Select Committee on Delegated Powers and Deregulation First Report



Memorandum by the Department of Health


1.  This memorandum summarises the main provisions of the Children (Leaving Care) Bill and provides an overview of the delegated powers. It subsequently identifies each power; describes its purpose; explains why the matter has been left to delegated legislation; and explains the degree of Parliamentary control provided.


2.  In summary, 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.

3.  Clauses 1-5 and 7 amend the Children Act 1989 (c.41) to place further duties on local authorities in respect of children leaving care, and formerly in their care. The responsible authority is placed under a duty to assess the care and support needs of young people aged 16 or 17 whom they have looked after for a qualifying period, whether they remain in care or not. It must provide them with a personal adviser and a "pathway plan" and take reasonable steps to keep in touch. If the child leaves care before the age of 18, the local authority must continue to maintain and accommodate him, and to provide such other support as may be prescribed, until he is 18. The duty to provide a personal adviser, a pathway plan, and to keep in touch continues until the young person is 21. The Local authority may assist the young person with education and accommodation until the age of 24.

4.  Clause 6 is freestanding and excludes certain children from entitlement to various benefits. At present, young people who leave care at 16 may be eligible to claim Income Support, Housing Benefit or income-based Job-Seekers Allowance. These benefits are not always claimed by care leavers. 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. 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. One of the aims of the Bill is to reverse that trend.

5.  To this end the Bill places local authorities under a new statutory duty to support care leavers who are 'relevant children' (new section 23B(8)) and at the same time removes their entitlement to these non-contributory benefits (Clause 6).


6.  The Bill has a number of provisions containing powers to make delegated legislation. The powers are concerned with detailed implementation of the legislation. Regulations made in consequence of the Bill are to be made by statutory instrument. The powers contained in Clauses 1-5 and 7, which amend the Children Act 1989, will be subject to the negative procedure by virtue of Section 104(2) of that Act. The power contained in 6(8) is subject to the affirmative procedure.

7.  Under the National Assembly for Wales (Transfer of Functions) Order 1999 (S1 1999/672) certain of the Secretary of State's powers to make subordinate legislation, including all those under the Children Act 1989, are transferred to the Assembly. Clause 8(7) of the Bill has the effect that regulations under Clauses 1-5 and 7 will be made in respect of Wales, by the National Assembly for Wales. The Transfer Order does not extend to functions in relation to social security matters, which are reserved to Westminster. The power to make regulations under Clause 6 will therefore not be exercised separately in relation to Wales. Consultation will be in accordance with the Memorandum of Understanding agreed between the UK and the National Assembly for Wales.


8.  In considering what matters should be specified on the face of the Bill and what should be left to delegated powers the Department has sought to ensure consistency with the Children Act 1989. It has also weighed the importance of the matter against the need to avoid excessive technical and administrative detail and keep the Bill as short as possible and to ensure sufficient flexibility to be able to consult, and to react to changing circumstances and experience without the need for primary legislation.

9.  It is likely that the Department will wish to consult interested parties on draft Regulations prior to making and laying before Parliament




10.  New paragraph 19B of Schedule 2 to the Children Act introduces the concept of the eligible child who is looked after by a local authority. Sub-paragraph (2)(b) provides for regulations to be made to define how long and above what age, a young person must have spent in the care of a local authority in order to qualify for the enhanced care package provided for in this Bill.

11.  The Regulations will prescribe a qualifying period in care in order to target the new arrangements on those who need them. The intention is that this should be a period amounting to thirteen weeks, which may have been continuous or made up of a number of separate episodes of care.

12.  In order to avoid drawing in young people who were looked after as infants and who happen to spend a short time in care as adolescents, the Regulations will set out the age at which time in care counts towards the qualifying period. The Department intends to consult on what that age should be. Its current working assumption is 14.

13.  The reason for taking a power to prescribe these matters rather than setting them out on the face of the Bill is that they are detailed matters of implementation. The Department wishes to consult on them and they may need to be revised with experience.

14.  Sub-paragraph (3) provides for regulations to be made to include or exclude certain categories of children. The power to include (or exclude) additional categories gives flexibility to adjust the scheme at the margins should this prove necessary in the light of experience. For example, if local authorities try to avoid their new responsibilities by discharging children from care at 15, it would be possible to meet the development by prescribing that children of 15 are to be an additional category of relevant children.

15.  The power to exclude certain children from the new arrangements in regulations is intended to be exercised in respect of young people looked after for respite care for short periods which might add up in all to the qualifying period. Other categories of children may also come to light to whom it would be inappropriate to apply these new arrangements.

16.  The power at sub-paragraph (3) is therefore considered more fitting for secondary legislation in order to allow for flexibility to respond to the experience of implementation.

17.  Sub-paragraphs (7) and (8) provide for regulations to be made to cover details of the assessment which will form the basis of the Pathway Plan. Sub-paragraph (8) refers to new section 23B(6) which provides more details of those aspects of the assessment to be covered in regulations. These aspects have been left to secondary legislation to avoid unnecessary detail on the face of the Bill, and to allow provisions to be adjusted should this prove necessary in the light of experience. This is consistent with the approach for the Children Act as a whole.



18.  Section 23A makes provision for children who have left care equivalent to that made by paragraph 19B(3) in respect of eligible children. It is proposed to exercise the power in subsection (3)(a) to provide that children formerly looked after by a Scottish local authority but in England are included in the new arrangements. Provision is to be made in secondary legislation because of the possible need to adjust the provision in the light of legislative developments in Scotland.

19.  The power in subsection (3)(b) is intended to be used to exclude from the new arrangements children who return home permanently. This has been left for Regulations as a detailed matter of implementation, consistent with the approach throughout this Bill and the Children Act as a whole.

20.  By subsection (5) if the power in subsection (3)(a) has been exercised to make English or Welsh authorities responsible for children who move from Scotland but whose history of being looked after by a local authority would have made them relevant children had they been living South of the border, the regulations may also specify which local authority is to be the responsible local authority for these children. [8] This is considered suitable for secondary legislation for the same reasons as the power in (3)(a).


21.  Subsections (5) and (6) provide for regulations to be made about assessments for the purposes of drawing up the Pathway Plan for relevant children in just the same way as paragraphs 19B(7) and (8) do for eligible children.

22.  Subsection (8)(c) allows for regulations to be made to set out additional forms of support which may be required for relevant children in addition to maintenance and accommodation.

23.  Subsection (9) allows for regulations to be made to define "suitable accommodation". There will also be regulations about the suitability of landlords and other providers of accommodation since these young people are likely to be especially vulnerable. These matters are left to secondary legislation as points of detailed implementation which may require updating over time.



24.  Subsection 23D(1) allows for regulations to be made to provide personal advisers for additional groups of young people who would not already be entitled to them under the provisions of this Bill, such as young people receiving respite care. Power has been taken to prescribe these groups in secondary legislation because of the flexibility this provides. It is consistent with the approach taken throughout this Bill and in the Children Act.

25.  Subsection (2) allows for regulations to set out the detailed functions of the Personal Adviser. Regulations will provide the framework for this and guidance will be used to fill in the detail, such as how the Adviser is to be chosen and what to do if the relationship between the young person and the Adviser breaks down. This relationship will be important for ensuring the successful delivery of the policy. The Adviser is also to provide the link between a young person and his home authority if he moves or runs away. It is considered that these matters should be dealt with in Regulations because they are detailed issues of implementation. The Department will need to consult interested parties on the Regulations and needs to allow for flexibility to respond to experience as these Advisers become established.


26.  Subsection (2) provides for Regulations to define the content of the Pathway Plan and how and when it must be reviewed. These are detailed matters of implementation which are more appropriately dealt with in Regulations, in the same way that regulations made under section 26(1) of the Children Act currently make provision in respect of reviews for children looked after by local authorities.



27.  Subsection (4)(a) deals with a local authority's power or duty to provide assistance to a young person who qualifies for help under section 24A. Power is taken to prescribe categories of young people whom the local authority must assist under this provision, as opposed to having only a power rather than a duty to do so. It is anticipated that the power will be exercised in favour of children within the meaning of new section 23C. This has been left to secondary legislation to allow some flexibility, and for further consultation and consideration within and outside government.


28.  Subsection (6) allows for regulations to be made to define "full-time higher education" and "vacation" in the context of the duties on local authorities to support care leavers in higher education. These are technical matters of detail more suited to secondary legislation.



29.  Subsection (2) provides for regulations to be made setting out the detail of the procedure to be followed by the local authority when dealing with complaints made by the children specified in subsection (1). It is considered that detail of this nature is suited to secondary legislation, and the power is essentially a restatement of that in existing section 24(15).


30.  Subsection (3) allows for the Secretary of State to make regulations excepting certain groups of young people from the changes to the benefits system which are being introduced to support the policy. The intention is that young people in and leaving care should be treated as far as possible like young people living at home with their parents. For the most part, this would mean that the local authority as their corporate parent should be responsible for providing support. However, there are some groups of young people - lone parents and disabled children - who are eligible to claim welfare benefits even if they are living at home. These Regulations are therefore intended to preserve their existing entitlement to benefit.

31.  Subsection (4) provides for Regulations on benefits to be made for Scotland as for England and Wales. These Regulations will not be made until such time (if any) as Scottish law on children in and leaving care is amended similarly to the provisions in this Bill for England and Wales.

32.  Subsection (5) enables the Secretary of State to make transitional consequential or savings provisions in connection with the coming into force of the powers under this section. Subsections (6) and (7) do not as such contain powers to make delegated legislation, but contain technical provisions about the extent and use of the powers in clause 6. They are standard social security provisions. Subsections (8) to (10) set out the Parliamentary procedure required in connection with the exercise of powers in clause 6.


33.  Subsection (2) provides for the Bill to be commenced by Order made by statutory instrument. Subsection (3) provides for the Act to be commenced in England by the Secretary of State and in Wales by the National Assembly for Wales (apart from clause 6). It would not be practicable to introduce its provisions on Royal Assent because time is needed to prepare and consult on delegated legislation, and for local authorities to prepare for implementation. To allow for flexibility in implementation, commencement orders rather than fixed dates are proposed, and different dates may be appointed for different purposes. These are standard provisions and as is usual no Parliamentary scrutiny is proposed.

November 1999

8  This is because the Scottish Parliament may decide to introduce a similar Bill to this in Scotland. If they decide to do so, when it is commenced the Secretary of State may make regulations commencing clause 6 in Scotland. Present legislation does not permit authorities on either side of the border to take responsibility for children looked after by each other. If those children are also unable to claim benefits, they would be without any means of support if they crossed the border. Regulations are therefore intended to ensure that English authorities will take responsibility for Scottish children under these circumstances. 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. Back

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