Legal Expertise considers how the Children and Young Persons Bill looks set to have a significant impact on the way schools admit and teach looked after children

This Bill focuses on the education attainment of looked after children. Why is this necessary?

Everyone agrees that the statistics showing the attainment of looked after children make grim reading. There are 60,000 children in care at any given time who, compared to children outside local authority care, are:

  • five times less likely to achieve five good GCSEs
  • eight times more likely to be excluded from school
  • five times more likely to move schools in years 10 and 11
    three times more likely to be unemployed after leaving school.

The government has tried to improve things by spending more. Between 2001 and 2005, total expenditure for children in residential care increased by 20% (£230 million), and for children in foster care the increase was higher, at 44% (£330 million). Yet progress has been frustratingly slow. Over the same period, the proportion of looked after children obtaining five or more good GCSEs rose by only 3%.

What proposals does the Bill make about care placements near school?

The Children Act 1989 already places a duty on local authorities to place a child, so far as is reasonably practicable and consistent with his welfare, near his home and with his siblings.

The Bill imposes a similar requirement in relation to the child’s school. It requires that any placement must enable the child to live near his school unless not reasonably practicable, or consistent with the child’s welfare. The aim of this provision is to prevent new placements, which are disruptive in themselves, leading to a change in school too.

This need for continuity of schooling is particularly acute at Key Stage 4, and for those children ‘exceptional circumstances’ will be needed to justify a placement which is not near their school.

Guidance has already introduced the concept of the ‘designated teacher’, who has responsibility for promoting the educational achievement at school of looked after children. Does the Bill develop this?

It does. The Bill is putting this role on a statutory footing. The name of this role has changed slightly to ‘designated person’ because the Bill allows it to be given to any member of staff, and not just teaching staff. Regulations will specify the qualifications or experience that the designated person must have.

The governing body of a ‘maintained school’ (which here includes community schools, foundation schools, voluntary aided schools, voluntary controlled schools, community special schools, foundation special schools and maintained nursery schools) must appoint a designated person, and ensure the designated person ‘undertakes appropriate training’.

The designated person’s responsibilities cover both looked after children, and children who are no longer looked after, but have been at some point after their 16th birthday.

Is there more help for looked after children to go on to further education?

There is, in two ways: financial and advisory. First the financial assistance − the Bill imposes a duty on local authorities to pay ‘the relevant amount’ to children who pursue higher education in accordance with their pathway plan. Regulations will specify which courses will qualify for this payment, the method of payment, and any circumstances in which it should be repaid.

The regulations will also specify the size of this ‘relevant amount’. Lord Adonis, when introducing this Bill to the House of Lords, said ‘evidence indicates that looked after children finish higher education with an average of £2,000 more debt than their peers. [We] will therefore make available a bursary of a minimum of £2,000’.

The payment should not affect the young person’s entitlement to other assistance with his educational or training needs, and the payment will be exempt from income tax.

Advisory − local authorities already owe a duty to young people who were looked after between ages 16 and 18, and who follow a programme of training set out in the pathway plan, to appoint a personal adviser to help devise and monitor the plan, and to provide advice and support. However, currently this does not cover individuals over 21 who did not undertake any training after 18, or whose training has finished, or who chose not to adhere to the pathway plan. The Bill gives such individuals under the age of 25 a second chance. If a care leaver wishes to start or resume further education, they too will be entitled to a personal adviser, who will carry out an assessment of needs, prepare a pathway plan, and provide ‘assistance’. This can come in two forms: either a contribution to living expenses incurred ‘in living near the place where he is receiving education’, or a grant to ‘meet expenses connected with his education’.

And what about advice for looked after children generally, even if they do not go on to further education?

The Children (Leaving Care) Act 2000 gave the secretary of state the power to make regulations to require local authorities to appoint personal advisers for children between the ages of 16 and 21 who had been in care. These regulations would also define the personal adviser’s functions.

As yet, no such regulations have been produced. However, it seems likely that they will be, as this Bill extends the upper age limit for entitlement to a personal adviser to 25. The government says it wants ‘to ensure that every child has the support and guidance that they need to become a successful adult’.

This e-bulletin issue was first published in May 2008

About the author: Chris Webb-Jenkins is author of this week’s issue. Chris joined Browne Jacobson in 1996 and became partner in 2001. He is based at the firm’s Nottingham office and specialises in personal injury, social services, education and local government. Chris acts for education and care providers in the public, private and voluntary sectors, and their insurers.