Chris Jenkins looks at provisions in the Young Persons Bill to increase the educational attainment and quality of welfare of chidren in care

Everyone agrees that the statistics showing the attainment of looked-after care 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 on leaving school.

The government has tried to improve things by spending more. Between 2001 and 2005-06, total expenditure for children in residential care increased by 20% (£230m), and for children in foster care the increase was higher, at 44% (£330m). 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%.

So the government has decided to make progress through legislation and has presented the Children and Young Persons Bill to parliament. It hopes that new duties will force local authorities to give greater priority to those activities that it believes will have the greatest effect. This article focuses first on those provisions that apply directly to education (clauses 9 and 17-21) and, secondly, in slightly less depth, on the other provisions (box below).

The education provisions

Care placements near school
If a local authority decides to place child apart from his family, the Children Act 1989 places a duty on local authorities to place the child, so far as is reasonably practicable and consistent with his welfare, near his home and with his siblings.

Clause 9 of the bill places a further demand on the local authority, as any placement must enable the child to live near his school unless not reasonable 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 his school.

The designated person
Back in May 2000, in guidance entitled The Education of Children and Young People in Public Care, it was recommended that all schools in England should have a designated teacher who would have responsibility for promoting the educational achievement of looked-after children. Similar guidance was issued in Wales in 2001.

The government believes in the potential of this development to improve attainment, and so in this bill it is putting the role of the designated person on a statutory footing. The name of this role has changed slightly because the bill allows it to be given to any member of staff, and not just the teaching staff. However, the act allows the secretary of state (in England), or the Welsh ministers, to publish regulations which specify the qualifications or experience which the designated person must have, so it seems likely that the designated person will be one of the teaching staff at the school.

Clause 17 places a duty on the governing bodies on ‘maintained schools’ (which here includes community schools, foundation schools, voluntary-aided schools, voluntary-controlled schools, community special schools; foundation special schools and maintained nursery schools). The duty requires the governing body to both appoint a designated person, and to ensure the designated person ‘undertakes appropriate training’.

The bill also makes it clear that 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.

Payment in respect of higher education
Clause 18 concerns ‘former relevant children’, which in essence means individuals who were looked after between the ages of 16 and 18. Local authorities already owe them various duties imposed by the Children Leaving Care Act 2000,  such as keeping in contact, maintaining the appointment of a personal adviser, and keeping his pathway plan under regular review. Now clause 18 imposes a further duty to pay ‘the relevant amount’ to former relevant children who pursues higher education in accordance with their pathway plan. 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.

Assistance to pursue education or training
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 and training after 18, or whose training has finished, or who chose not to adhere to the pathway plan. Clause 19 of 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’.

This support will continue for the duration of the education or training, even if that goes beyond the individual’s 25th birthday. It can also survive an interruption in the education if the local authority is satisfied that it will be resumed ‘as soon as is reasonably practicable’.

Extension of entitlement to personal adviser and assistance
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’.

Cash payments
Section 17 of the Children Act 1989 placed a duty on local authorities to provide services to children ‘in need’ to meet two allied objectives:

  • To safeguard and promote the welfare of children.
  • To promote the upbringing of children by their families.

The section goes on to say that these services may include giving assistance in kind or, in exceptional circumstances, in cash.

Clause 21 of the bill would increase the availability of cash payments by removing the requirement for ‘exceptional circumstances’. The government says it wants local authorities to have a much wider discretion over the circumstances in which they make cash payments to those caring for children in need. Local authorities should be able to provide regular and continuing financial support to children in need where this is assessed as being the most appropriate way to safeguard and promote their welfare. The cash can be provided to any member of the child’s family if doing so promotes the child’s welfare.

Summary

The government says this bill is aimed at four objectives: 1. Ensuring good parenting. 2. Improving stability. 3. Putting the voice of children at the heart of the care system.

4. Raising the aspirations of all those involved in the lives of children in care.

And so say all of us. However, many provisions will require further regulations to become effective, or will need to be piloted first. The pace of change may be frustratingly slow.

Overview of non-education provisions in the bill

Outsourcing of social work
The bill allows local authorities to delegate some of its social services functions to private and voluntary sector organisations, although the delegated functions will still need to be discharged by, or supervised by, registered social workers. Lord Adonis hopes this will give social workers (whoever they work for) ‘more freedom and flexibility in their work, and so deliver a more personalised service and create more continuity for children in care’. However, it will be some time before this delegation will become national practice, if at all. First the government plans a pilot, which itself could last up to five years, and then an independent organisation will conduct an comprehensive evaluation.

Placement of children
Currently 34% of children whose accommodation is provided by a local authority are placed outside that local authority’s area. The bill looks to restrict out of authority residential placements. Clause 8 imposes a new requirement that these placements are to be within the authority’s area, unless there is no accommodation available which is ‘consistent with the child’s welfare’. This has led to debate in the Lords, as some fear this obligation to place within authority will adversely affect high-quality specialist providers that need out of authority placements to be economically viable. So far, the government has not moved. It is convinced that, in general, children placed out of area do less well than those placed closer to home. Clause 8 also re-states the requirement that, as far as possible, placements should also be near a child’s home, and siblings should be placed together. 

Independent reviewing officers (IROs)
Enhancing the stability of the lives of looked-after children is one of the key aims of the bill, and one way it seeks to do this is through the expanded use of IROs. When a child first becomes looked after, a named individual must be appointed by the local authority as the child’s IRO, before the first case review (ie within four weeks of becoming looked after). If an IRO can no longer carry out that role for a child, a replacement must be found. The IRO has new functions too. It will monitor the local authority’s performance of its functions in relation to the child’s case (the current monitoring role covers on the review), and it will ensure that the local authority gives due consideration to any views expressed by the child. Furthermore, the local authority is placed under a new duty to cooperate with the IRO.

Visiting
A new duty requires local authorities to ensure that all looked-after children are visited, and that appropriate advice, support and assistance is made available to them. We will need to wait for regulations to specify the frequency of the visits, the circumstances in which the visit should take place and the functions of the visitor. The bill also enables the secretary of state to publish regulations broadening the category of children for whom the local authority must appoint an independent person to visit, befriend and advise.

Enforcement of care standards at children’s homes
Ofsted’s enforcement powers are strengthened. Clause 22 allows Ofsted to serve a compliance notice where he thinks a home is not meeting the national minimum standards. The notice will specify remedial action, and it will be a criminal offence to ignore it. Ofsted can also prevent new admissions.

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