

15.1 The LGA is a partner in the Children’s Improvement Board, which supports sector led improvement in children’s services, drawing on the expertise of political leaders and senior officers in councils. Supporting councils to implement the Family Justice Review forms part of this work. This includes a series of regional seminars for professionals to complement the publication of a new resource 'Evidence matters in Family Justice', designed to support professional, robust and credible assessments and court reports. The seminars are also supported by the Family Justice Board and local family justice boards.

SPECIAL EDUCATIONAL NEEDS (CLAUSES 19 – 32)

16. Protecting children and helping provide for their future is one of the most important things councils do and councils take their responsibilities very seriously. Children and young people have to be at the heart of this legislation and we welcome the opportunity to move away from a process-driven system to one that focuses on the outcomes for children and young people.

17. Children with Disabilities

17.1 We also think that the provisions for Education, Health and Care Plans should be extended to children and young people with disabilities that fall within the definition of ‘children in need’ under the Children Act 1989 but who do not have a special educational need or those who are aged 18 or have their needs met by adult social care services who will have a statutory Care Plan under the draft Care and Support Bill. 

17.2 If one of the key aims is to have a more co-ordinated and more efficient system in place for children and young people, which gives councils a duty to promote integration, it would not be helpful to have entirely separate systems, and different timetables operating for health and care provision for the minority of children and young people with disabilities who do not have SEN.  It could potentially lead to more disputes about provision leaving parents and young people to pursue claims and work through the complexity of different legislation in order to have their needs met. However, it is vital that any additional costs that may result from this are fully funded under the New Burdens Doctrine.

18. Duties on Health Bodies

18.1 We welcome the Government’s announcement, made in a Department for Education Press Release, dated 5 March 2013, that it will place a legal duty on Clinical Commissioning Groups that will mean they will by law have to secure services in EHC plans. We look forward to seeing further detail on this announcement and hope that it will alleviate some of our wider concerns related to the legislation. For specific health provision identified in an EHC Plan, we would expect that health bodies would have a duty not only to provide the healthcare but to fund it.  For example, if a child with diabetes needed regular insulin injections during the school day, that would be health provision that should be funded by the health service.

18.2 As drafted, the clauses do not go far enough in respect to health bodies and equivalent duties are not placed on Clinical Commissioning Groups (CCGs). Clause 25 does not include a duty on CCGs to promote integration and we would therefore support an amendment that would achieve this. Clause 27 places a duty on councils to keep education and care provision under review and consider the extent to which it is sufficient to meet the special educational needs and social care needs of the children and young people concerned. There is no mirror provision for health bodies to keep health provision under review. This raises the key issue of accountability because it is not clear how the integration of education, health and social care can be achieved if the Bill does not require the NHS Commissioning Board and Clinical Commissioning Groups to have the same duties for health provision as councils have for education and care provision. We would welcome a new clause that would provide mirror duties for health bodies.

19. Duties and Cooperation

19.1 The Bill creates a duty on local authorities and their local partners to collaborate. As drafted, clauses 28 and 29 are intended to create a reciprocal duty of co-operation. However, whilst the Bill gives the administrative means to carry out these duties, these clauses do not give councils the means to hold organisations to account, for example, local authorities should be able to exercise their scrutiny role.

20. Local SEN Offer

20.1 Clauses 30-32 outline the duty on local authorities to provide information on the service they expect to be available for children and young people with SEN.

20.2 As champions for children and parents whose lives do not revolve around administrative boundaries we are concerned about the level of bureaucracy required to fulfil the local SEN offer. Each council's local SEN offer will be expected to take account of the offers made in other areas and represents a significant cost to administer.  The new duty on councils to publish a local SEN offer also needs to be seen alongside the proposal to provide the option for a personal budget where parents may be able choose what services they want for their children from elsewhere. 

20.3 The focus of the local authority must remain on the needs of the individual child or young person. The LGA is therefore concerned that the Bill and Regulations should not be over-prescriptive about the Local SEN Offer or it will limit local freedoms and flexibilities to take account of parental choice and preferences and the ability of local authorities to respond to local priorities.

20.5 At the core of our concerns is the issue of expectations and that the Local SEN Offer should not create a significant and costly bureaucratic burden.

20.6 It is critical to get the Local SEN Offer right and that the Pathfinders should be used to inform Regulations on what should constitute minimum standards, particularly to address the provision that will need to be made available in schools and colleges to support pupils with low to moderate SEN without EHC Plans.

21. 19-25 year old offer

21.1 Although it is not intended that the new system should give an entitlement to education up to the age of 25, there is already anecdotal evidence that parents are assuming that it will. This could result in a significant increase in the number of young people with complex needs staying on in education at significant extra cost when it may not be in their best interests to do so.

21.2 It is therefore vital  that the responsibility, funding and, where appropriate, access to advocacy for young people aged 19-25 is clarified so that all those involved know what they can expect from the new provisions and who is accountable for providing it. We agree with the view, expressed by the Education Select Committee following pre-legislative scrutiny, that if the purpose of the legislation is to extend education as a right to 25, then the Government needs to make that clear and fund that; if not, then that should also be made clear.

22. Appeals and tribunals

22.1 Clause 50, as drafted, would mean that it is only decisions by local authorities, rather than other organisation, that parents of a young person may appeal against to the First-Tier Tribunal in relation to named matters. There is currently no right of appeal in the Bill against decisions made by Clinical Commissioning Groups (CCGs), or other NHS bodies even though they have a duty to make healthcare provision for children and young people with special educational needs. This means that a parent or young person may appeal against decisions made by local authorities and about the special educational provision in an Education, Health and Care Plan, but not about the health and care provision the Plan. Health provision which is made ‘wholly or mainly for the purposes of education’ is, according to the Bill, to be treated as special educational provision, so councils can be taken to court for something over which they have little or no control.

22 .2 The issue of accountability is also related to the Local SEN Offer. This will provide information about the provision expected to be available in all types of schools, including Academies and colleges but only local authorities will be held accountable through the appeals process to the tribunal. This means we could see a situation where a school, college or another institution is named in an EHC Plan but does not deliver, for whatever reason, the special educational provision, the local authority is held to account. It would help local authorities if tribunals were able to direct schools and colleges to provide what they say will and this would help provide more influence over all types of schools and colleges.

23. Mediation

23.1 Clauses 51 and 52 make provisions for local authorities to appoint an independent person to help resolve disagreements between parents and schools. We would like the Government to clarify what process should follow if disputes cannot be resolved.

24. Territorial extent

24.1 Clause 57 refers to making arrangements for a child or young person to attend an institution outside England and Wales, including contributing to or paying fees and travelling expenses but does not specify where. This could see local authorities facing a significant cost burden if they have to fund arrangements to other countries. We would therefore want to see the clause specify where exactly such arrangements may be made and supported by local authorities.

25. Duties on schools

25.1 The LGA is pleased that the clauses in the Bill will apply directly to academies and Further Education colleges, rather than through centralised contracts held by the Secretaries of State for Education and Business, Innovation and Skills. For children and their parents, schools and colleges are their main day-to-day contact so their role will be significant in making the new system a success.

25.2 A number of provisions apply to schools but not colleges, for example the duties listed in clause 63 & 64 on a school to inform parents about special educational provision do not apply to colleges. The responsibilities of post 16 institutions should be spelled out more clearly in the legislation. The duties that apply to schools to provide an SEN information report in clause 64 should also apply to colleges and all types of alternative provision and pupil referral units.

26. Code of Practice

26.1 Clauses 66 and 67 provide for a new code of practice for SEN. It is important that draft regulations and the new code of practice are available as the legislation proceeds through Parliament as much of the detail of the new systems will not be in the Bill. The new Code of Practice needs to start afresh to reflect the shift from process to achieving better outcomes for children and young people. We would also like to see the learning from the Pathfinders referenced in any code to ensure that best practice is shared.

26.2 Clause 67 sets out the procedure for making and approving the Code of Practice. Given the significance of the Code of Practice, we would like to see it subject to affirmative resolution rather than negative resolution so that proper debate takes place.

27. Pathfinder Projects

27.1 20 pathfinders, covering 31 local authorities are currently testing the main proposals in the SEN Green Paper. It was announced recently by Minister Edward Timpson MP that the current pathfinder programme would be extended for a further 18 months beyond March 2013 through to September 2014 and the Department is examining the best ways of spreading best practice from the pathfinders to remaining local authorities.

27.2 As the Bill progresses through Parliament it is vital that learning from the Pathfinder and other projects is incorporated. We would also like to see the Bill amended to provide for local councils to develop and introduce new ways of working in partnership and at a speed that sustains existing good practice.

Childcare

28. Child-minder hubs

28.1 The Bill introduces changes to childcare in clauses 73 to 76. Clause 73 amends the Childcare Act 2006 to allow for a new model of child-minder agencies, or ‘child-minder hubs’ which child-minders register direct with for a cost for their services. Many local authorities are already providing a similar service to child-minders by providing training and support as part of their childcare sufficiency duties.  With the creation of this new model, many local authorities may choose to set up child-minder agencies to continue to offer their experience in this area whilst keeping the costs to child-minders at a minimum.

29. Sufficiency duty

29.1 Clause 75 repeals the duty for local authorities contained in schedule 11 of the Childcare Act 2006 to publish a formal assessment of the sufficiency of childcare at least every three years. The LGA is broadly supportive of removal of a duty on local authorities. However, we want to be sure that central government does not expect cost-savings from removing this duty. It is important that councils retain the option to use the tools they need to exercise their duties in providing sufficient childcare.

30. School facilities

30.1 Clause 76 removes requirements on school governing bodies to consult if they want to open up their facilities for the wider community, including for childcare provision. The LGA is supportive of encouraging schools to open up their facilities for local provision of childcare, as well as reducing bureaucracy upon schools. Therefore we welcome this clause as a first step towards achieving this ambition.

March 2013


[1] http://www.independent.co.uk/voices/comment/adoption-giving-children-the-chance-of-a-better-life-is-the-sole-priority-8465830.html

Prepared 13th March 2013