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Session 1999-2000
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Children (Leaving Care) Bill [H.L.]


 

These notes refer to the Children (Leaving Care) Bill [H.L.]
as introduced in the House of Lords on 18th November 1999 [HL Bill 2]

Children (Leaving Care) Bill [H.L.]


EXPLANATORY NOTES

INTRODUCTION

1. These explanatory notes relate to the Children (Leaving Care) Bill [H.L.] as introduced in the House of Lords on 18th November 1999. 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 BACKGROUND

3. 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) extend to England and Wales only. Clause 6 also extends 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:

    a) Place a duty on local authorities to assess and meet need. The responsible local authority to be under a duty to assess and meet the care and support needs of eligible and relevant children and young people.

    b) Eligible children are to be those in care aged 16 and 17 who have been looked after for a period to be prescribed but which is likely to be thirteen weeks, either continuously or in aggregate. The age at which spells in care start to count towards eligibility will also be prescribed, possibly as 14.

    c) Relevant children are to be those aged 16 and 17 who meet the criteria for eligible children but who leave care. Regulations may exclude certain groups, such as children who return home permanently and children who receive respite care. Local Authorities may, for example, take highly dependent children for short periods to give their carers a break. This group would remain the responsibility of their families and would not be eligible for the new arrangements even if their periods of respite care added up to thirteen weeks or more.

    d) The responsible local authority to be whichever one last looked after an "eligible" or "relevant" young person. That local authority will retain its responsibility wherever the young person may be living in England or Wales. At present responsibility falls to the authority in whose area they live. This has given rise to disputes over responsibility between authorities which the new arrangements are intended to avoid.

    e) A duty to keep in touch. The responsible Local Authority to be under a duty to keep in touch with all its care leavers who qualify for these new support arrangements.

    f) Pathway Plans. All "eligible" and "relevant" children and young people must have a pathway plan. This will take over from the existing care plan and will run at least till they are 21, covering education, training, career plans and support needed, for example to move into supported lodgings. Regulations may be made on the review of pathway plans. It is envisaged that they will be reviewed every six months or more frequently as needed.

    g) Young Person's Adviser. All "eligible" and "relevant" children and young people must have a Young Person's Adviser who will help to draw up the pathway plan and to make sure that it develops with the young person's changing needs and that it is implemented. When the young person leaves care and until they are at least 21 the Young Person's Adviser will be responsible for keeping in touch with them and ensuring that they receive the advice and support to which they are entitled. Regulations may provide that other groups, such as children receiving respite care, might also have Young Person's Advisers.

    h) Vacation support. The responsible local authority must assist the care leaver in higher education with vacation accommodation where this is needed.

    i) Education and Training support. The responsible local authority may assist with the costs of education and training up to the age of 24, whenever the course starts

New financial regime

6. 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 mean 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 from these means-tested benefits from "eligible" and "relevant" children. In England a ring-fenced budget will be created made up of :

    a) funds which would otherwise have made up the benefit entitlement for this group, which will be transferred from the Department of Social Security to the Department of Health;

    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.

Exceptions

10. 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 LAW

11. 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 it. 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 18, section 24 aftercare 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.

COMMENTARY

CLAUSE 1

Eligible children: preparation for leaving care

16. 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.

19A

17. Paragraph 19A restates the duty at present in section 24(1).

19B

18. 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 more but the Government believes that these young people are the responsibility of their families and should not remain within this new regime.

21. Similarly, care leavers who successfully return to their families should become their families' responsibility and should not be brought 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 as set out at 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 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 2

26. Clause 2 amends section 22 and inserts new sections 23A to 23C into the Children Act. These sections impose new duties on local authorities for children 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 children

28. 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 23A

29. 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 children" and the responsible authority.

30. By subsection (2) a relevant child is defined as 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 23B

34. New section 23B sets out the duties of the responsible local authority towards relevant children.

35. Section 23B(1) establishes 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) establish the duties for providing a personal adviser, a pathway plan based on a needs assessment, and 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 prescribed at subsection (3). Subsection (6) sets out some of the specific aspects of the assessment, which may be prescribed in regulations, such as who is to be involved or consulted in carrying it out. 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. The local authority may also provide support under new sections 24A and 24B (see clause 4). 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) 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.

41. Subsection (10) 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.

42. By subsection (11), 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.

43. Subsection (12) 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 reasonable 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 23C

44. New section 23C provides that that the responsible authority must continue to keep in touch with a relevant child, and to provide him with his personal adviser and his pathway plan until he reaches 21, or later if the authority is still providing support with education or training, which can continue up to 24.

CLAUSE 3

Personal Advisers and Pathway Plans

45. This clause inserts new sections 23D and 23E setting out the detail of personal advisers and pathway plans after new section 23C.

New section 23D

46. By subsection (1), regulations may be made to allow other groups, such as children who have received respite care, to have personal advisers in addition to the different groups of children and young people listed in sub-paragraphs (a) to (c) whom this Bill entitles to a personal adviser.

47. Subsection (2) provides for regulations to be made setting out the functions of the personal adviser. Guidance will cover, 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 23E

48. 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 4

Advice and assistance for certain children and young persons aged 16 or over

49. 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 24

50. Subsections (1) to (3) restate the definition of a person qualifying for advice and assistance. This definition will include relevant children as defined by new section 23A.

51. 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.

52. 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 24A

53. 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).

54. Subsection (1) places a duty on local authorities to consider whether a qualifying person meets the conditions set out in subsection (2).

55. 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) makes clear that this condition does not apply to any child who was looked after by a local authority. It 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.

56. 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).

57. Subsection (4) empowers an authority under these circumstances also to provide assistance, which may according to subsection (5) be done in kind or - though this is to be for exceptional cases only - in cash. The subsection allows regulations to prescribe cases where the power to provide assistance becomes a duty to do so to the extent that the child's welfare requires it. This recognises that the Government has already given a commitment, in its Response to the Children's Safeguards Review, to increase the support which local authorities provide for care leavers aged 18 to 21 when finances allow. It is anticipated that the power would be exercised, when appropriate to do so, in respect of care leavers within the meaning of new section 23C.

58. 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.

New section 24B

59. New section 24B amends the existing provision whereby local authorities can support formerly looked after young people who qualify for advice and assistance under section 24 in education and training up to the age of 24, provided that they embark on the course before they reach 21. The new provision at subsection (3)(a) removes the requirement that the course begin before the young person is 21, recognising that many young people who have been in care are likely to be ready for higher education later than their peers.

60. Subsection (5) obliges authorities to provide or enable the same young persons to pay for suitable vacation accommodation for higher education should it be needed. These measures are intended to encourage and enable more care leavers to enter Higher Education. At present, 75% of young people leave care with no educational qualifications of any kind, but the Quality Protects programme in England, and Children First in Wales, should help to ensure that more of them are prepared for further and higher education. Regulations will define "further education" and "vacation".

New section 24C

61. New section 24C provides for the necessary communication and liaison between local authorities for care leavers who move around the country. Subsection (1) extends the existing obligations under section 24(11) to include all children with whom the local authority is under a duty to keep in touch, including eligible and relevant children, and those who have been relevant children. We know that care leavers tend to be particularly mobile. In the case of eligible children, or relevant children or those over 18 who still have a Young Person's Adviser, it is envisaged that it will be for the Young Person's Adviser to do the necessary liaison work between authorities when the young person for whom they are responsible moves from area to area. In all these cases, the relevant local authority must inform another local authority if a child or young person plans to live or is living in their area.

62. Subsections (2) and (3) restate the provisions of existing section 24(12) and (13).

 
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