Clause 81: Duty to support pupils with medical conditions
Moved by Lord Kennedy of Southwark
57C: Clause 81, page 57, line 16, at end insert—
“(7) In preparing and implementing individual health care plans and following the guidance issued by the Secretary of State, local authorities, clinical commissioning groups and governing bodies must work together in fulfilling their functions under this Act.”
My Lords, I am grateful to the Minister and his officials for the time that they have given to me, my noble friend Lady Young, many of the staff at Diabetes UK and many others. I draw noble Lords’ attention to my entry in the register of Members’ interests: I am the chair of a small council at Diabetes UK.
I very much welcome the decision that the noble Lord, Lord Nash, and the Government made to include in the Bill a duty on schools to make arrangements for children with health conditions. I am genuinely grateful for that; it is a hugely positive step, and one that we hope will ensure that children with medical conditions get the support and help that they need to thrive at school. The draft guidance sets out many things that schools must do to ensure that children with medical conditions can take part in all parts of school life and give them the best possible chance of reaching their academic potential while staying safe and healthy. The draft guidance also acknowledges the different roles that CCGs, local authorities, schools, nurses, GPs and providers of health services have in ensuring that children with medical conditions get the support that they need to be in school. School nurses have several key roles in helping schools to meet the needs of children with medical conditions.
For many children with medical conditions, their specialist nurse often fulfils this role. Without this medical expertise, schools would not be in a position properly to support children with medical conditions, from awareness training about a condition right up to full training about a child’s condition, the administration of medicine and the use of equipment. While these responsibilities are included in the draft guidance, there remains no requirement in the Bill for local authorities or CCGs to fulfil their roles. That is why I have tabled Amendment 57C. It is essential that schools know that they can rely on their local authority, CCG and local health services to provide the expertise and training their staff will need.
The problems people report to many of the charities in the Health Conditions in Schools Alliance suggest that there will be an initial increase in requests for training as schools improve their support. We do not want to see some schools left without the training and skills their staff need.
We are already aware that there have been many occasions when schools have asked for training and the local authority or the local health service has not been able to provide it. The draft guidance refers to the NHS Act 2006 and Section 10 of the Children Act 2004, but these are general duties rather than ones that specifically meet the very particular needs that schools will have in securing the training they need for their staff. Has the Minister considered the possibility that some schools will not be able to access the training and expertise their staff need? If local authorities and CCGs cannot or will not provide the training and skills they need, will the Minister clarify what the next step is for a school in that situation?
When considering this point, it is important that we face up to some of the realities. We know that there are roughly 1,300 fully qualified schools nurses. The average school nurse already looks after around 10 primary schools and two secondary schools. Even if the number of school nurses were to increase, it would take several years, and the duty needs to start to make a difference this September.
At the moment, we know that for more complex needs it is often the specialist nurse who organises training, helps to produce the individual healthcare plan and advises how much support each child requires. If the duty is to make an impact, the roles of the specialist nurse, school nurses and the local authorities that commission them and other healthcare professionals are vital. How will the crucial role of healthcare professionals, local authorities and CCGs in making sure that things improve in school for children with health conditions be communicated to them?
The indicative draft makes it very clear just how important an individual healthcare plan is. An individual healthcare plan draws together the thoughts of the school, a healthcare professional, pupils and parents. It makes clear how the condition might affect the pupil, sets out the medicine and equipment they need, and details the management of their condition, who should be trained, the level of support needed, what to do in emergencies and who is responsible for doing what. It is also tailored specifically to each child or young person with a medical condition. Yet the indicative draft guidance also states that not all children with a medical condition will need an individual healthcare plan. The Health Conditions in Schools Alliance has said that it cannot envisage a situation in which a child with a medical condition would not need an individual healthcare plan. Even in circumstances where the pupil manages the condition themselves and is rarely affected by it, it is worth noting in an individual healthcare plan that the condition exists, the medicine the pupil takes to control it and what to do in an emergency. As it stands, the guidance gives schools an opportunity to opt out of delivering individual healthcare plans. It also raises the question: who makes this decision? We do not want a situation where someone is making arbitrary judgments on who does and does not get an individual healthcare plan.
The draft guidance makes very clear the role of the governing body in fulfilling the duty, both in agreeing policies and in making sure that they are delivered. Paragraph 10 of the guidance covers renewing policies regularly, which is very welcome. It would be strengthened further if it was made clear that governing bodies should audit the support the school provides for children with health conditions so that they know their medical condition and put it into policy, and ensure that any individual healthcare plans are delivered.
Many charities have recognised the complaint that some children’s individual healthcare plans are not followed. Making sure that the school fulfils what has been agreed will contribute to ensuring that children get the support they need. Again, I thank the Minister for what he has addressed on this subject so far, and I am pleased with what has been achieved to date. If he could respond to the questions I have asked, I would be very grateful, and if he could give some clarity on these last few points, I think we will be able to make real progress here.
My Lords, never again will a pupil with medical conditions be excluded from full or part-time education, school trips, physical education and extra-curricular activities because of their medical condition. I applaud the Government for the stance they have taken in this area, as do the voluntary and charitable sectors. This is light years from where we were before. This document, which is still for consultation—that will be an opportunity to feed in many of the issues—is one of the best things I have seen. It deals in detail with a whole host of issues. A few things are missing from that document, and I look forward to feeding them in during the consultation period.
The important thing for me, which is in the document, is that governing bodies will have the responsibility to ensure that the procedures are followed and that when a school is first notified that a pupil has a medical condition, action will follow. Governing bodies will also ensure that the policies cover the role of individual healthcare plans. I agree with the noble Lord, Lord Kennedy, on this—and I will be interested in the Minister’s reply—as I cannot envisage a situation where a child or young person who has a medical condition would not have a healthcare plan. I cannot get my head around that, as it seems obvious. This is not bureaucratic or about more clerical work, but just plain common sense. I hope that the Minister will respond to that point.
I like the point made in this document that supporting a child is not just the responsibility of the school but a partnership between professionals and the parents themselves. I also like that GPs will have responsibility for notifying schools when a child has a medical condition. That is important, and it has often not happened in the past. I will end by thanking the Minister for taking this important issue forward, and I look forward to his response on the issue of healthcare plans.
My Lords, I also put my name to this amendment, and I very much support everything that has been said so far on these issues. I congratulate the Government, and the noble Lord, Lord Nash, in particular, on having listened to what Peers and charities in the Health Conditions in Schools Alliance have said. They have done a great deal to work out a way forward. Again, I will not repeat the many things that have already been mentioned, which are now on the table to be worked out in detail, but the area that perhaps interests me more than any other is the role of governing bodies in ensuring that teachers in schools have the training and expertise that their staff require to cope with situations.
We all know that there is a shortage of qualified school nurses; we hope to hear from the Government how their number might be increased. It is not only that; an area that worries me concerns those with special needs that also involve mental health problems. Those students may well need guidance from an increased number of educational psychologists, among others.
We all want to hear from the Minister what plans the Government have to ensure that this partnership between so many organisations will be delivered to the benefit of children and families generally, so that they will feel—as they have not felt in the past—that they are being supported in the situations that they have to cope with and have always tried their best to cope with. However, they have felt very much that they did not get the help they deserved. I thank the Minister for what he has done so far and hope that he will be able to reassure us still further on some of the areas about which we have concern.
My Lords, I, too, offer my thanks and congratulations to the Minister and the Government for the considerable progress made since Committee and for the frankly stunning indicative guidance. It is not yet out for consultation, but it is extremely helpful. Of course, the problem with providing your Lordships’ House with such prospective guidance is that we all have things that we think could better it. I will not repeat the points that noble Lords have already made, but will add briefly the two or three that I am concerned about.
I reiterate that the guidance must make it explicit that children with diagnosed health conditions are given an individual healthcare plan, even if there are no obvious actions, not least because medical and health conditions change and for a child at school suddenly to have to go through that process, when it was known about at the start, seems rather foolish. It will speed up the planning process and the school’s ability to monitor the child’s health if they are already on the radar of the school.
I particularly like the section in paragraph 39 on unacceptable practice. This is extremely helpful, but there is one glaring omission. Nowhere does it say that schools must take account of a doctor’s diagnosis rather than make their own. In Committee I mentioned a young man who was struggling with severe ME and chronic fatigue syndrome; but because the head did not believe that ME existed, he was given no rest times and was actually excluded because he was unable to take part in sport, which was deemed to be bad behaviour. Despite the fact that his hospital consultant had given the school formal advice, the head chose to ignore it. That is unacceptable bad practice and, in my view, it needs to be included.
That relates also to the ambiguity in the guidance about whether pupils with medical conditions should have individual healthcare plans. We must not have a get-out clause for schools. I hope that the Minister will be able to give reassurance on that point and others that my colleagues have made.
Finally, I give my particular thanks to the Minister and his team for meeting me to discuss my idea about access for teachers with frequently asked questions on a range of health conditions. This is now progressing: discussions are about to start with officials in the Department of Health. I know that the Health Conditions School Alliance already has a date to discuss that and other things with the department in the very near future. When a school nurse is not around, this tool for teachers is going to be absolutely vital. It is not going to be technical and complex but will help to alleviate the fears that a teacher will have if a child suddenly moves into their class with a condition of which they have no experience at all, and if they want to understand both the learning and social implications of such a condition.
My Lords, at this time of night I shall be brief and not repeat anything that has already been said. However, I wish to make effusive remarks about the Minister’s response to the case made by the Health Conditions in Schools Alliance and for bringing forward a government amendment to the Bill, for which we are grateful. I thank the Minister for ensuring that the indicative draft of the guidance was available before we discussed this element of the Bill.
I thank the noble Lord, Lord Kennedy, for proposing this very important amendment. He sought a response from the Minister on what happens if a school—schools now have a very clear responsibility to look after these children—fails to get an adequate input from the local health system in terms of support and making plans for individual children. From time to time staff at schools across the country say that they would like to provide a better response in this regard but are unable to do so because they do not get adequate training and support from the local health system. Therefore, this amendment is important as it would reinforce the existing duties under the Children Act—which, alas, are currently ignored—and make sure that a school is not put in the impossible position of having a statutory duty but no means of carrying it out if it is not given the necessary support.
School nurses are important but so are specialist nurses for various conditions because in many cases their specialist knowledge will be required to establish an adequate plan for each child. Therefore, this issue cannot be left simply to school nurses, quite apart from the workload issue that the noble Lord, Lord Kennedy, raised.
I know that this issue is of great concern to the trade unions. It was, indeed, their only stumbling block. I held the mistaken belief that the trade unions were not willing to take up this challenge on an ideological basis. However, their concerns were practical ones. They were very willing to see teachers give this support to children provided they were properly supported and trained to do so. Therefore, the question is: what does a school do if the NHS does not step up to the plate in providing training and support for it?
The indicative guidance rightly talks about the role of Ofsted in ensuring that schools meet this new duty. However, there needs to be further discussion between the department and Ofsted about the latter’s role and what it will be able to do in relation to this issue. The guidance says that inspectors are already briefed to consider the needs of pupils with chronic or long-term medical conditions and to report on how well their needs are being met. However, that was not quite the impression I got when I met the Chief Inspector of Schools a few weeks ago, so clarity is needed about what requirements will be laid on Ofsted, not perhaps in terms of this duty being fully inspected but at least the forthcoming guidance to inspectors should brief them on it. Perhaps at some stage an ad hoc report could be produced on how well the guidance is being implemented. I press the Minister to tell us what a school will do if it hits a brick wall with the NHS.
My Lords, I am grateful to all noble Lords for their comments on Amendment 57C, tabled by the noble Lord, Lord Kennedy, and the noble Baroness, Lady Howe, and to all those noble Lords who have brought these matters to our attention. We are in consultation on the guidance and we welcome all noble Lords’ comments on it and on all other matters. I hope that I can assure the noble Lord, Lord Kennedy, and other noble Lords that further primary legislation is not necessary.
I agree that it is very important for local authorities, health bodies and governing bodies to work collaboratively to ensure that pupils with medical conditions are supported effectively in school. It is crucial that children and young people receive the right support from relevant organisations and appropriate professionals to assist them in their daily lives. The time that they spend in school is a very large part of this and it is entirely reasonable to expect all agencies to work together to ensure that their needs are met.
I fully support the intention behind the amendment but I believe that there is no need to place a direct duty through primary legislation on clinical commissioning groups and local authorities to co-operate in this way with schools. We need to focus on ensuring that the right framework and the right practice are in place to make sure that pupils receive the support that they need in school, and this is achieved by what we are setting up through the new duty, alongside existing legislation. I hope that noble Lords will agree that, as we have said many times before, this is about achieving a culture change so that every child is supported at school to succeed and be safe.
As noble Lords may be aware, a duty to promote co-operation already exists in Section 10 of the Children Act 2004. This requires a local authority to make arrangements to promote co-operation between its relevant partners to improve the well-being of children in its area. These include health bodies, such as clinical commissioning groups, and governing bodies. Local authorities are required to make such arrangements with a view to improving the physical and mental health, emotional well-being and education of children in their area. This duty to promote co-operation also extends to any other persons or bodies who exercise functions, or are engaged in activities, that relate to children in the authority’s area. I believe that the new duty and statutory guidance, when taken together with this existing legislation, will provide the framework that is needed to meet the concerns raised by noble Lords.
The relationship between schools, health bodies and local authorities is extremely important and we have good examples of where it already works well. Local authorities are commissioners of school nurses and they look to CCGs to ensure that sufficient provision is available to meet need—for example, ensuring that school staff can be trained to support pupils with medical conditions as appropriate. CCGs and local authorities will also take a strategic view of what is needed to support schools.
There are further existing models of good practice that we can draw from. Specialist local nursing teams, for conditions such as asthma or epilepsy, work closely with schools, and the NHS offers training days, hosted by schools, for school staff on how to cope with emergencies and support children with such conditions. This is exactly the sort of arrangement that we want to see and encourage, and it is the sort of co-ordinated approach to co-operation that the Children Act duty supports.
I am confident that the combination of the co-operation provisions in the Children Act, the new duty and the new statutory guidance will provide the legislative framework needed to ensure that pupils with medical conditions receive the support they need, and that this will be sufficient to deliver the underlying aims of the amendment. The statutory guidance has an important role to play in ensuring that pupils’ needs are met holistically on the ground and that the required cultural change can be achieved. This is where we can set out our expectations and clearly explain the roles and responsibilities of all those involved.
In Committee, I gave a commitment to update your Lordships on progress with the guidance ahead of Report. I am pleased that we have been able to share with noble Lords a full indicative draft of the guidance ahead of this debate. Importantly, this has been developed in close collaboration with the Health Conditions in Schools Alliance and a wide range of other stakeholders. I take this opportunity to thank those organisations for working so closely and collaboratively with us.
The noble Lord, Lord Kennedy, made a point about governors’ obligations in this regard. In fact, we have recently emphasised in the Governors’ Handbook the importance of governors considering all pupils’ well-being. However, I will take back the noble Lord’s point and look at it again.
Noble Lords will be able to see that the guidance specifically refers to the co-operation duty in Section 10 of the Children Act 2004 and articulates our expectations that health service, social care and education organisations and their professionals will work together to ensure that pupils with medical conditions receive the support they need at school. The noble Lord, Lord Kennedy, referred to training. This should ensure that schools are given enough training. Of course, if the support is not there, this can be taken up with the local authority. We will need to look at this carefully and see how it goes. My officials and I would be very happy to discuss this point with the noble Lord further because I think that it is an extremely good one in practice.
The noble Baroness, Lady Young, made the point about Ofsted. Noble Lords may recall that in Committee I said that I would write to Ofsted about this issue asking it to reinforce the new duty through the inspection process. I am pleased to report that having done that Ofsted has replied saying it places great importance on this matter, and has confirmed that it will take into account the new duty when preparing its inspection guidance ahead of September 2014.
The noble Lord, Lord Storey, asked about children who may not have a plan. Most children will have a plan but there may be some returning to school following illness who need to finish a course of medication and do not need a plan. We need to cover those pupils as well. On opting out, the governing body makes the decision on who has a plan, in consultation with parents and health professionals. If the practice is not happening on the ground, the school will need an extremely good reason for not delivering it. If, for whatever reason, parents are dissatisfied, they can make a formal complaint through the school’s complaints procedure. If that is not satisfactory, they can then complain to the Secretary of State via the DfE’s complaints unit asking him to intervene. The noble Baroness, Lady Brinton, made the point about unacceptable practice and taking into account a doctor’s diagnosis in developing a plan. We will look at that to make it more clear.
As I have said, we will be testing all these points during public consultation. We will of course consider carefully all comments that we receive. We plan to launch the consultation next week and would be grateful for comments from noble Lords on this before finalising the guidance for schools to use from September this year. It is my view that the right drivers and incentives are now in place to ensure we achieve our objectives on this important issue. Culture change is never easy and does not happen overnight but I believe that on this issue we are all united and behind the same goal. As the new duty is implemented, we will keep the arrangements under regular review. I hope that that is sufficient to reassure noble Lords and I urge the noble Lord, Lord Kennedy, to withdraw his amendment.
My Lords, I thank the noble Lord very much for his response. I still have one or two concerns. The opt-out is an issue, as is the issue about what governing bodies and schools do. I accept his kind offer to meet with officials, which I will do in the next few days. Other noble Lords may want to come with me. There are one or two small things that can be ironed out. Having said that, I am very grateful for what the noble Lord has done up to now and I beg leave to withdraw the amendment.
Amendment 57C withdrawn.
Moved by Baroness Brinton
57D: After Clause 81, insert the following new Clause—
“Provision and support for bullied children
(1) The Secretary of State must produce an anti-bullying strategy (“the Strategy”) (and consequential Code of Practice and Statutory Guidelines) for schools and further education institutions on ways of preventing and protecting children and young people from bullying and ensuring effective recovery programmes to counter the consequences of severe bullying.
(2) The Strategy produced under subsection (1) must include a comprehensive definition of bullying.
(3) The Strategy shall ensure cross links between the SEN and Anti-Bullying Codes of Practice and Statutory Guidelines, so that schools are aware that some bullied children and young people will have special educational needs.
(4) Where the impact of bullying results in a pupil or student having social, mental or emotional needs, schools and further education institutions should use the graduated approach detailed in the SEN Code of Practice, but if those needs are complex and will not be met through this approach, then an education, health and care plan should be made.
(5) Where any bullied child or student who has been out of school or further education institution for a period of three months or longer, and who has mental or emotional problems (whether or not they are impacting on the child or student’s learning), the school or further education institution will have a duty to help provide an urgent referral to the child or young person’s local Child and Adolescent Mental Health Service.
(6) A bullied pupil or student who is unable to attend their school or institution, but who is still on the roll, must be brought to the attention of the local authority by their school or institution within three months of starting to miss school.
(7) Where a pupil or student is brought to the attention of the local authority under subsection (6), it has a duty to find alternative provision that is suitable for the pupil or student and their needs, and the pupil or student’s educational establishment has a duty to co-operate with the local authority.
(8) During an inspection, OFSTED will expect a school or institution to provide details of the plan for any child out of school for an extended period who is still on the school roll.”
My Lords, first, I thank my noble friend for the helpful meeting and exchange of letters that we have had on this important matter of provision and support for bullied children since Committee. I have laid a much simplified probing amendment in the hope that we can make further progress, given that there was considerable cross-party support for the original amendments.
My amendment falls into four distinct parts. The first three sections all seek to strengthen the definition of bullying and the cross-links between the special educational needs code of practice and the bullying code of practice for all bullying incidents. The new draft definition, which I was kindly shown, strengthens and picks up many of the points in the original amendment. There is one minor omission. The second to last line of the new paragraph refers to how bullying can result in intimidation of a victim through the threat of violence or by isolating them either face to face or online. I am afraid the reality is that we need to insert the words, “as well as actual violence”. Apart from that, the new definition is extremely helpful and I am grateful that we were allowed to see it.
Can the Minister give the House more concrete evidence that, when bullying has happened, a school or college is required to consider the SEN implications for that pupil or student, and that there will be formal cross-links between the two codes of practice? If the Minister can provide that reassurance, it would go a considerable way towards the original amendment tabled in Committee, which asked for all severely bullied children to be considered as having special educational needs. This is because a very large number of children are affected both physically and mentally, because they and their families often seek help from doctors and because at present there is no requirement for children and adult mental health services to prioritise them.
Subsections (4) and (5) of the proposed new clause address that. A child out of school for a period of three months as a result of bullying almost invariably suffers from depression. They can self-harm, develop panic attacks or anorexia or want to kill themselves—and as we know, around 20 a year are successful in killing themselves. Speedy access to CAMHS is vital. Will my noble friend provide reassurance that children in this state can get the help they need, with quick referral? Three months out of school is too long for a pupil to be away from learning and without active support. Will he also confirm that a child diagnosed with clinical depression, whether from bullying or not, would be considered as having a health condition and therefore come under the guidance that we have discussed in the previous group of amendments?
The next part of the proposed new clause—subsections (6) and (7)—tackles the difficulty of educational provision for those children so severely bullied that they cannot face attending school or college. I remind your Lordships that academic research by the National Centre for Social Research estimates that on average 16,000 pupils or students a year are in this position. That is the equivalent of 16 average-sized secondary schools, which is a shockingly high number. I am grateful for the points that the Minister commented on in Committee. There is some specialist alternative provision through the new free schools, but at present there are only a handful in the country as a whole, and most of the alternative-provision free schools focus on students with emotional and behavioural difficulties and only a handful on bullied children. There is certainly nothing that would cover the 16,000 children who need support.
These children cannot face going into the school where the bullying happened, even in a special unit inside the school—they cannot even cross the boundary through the school gates. They must not go to pupil referral units or to an alternative provision for children with emotional and behavioural difficulties. What can be provided for these children, both in the short term and the longer term? What support can local authorities access to make that provision for them work, as some schools do not allow the money to follow the child, even though the child is not in school? Finally, will the Minister ensure that at the very least Ofsted will ask schools to account for children who are not attending for long periods, for whatever reason, and to state what action the school has taken to help them?
I end on a positive note. The Government are doing very well on beginning to change the culture around bullying, particularly through their £4 million support for the Anti-Bullying Alliance, and including the work of Anti-Bullying PRO, which is training pupils as anti-bullying ambassadors. I have seen them in practice and in training and they are extremely impressive—but it takes time, and only a few can be trained at any one time. It is a small organisation and there are thousands of schools.
I have also seen the wonderful new online ChildLine help that helps combat cyberbullying and sexting, called Zipit. If noble Lords have not had a chance to look at it, they should do so. It is a polite and slightly tongue-in-cheek way for the young to put down friends and pupils who send them inappropriate or bullying messages in a way that does not make them feel as though they are victims. The whole thing can be simply calmed down. ChildLine has done very well by producing that. Frankly, more needs to be done, and I hope to hear the Minister today provide reassurance to your Lordships’ House on this very serious issue. I beg to move.
My Lords, I support my noble friend Lady Brinton on this amendment and congratulate her on her determination and persistence in the interests of these severely bullied children. She has over the years managed to convince successive Education Ministers in your Lordships’ House that there is a need for something to be done for these children. So far, not an awful lot has been done, until very recently. What we need—and what we have, fortunately—is the expertise and skills of my noble friend the Minister. I am convinced that he is going to knock heads together and that something will happen.
Because of the late hour I will make just three brief points. Although all eight subsections of my noble friend’s proposed new clause are important, I think that three of them are particularly important. I draw noble Lords’ attention to the words at the end of the first subsection, which is about the Secretary of State,
“ensuring effective recovery programmes to counter the consequences of severe bullying”.
There are organisations that know how to do it—and these children should not and must not be lost children. They can be recovered, they are being recovered, by some wonderful organisations, but these organisations find it very difficult to get the money, as my noble friend has pointed out. Their expertise must be expanded on and cloned across the country to deal with these 16,000 children. I learnt just recently that, sadly, three of their centres have had to close because of lack of funding. That is a tragedy because of the good work that they can and should be doing.
In proposed new subsection (7) my noble friend says that she wants the school to have,
“a duty to find alternative provision that is suitable for the pupil or student and their needs”.
That does not mean a PRU. Very often that is where the bullies are, so that is certainly not suitable for these children’s needs.
Finally, I should like to echo my noble friend’s comments about Ofsted. We all know how very influential it is when Ofsted makes a point of inspecting something or asking about something. Unfortunately, what often happens is that when a child is on the school roll but does not attend, pressure is put on the parents to take them and give them home education even though the parent may not really be capable of doing it and would have to give up their job, which the family economy could not bear. We must try to stop that practice happening. If Ofsted is putting schools on the spot and saying, “This pupil has not been attending—what have you done about it? Where are they going? How are you making sure that the money follows them into appropriate provision”, then something will happen.
I support the amendment of the noble Baroness, Lady Brinton. She is a real expert in this area and it was important that she put this amendment down. I would like to stress one particular point—the role of the school in all of this. At one stage I came across a group of schools that had a very effective policy of dealing with this situation. Their method was to have a mentor for each pupil who entered the school, and the child who was mentoring got merit points for successfully introducing and making life smooth for the new student. I very much hope that we can do a little more to find out what group of schools that was—I regret to say that I have lost my details on it. It seems a very good example of best practice to sell right across the stage of all schools. As we know, it is not just a question of bullying in schools—there is bullying in all forms of life, including employment when you grow up as well.
I hope that the Minister will take all this very seriously. The role of school governors is important, and I should perhaps have mentioned earlier that I am president of the NGA. I think we have a meeting with school governors and the Minister shortly, and this is one of the items that it will be important to put on the agenda.
I support my noble friend Lady Brinton on this excellent probing amendment, and will briefly take the opportunity to say that often the bully needs support as well. I have seen many occasions where that support has been given to the bully. Sometimes the bully, with the support of the parents, is referred and the problems are sorted. I say this with great caution but often, quite rightly, we put all our emphasis on the poor child or young person who is being bullied and we forget about the bully. Often with the bully, it is a cry or plea for help. As well as doing all the excellent things that my noble friend Lady Brinton is saying we should, we have to find and understand that need.
My Lords, I had not intended to intervene on this at this late hour, but I am tempted to, as I thought that every school had to have a bullying strategy and that there was a code. It may sit dustily on a shelf in the headmaster’s study but it is supposed to be there. I thought schools had to have a practice and some sort of plan to involve children and young people in that strategy. ChildLine has certainly produced peer programmes down the years where young people have worked together to prevent bullying themselves, through their councils. Much as I support the noble Baroness, Lady Brinton, in her efforts, it is my understanding that this should already be in every school.
My Lords, I did not want our relative silence on these Benches to be interpreted as meaning that we were not in full support of the noble Baroness’s amendment. She will know that we have consistently worked with and supported her on these issues. Because of the lateness of the hour, I do not intend reading the speech that I had prepared, but will simply say that we think that having a national anti-bullying strategy combined with the code of practice, in the way that is described in this amendment, is a sensible staged approach to dealing with this very sensitive and growing issue. We accept that head teachers and teachers must have some discretion, as I think the Minister said in Committee, but they also need help and support. This package is the right combination for that and I hope that the noble Lord is able to persuade us that the Government are taking this seriously going forward.
My Lords, I am grateful to all noble Lords for their contributions to this debate and assure them that we take this matter very seriously. I thank in particular my noble friend Lady Brinton for bringing her experience and expertise to bear on these issues. I also thank my noble friend for meeting me recently and for helping me to better understand her very legitimate concerns about the impact bullying can have on the lives of children and young people. I know that she is aware that we share those concerns.
Although I am not persuaded that legislation is the right approach, those discussions have proved extremely useful in identifying gaps in our advice to schools and in helping us to understand how we can do more to address these important issues. As a direct result of the debates in this House and discussions outside it—with both my noble friend and other experts, notably the Anti-Bullying Alliance, which has always provided us with helpful and constructive input in the development of our approaches—we are committed to enhancing our advice to schools. I will say a bit more about precisely what we are doing in a moment.
The Government take a zero-tolerance approach to bullying and our advice to schools on this is clear and firm. I acknowledge that there is a place for legislation. All schools are required to have a behaviour policy which contains measures to tackle bullying, and we think that this approach is the right one. The noble Baroness, Lady Howarth, talked about these policies being on shelves but I do not think that, in the modern world, with the kind of pupils and inner-city issues that we have, any school can afford to have any of these policies on shelves. They are right at the forefront of practice and I know that bullying is something that all good schools take very seriously indeed. However, the national strategy that the amendment proposes could focus schools’ attention on complying with it as a tick-box exercise at the expense of allowing teachers to exercise their professional judgment, creativity and energy to tackle bullying as it presents itself in their particular school.
We had a question earlier today about Islamophobic bullying. Shortly after 9/11, outside Pimlico Academy in Lupus Street, which my wife and I sponsor, there was a fight between 200 non-Muslim and 200 Muslim pupils who just went at each other. It was basically a riot. There were police on horseback and ambulances. It was quite dreadful. Such issues are not easily sorted out by dusting bits of paper off shelves. I am not saying that having a strategy is not important, but that school has worked hard over a long period and I am pleased to say that racism there is a thing of the past. This is essential to all good schools.
However, it is important that schools are held to account for their effectiveness in tackling behaviour and bullying. That is why we reduced the reporting requirements for school inspections in 2011 to focus on the core business of a school: four core areas, of which one is behaviour and safety, instead of the previous 27. In setting out how inspectors should judge this, Ofsted’s inspection handbook includes explicit reference to considering types, rates and patterns of bullying. The noble Baroness, Lady Howarth, also referred earlier to friendship groups. School inspectors must consider how schools prevent and tackle bullying, and where necessary prompt schools to improve. This approach encourages schools really to focus on behaviour and bullying.
I know that concerns were raised in Committee that inspectors do not always see schools as they really are. Since the first Ofsted inspections in 1992, there has been a steady journey towards unannounced visits. Initially schools received more than a year’s notice of inspectors turning up. Over time, this shifted to eight weeks, and from 2005 to around two days. Under this Government, this has been reduced to almost no notice, with inspectors calling head teachers the afternoon before an inspection takes place. In December, launching his annual report, the chief inspector announced that where there were concerns about pupils’ behaviour, including bullying, schools could be subject to visits with no notice at all. I believe that these measures ensure that inspectors see schools as they really are; we no longer hear stories of pupils being sent to the ice rink for the day or asked to stay at home.
Our approach and strategy provide the right balance between requirements in law, flexibility for schools and strict accountability. My noble friend also proposed that a comprehensive definition of bullying be developed. We agree that there is a need to provide clarity for schools, but this is best done through advice rather than legislation. I know that noble Lords expressed concerns in Committee that the advice that we currently outline to schools does not include a reference to the imbalance of power present in many instances of bullying. I confirm that we are working closely with the anti-bullying organisations, and can reassure my noble friend and other noble Lords that we will incorporate an appropriate reference to the imbalance of power in our advice to schools.
In the light of previous debates in this House and subsequent discussions, we have identified how our advice could be further enhanced to address the concerns raised. We are creating an online fact sheet to inform schools about how they can support bullied children. This will include all the relevant information about and links to what steps can be taken to support children who are severely affected by bullying. It will incorporate information about in-school provision, SEN support and alternative provision for children severely affected by bullying. I hope that practical steps such as this will be welcomed.
I hope that noble Lords will recognise that the Government have done a great deal to address the issues around bullying, but we can go further—by acknowledging more explicitly, for example, that severe bullying can have a clear impact on a child or young person’s mental health. Therefore, I am happy to confirm to my noble friend that we will make it clearer in Special Education Needs: Code of Practice, which is a critical document for schools and other bodies, that bullying is one thing that might lead to a child or young person having special educational needs and that, where it does so, schools must take appropriate action. This can involve support from external agencies, if needed, whether or not a child has an education, health and care plan. In addition, we will make appropriate cross-references between the bullying guidance and the SEN code of practice to ensure that schools are clear about this point.
My noble friend spoke about children having depression caused by bullying. I believe that children suffering depression will be covered in the health conditions guidance. I shall take this matter away to make sure that that is clear.
In Committee, I highlighted local authorities’ existing duty to arrange suitable education for children of compulsory school age who would not otherwise receive it. I want to reinforce the point that this duty applies to children who are not receiving education for any reason, including as a result of bullying. This existing duty does not require a certain threshold of absence before it is triggered and so does not require a child to miss school for three months, as the amendment would require. Indeed, all schools are already required by law to inform their local authority at agreed regular intervals of the name and address of pupils who have irregular attendance, or who have been absent from school without authorisation for 10 school days or more. We would expect a local authority to take action as soon as it became aware that a child was missing education, whether or not the child was on the roll of a school. Ultimately, the department could intervene if a local authority failed to discharge its duty or did so unreasonably.
Local authorities also have existing duties to support young people to access post-16 education and training. Again, these duties would apply in respect of bullied children, but they are not prescriptive about the barriers to participation that a young person is facing.
The amendment put forward by my noble friend would also require schools to provide Ofsted with an education plan for bullied children who are unable to attend school. Since September 2012, Ofsted has placed much greater focus on the use of alternative provision for individual pupils. Evidence gathered on how a school is meeting the needs of such pupils through any provision outside the school will feed into relevant judgments about the effectiveness of the school.
I am grateful to my noble friend for her suggestion that we insert actual violence into the definition. I shall take this suggestion away and ask officials to consider how we might reflect this after further discussions with the Anti-Bullying Alliance, which are ongoing.
The noble Baroness, Lady Howe, spoke about good practice. ChildLine has made quite encouraging comments recently about practice in schools. The noble Baroness mentioned mentors. I know that many schools have a practice for when a child has absented themselves, bringing them gradually back into school and integrating them slowly. My noble friend Lady Brinton was right to point out that there are some children for whom that is not practicable and she asked about new provision. We welcome new applications for free schools for bullied children, but they will have to demonstrate the capacity to expand, the effectiveness of their provision, value for money and demand from local authorities.
I am grateful to my noble friend Lord Storey for commenting that bullying is sometimes a cry for help. This is one of the reasons why we do not wish to criminalise it any more than it may be already.
As I said earlier, I do not believe that legislation will effectively address the legitimate concerns that underpin this amendment. However, I am grateful to my noble friend, Lady Brinton, for bringing her expertise to this debate and helping us to articulate and improve our approach to supporting children affected by bullying. I hope that my noble friend recognises that I have sought to address her concerns through developing and enhancing our advice to schools. I therefore urge her to withdraw her amendment.
My Lords, I thank the Minister for his full and detailed response. Much of what he has said has gone a considerable way towards addressing not just my concerns and those of other noble Lords who have spoken but those of the APPG on Bullying, which has been looking at this issue for some time. The only outstanding issue, which cannot be tackled through legislation, is the monitoring of alternative provision to make sure that it is available across the country. Perhaps I can bother the Minister outside the Chamber in future to make sure that that happens.
I thank noble Lords who have spoken in this fairly brief debate. I say to the noble Baroness, Lady Howarth, that one of the reasons for reiterating the importance of having a strategy nationally and in schools was to have all the information in one place. Part of the problem that schools have faced is that there have been lots of disparate bits of information that have not all been drawn together. We were aware of where there was a requirement but it was thought to be beneficial for schools to have something in one place to work their way through. I hope the cross-links that the Minister talked about—between SEN, the Health Conditions in Schools Alliance and the bullying code of practice—will go some way to doing that. With that, I beg leave to withdraw my amendment.
Amendment 57D withdrawn.
Moved by Baroness Jones of Whitchurch
57E: Clause 82, page 57, line 34, at end insert—
“(4AD) For the avoidance of doubt, a direction made pursuant to the provisions of subsection (4A) as amended by subsection (4AA) shall not have the automatic effect of transferring the functions of the Director of Children’s Services and the Lead Member of Children’s Services in sections 18 and 19 of the Children’s Act 2004 to the Secretary of State’s nominee.
(4AE) Before giving a direction to an authority pursuant to the provisions of subsection (4A), the Secretary of State must give the authority 14 days’ notice in writing of the proposed direction.
(4AF) The proposed direction shall include a determination as to which functions shall be exercised by the Secretary of State or a person nominated by him and which functions shall be exercised by the authority, including those set out in subsection (4AD) above.
(4AG) The authority may make written representations to the Secretary of State about the proposed direction within that period.
(4AH) The Secretary of State may modify or withdraw a direction under this section by notice in writing to the authority or authorities to which it was given.”
My Lords, I move the amendment in the name of my noble friend Lady Hughes—who has asked me to speak on her behalf—and will also speak to Amendment 57F. These amendments seek to address the need for clarification and accountability in the exercise of the Secretary of State’s powers to intervene in the delivery of children’s services by local authorities.
Clause 82 amends the Education Act 1996 and the Local Government Act 1999 to the effect that when a Secretary of State intervenes in a local authority, usually in response to poor performance, any legislative provision applying to the local authority can be read as passing to a third party which has taken over the local authority’s functions and service delivery. Subsection (2) of Clause 82 applies these provisions to children’s services and subsection (3) to any best-value services across a local authority. I have to say at the outset that there is no disagreement with the need for intervention powers. It is absolutely necessary to protect services for local people.
In Grand Committee, we sought to clarify the effect of the Government’s intentions here and the Minister assured us then, and subsequently in letters to my noble friend, that the intention was simply a helpful clarification of the effect of a direction under the Secretary of State’s last-resort power and did not expand those powers. She gave the example of clarifying for a family court in the case of a care order or adoption that the court can legally recognise the decisions and arrangements of a third party which has taken over the local authority’s functions, even though that third party will be exercising legal responsibilities and powers vested in local authorities.
I am also grateful to the Minister that her officials met with my noble friend to discuss the clause in more detail. However, the Government’s clause still leaves some uncertainties about where the accountabilities lie following interventions. I apologise if this all gets rather technical, but it requires some further clarification. In essence, the clause as it stands leaves open the question as to where the statutory roles of the director of children’s services and lead member will reside after intervention and whether they, or the third party, are accountable for the way in which local authority functions are executed. Taken at face value, Clause 82(2), underpinning the roles of director of children’s services and lead member, could be read as transferring accountability to a third party. If so, the local authority would no longer be required to appoint to these positions and accountability would no longer rest with the local authority. The local authority would then effectively be severed from delivery of children’s services and accountability would reside with the Secretary of State and the third party.
These amendments do two things. First, they insert a process in which a specific decision is taken about whether the roles of the director of children’s services and lead member transfer to a third party following a direction. Secondly, they allow a local authority to make representations to the Secretary of State as to which functions are transferred to that third party and which remain with the local authority. This is a belt-and-braces amendment to ensure there will be no loose ends or lack of clarity as to where accountability resides, and for what functions, following a direction. It is necessary because while the Minister in her examples has sought to reassure us that the clause is very limited in effect, in fact the wording is very wide in scope and potentially goes far beyond the specific cases of family courts considering care orders and adoptions.
If the Minister is not minded to accept my amendment, perhaps she can explain why not and put on record the practical process that will take place, including discussion with a local authority, when a direction of this sort is under consideration. I look forward to hearing her response.
My Lords, I thank the noble Baroness, Lady Jones, for giving me the opportunity to clarify the scope of the Secretary of State’s intervention powers under Section 497A(4A) of the Education Act 1996 and Section 15(6)(a) of the Local Government Act 1999, as amended by Clause 82. Using these powers in a failing local authority would be a serious step, and it is right that we are very clear how they might be used. I hope to be able to satisfy the noble Baroness’s desire for such clarity.
Noble Lords will recall that these provisions are intended to put beyond doubt the Secretary of State’s existing powers to shift, in cases of very serious failure, the exercise of some of a local authority’s functions to a third party who will deliver them on behalf of the Secretary of State. Clause 82 clarifies the effect of the exercise of those existing powers—for example, in relation to care and adoption, and Ofsted’s powers to inspect the performance of the local authority’s functions—in whatever form they are delivered.
I will address each of the points in turn, because I know, as the noble Baroness mentioned, that meetings have been held with my noble friend, and that there is a wish that this be put on the record. That is what I shall do, if noble Lords will be patient.
Amendment 57E seeks assurance that a direction under subsection (4A) of Section 497A of the 1996 Act, as that section is amended by this Bill, would not automatically result in the transfer of the functions of director of, and lead member for, children’s services to the Secretary of State’s nominee. Amendment 57F does likewise for a direction under subsection (6)(a) of Section 15 of the 1999 Act.
I can be quite clear that a direction under the provisions in question would not result in an automatic transfer of the role of director of children’s services or of lead member for children’s services, to a third party who had taken on a local authority’s functions. That is, in part, because Sections 18 and 19 of the Children Act 2004, which set out the requirements on local authorities to appoint a director of and lead member for children’s services, are not functions which may be subject to a direction under subsection (4A) of Section 497A of the 1996 Act.
Following a subsection (4A) direction, the DCS and lead member would remain in place, although their responsibilities may be altered by agreement with the local authority as part of the transfer of functions from the local authority to the Secretary of State, or a nominee. The DCS and lead member would not, of course, exercise control over the local authority functions which had transferred to a third party following a direction under Section 497A.
Although the powers under subsection (6)(a) of Section 15 of the 1999 Act apply to Sections 18 and 19 of the Children Act 2004, I again reassure noble Lords that a direction under subsection (6)(a) would not result in the automatic transfer of those functions. If the Secretary of State wanted to transfer those functions to himself or a nominee, the direction would need specifically to set that out. I also point out that the amendment to Section 15 of the 1999 Act in Clause 82 of the Bill does not alter that in any way.
I also reassure the noble Baronesses that proposed new subsections (4AE), (4AG), (6E) and (6G) in their amendments, which are intended to ensure that the Secretary of State gives the local authority written notice of a proposed direction, are not necessary. Whenever in recent years we have contemplated issuing a direction, we have conducted initial discussions about its content beforehand. We have then formally given notice of our intention to issue a direction and formally invited representations from the local authority and other interested parties—I am glad that I am going to hand this to Hansard, so that they can make sure that the record is exactly as it is supposed to be. We will continue with the practice that I have just laid out.
Further, were we looking to transfer the exercise of some of a local authority’s functions to a third party, as these powers envisage, we would of course have to follow the provisions of employment law in respect of any employees. That would require consultation and appropriate due diligence around the terms of the transfer, which could only be done together with the local authority. In any event, in all but the most urgent cases, common-law principles of procedural fairness and good governance would require that notice of a direction be given to a council and an opportunity be afforded for representations to be made before a direction is given.
In relation to powers under the 1999 Act, under Section 15(9) and (10) of that Act the Secretary of State is required to allow the authority to make representations in advance of a direction, a practice we have followed in recent circumstances in relation to Doncaster. Furthermore in most cases, as noble Lords will know, government intervention in local authorities rests on the use of non-statutory improvement notices. Such improvement notices and the process that surrounds them, including engagement with Department for Education officials, serves as an effective mechanism for providing local authorities with fair warning about any proposed escalation to the use of statutory intervention powers. Although Sections 15(11) and (12) of the 1999 Act allow the Secretary of State to proceed straight to a direction where he considers it urgent enough, he must explain his reasoning to the authority in question, including why no prior consultation has taken place. I can provide additional reassurance that the dialogue between the Government and local authorities in intervention cases is always a two-way process.
In relation to the format of statutory directions, let me again provide what I hope is sufficient reassurance to the noble Baroness. Statutory directions, by their very nature, must be absolutely crystal clear about the functions to which they relate. Indeed, a direction under either Section 497A of the 1996 Act or Section 15 of the 1999 Act would be legally defective and operationally ineffective if it did not set out the functions to be exercised by a third party, and who that third party should be, with sufficient clarity for it to be understood.
Finally, I turn to proposed new subsection (4AH) in Amendment 57E and proposed new subsection (6H) in Amendment 57F, which concern the modification or withdrawal of directions. This is already provided for within Sections 497A(6) and 15(6) of the 1996 and 1999 Acts respectively, which set out that a direction may be indefinite or may operate for a specific period. In either case, the provisions allow the direction to be revoked earlier by the Secretary of State. If the Secretary of State wanted to modify a direction in any way he could simply issue another direction and, following the process I have already described, discuss this with the local authority concerned beforehand.
These provisions are already in place in the 1996 and 1999 Acts. We are seeking to amend those provisions in some relatively small respects in the Bill to bring absolute clarity to their operation. I hope that in setting out clearly how they would operate, I have reassured the noble Baroness. The approach that her amendments propose is very much already covered in current legislation and public law principles, and adopted as custom and practice by this and previous Governments. I very much hope that I have managed to cover all the noble Baroness’s concerns, that all is now satisfactorily on the record and that she is content to withdraw the amendment.
I thank the Minister very much for that and I, too, will probably want to take a little time and dwell on all that in Hansard. For the moment, I am grateful to her for putting that information on the record and, on that basis, I beg leave to withdraw the amendment.
Amendment 57E withdrawn.
Amendment 57F not moved.
Moved by Lord Nash
57G: After Clause 82, insert the following new Clause—
“Application of suspension etc powers to establishments and agencies in England
(a) for “Welsh Ministers” substitute “registration authority”, and
(b) omit “for which the Welsh Ministers are the registration authority”.
(2) In subsection (2) of that section, for “Welsh Ministers give” substitute “registration authority gives”.
(3) In section 15(4A) of that Act (duty of Welsh Ministers to give notice of decision to grant application for cancellation or variation of suspension)—
(a) for “Welsh Ministers decide” substitute “registration authority decides”,
(b) for “they” substitute “it”, and
(c) for “their” substitute “its”.
(4) In section 20B of that Act (urgent procedure for suspension or variation etc: Wales), in the heading omit “: Wales”.
(5) In subsection (1) of that section—
(a) in paragraph (a) omit “for which the Welsh Ministers are the registration authority”, and
(b) in paragraph (b)—
(i) for “Welsh Ministers have” substitute “registration authority has”, and
(ii) for “they act” substitute “it acts”.
(6) In subsection (2) of that section, for “Welsh Ministers” in both places substitute “registration authority”.
(7) In subsection (4)(b) of that section, for “Welsh Ministers’” substitute “registration authority’s”.”
My Lords, Amendments 57G and 64ZA complement those which I introduced in Committee to pave the way for the introduction of a new framework for the regulation and inspection of children’s homes. We have worked very closely with Ofsted on how the inspection of children’s homes should be improved.
Amendment 57G is intended to equip Oftsed with the powers required to make a prompt and timely intervention when it identifies serious concerns about the care of children. The amendment would extend provisions in the Care Standards Act that already operate in Wales to England to allow Ofsted to suspend a person’s registration in relation to a setting caring for children that is regulated under Part 2 of the Care Standards Act. This means a criminal offence would be committed if a registered person continued to operate the setting while their registration was suspended.
While this power could apply to any setting regulated by Ofsted under Part 2 of the Care Standards Act, for example a fostering service, we expect that it would be used almost always in relation to children’s homes, where Ofsted assesses that there is a need for urgent action to suspend a person’s registration while concerns about a home’s care are investigated.
At present, in England, if there is a serious incident in a home, Ofsted has the power only to cancel a person’s registration. This amendment would enable Ofsted to take action more quickly in cases where this is needed. For example, where there are allegations of abuse in a home, it might be appropriate to suspend a registration while these are being investigated.
Both we and Ofsted recognise that a power to suspend a person’s registration is a draconian one. We expect that moves to suspend registration would happen only on rare occasions where there were very serious concerns. Ofsted would take this action only if, following consideration of other enforcement options, it was judged to be necessary given the specific circumstances of the case.
Ofsted is committed to exercising this power in a fair and proportionate way. For example, we would expect inspectors, as far as is reasonably practicable, to contact a provider shortly before delivering a suspension notice. This contact would make it clear that the suspension would not formally start until the notice had been properly and formally served.
Ofsted already has a power to suspend early years services under the Childcare Act 2006. There is a protocol between Ofsted and the Care Standards Tribunal to expedite appeals against suspension notices by early years providers to ensure early judicial scrutiny of inspectors’ actions in these urgent and extreme situations. Ofsted expects to enter into a similar protocol with the tribunal concerning the new urgent suspension power that this amendment would introduce. Discussions about this are planned between Ofsted and the tribunal in the near future.
I hope that noble Lords will support this important amendment to introduce a new safeguard for vulnerable children so that Ofsted inspectors can take timely and rigorous enforcement action in those rare instances where it is required. I beg to move.
Amendment 57G agreed.
Moved by Baroness Massey of Darwen
58: After Clause 82, insert the following new Clause—
“Local authority’s duty to investigate: work with families
In section 47 of the Children Act 1989 after subsection (8) insert—
“(8A) Where, as a result of complying with this section, a local authority conclude that a child may need to become looked after in order to safeguard and promote their welfare, the local authority must, unless emergency action is required, seek to identify and consider the willingness and suitability of any relative, friend of other person connected with the child, to care for them as an alternative to them becoming looked after by unrelated carers.””
My Lords, I will speak very briefly on Amendments 58 and 59 and leave Amendment 63 to my noble friend Lady Drake. I thank the Minister and his colleagues and team for all their efforts, letters and meetings on the issue of family and friends carers.
We discussed the benefits of children being raised with family or friends at some length in Committee. All I would say here is that there is clear evidence that children who cannot live with their parents and who live with family or friends do significantly better both socially and academically than those who live in other forms of care.
Local authorities are still not, as far as I know, conforming to the rules that they should. There is little support from local authorities. Sometimes there is misinformation. This issue will not go away. I hope that the Minister will—I know that he will—take on board that family and friends carers deserve and need help and that we should listen to their concerns. I beg to move.
My Lords, I am conscious of the late hour, but I rise to speak to Amendment 63, which addresses the need of kinship carers and their children by seeking to prevent a situation where the carer loses their job. We are addressing a care community of an estimated 300,000 children—not a minor group. Family members step in to avoid them being taken into care. Kinship care, as we know, is by far the most common way of providing permanence and stability for children who can no longer live with their parents.
We have rehearsed these arguments many times. Yet, we know, in spite of the key role that kinship carers play, that they get too little help. As a society we depend on kinship carers to protect so many vulnerable children, but we reciprocate by giving them limited support. Yet the children being raised with kinship carers can have experienced similar adversities to those in the care system; they have been through trauma or tragedy, they have multiple needs and they need time to settle with their carers, who themselves are required to attend a plethora of meetings related to the children’s needs.
However, as we know, those carers have no statutory right to any form of adjustment leave to settle the children. With no give in the employment system, many kinship carers are forced to give up work in order to do what is right for the children. The aim of this amendment is to bring kinship carers into employment protection through a statutory entitlement to a period of unpaid adjustment leave when taking on the care of the child. Not only in this Bill but in other recent Bills we have extended or are extending the rights to statutory leave of other carers and approved adopters, but consistently we give little or no statutory support to kinship carers and the key role that they play.
We see an incongruity in the Government’s position. In the passage of the Welfare Reform Bill, when again the arguments about the key role of kinship carers were rehearsed, the Government, and particularly the noble Lord, Lord Freud, accepted that friends and kinship carers undertook a valuable role in protecting vulnerable children, which often requires them to give up employment, and agreed that kinship carers in receipt of benefits should be exempt from work conditionality for 12 months. However, when it comes to employment protection and continued labour market participation by kinship carers, we see the incongruity. It would not always be necessary for a kinship carer to lose their job if they had a period of adjustment leave, and many would remain in the labour market if they had such leave, which may well improve the life outcomes for them and their children. So we face a situation where the Government recognise the challenges facing kinship carers in the welfare system but are reluctant to do so in the employment system. In effect, the DWP understood the issue and acted, but BIS remains reluctant.
I acknowledge that in Committee on
“keen to ensure that their needs are considered as soon as possible”.
However, the problems that I have referred to—albeit briefly, because of time—exist now, and I fear that following the passage of the Bill they may fall into the long grass. I am anxious that “as soon as possible” should not be a long timeline. The noble Viscount also indicated in his letter that the information required for the broader review of the shared parental leave and pay provisions to which he had committed is unlikely to be available until 2018, but that he wishes to work to a much earlier timeline for considering the needs of family and friends carers for adjustment leave.
I have three questions for the Minister. Am I correct in my understanding of the letter of
I shall end by quoting the noble Baroness, Lady Howe of Idlicote, who put it so well in Committee when she said that,
“it is, frankly, almost embarrassing to think about the disadvantage that kinship carers suffer when they take on this responsibility and often—most likely, I would say—produce much better results for those children”.—[ Official Report , 20/11/13; col. GC 450.]
My Lords, I hope it has been very clear that this side of the House strongly supports the main thrust of the measures in this part of the Bill in relation to parental leave, and we do not want to do anything to withhold any form of approval for what is happening. We have tried to express our support for that. The amendments tabled today are a reflection of two things. First, that the broad thrust of the way in which the Government have taken forward this agenda is exactly as we would like to see it. Indeed, I might almost say that they have done a little bit more than we would have considered had we been in power and had to take forward this responsibility. Secondly, in so doing they have thrown into sharp relief a number of areas in which measures could be taken which would level up kinship carers to the position that is now being adopted for parental leave.
I sympathise with the Minister responding to the debate, but we should reflect on the fact that, during the passage of the Bill, we have moved from the original position we found ourselves in when we opened up discussions on this part, which was that nothing could be done in this area, to a situation where a number of reviews and considerations of particular issues are now taking place. The purpose of these amendments is to invite the Minister to reflect upon and read into the record the decisions that he has been able to reach in relation to kinship and friendship care, some of which were mentioned by my noble friend Lady Drake, and to ask him whether he will use this opportunity to reflect a little more on the gaps that remain.
I do not think it would require a lot to do the sort of work required, but the important point, as has just been said, is to get some sense of the timescale, so that those who might not be given first priority this time round have something to look forward to so that they can work towards a better achievement of the objectives that they want, particularly in the areas that we have just been talking about.
My Lords, I intend to keep my remarks as brief as possible while aiming to respond effectively to the substance of the amendments.
Noble Lords will remember our discussions on this very important area of support for family and friends carers during Grand Committee. I welcome this debate and reaffirm our commitment to supporting kinship and friendship care. I appreciate the broad support for these measures from the noble Lord, Lord Stevenson, and Members opposite. I commend the noble Baronesses, Lady Massey and Lady Drake, on their tireless work in this area.
Where family and friends carer policies are applied effectively, the aims expressed in Amendments 58 and 59 will already be met. For this reason, the Government have in place a programme of work to improve the practice of professionals in this area. It is our belief that the key issue in this area is improving quality of practice on the ground rather than changing the legislation which already exists for this group of carers.
First, on Amendment 58, it is already a requirement of the Children Act 1989 that local authorities should support the upbringing of children by their families wherever possible if the child cannot return to live with the birth parents and if it is the most appropriate way to safeguard and promote their welfare. This legislative position is re-enforced by Volume 1 of the Children Act 1989 statutory guidance, which outlines that the local authority should have,
“considered family members and friends as potential carers at each stage of its decision making”.
That guidance is currently being revised to reflect the legislative changes in this Bill and to align it with the new Public Law Outline. The revised version will include strengthened content on good pre-proceedings practice and will re-emphasise the importance of early work with families. It will also provide information on the key elements of good pre-proceedings practice and the use of family group conferences.
I know that officials in the Department for Education have been in regular contact with interested parties, including the Family Rights Group, during the drafting of this guidance and have listened carefully to their concerns. A working group made up of expert practitioners, including directors of children’s services and social workers, has also been formed to act as a critical friend to the department and comment on early drafts. The guidance will be published for public consultation in mid-February and we would welcome any further views from noble Lords as part of that process.
The Government remain committed to the use of interventions at the pre-proceedings stage, which is why we are now funding the rollout of an accreditation scheme of family group conferences and the further use of this service at the pre-proceedings stage. Practice in this area will be monitored and inspected by Ofsted under the new single inspection framework for children’s services, which is designed to assess local authority practice and decision-making at all stages of a child’s journey.
On Amendment 59, we have discussed at length the valuable contribution of family and friends carers and it was with that in mind that in March 2011 we issued statutory guidance for local authorities on families and friends who are carers. That guidance makes it clear that wider family members should receive appropriate support to bring up a child in their care, regardless of whether those children are looked after by a local authority or not:
“The range and level of family support services which may be provided under section 17 is wide … As well as practical support, family and friends carers may need advice, guidance or counselling about how to manage issues such as those arising from contact or from caring for children with emotional or behavioural difficulties due to their earlier experiences. Such services may be provided by local authorities to support both formal and informal family and friends care arrangements”.
Therefore, non-looked-after children can already be included in such care arrangements under Section 17 of the 1989 Act. The 1989 Act does not impose a limit on the amount of support which may be provided under that section.
As I mentioned earlier, we are aware that the quality and quantity of local authority policies is not always at the level it should be. That is why we currently have a programme of work to reduce the variation in practice within and across local authorities. The Department for Education will continue to look at the barriers to implementing the policies and will be looking to take forward work that clarifies the role of the local authority and the importance of good support systems for this group of carers.
We understand that many family and friends carers could do with extra help with the parenting of these children, particularly when dealing with children with behavioural problems. That is why the Department for Education continues to fund initiatives like the Keep programme, which is a group programme which provides family and friends carers and mainstream foster carers with specialist training and support.
While we agree that support and services are sometimes not of the quality that they should be for family and friends carers, we feel that improvements need to be made not by changing current legislation but, as I said earlier, by improving practice on the ground. We will improve the lives of these dedicated and inspirational carers by empowering them to have the information they need to ask for services when they need them and by ensuring that each local authority is aware of their responsibility and has the tools to deliver it. That is exactly what our current programme of work aims to accomplish.
Finally, on Amendment 63, I fully understand the sentiment behind what is proposed, but it is essential that we take the time fully to understand how becoming a kinship or friendship carer affects an individual’s labour market attachment before proposing policy interventions. For this reason, I announced in Grand Committee that the Department for Business, Innovation and Skills will lead a research project into those issues. Officials met recently with the noble Baronesses, Lady Massey and Lady Drake, and representatives from a number of interested organisations such as Grandparents Plus and the Family Rights Group to discuss these issues, and I know that the officials found that very useful.
We will hold a further research scoping event for relevant stakeholders in the coming weeks to gain a fuller understanding of the issues and research challenges and to harness the extensive knowledge and expertise of these organisations. I hope that we will continue to build on these productive discussions and that noble Lords will encourage interested parties to attend the scoping event. It is essential that we properly understand the labour market issues faced by these individuals before deciding whether further policy interventions aimed at strengthening labour market attachment may be the most effective intervention. The research that I have outlined will help government to gain a better understanding of the evidence base, which is the important first step that is needed.
I know that the noble Baroness, Lady Drake, raised at least three questions, and I will write to her to answer them. However, on the point about timing, this is a very urgent matter, but it will depend on the scoping nature of that research. I will write to her on that point, but I want to clarify that we on this side regard this as an urgent matter and will endeavour to move as fast as we possibly can.
In the mean time, I hope that I have given noble Lords sufficient reassurance that the Government are committed to supporting family and friends carers. I therefore urge the noble Baronesses to withdraw their amendments.
My Lords, I thank the Minister for his complete response. I appreciate that all the questions cannot be answered this evening. My noble friend and I look forward to further correspondence and to receiving further information about the review.
Amendment 58 withdrawn.
Amendment 59 not moved.
Moved by Baroness Northover
59ZA: After Clause 85, insert the following new Clause—
“Provision of free school lunches
(1) The Education Act 1996 is amended as follows.
(2) In section 512ZB (provision of free school lunches and milk at maintained schools)—
(a) in subsection (2)(a) after “subsection (4)” insert “or (4A) (or both)”, and
(b) after subsection (4) insert—
“(4A) A person is within this subsection if the person—
(a) is a registered pupil at a maintained school or pupil referral unit in England, and
(b) is in reception, year 1, year 2 or any other prescribed year group at the school.
(4B) The Secretary of State may by order provide for the following to be treated as persons within subsection (4A)—
(a) registered pupils, or any description of registered pupils, at a maintained nursery school in England;
(b) children, or any description of children, who receive relevant funded early years education, or any description of such education, in England.
(4C) In subsection (4A)—
“maintained school” means—
(a) a community, foundation or voluntary school, or
(b) a community or foundation special school;
“reception” means a year group in which the majority of children will, in the school year, attain the age of 5;
“year 1” means a year group in which the majority of children will, in the school year, attain the age of 6;
“year 2” means a year group in which the majority of children will, in the school year, attain the age of 7;
“year group” means a group of children at a school the majority of whom will, in a particular school year, attain the same age.”;
(c) in subsection (5), after ““prescribed”” insert “, “relevant funded early years education””.
(3) After section 512A insert—
“512B Provision of school lunches: Academies
(1) Academy arrangements in relation to an Academy school or an alternative provision Academy must include provision imposing obligations on the proprietor that are equivalent to the school lunches obligations.
(2) “The school lunches obligations” are the obligations imposed in relation to maintained schools and pupil referral units in England by—
(a) section 512(3) (provision of school lunches on request), and
(b) section 512ZB(1) (provision of free school lunches to eligible persons).
(3) Academy arrangements in relation to an Academy (other than a 16 to 19 Academy) that are entered into before the date on which section (Provision of free school lunches)(3) of the Children and Families Act 2014 comes into force are to be treated as if they included the provision required by subsection (1), to the extent that they do not otherwise include such provision.”
My Lords, in September last year the Government announced their intention that all children attending state-funded schools in England in reception, year 1 or year 2 should be offered a free school lunch. Amendment 59ZA places a duty on all such schools to provide lunches to those children and also provides a power for the Secretary of State for Education to extend that provision to other age groups by order, subject to decisions by future Governments and the will of Parliament.
We know from pilot schemes in Durham and Newham, which commenced under the previous Government in 2009 and concluded under this one in 2011, that the provision of universal free school meals has the potential to deliver considerable benefits for children, and particularly for children from disadvantaged backgrounds.
One of the most striking positive effects demonstrated by the pilots was the impact of universal free school meal provision on educational outcomes. Independent evaluation showed that pupils were on average two months ahead of their peers in English and maths and that these improvements were most marked among children from less affluent families. Noble Lords may wish to note that these improvements were not reflected in a third pilot area, where free school meal entitlement was extended to more pupils but not offered to all children.
Other benefits demonstrated by the pilots included higher take-up rates of free school meals, including among that the group of pupils who had previously been eligible for a free school meal but had not taken one. This is important: we know, due in large part to the good work done under the previous Government, that school meals are far more likely to meet good nutritional standards than the packed lunches that children bring to school. Offering all infants a healthy lunch will allow schools to play their part in helping children to develop long-term healthy eating behaviours.
Noble Lords will also be interested to know that the pilots demonstrated certain social benefits. Universal free school meals help to engender a culture where children sit down to eat with classmates and teachers in a civilised environment. Shared mealtimes are a natural training ground for learning to talk, behave, take turns, be polite and share. The pilots showed that a universal approach was valued by parents and staff for building a school community and sense of cohesion and increasing equality and fairness.
We will support schools in introducing this. In his autumn Statement my right honourable friend the Chancellor of the Exchequer announced that over a billion pounds of new revenue funding would be allocated to this policy between 2014 and 2016. In addition, the Government confirmed that £150 million pounds of capital funding would be provided by the Department for Education in 2014-15 to improve kitchen and dining facilities in schools.
Subsequently, the Department for Education has confirmed more details of how this funding will be allocated, including that special provision will be made in 2014-15 to assist small schools to implement this policy. The department will also, shortly, announce details of a comprehensive package of implementation support and advice to be targeted at schools that might be expected to find delivering this policy most challenging.
Head teachers need to know that the Government are as committed to this policy as we expect them to be. That is why we have concluded that this amendment is necessary to provide both certainty and confidence, so that head teachers can plan ahead.
This policy has been widely welcomed across the school food sector, by trade unions and by other stakeholders, including the Children’s Society. I appreciate the favourable comments from the noble Baroness opposite and from the noble Lord, Lord Laming, on the Cross Benches. We spoke to them about introducing the amendment at this stage and we appreciate their support in this. I am very pleased to put this amendment forward. I beg to move.
My Lords, I declare an interest as vice-chairman of the Institute for Food, Brain and Behaviour. I entirely accept what the Minister said about the value of nutrition. For two or three years we have conducted work in a secondary school in Dagenham. That work is about to be published and shows the value of correct nutrition on not just the educational awareness of children but also on their behaviour. We would be very happy to share this research with the Minister and her officials.
My Lords, I warmly welcome the amendment and the Minister has underlined the case for it. I have two questions. What will be done to monitor the effects of the new provisions with a view to considering whether to extend them to other age groups, as the proposed new clause would allow, and what criteria will be used in considering whether to extend them? Will the Minister explain what the implications will be for the pupil premium, because eligibility for the funding of it is tied to free school meal eligibility, and if free school meal eligibility is being extended in this way does this mean that the pupil premium will also be extended?
My Lords, I welcome the amendment and welcome the coalition, belatedly, to the table of the free school meals cause.
As I told the Minister the other day, I am an inaugural member of the School Food Trust, set up by Labour after Jamie Oliver’s turkey Twizzler scandal. Therefore, I do not need to be persuaded of the importance of this announcement. When I was thinking how I might respond to this debate, I was initially tempted to run back through the history of this initiative, not least the Government’s early decision to cut the funding of the School Food Trust and the associated rollout of the nutritional standards. However, in the circumstances I felt that this was rather churlish. However the transformation of policy came about, it is absolutely the right thing to do. I agree with the Minister that it will bring health, educational and social benefits to this group of children. It will, I hope, teach them good eating habits which will stay with them and encourage them to continue eating nutritional school lunches in later years. It will also provide considerable savings to hard-pressed families who would otherwise have to pay for these meals.
The challenge now is to make sure that the policy is implemented successfully for September, and I very much hope that the Children’s Food Trust is able to play a major role in assisting that rollout. There will obviously be different challenges for different schools to adapt their kitchens and dining spaces to meet the new demand. I hope that schools, and particularly head teachers, embrace this challenge positively and do not try to cut corners. The school lunch has the capacity to be at the heart of the school’s community and brings a wealth of other benefits as well. I very much hope that in a short period the policy will justify itself. I am pleased that the amendment allows scope for extending the age group via secondary regulation in due course, and I am pleased to support the amendment.
I thank noble Lords for their welcome for this proposal. I look forward to hearing the report from Dagenham. The department will be very interested in that trial. I say to the noble Baroness, Lady Lister, that pupil premium funding will not be affected by the introduction of universal school meals for infant pupils. In particular, the funding for the next financial year 2014-15 is informed by school census data collected in the January 2014 school census. This census is taking place prior to the introduction of universal infant free school meals. In subsequent years, we will be gathering the same data in the school census on the number of pupils whose families are in receipt of the relevant benefits that currently entitle the children to a free school meal. This information will be used to allocate pupil premium funding, as well as other deprivation-related school funding.
In terms of evaluating the impact of this policy, it will obviously be carefully monitored. The universal free school meals pilot provided a full and compelling evaluation of the benefits and challenges of the policy, as I have just laid out. We will be measuring the take-up of lunches via the school census and are sure that others will want to measure the specific benefits arising from this policy.
There are currently no plans to extend the universal free school meals eligibility to further age groups. It will be for future Governments to decide whether they want to do so. However, we thought that it was important, while we were asking Parliament to consider legislating on the principle of this, to include an enabling power to give future Governments the flexibility to extend the policy using secondary rather than primary legislation. This of course will still be subject to the will of Parliament.
I think that I have covered everything, although I am not sure whether I have covered all the points raised by the noble Baroness, Lady Jones. If I have not, then, given the hour, I will write to noble Lords. Once again, I thank your Lordships very much for their welcome of this policy.
Amendment 59ZA agreed.
Moved by Baroness Massey of Darwen
59A: After Clause 85, insert the following new Clause—
“Independence of the Children’s Commissioner
“(3) The Secretary of State shall not undermine the Children’s Commissioner’s independence and shall ensure that the Children’s Commissioner is under as few constraints as reasonably possible in determining—
(a) the Commissioner’s activities,
(b) the Commissioner’s timetables, and
(c) the Commissioner’s priorities.””
My Lords, in moving Amendment 59A, I also wish to support Amendments 59B and 59F, to which the noble Lord, Lord Ramsbotham, will mainly speak. I want to make three very quick points about the Children’s Commissioner. One is about human rights, one is about the commissioner’s powers and one is about his appointment.
I thank the Minister and his team for investigating the concerns expressed in Committee and for his helpful and clear letter. We are particularly grateful that the Government have now published the framework agreement between the Department for Education and the Office of the Children’s Commissioner.
The introduction of that framework contains a statement on the independence of the Children’s Commissioner and the overarching principles. However, neither the framework nor the Minister’s letter contain the UN affirmation that national human rights institutions such as the Office of the Children’s Commissioner should clearly state that members and staff of such bodies,
“will not receive instructions from government ministers or other public officials, directly or indirectly”.
I do not see the issue of prohibition directly spelled out in the letter or the framework.
Secondly, I realise that the commissioner still does not have the power under the Human Rights Act to deliver on individual cases. I understand the reason for that: it would be an impossible task. However, the amendment of the noble Lord, Lord Ramsbotham, with which I agree, seeks to draw attention to particular groups with specific problems—for example, children in custody, unaccompanied migrants and trafficked children. In other words, it is about children who are living without their parents—a particularly vulnerable group. I shall leave the noble Lord, Lord Ramsbotham, to elaborate on that but I have my own concerns.
My third concern relates to the appointment of the Children’s Commissioner. I hope that the appointment will be independent of political bias. It requires someone who has strong experience of working with children and children’s services in the voluntary sector and who understands the wide scope involved in dealing with all kinds of children, particularly vulnerable children, at a national and local level. The person who is appointed, whoever he or she might be, must command the respect of the children’s sector. I know that Parliament, children’s charities and children’s services will follow this appointment keenly to ensure that they are fulfilling all the demands that they have to fulfil. I beg to move.
I am grateful to the Minister for his letters and the draft framework agreement in which I note that the Children’s Commissioner is classified as a non-departmental public body and that it is for the commissioner to determine what activities to undertake in carrying out his or her primary function. I am therefore glad to see that the provisions that currently allow the Secretary of State to direct the commissioner’s work are to be repealed but, like the noble Baroness, Lady Massey, I do not feel completely confident about the appointment process. That is why I have added my name to her Amendment 59A, to which she has spoken so comprehensively.
Turning to my Amendments 59B and 59F, the aim of Amendment 59B is twofold. First, it is to ensure that the expectation of the UN Committee on the Rights of the Child that all children’s commissioners shall have the power to bring and intervene in court cases to ensure that children’s rights are respected is made explicit in the Bill. Legal cases can be complex, lengthy, expensive, intimidating and distressing for children who are often unable or unwilling to take action themselves. In addition, courts are likely to be even less accessible to children following cuts to legal aid and proposals for further reform of legal aid and judicial review.
The second purpose is to put the commissioner on an equal footing with the Equality and Human Rights Commission in being able to bring cases under the main legal protection for children in this country, the Human Rights Act. It should not be presumed that the commissioner will automatically take up every case but it will be up to him or her to decide which ones to pursue.
Amendment 59F would expand on the list of those groups of children currently under the remit of the Office for the Children’s Rights Director to whom the Children’s Commissioner must provide advice and assistance. At present, Clause 86 prohibits the commissioner from providing advice and assistance to children living away from home or receiving social care who are not within the group defined in Clause 93. As I have seen all too often, there is considerable inconsistency in how children in custody or migrant children are looked after by those responsible for them. I have not had the same practical experience of trafficked children but, in view of their vulnerability and possible legal needs, it would be invidious to leave them out of this proposed addition.
Finally, more generally, as the Bill has progressed—and particularly in relation to the best endeavours rather than duties that the Government expect to be sufficient demand on local authorities and others to ensure delivery of EHC plans and other SEN provision—I see the need for an informed, independent monitor to ensure that those best endeavours are resulting in what the Government expect. As I have said previously, the code of practice is full of “musts” without being specific about how a “must” is to be implemented or overseen. I suggest that the role of overseer of best endeavours and musts is a natural addition to the responsibility of the Children’s Commissioner, being entirely in line with new Sections 2(1) and 2(3)(a) of the Children Act set out in Clause 86. New Section 2(1) states:
“The Children’s Commissioner’s primary function is promoting and protecting the rights of children in England”.
New Section 2(3)(a) states:
“In the discharge of the primary function the Children’s Commissioner may, in particular … advise persons excising functions or engaged in activities affecting children on how to act compatibly with the rights of children”.
My Lords, I rise partly to support my noble friend and the noble Lord, Lord Ramsbotham, but primarily to use the opportunity to thank the Minister for listening to what was said in Grand Committee and by the Joint Committee on Human Rights—up to a point. With regard to Amendment 59C, I fear that we are still talking past each other. The Joint Committee on Human Rights amendment, which I moved in Grand Committee, was not intended to provide an exhaustive definition of children’s rights, as the noble Lord suggested in his letter to my noble friends Lady Hughes and Lady Jones on
I also strongly welcome the publication before Report of the updated framework agreement between the Office of the Children’s Commissioner and the department, and even more because it incorporates the changes recommended by the JCHR and includes a clear statement of the commissioner’s independence. I welcome, too, the amendments designed to strengthen children’s participation.
I hope that the Minister will be able to go one step further, as asked for by my noble friend and the noble Lord, and strengthen the powers and independence of the Office of the Children’s Commissioner just that little bit more.
My Lords, I support Amendment 59A and I also strongly support Amendments 59B and 59F. I address this from the viewpoint of the children themselves. Children and young people care about the independence of the Children’s Commissioner and support the proposal to prevent any interference by government as set out in Amendment 59A.
In a briefing put together by young people in partnership with Save the Children, they say quite rightly that the commissioner is for them and that it is important that the Government listen to their views on the issue of independence. The young people understand the importance of the commissioner being free to do his job properly. In particular, they are worried about future Governments interfering in the commissioner’s work. Mohamed, aged 16, said:
“If the Commissioner’s full independence is not clearly set in stone then a new Government would be able to change its mind … If it’s not [written down in law] it could change in a few years-time. Even if the Children’s Commissioner has the freedom now to do what they think is right, there’s no guarantee it wouldn’t change”.
So young people are concerned that without this amendment, children may think that the commissioner is not a proper champion of their views and rights, and they may not put their trust in the commissioner.
Young people say that without a fully independent champion, children could grow up to feel disengaged from their community and local and national politics. Najib, aged 12, said:
“If the children’s commissioner isn’t completely independent then young people will feel like they don’t have a voice. When they grow up they may not have the confidence to speak out and join in as they’ve felt that no one has listened to them when they were growing up”.
I hope very much that the Minister will consider young people’s views on this issue and I very much support the proposal brought forward on this by the noble Baroness, Lady Massey.
I thank the noble Baronesses, Lady Massey, Lady Lister and Lady Howe, and the noble Lord, Lord Ramsbotham, for their contributions. I will speak to the government amendments in more detail shortly, but I would first like to respond to Amendment 59A tabled by the noble Baroness, Lady Massey, and Amendments 59B and 59F tabled by the noble Lord, Lord Ramsbotham.
I am grateful to the noble Baroness for focusing our attention on the key issue of the independence of the Children’s Commissioner. As I stressed during the debate in Committee, in order for the Children’s Commissioner to have credibility with children and children’s organisations, and to meet international standards, we fully recognise that the commissioner needs to be—and be seen to be—acting independently from government. That is why we are removing a number of provisions in the existing legislation that call into question the commissioner’s independence, as recommended by John Dunford following his review. As a result, there is nothing in the legislation that allows the Government to determine what the commissioner’s priorities are, what activities he or she will undertake, or what timescales he or she will work to—these are all matters for the commissioner.
During the debates in Committee, both here and in the other place, the Minister for Children and Families and I provided reassurances on the process for appointing the commissioner, and on providing the commissioner with a sufficient budget. I am happy to repeat them again today. The Government fully recognise the need for the commissioner to be free from any political interference in carrying out his or her functions, and the arrangements in place to appoint the commissioner and provide him or her with a sufficient budget will ensure that this is the case.
I would like to reassure noble Lords that the commissioner’s appointment will be governed by the code of practice published by the Office of the Commissioner for Public Appointments, which ensures that such appointments are made on the basis of merit, following a fair and open recruitment process. This ensures that only those candidates judged by the OCPA recruitment panel to be “appointable” can be put forward for Ministers’ consideration. Further, we have given commitments that Parliament will be provided with an opportunity to comment on the job description and person specification before the post is advertised, and an opportunity to hold a pre-appointment hearing before the appointment is confirmed.
On the framework agreement, as requested by noble Lords in Committee, I have made available a draft of the revised framework agreement that sets out the relationship between the commissioner and the Department for Education. As noble Lords will note, the revised framework agreement includes clear statements about the commissioner’s independence from government.
Noble Lords will also note that, as requested by the Joint Committee on Human Rights, the draft framework agreement includes changes that mirror those made to the framework agreement between the Equality and Human Rights Commission and its sponsor department—changes that seek to ensure that the impact of public sector efficiency controls do not unreasonably constrain the commissioner’s independence.
I now turn to Amendment 59B, tabled by the noble Lord, Lord Ramsbotham, which seeks to add, “initiating and intervening in legal proceedings”, to the non-exhaustive list of activities that the commissioner may undertake in the exercise of his or her primary function, as set out in proposed new Section 2(3) of the Children Act 2004, inserted by Clause 86. During the debates in Committee, I said that initiating or intervening in legal proceedings was, in the Government’s view, implicit within the commissioner’s primary function. The commissioner has intervened in legal proceedings on a number of occasions under the current legislation, and there is nothing in this Bill that changes that position.
As now, if the Office of the Children’s Commissioner wanted to bring legal proceedings, it would fall to the judge in the individual case to determine whether the commissioner had “sufficient interest” in the matter. However, the fact that the Children’s Commissioner will have a statutory role to promote and protect children’s rights, suggests that the commissioner would have a sufficient interest in any matter before the courts where children’s rights were involved. The question is not, therefore, whether it is possible for the commissioner to initiate or intervene in legal proceedings, but whether it is desirable to emphasise this aspect of the commissioner’s remit explicitly on the face of the Bill.
There are a number of reasons why I do not wish to do that. First, we have avoided adding to the list, in proposed new Section 2(3), of activities that are already implicit within the commissioner’s primary function. Secondly, while I agree that the commissioner should, in certain circumstances, be able to bring matters before the courts, I share John Dunford’s view that a decision by the Children’s Commissioner to initiate legal proceedings should not be taken lightly. We would expect any commissioner to use this power sparingly, given the range of functions and issues in which the commissioner is likely to take an interest, and in the light of his or her responsibility to make effective use of public funding.
I am sorry to delay proceedings, but can the Minister, in the light of what he has just said, assure me that an incoming commissioner will at least be made aware of that provision, and that the assurance that he has just given to the House will be repeated in that briefing?
I am delighted to give that assurance to the noble Lord. Thirdly, including an explicit reference to initiating and intervening in legal proceedings would raise expectations that the commissioner will take up legal challenges on behalf of any individual or group who brings a matter to the commissioner’s attention. The Office of the Children’s Commissioner is clearly not resourced to operate in that way, and it could end up wasting time defending decisions not to take up particular cases.
I turn now to Amendment 59F, also tabled by the noble Lord, Lord Ramsbotham, which would add categories of children—–namely, children in custody, children who have been trafficked and unaccompanied migrant children—to the definition at new Section 8A, which is inserted by Clause 93. In the Government’s view, it is not possible to define precisely in legislation every interaction that the commissioner and his or her staff might have with children; nor would we want to. What the legislation seeks to do, therefore, is to put down some clear markers that are designed to achieve particular objectives.
First, as noble Lords will be aware, there is a provision that prevents the commissioner investigating individual cases. This is specifically to avoid the commissioner getting swamped with individual casework at the expense of his or her strategic role. John Dunford’s report was clear that where commissioners had taken on a full ombudsman’s role, it had reduced their impact.
Secondly, as recommended by John Dunford, we have included provisions in the legislation that ensure, as far as possible, that the support provided to children within the Children’s Rights Director’s remit can and will continue under the new arrangements. Beyond that, we do not wish to try to enshrine in legislation what level of support the commissioner should provide to individual children who may contact the commissioner or his or her staff. It is inevitable, as now, that children will contact the commissioner through, for example, the OCC’s website. Where they do, we of course expect the commissioner to offer appropriate help.
In many cases, that help would involve signposting the child to information or support. In others, it would involve helping the child to access an existing complaints or advocacy service, while in other cases it may involve the commissioner providing support that is similar to the “advice and assistance” function that the CRD currently provides. Ultimately, if the commissioner felt that the child’s case highlighted a matter of wider strategic importance, he or she could conduct an investigation into that issue. Our view, therefore, is that it should be for the commissioner to determine what level of support to provide to children when they approach him or her. That is why we do not wish to describe how the commissioner should interact with children in legislation, beyond the two exceptions mentioned earlier.
I do not therefore believe that it is necessary to extend the definition at Section 8A to include the groups of children that the noble Lord proposes. The commissioner will have wide-ranging functions and powers to give him or her the flexibility to support children as he or she deems appropriate in the exercise of the primary function of promoting and protecting children’s rights. Many of those children will, in fact, already be covered by Section 8A because they are living away from home and/or are in receipt of local authority services. For example, children on remand to youth detention accommodation are treated as looked-after children.
For children in custody, there are already adequate complaints, grievance and disciplinary systems in place, which the noble Lord will be familiar with, in young offender institutions, secure training centres and secure children’s homes to enable young people to resolve issues relating to their detention. Advocacy services are also provided in YOIs, STCs and SCHs to assist young people in navigating the complaints, grievance or disciplinary systems. Advocacy is provided by Barnardo’s in young offender institutions and secure training centres, with local arrangements in place in secure children’s homes. If a young person is not satisfied with the outcome of a complaint, they are able to refer the issue to the Prisons and Probation Ombudsman, the statutory monitor or the local authority.
Not extending the advice and assistance role to children in custody does not mean that the commissioner cannot investigate matters within the juvenile secure estate as part of a wider investigation. In fact, the commissioner has already done so—for example, with the commissioner’s inquiry into the support available in the youth justice system for young people with mental health issues. So far as the Children’s Commissioner looking at new SEN support in custody is concerned, the key plank of these reforms is to make it clear that the Secretary of State cannot direct the Children’s Commissioner. However, if he or she wishes to consider the SEN reforms, he or she is of course able to do so.
The introduction of guardians for trafficked children alongside those already working in the interests of the child is not the most effective way to tackle local problems. Where local systems are not working as they should to support the best interests of trafficked children, we need to address the causes of any problems, not bypass them. However, the Home Secretary has announced the trial of independent advocates to provide specialist support to child victims of human trafficking, and we look forward to seeing the results of this in due course.
The government amendments in this group, Amendments 59C, 59D, 59E and 64B, respond to concerns that were raised by noble Lords in Committee. In Committee we had an interesting debate about how the Bill defines children’s rights, specifically those rights included in the UNCRC. I set out that our expectation is that the commissioner should consider all children’s rights—those set out not only in the UNCRC but in domestic law and other international treaties that the UK has ratified. However, I recognise that the UNCRC is central to the children’s rights agenda, so I am proposing through Amendment 59C that the commissioner should have “particular” regard to the UNCRC when considering what constitutes children’s rights. This clearly emphasises the importance of the convention to the discourse on children’s rights, but still allows the commissioner to consider rights contained in other international treaties or domestic law.
In Committee there was a broad consensus that children’s views should influence the work of the commissioner. However, it was clear that some noble Lords wanted to add further provision that would require the commissioner to summarise in the annual report to Parliament how he or she had consulted and subsequently taken account of children’s views. Having considered this further, I have decided to table Amendments 59D and 59E to this effect, which I hope will be welcomed. In addition, I have tabled a technical amendment, Amendment 64B, that will allow the provisions relating to the commissioner to come into effect on
As I set out in response to the amendment of the noble Baroness, Lady Massey, I hope that the generally permissive nature of the Children’s Commissioner provisions in the Bill, the assurances that have been given and the changes that we plan to make to the framework agreement have combined to provide noble Lords with reassurances that the independence of the commissioner is strongly protected. I therefore urge the noble Baroness to withdraw Amendment 59A. I have also set out the reasons for resisting the amendments tabled by the noble Lord, Lord Ramsbotham, and hope that he understands the rationale for doing so and is persuaded not to press them. I hope that noble Lords will also support the government amendments that I have set out.
My Lords, I thank the Minister for that very thorough response. I am particularly pleased to hear that he says that there will be “particular regard” to the UNCRC and that there will be consultation with children enshrined in the law.
On the query about “affirmation on independence” and the lack of “prohibition”, maybe we should look at the wording. Maybe it is just a matter of words, but it is not how I read it in the first place. I accept that the Children’s Commissioner cannot realistically cope with individual cases. That would be far too big a burden and would, as the Minister said, “hamper” the effectiveness of the office. The noble Lord, Lord Ramsbotham, will correct me if I am wrong, but he and I are saying that we see the Children’s Commissioner as a guardian and monitor of children’s rights as well as a champion. We shall see about the issue of the appointment. I hope that the Minister will take note of our concerns on this.
I forgot to ask the Minister about the timetable for this appointment; I do not know if he can reply now or write to me and other Lords.
I beg leave to withdraw the amendment.
Amendment 59A withdrawn.
Clause 86: Primary function of the Children’s Commissioner
Amendment 59B not moved.
Moved by Lord Nash
59C: Clause 86, page 60, line 2, after “must” insert “, in particular,”
Amendment 59C agreed.
Clause 92: Annual reports
Amendments 59D and 59E
Moved by Lord Nash
59D: Clause 92, page 63, line 9, leave out “involve children” and insert “consult children or otherwise involve them”
59E: Clause 92, page 63, line 10, at end insert “, and
(d) a summary of how the Commissioner has taken into account the results of any such consultation and anything else resulting from involving children in the discharge of his or her functions.”
Amendments 59D and 59E agreed.
Clause 93: Children living away from home or receiving social care
Amendment 59F not moved.
Amendments 60 to 62 not moved.
Clause 99: Exclusion or curtailment of other statutory rights to pay
Moved by Viscount Younger of Leckie
62A: Clause 99, page 92, line 22, at end insert—
“(3CA) Regulations may provide for a reduction in the duration of the maternity allowance period as it applies to a woman to be revoked, or to be treated as revoked, subject to prescribed restrictions and conditions.”
I shall speak also to government Amendments 62B, 62C, 62D and 63A. I shall encapsulate my overview of the amendments in some very brief remarks. There is more that I could say and I am happy to write with more details should noble Lords feel it necessary.
The amendments will ensure that those who are entitled to statutory maternity pay, maternity allowance or statutory adoption pay are not left without these statutory payments in the event that they have opted into the shared parental system, are eligible to withdraw from that system and subsequently decide to do so. These are minor and technical amendments to enable the policy to operate in the way in which it was intended. I hope that noble Lords will agree that the amendments are necessary and desirable. I beg to move.
Amendment 62A agreed.
Amendments 62B to 62D
Moved by Viscount Younger of Leckie
62B: Clause 99, page 92, line 23, leave out “(3C)” and insert “(3CA)”
62C: Clause 99, page 93, line 2, at end insert—
“(3D) Regulations may provide for a reduction in the duration of the maternity pay period as it applies to a woman to be revoked, or to be treated as revoked, subject to prescribed restrictions and conditions.”
62D: Clause 99, page 93, line 32, at end insert—
“(2CA) Regulations may provide for a reduction in the duration of the adoption pay period as it applies to a person to be revoked, or to be treated as revoked, subject to prescribed restrictions and conditions.”
Amendments 62B to 62D agreed.
Amendment 63 not moved.
Clause 103: Rate of statutory adoption pay
Moved by Lord Nash
63A: Clause 103, page 98, line 16, leave out “(2C)” and insert “(2CA)”
Amendment 63A agreed.
Moved by Baroness Howarth of Breckland
63AZA: After Clause 104, insert the following new Clause—
“Parental bereavement leave
In the Employment Rights Act 1996, after section 57A insert—
“57AA Parental bereavement leave
(1) The Secretary of State must make regulations entitling an employee who satisfies specified conditions—
(a) as to duration of employment, and
(b) as to relationship with a child, to be absent from work on leave under this section in consequence of the death of a child.
(2) Regulations under subsection (1) shall secure that, where an employee has a right to leave under this section, he or she is entitled to a leave period of at least 2 weeks.
(3) Regulations under subsection (1) shall secure that an employee who exercises his or her right to leave under this section—
(a) is entitled, for such purposes and to such extent as may be prescribed, to the benefit of the terms and conditions of employment which would have applied if he or she had not been absent,
(b) is bound, for such purposes and to such extent as may be prescribed, by any obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1)), and
(c) is entitled to return from leave to a job of a prescribed kind.
(4) In subsection (3)(a) “terms and conditions of employment” includes—
(a) matters connected with an employee’s employment whether or not they arise under his or her contract of employment; and
(b) terms and conditions about remuneration.”.”
My Lords, in a few weeks, I will join families and children celebrating 20 years of the work of the charity Little Hearts Matter. The team provides advice, information and emotional support where a child has been born with half a heart, but the fact that we have surviving young people with us is significant. A little over 20 years ago, they all died. The survival of these young people is cause for celebration and recognition of the research, surgery and care developed over the years.
However, children continue to die because of the complexity of the condition, as they do with many other conditions. Many of our members who have lost their children due to complex congenital heart disease after a long struggle through treatment struggle thereafter because of the present regulations. There is little more devastating than the loss of your child. It creates emotional, mental and physical effects which overwhelm parents. To be told that you are entitled to only three days’ bereavement leave from your employer is neither caring nor supportive. There is much to organise and it cannot be good for the employer, as a bereaved parent is unlikely to be functioning at a normal level.
Let me briefly give two examples. The first concerns the father of a three year-old boy who died following complex surgery. The father had saved up his annual leave to be with his son through the surgery. After the operation, he stayed by his son’s bedside for two weeks as he slowly died. This used up all his leave. When his son died, the father rang his employer to explain and was told that he had to be back in three days. The funeral had not been organised at that point. The father lost his job because he could not return to work. He needed to be with his family.
In a second case, a father had known that his baby would be born with a complex heart condition. He had organised leave for the delivery and immediate surgical period, but his son died some weeks after the surgery. His employer told him that he had had enough leave and, as he had known his son was going to die, he would expect him back in three days having organised everything. His GP issued him a sick note to allow him more time to be with his wife, which his employer contested. The stress of fighting his employer, grieving for his son and supporting his wife created long-term illness.
Of course, this is not the whole story. There are many employers who support and help their employees through this difficult time but it is a lottery not a right. Relying on employers to be caring and supportive of their employees is clearly not enough. The law does not support the bereaved. With the increased recognition that parents have a right to be with their children after birth, it seems extraordinary that we do not extend the same thoughtfulness to parents who have lost a child. I realise that there might be nervousness that this could be a burden on business. Thankfully, the numbers affected are relatively small and we emphasise again that many employers act with compassion and sympathy and give time to their employees. However, where this is not the case, the impact on parents is huge.
This amendment would give the Government powers to regulate for statutory leave for bereaved parents. We hope this is reasonable—it allows the Government an opportunity to consult on the detail and to ensure the implementation is not burdensome but compassionate. It would make a huge difference to that small minority of parents who find themselves treated without compassion at some of the most difficult times of their lives. I beg to move.
My Lords, I am most grateful to the noble Baroness for moving this amendment and for doing so so movingly. I am also grateful to the Minister for meeting with me last week to discuss this issue and, in particular, I am grateful to those who have been part of the campaign, led by Lucy Herd, for their support and for carrying on offering heartbreaking personal stories to illustrate the need for this measure.
Just today, Lucy received an e-mail that said:
“My only son died last Tuesday (7th Jan) and my company policy states that I only receive two days in compassionate leave, the rest has to come out of my annual leave allowance. I think it should be law for people who have lost an immediate family member to have as much time off as they need”.
Lucy also told me of Rhian, who had been in touch through Twitter. About a year after Lucy’s son Jack died, Rhian’s 18 month-old, George, choked on the food that his dad was feeding him at home. Sadly George died. His father was distraught but was given only two days’ compassionate leave by his employer. He committed suicide seven days later. Rhian has now lost her son and her husband. That is a particularly tragic story, but it is worth noting that 90% of parents who lose a child also suffer relationship breakdown. Many parents lose a partner as well as a child.
These stories and many more like them show there is a problem. I read out different examples in Committee, showing that the NHS can be a remarkably uncompassionate employer at times. Those at the top of these big organisations will be appalled at how their rules can sometimes be applied. I heard today of a middle-ranking employee of one of our big high street banks who rang his boss the evening that his wife died following an illness. His boss was very sorry but there was a vitally important meeting the next day and could he please make sure he was in by 6.30 am.
In this regard, the Minister’s offer of guidance would be helpful. Many large employers are applying previous guidance that advised giving up to three days for compassionate leave. If ACAS can involve people such as Lucy and organisations such as the CBI in drawing up the guidance, I am sure it will have an impact with those employers who want to do the right thing but need advice on what that is—the vast majority of employers.
Can the noble Viscount assure me that guidance will suggest flexibility about taking a minimal amount of leave of, say, the two weeks that I propose? Can he also give me an assurance about what he will do to ensure that public sector employers follow the guidance? Will he write to other departments and ask them to ensure that they and those they influence, such as agencies, councils, schools and hospitals, also follow the guidance?
I worry about a small minority of employers who will not follow guidance. There are rogue employers and rogue managers who are either so pressured that they have lost their compassion or never had it in the first place. They also need to comply with any guidance. That is why I want the Minister to agree to take these powers to consult and come back with regulations to ensure that we can all have reasonable time off after the death of a child as a right.
Your Lordships may ask: why would the Government not want to take those powers? Would it be unpopular? As I said in Committee, there is public support. An opinion poll in the autumn found that, when asked whether there should be a national guaranteed minimum entitlement to bereavement leave for a close family member, 70.8% agreed. “Ah, but would it not be an unpopular burden on business?”, you may ask. Yesterday, I met the CBI to discuss this narrow measure about bereavement leave for parents. It was a positive meeting. Although the CBI is concerned to get the scope and structure right, it is happy to engage in that debate on the back of the amendment and can see the in-principle case to do so. It does not oppose it in principle. So business would not complain if the Minister accepted the amendment and then consulted on what form the secondary legislation should take.
Finally, I must raise one other issue that I would be grateful if the Minister would raise with his DWP colleagues. I have talked about time off work following a bereavement, but not everyone who suffers the loss of a child is in work. Will the Minister please also consider those on benefits? Can he ensure that in that circumstance there is compassionate leave from the conditionality attached to benefit, where you have to be actively looking for work?
Lucy also said to me today that when Jack died, there was a period when his bedroom was really important as a part of grieving—to have his place, his things, his smell. Both of us have been asked to get a reassurance that housing benefit will not be cut in those circumstances because of the application of the bedroom tax.
To conclude, this is our case. No one speaks against it, and there is public support, no business opposition and an overwhelming moral, compassionate case. People get 12 months or more following a birth, three days following a death. That cannot be right, and I plead with the Minister at this late hour to put his prepared notes to one side and take the time between now and Third Reading to talk to the CBI and others to see whether taking those powers to regulate in future on top of guidance is now the right thing to do.
My Lords, I am glad of the opportunity to return to this important issue on Report. The noble Lord, Lord Knight of Weymouth, has spoken passionately about this matter at Second Reading, in Grand Committee and again this evening. I have been deeply moved and saddened by the distressing accounts that I have heard of employees not receiving the support from their employers that they needed at such a difficult time. We have heard more tragic examples this evening from the noble Baroness, Lady Howarth, and the noble Lord, Lord Knight.
Losing a loved one is always a difficult experience. Losing a child must cause a grief that is beyond words. It is of course right that employees are able and feel comfortable to take time off to grieve in those awful circumstances. Grief is extremely personal, and everybody copes with the challenges that it brings in different ways. Individual employers are best placed to respond to the varied needs of grieving employees in a sensitive and appropriate way. Fortunately, as has been pointed out this evening, many employers are understanding and compassionate, enabling individuals to take all the time off that they need when they need it. However, as I acknowledged during Grand Committee, this is sadly not always the case.
At present, there is very little advice and support available to employers to help them to develop company policies or approaches to time off for bereaved employees. This lack of advice can mean that employers, particularly small employers who have no experience of bereavement in the workplace, are confronted with a situation that they do not know how to deal with. As a result, they may inadvertently fail to give their employees the compassion and support that they need at what is, we can all agree, a particularly vulnerable time.
The Government are committed to ensuring that employers have access to the right advice and information to facilitate good employment relationships with all their employees. When this issue was debated during Grand Committee, I gave a commitment that the Government would bring forward comprehensive guidance to support employers in meeting the needs of bereaved employees in the workplace. I am pleased to be able to announce today that ACAS has agreed to draw on its wealth of experience in workplace relations to develop guidance that will support employers in delivering their approach to bereavement. It is, of course, essential that we harness the knowledge and experience of expert organisations to get this guidance right so that it can support employers and employees in the most effective way. For this reason, ACAS will work in close partnership with Cruse, the leading national charity for bereaved people in England, Wales and Northern Ireland, and other expert organisations during the development and refinement of the guidance. The first round-table meeting with these organisations is scheduled for as soon as
ACAS intends to road-test the draft guidance in a series of seminars with employers around the regions to ensure that the guidance is relevant and adds value. We expect the guidance to be published this summer and I encourage noble Lords who are in touch with organisations that have experience of these issues, and who would like to be involved in reviewing the draft guidance, to get in touch with my officials. Indeed, the noble Lord, Lord Knight, and I had conversations about this last week. This guidance will be comprehensive, covering the existing statutory entitlement to time off for dependants as well as providing advice and support about what is best practice in this area. It is essential that employers, as well as employees, are aware of the statutory provisions that are available. This will be made clear in the guidance.
As I mentioned, I recently met the noble Lord, Lord Knight, to discuss the Government’s approach to this issue and to understand better whether there is additional support that we could offer. I felt that we had a very productive discussion, during which he brought to my attention the fact that many of the parents who had reported being treated unsympathetically by their employers were, in fact, employed in the public sector. Since then, my department has made contact with employer groups in this sector, including NHS Employers and those in Civil Service employee policy, as the noble Lord, Lord Knight, will be pleased to hear. We plan to work with them to develop and find ways of promoting the best practice guidance that ACAS will produce. We also intend to work with business stakeholders such as the CBI and the CIPD to ensure that this guidance reaches businesses and to encourage them to review their company policies accordingly.
Bereavement is a particularly sensitive issue and to be comprehensive, this guidance will need to cover a broad range of issues and situations. I am confident that the guidance produced by ACAS will be of excellent quality. I hope that this is some reassurance to the noble Lord, Lord Knight, and the noble Baroness, Lady Howarth. It is, however, essential that we keep the effectiveness of guidance and how it is being applied in the workplace under review. This is what the Government fully intend to do. I understand the sentiment behind this amendment, and I believe that it is important that all individuals are able to take time off to grieve when they suffer the loss of a loved one. However, I think that a flexible and sensitive approach, tailored to the needs of individual employees, is what is needed at such a difficult time. It is not feasible to legislate to accommodate the vastly different needs of individuals, which are often the result of different personal circumstances, family relationships and religious observations. For this reason I believe that guidance, combined with working with our key partners to encourage employers to adopt best practice in their workplaces, is the best approach.
The noble Lord, Lord Knight, raised a number of questions and I will endeavour to write to him with answers, including the question that he raised on the linkage with the DWP. In the mean time, I hope that noble Lords are reassured by these commitments and will agree to withdraw their amendment.
My Lords, I believe we are deeply reassured and very grateful to the Minister. I am only sorry that I was not able to take part in the earlier discussions. As you know, there were clashes with other discussions about other parts of the children Bill at which I had to be present. I have been in close touch with the noble Lord, Lord Knight. We are very reassured, indeed grateful, that this matter has moved at such speed. I am just grateful that I will be able to take back the news to the families I work with that something will happen and that we will not hear such tragic stories about families receiving no compassion at some of the most difficult times of their lives. I beg to withdraw the amendment.
Amendment 63AZA withdrawn.
Amendment 63AZB had been withdrawn from the Marshalled List.
Amendment 63AZC (in substitution for Amendment 63AZB)
Moved by Baroness Lister of Burtersett
63AZC: After Clause 113, insert the following new Clause—
“Review of care leave
The Secretary of State must, within the scheduled review of parental leave, make arrangements—
(a) to conduct research into the current labour market outcomes of carers, and
(b) assess the need for further types of leave arrangements for employees in the United Kingdom, in addition to those that currently exist, with a view to helping families combine care for a disabled child or adult with work, and
(c) for a report on the outcome to be produced and published.”
My Lords, in moving Amendment 63AZC, I return to this question because, when we debated it in Grand Committee, it was rather lost in the important debate on kinship care. The amendment does not ask for very much. It does not require the Government to introduce leave for workers with caring responsibilities for a disabled, ill or frail loved one; it simply calls for a review of the need for such arrangements. As Carers UK argues in a recent report making the case for carers leave:
“The evidence base for supporting working carers is growing, and it is compelling”.
More than 3 million people combine working with unpaid care for a loved one and the numbers are predicted to grow as the population ages. The danger is that, without the safety valve of a right to a few days’ leave a year, carers will either reduce their hours or give up paid work altogether. A Carers UK survey found that two in five carers who had already done so were around £10,000 to £20,000 a year worse off. The public expenditure cost of carers giving up paid work is estimated at £1.3 billion a year. A strong business case has also been made. As the task and finish group set up by Employers for Carers and the Department of Health states in its final report,
“the issue of supporting carers to remain in work is not only a problem, but also an economic opportunity. Supporting carers to remain in work can bring considerable benefits to carers themselves, employers and the wider economy”.
In Grand Committee, the Minister referred to the existing right to request flexible working and to time off for emergencies. But these existing provisions, helpful as they are, do not cover the kind of situation that this amendment is designed to address. This is not about emergencies as such but for more everyday situations, such as taking someone to a medical appointment or looking after them on discharge from hospital or during chemotherapy. The leave also needs to be paid, if it is to be of real help. At present, all too often carers use up annual leave, which they probably need more than most. A combination of the stresses created by combining care and paid work and no holiday leave could be one burden too many.
Cross-national evidence shows that care leave in various forms is becoming increasingly common elsewhere. I will spare noble Lords the examples, given the lateness of the hour, but will simply say that we are in danger of becoming a laggard if we refuse even to start investigating the case for such leave.
In Grand Committee, I quoted from a moving statement made by Mr Christopher Jeffery, whose wife was told she was shirking when she took agreed time off to collect him from hospital. She ended up having a breakdown because of the total lack of support she received and Mr Jeffery told the All-Party Parliamentary Group on Carers that it made him feel like a burden to her. I applaud Mr Jeffery’s determination to campaign on behalf of carers generally to ensure they have a right to take time off and not be treated in the way that his wife was.
I also said that I believe we are at the beginning of the road of a campaign whose time has come. Common sense, the business case, social justice and plain compassion and human decency are all on its side. Moreover, so is public opinion. Nine out of 10 respondents to a Carers UK/YouGov survey last year supported a right to a short period of time off work to care.
I hope that the Minister will be able to take this modest amendment away and tidy it up in order to bring it back as a government amendment at Third Reading, or even simply give a commitment on the record to instigate such a review without delay. I say without delay because the amendment links the review with the one that we have already been promised into parental leave, but there is no reason why it should wait until that review is undertaken. The Minister has already helpfully committed the Government to a more immediate study of the labour market attachment of kinship and friendship carers of children. I am simply asking for a parallel study of carers’ labour market attachment and of the options available to support it through some form of leave provision.
For all the reasons that I have given, there is a degree of urgency about this. The Government have an opportunity here to take the credit for having opened the door to the implementation of carers’ leave. This Bill, together with the Care Bill, already marks an important step forward for carers’ rights. Let us now build on that and make it a real turning point. I beg to move.
My Lords, as the clock reads midnight, I will say very little in support of my noble friend’s excellent moving of this, as she says, modest amendment, except to say that going without any time off for possibly years on end may push carers to breaking point. When their leave runs out or they feel that they cannot cope any more, many employees feel that they have no choice but to give up work altogether. As one parent carer wrote:
“My current manager is very supportive within the leave/time off rules, but I have still struggled in the last 12 months, my leave has been used on reactive odd days/half days due to medical appointments & supporting my daughter’s condition & I only have a few days left for the next few months of my leave year so I worry that I will not have enough time & will be forced to give up work”.
A statutory entitlement to care leave would help many carers juggle their caring responsibilities with work in a sustainable and manageable way, making them more productive and less stressed, and saving businesses and the economy money in the long run.
It is a source of personal disappointment to me that, as my noble friend said, we are falling behind in international comparisons, given that carers in the UK have always been at the forefront. We have always been leaders in the recognition of carers, and successive Governments can take credit for that. It would be a great pity if we fell behind in this and did not keep up with international colleagues such as Australia, Belgium, Germany and Japan, which are all putting carers’ leave in place. I very much hope that the Minister will be able to agree to this amendment.
My Lords, very briefly indeed, I lend my support to this amendment. As the noble Baroness, Lady Lister, said when she moved it so eloquently, it is a modest amendment, asking for a review in this very important area.
I do not intend to detain the House any longer—other than to say that from 2017 the number of older and disabled people needing long-term care is predicted to outstrip the number of family members able to provide it. Given that, with an ageing population, we are expecting people to work for longer, they are also going to find themselves trying to care for longer, with more family members and loved ones with more, increasingly complex, long-term conditions. Against this backdrop, it is essential that we have the review that this amendment talks about and see what more we can do to help people who are trying to face the challenge of both working longer and caring longer.
My Lords, very briefly, I thought that both my noble friends made very coherent arguments in favour of this and raised some very important issues. We heard yesterday from the noble Lord, Lord Nash, that he was going to do some more work on parent carers, so obviously some of these issues around carers are already going to come back at Third Reading. There will be ongoing discussions around those issues and I therefore urge the Minister, perhaps in the context of those discussions, to widen it out a little more and consider the issues that have been raised in this amendment at the same time, so that we can bring all these issues back at Third Reading and have a full debate at that stage. I hope that he will consider that seriously.
My Lords, I appreciated the interesting and moving speeches by the noble Baronesses, Lady Lister and Lady Pitkeathley, and the brief intervention by my noble friend Lady Tyler focusing on the challenges that parents of disabled children and carers of disabled adults face in balancing their care responsibilities with their working lives.
Being a carer can have a significant impact on an individual’s life. The Government recognise that caring for an individual with a disability can be both physically and emotionally draining. Flexible and supportive working arrangements can make a significant difference to a carer’s life by ensuring that work does not add to the carer’s stress levels. This is why it is important that carers are able to adjust the way they work to allow them to stay in work, because work can be important for a carer’s well-being and income and for maintaining social contacts. As a nation, we cannot afford to lose the talent and skills of carers from the workplace. The Government recognise that caring for disabled people can be a sudden change for an individual. It may be challenging and take a great deal of commitment from an individual to deliver the care and support that is needed.
I reassure noble Lords that my department regularly collects and reviews data on carers to ensure that we are providing the right framework to allow them to participate and thrive in the labour market. The Department for Business, Innovation and Skills conducts the workplace employment relations survey and the work-life balance series of surveys which look at the effectiveness of labour market participation policies, such as the right to request flexible working, in supporting carers. The Office for National Statistics also uses the census to analyse carers’ labour market experiences.
These surveys and the evidence they provide informed the recent report on carers from the cross-government task and finish group on carers. This report highlighted the importance of flexible working and recommended that government should continue to promote the benefits of flexible working to employers. All the recommendations of this report have been accepted and are currently being implemented. An additional duty on government to conduct this research and review the provisions for carers is unnecessary because this work is already under way and government regularly collects and reviews this information.
The Government’s approach is to create a fair, flexible and efficient labour market which supports and encourages participation from all. The strategy for carers is to ensure that we create the right framework to allow them to balance their work and caring responsibilities. Clause 113 requires the Government to review the effectiveness of the right to request flexible working against the policy objectives. Supporting carers to remain in work is a key objective of the policy, and I can confirm that this review will include assessing the effectiveness of the right to request flexible working in supporting carers to participate in the labour market.
I understand the noble Baronesses’ intentions behind this amendment, and I hope I have reassured them that the Government are acting to support carers of disabled children and adults to remain in work and are continually reviewing this support to ensure that it meets the needs of carers.
Just before I ask the noble Baroness to withdraw her amendment, I wish to change the tone slightly by stating that we have almost reached the end of Report, and on behalf of my noble friend Lord Nash, I will take this opportunity to thank everyone who has spoken today and during earlier sessions on Report. We have had many thoughtful, well informed and constructive debates on a very broad range of issues, and I have welcomed the thorough approach that noble Lords have taken to scrutinising each part of this wide-ranging Bill. I hope that we can address the very few outstanding issues. I also thank the Bill team and all the officials who have supported me, my noble friend Lord Nash and colleagues across different departments for their work.
In the mean time, I ask the noble Baroness, Lady Lister of Burtersett, to withdraw her amendment.
My Lords, I am very grateful to my noble friend and to the noble Baroness, Lady Tyler, for speaking in support of this amendment at this extremely late hour. I am grateful to the Minister. I thought he made a rather compelling case for my amendment when he spoke about the importance of supporting carers. He talked about enabling them to participate and thrive, but the trouble is that the present situation does not enable them to participate and thrive. I was ultimately very disappointed by the Minister’s response because it is not about simply collecting statistics, but about having a formal, structured review of the case that other countries have now accepted. Therefore I will, of course, withdraw the amendment, but I suspect that it will not be the last amendment which tries to make this case; we will table such an amendment to any legislation that offers the opportunity to do so. I beg leave to withdraw the amendment.
Amendment 63AZC withdrawn.
Clause 114: Orders and regulations
Amendments 63AA and 63B
Moved by Lord Nash
63AA: Clause 114, page 121, line 35, at end insert—
“( ) regulations under section (Application of Part to detained persons)(3),”
63B: Clause 114, page 121, line 36, after “55(1),” insert—
“(ba) regulations under subsection (6), (8), (9) or (10) of section (Regulation of retail packaging etc of tobacco products),
(bb) regulations under subsection (11) of that section which amend, repeal or revoke any provision of an enactment within the meaning of that section,”
Amendments 63AA and 63B agreed.
Clause 118: Commencement
Amendments 64 to 65
Moved by Lord Nash
64: Clause 118, page 123, line 2, at end insert—
“(1A) Section (Contact between prescribed persons and adopted person’s relatives)—
(a) so far as it relates to England, comes into force on such day as the Secretary of State appoints by order, and
(b) so far as it relates to Wales, comes into force on such day as the Welsh Ministers appoint by order.”
64ZA: Clause 118, page 123, line 5, after “82,” insert “(Application of suspension etc powers to establishments and agencies in England),”
64A: Clause 118, page 123, line 5, leave out “and 84” and insert “, 84 and (Extension of licensing of child performances to children under 14)”
64B: Clause 118, page 123, line 6, at end insert—
“( ) Part 6 comes into force on
65: Clause 118, page 123, line 9, after “subsection” insert “(1A),”
Amendments 64 to 65 agreed.
Amendment 65A had been renumbered as Amendment 64A.
Clause 119: Short title and extent
Amendments 65B and 65C
Moved by Lord Nash
65B: Clause 119, page 123, line 18, at end insert—
“(3A) Section (Regulation of retail packaging etc of tobacco products) extends to the whole of the United Kingdom.”
65C: Clause 119, page 123, line 24, at end insert “, subject to subsection (8).
(8) Subsection (7) does not apply to the repeal made by section (Extension of licensing of child performances to children under 14), which extends to England and Wales only.”
Amendments 65B and 65C agreed.
In the Title
Moved by Lord Nash
66: In the Title, line 2, after “needs” insert “or disabilities”
Amendment 66 agreed.