Power to test different ways of working Bill Committee January 10th 2017

The Children and Social Work Bill began in the House of Lords back in May 2016. Among the many controversial elements was the proposal to introduce ‘power to test different ways of working’ by allowing – or directing a replacement Trust in the case of failing councils – local authorities to opt out of children’s social care legislation. A petition against this attracted over 107,000 signatories and the House of Lords voted to take the clauses out of the Bill. A list of organisations opposing the proposals can be found here (Article 39 Briefing).

However, when the Bill reached the House of Commons the Government said it would bring back a modified version, differing from the original in the following ways:

  1. Power can’t be used for children in need, child protection, or voluntary accommodation of children *
  2. Services will not be privatised **
  3. Local authorities can CHOOSE whether to use the power and will not have it imposed
  4. Greater consultation before applying for power
  5. Statutory Guidance on the use of the power
  6. Annual report on how the power is being used

The Minister will hope to reassure members of the Public Bill Committee of these safeguards on January 10th 2017. The Government has a majority on the Committee, so I would expect that Conservative members would not vote against but would press for further changes if there were sufficient public outcry.

* On Sunday January 8th Article 39 published a long list of duties which still fall OUTSIDE the Government’s proposed safeguards LINK The way this can happen is because the exempted sections of legislation (scroll down for details) do not include the subsections. 

You can send your views to the Public Bill Committee but be aware that once you have done this you can’t publish it elsewhere until it is made public by the Committee. The format for submitting your views is a Word document with numbered paragraphs, no more than 3,000 words. Put your name, address, telephone number and email address in the covering email. You should provide a summary of your views and a short personal introduction, before giving your comments. It is particularly helpful if you are able to explain any problems or pitfalls in relation to the Government’s proposed amendments. At the end of this blog post I have set out the Government amendments and highlighted the changes from the Bill as first introduced.  More details on how to send your views to the Committee here.

* This is the “not for profit” privatisation amendment.

NC2 (3) Regulations under this section may not be used so as to remove any prohibition on a local authority in England arranging for functions to be carried out by a body whose activities are carried on for profit.”

In other words, as long as there is an existing ban on commercial companies taking over the functions of a local authority, then the Government can’t slip something in regulations later to over-ride this. However, there is nothing to prevent the Government from introducing this via a NEW law.

It is worth looking at a recent article from Ray Jones which reminds us what was happening in 2014. At this time the Government put forward plans for outsourcing children’s services; commissioned Laing Buisson to assess the possibilities for private providers;  and civil servants in the DfE had meetings with G4S, Serco, Virgin Care, Amey and Mouchel to consider the future shaping of statutory children’s services and how to open-up the market place.

After a public outcry, the Government said it would bar profit-driven companies from being contracted to provide statutory children’s social work services, but then subsequent regulations indicated that there was nothing to stop  “an otherwise profit-making company from setting up a separate non-profit making subsidiary to enable them to undertake such  functions”(Explanatory Memorandum)

The Government delayed publishing the Laing Buisson report until December 2016.  The Laing Buisson report said “we came to the conclusion that it is hard to envisage how significant additional capacity and diversity could be created without more services being exposed to market forces.” [LB p81]

“Subject to central government policy change, there is appetite within the independent (for-profit and not-for-profit) sector in most parts of the country to respond to any tenders that local authorities may issue for small to medium sized segments of the full range of social care services, so long as these are free from the administrative and bureaucratic burdens  characterised by current local government procurement regimes.” LB p12

This is the schedule   for the Public Bill Committee made up of MPs scrutinising the Children and Social Work Bill.

(1) the Committee shall (in addition to its first meeting at 8.55 am on Tuesday 13 December) meet—
(a) at 2.00 pm on Tuesday 13 December;
(b) at 11.30 am and 2.00 pm on Thursday 15 December;
(c) at 9.25 am and 2.00 pm on Tuesday 10 January;
(d) at 11.30 am and 2.00 pm on Thursday 12 January;
(e) at 9.25 am and 2.00 pm on Tuesday 17 January;
(2) the proceedings shall be taken in the following order: Clauses 1 to 32; Schedule 1; Clause 33; Schedule 2; Clauses 34 to 50; Schedule 3; Clauses 51 and 57; new Clauses; new Schedules; Clauses 58 to 64; and remaining proceedings on the Bill; and
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 17 January.—
The next deadline [for amendments] will be 4.30 pm on Thursday 5 January, for the Committee’s first sitting after Christmas, on Tuesday 10 January.

You can see here that the Committee stopped just before new clauses (“CLAUSES 51 to 57 agreed to“) and therefore we know that the Government’s next attempt to revive the ‘power to test different ways of working’ will take place on Tuesday January 10th, in the form of new clauses (NCs) 2-9.  (NC1 concerns secure accommodation in Scotland)

New Clauses Tabled by Minister Edward Timpson on Power to Test Different Ways of Working  Reference
Member’s explanatory statements
New Clause 2 (NC2)
This new clause would give the Secretary of State a power to enable local authorities in England to test different ways of working under children’s social care legislation for one of the purposes mentioned in subsection (1). Subsections (3) and (4) include safeguards on the use of the power. The power may only be exercised on an application by a local authority. See also the following, which are related: NC3, NC4, NC5, NC6, NC7, NC8 and NC9.
NC3
This would ensure that exemptions or modifications under the power to test different ways of working in NC2 are of a temporary nature. The regulations may be made for up to 3 years and may be renewed for one further period of up to 3 years.
NC4
This new clause would set out of the procedure for making regulations about testing different ways of working under NC2. Most regulations are subject to affirmative resolution procedure, with the two exceptions mentioned in subsection (1)(a) and (b) of the clause. The Secretary of State is also required to lay a report before Parliament dealing with the matters mentioned in subsection (3).
NC5
This would impose a consultation requirement on local authorities before making an application under NC2.
NC6
This would impose consultation requirements on the Secretary of State before making regulations under NC2.
NC7
This would require the Secretary of State to give local authorities guidance on certain matters to do with NC2 and NC5.

NEW CLAUSE 2 (NC2)
To move the following Clause—
Power to test different ways of working
(1) The purpose of this section is to enable a local authority in England to test different ways of working under children’s social care legislation with a view to—
(a) promoting the physical and mental health and well-being of children, young people or their families,
(b) encouraging children or young people to express their views, wishes and feelings,
(c) taking into account the views, wishes and feelings of children or young people,
(d) helping children, young people or their families gain access to, or make the best use of, services provided by the local authority or its relevant partners (within the meaning given by section 10(4) of the Children Act 1989),
(e) promoting high aspirations for children or young people,
(f) promoting stability in the home lives, relationships, education or work of children or young people, or
(g) preparing children or young people for adulthood and independent living.                        WHEN THE BILL WAS FIRST INTRODUCED THIS ONLY SAID: 
“Children’s social care: different ways of working
15 Power to test different ways of working
(1) The purpose of this section is to enable a local authority in England to test different ways of working with a view to achieving better outcomes under children’s social care legislation or achieving the same outcomes more efficiently.”

NC2 CONTINUED
(3) Regulations under this section may not be used so as to remove any prohibition on a local authority in England arranging for functions to be carried out by a body whose activities are carried on for profit.
(4) Regulations under this section may not be used to exempt a local authority in England from, or modify, its duties under—
(a) section 17 of the Children Act 1989 and Part 1 of Schedule 2  to that Act (duty to provide appropriate services to children in need);
(b) section 20 of that Act (provision of accommodation for children who appear to require it for certain reasons);
(c) section 22 of that Act (duty to safeguard and promote welfare of looked after children etc);
(d) section 47 of that Act (duty to make enquiries and take action to safeguard or promote welfare of children at risk);
(e) section 10 of the Children Act 2004 (duty to make arrangements for promoting co-operation to improve well-being of children);
(f) section 11 of that Act (duty to make arrangements to ensure that regard is had to the need to safeguard and promote the welfare of children).                                                                              WHEN THE BILL WAS FIRST INTRODUCED, THERE WERE NO EXEMPTION FOR PROFIT-MAKING, CHILD PROTECTION, CHILD IN NEED, OR VOLUNTARY ACCOMMODATION CHILDREN IN CARE : 
(2) The Secretary of State may by regulations, for that purpose—
(a) exempt a local authority in England from a requirement imposed by children’s social care legislation;
(b) modify the way in which a requirement imposed by children’s social care legislation applies in relation to a local authority in England.

(See comments here http://www.nagalro.com/seen-and-heard-journal/editors-blog.aspx  indicating that sub-sections of 17 and 22 are NOT included – young carers and looked after children accommodation, also http://www.article39.org.uk/news/2017/01/08/childrens-legal-protection-under-threat  January 8th 2016. INCREASE of £173 million to £3.9 billion  in expenditure looked after children noted here

NC2 CONTINUED
(5) The Secretary of State may make regulations under this section relating to a local authority in England only on an application by that authority.                                                                           WHEN THE BILL WAS FIRST INTRODUCED, IT SAID THIS 
(3) The Secretary of State may make regulations under this section relating to a local authority in England only if asked to do so by that authority.                                                           BUT IT ALSO SAID  THE FOLLOWING ABOUT FAILING AUTHORITIES BEING TAKEN OVER, WHICH THE GOVERNMENT IS NOT PROPOSING TO RE-INTRODUCE                         18 Interaction with law about Secretary of State intervening
(1) Where a direction under section 497A(4) or (4A) of the Education Act 1996 as applied by section 50 of the Children Act 2004 (intervention by Secretary of State) is made in relation to any functions of a local authority in England—
(a) regulations under section 15 may be made in relation to those functions as exercisable by the specified person, and
(b) the regulations may be made so as to apply in relation to the local authority if the direction ceases to be in force.
(2) Sections 15(3) and 17(1) do not apply in relation to the making of regulations in reliance on subsection (1) if the specified person is the Secretary of State.
(3) In relation to the making of regulations in reliance on subsection (1) in a case where the specified person is not the Secretary of State—
(a) the request under section 15(3) must be made by the specified person (instead of by the local authority);
(b) the consultation under section 17(1) must be performed by the specified person (instead of by the local authority).
(4) In this section “the specified person” means—
(a) in a case where the direction mentioned in subsection (1) was given under section 497A(4) of the Education Act 1996 as applied, the person specified in the direction;
(b) in a case where the direction mentioned in subsection (1) was given under
section 497A(4A) of the Education Act 1996 as applied, the Secretary of State or the person nominated by the Secretary of State.
(5) In section 50 of the Children Act 2004 (intervention), in subsection (2)—
(a) omit “and” at the end of paragraph (b);
(b) at the end of paragraph (c) insert “; and
(d) any function conferred by regulations under section 15 of the Children and Social Work Act 2016.”    

NC2 CONTINUED
(6) Subsection (5) does not apply to regulations under this section that only revoke earlier regulations under this section.                                                                                                              THIS IS THE SAME AS WHEN THE BILL WAS FIRST INTRODUCED,
(8) Subsection (3) does not apply to regulations under this section that only revoke earlier regulations under this section.

NC2 CONTINUED
(7) Regulations under this section may be made in relation to one or more local authorities in England.
THIS IS THE SAME AS WHEN THE BILL WAS FIRST INTRODUCED,
(4) Regulations under this section may be made in relation to one or more local authorities in England.

NC2 CONTINUED
(8) Regulations under this section may include consequential modifications of children’s social care legislation.”
THIS IS THE SAME AS WHEN THE BILL WAS FIRST INTRODUCED, 
(5) Regulations under this section may include consequential modifications of children’s social care legislation.

NEW CLAUSE 3 (NC3)
To move the following Clause—
“Duration
(1) Regulations under section (Power to test different ways of working) must specify a period at the end of which they lapse.
(2) The period must not be longer than 3 years begiTHIS IS THE SAME AS WHEN THE BILL WAS FIRST INTRODUCED,
(5) Regulations under this section may include consequential modifications of children’s social care legislation.nning with the day on which the regulations come into force.

(3) But the Secretary of State may by further regulations under section (Power to test different ways of working) amend the specified period to extend it by up to 3 years.
(4) The specified period may be extended on one occasion only.
(5) Before extending the specified period the Secretary of State must lay a report before Parliament about the extent to which the regulations have achieved the purpose mentioned in section (Power to test different ways of working)(1).
(6) The Secretary of State may by regulations make transitional provision in connection with the lapsing of regulations under section (Power to test different ways of working).”
THIS IS THE SAME AS WHEN THE BILL WAS FIRST INTRODUCED,                                         16 Duration
(1) Regulations under section 15 must specify a period at the end of which they lapse.
(2) The period must not be longer than 3 years beginning with the day on which the regulations come into force.
(3) But the Secretary of State may by further regulations under section 15 amend the specified period to extend it by up to 3 years.
(4) The specified period may be extended on one occasion only.
(5) Before extending the specified period the Secretary of State must lay a report before Parliament about the extent to which the regulations have achieved the purpose mentioned in section 15(1).

NEW CLAUSE 4 (NC4)
To move the following Clause—
“Parliamentary procedure
(1) Regulations under section (Power to test different ways of working) are subject to the negative resolution procedure if they only—
(a) relate to requirements imposed by subordinate legislation that was not subject to affirmative resolution procedure, or
(b) revoke earlier regulations under that section.
(2) Any other regulations under section (Power to test different ways of working) are subject to the affirmative resolution procedure.
WHEN FIRST INTRODUCED, THERE WAS NO QUALIFIER ABOUT SUBORDINATE LEGISLATION
(6) Regulations under this section are subject to the negative resolution procedure if they only—
(a) relate to requirements imposed by subordinate legislation, or
(b) revoke earlier regulations under this section.
(7) Any other regulations under this section are subject to the affirmative resolution procedure.

NC4 CONTINUED
(3) At the same time as laying a draft of a statutory instrument containing regulations under section (Power to test different ways of working) before Parliament, the Secretary of State must lay before Parliament a report—
(a) explaining how the purpose mentioned in subsection (1) of that section is expected to be achieved, and
(b) confirming that the regulations are not expected to have a detrimental effect on the welfare of any child and explaining any measures that have been put in place to ensure that is the case.
WHEN FIRST INTRODUCED, THERE WAS NOTHING ABOUT A REPORT ON DRAFT REGULATIONS OR CHILD WELFARE 

NC4 CONTINUED
(4) If regulations under section (Power to test different ways of working) are subject to the affirmative resolution procedure and would, but for this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, they are to proceed in that House as if they were not a hybrid instrument.                                                                          THIS IS THE SAME AS WHEN THE BILL WAS FIRST INTRODUCED, TECHNICALITY 
(9) If regulations under this section are subject to the affirmative resolution procedure and would, but for this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, they are to proceed in that House as if they were not a hybrid instrument.

NC4 CONTINUED
(5) For the purposes of subsection (1)(a) subordinate legislation “was not subject to affirmative resolution procedure” if it was not subject to any requirement for a draft to be laid before, and approved by a resolution of, each House of Parliament.”                                                       TECHNICAL EXPLANATION 

NC5
To move the following Clause—
“Consultation by local authority
(1) Before making an application for the Secretary of State to make regulations under section (Power to test different ways of working) a local authority in England must—
(a) consult such of the other safeguarding partners and relevant agencies in relation to its area as it considers appropriate, and
(b) any other person that the local authority considers appropriate.                                                      (2) In deciding who to consult under subsection (1)(b) a local authority in England must, in particular, consider consulting any children or young people who might be affected by the regulations.”                                                                                                                                                AS FIRST INTRODUCED THIS WAS MUCH SHORTER AND DIDN’T MENTION CHILDREN AT ALL                                                                                                                                                         17  (1) Before asking the Secretary of State to make regulations under section 15 a local authority in England must consult such of its Local Safeguarding Children Board partners as it considers appropriate.

NC6                                                                                                                                                              To move the following Clause—
“Consultation by Secretary of State
(1) Where a local authority in England make an application for the Secretary of State to make regulations under section (Power to test different ways of working) the Secretary of State must invite an expert panel to give advice about—
(a) the capability of the authority to achieve the purpose mentioned in subsection (1) of that section if the regulations are made,
(b) the likely impact of the regulations on children and young people, and
(c) the adequacy of any measures that will be in place to monitor the impact of the regulations on children and young people.                                                                                                                        (2) The expert panel is to consist of—
(a) the Children’s Commissioner,
(b) Her Majesty’s Chief Inspector of Education, Children’s Services and Skills, and
(c) one or more other persons appointed by the Secretary of State to consider the application.           (3) The Secretary of State may appoint a person under subsection (2)(c) to consider an application only if the Secretary of State thinks that the person has expertise relevant to the subject matter of the application.                                                                                                                                          (4) Having invited the expert panel to advise, the Secretary of State must wait at least 6 weeks before making regulations under section (Power to test different ways of working) in response to the application.                                                                                                                                           (5) Before making regulations under section (Power to test different ways of working) in response to the application, the Secretary of State must also publish any written advice given during that 6 week period by the expert panel.”                                                                                                            AS FIRST INTRODUCED, THIS WAS MUCH SHORTER WITH LESS INDEPENDENT SCRUTINY                                                                                                                                                   17 (2) Before making regulations under section 15 the Secretary of State must consult—    (a) the Children’s Commissioner,
(b) Her Majesty’s Chief Inspector of Education, Children’s Services and Skills, and
(c) any other person that the Secretary of State considers appropriate.
(3) But no consultation is required where the regulations under section 15 only revoke earlier regulations under that section.
(4) The Secretary of State may by regulations amend this section for the purposes of adding to those who must be consulted by a local authority in England or the Secretary of State.
(5) Regulations under subsection (4) are subject to the negative resolution procedure.

NC7
To move the following Clause—
“Guidance
(1) The Secretary of State must give local authorities in England guidance about—
(a) factors that a local authority in England should take into account in deciding whether to make an application under (Power to test different ways of working),
(b) the form and content of applications under (Power to test different ways of working) and the process for making them,
(c) consultation under section (Consultation by local authorities),
(d) monitoring and evaluating the effect of the regulations under section (Power to test different ways of working), and
(e) the exercise of functions under, or in connection with, children’s social care legislation as modified by regulations under section (Power to test different ways of working).                             (2) Before giving guidance under this section the Secretary of State must—
(a) consult such persons as the Secretary of State considers appropriate, and
(b) publish a summary of the consultation responses.”                                                                         NOTHING COMPARABLE WHEN FIRST INTRODUCED 

NC8
To move the following Clause—
“Annual report
If the Secretary of State makes regulations under (Power to test different ways of working) the Secretary of State must, in respect of each year in which they remain in force, publish a report about the extent to which the regulations have achieved the purpose mentioned in section (Power to test different ways of working)(1).”                                                                                            NOTHING COMPARABLE WHEN FIRST INTRODUCED 

NC9
To move the following Clause—
“Interpretation
In sections (Power to test different ways of working), (Duration), (Parliamentary procedure), (Consultation by local authority), (Consultation by Secretary of State), (Guidance), (Annual report) and this section—
“child” means a person under the age of 18 (and “children” means people under the age of 18);
“children’s social care legislation” means—
(a) any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970 so far as relating to those under the age of 18;
(b) sections 23C to 24D of the Children Act 1989, so far as not within paragraph (a);
(c) the Children Act 2004, so far as not within paragraph (a);
(d) any subordinate legislation under the legislation mentioned in paragraphs (a) to (c);
“local authority in England” means—
(a) a county council in England;
(b) a district council;
(c) a London Borough council;
(d) the Common Council of the City of London (in their capacity as a local authority);
(e) the Council of the Isles of Scilly;
(f) a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009;
“relevant agency”, in relation to a local authority area, has the meaning given by section 16E(3) of the Children Act 2004;
“safeguarding partner”, in relation to a local authority area, has the meaning given by section 16E(3) of the Children Act 2004;
“subordinate legislation” has the same meaning as in the Interpretation Act 1978;
“young people” means people, other than children, under the age of 25.”                                        AS FIRST INTRODUCED                                                                                                                        19 Interpretation of sections 15 to 18
In sections 15 to 18—
“children’s social care legislation” means—
(a) any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970 so far as relating to those under the age of 18;
(b) sections 23C to 24D of the Children Act 1989, so far as not within paragraph (a);
(c) the Children Act 2004, so far as not within paragraph (a);
(d) any subordinate legislation under the legislation mentioned in paragraphs (a) to (c);
“local authority in England” means—
(a) a county council in England;
(b) a district council;
(c) a London Borough council;
(d) the Common Council of the City of London (in their capacity as a local authority);
(e) the Council of the Isles of Scilly;
(f) a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009;
“Local Safeguarding Children Board partner”, in relation to a local authority in England, means a person listed in section 13(3) of the Children Act 2004 in relation to the authority;
“subordinate legislation” has the same meaning as in the Interpretation Act 1978.

RELATED POSTS

https://edyourself.wordpress.com/tag/children-and-social-work-bill/

Advertisements

One thought on “Power to test different ways of working Bill Committee January 10th 2017

  1. Pingback: Opting Out of Children’s Social Care Laws, Send Views to Committee Before Jan 10th | edyourself

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s