Dr Hendron (Chairperson)
Mr Gallagher (Deputy Chairperson)
Mr Berry
Rev Robert Coulter
Mr McFarland
Ms McWilliams
Ms Ramsey

Ms H Ferguson ) Carers Northern Ireland
Ms T Caul ) Children's Law Centre
Ms M Kelly ) Bernardo's
Mr Peter Deazley ) Department of Health,
Ms M Sisk ) Social Services and
Mr J Clarke ) Public Safety

I welcome Ms Helen Ferguson from Carers Northern Ireland, Ms Tara Caul from the Children’s Law Centre and Ms Margaret Kelly of Bernardo's. I am also pleased that Mr Peter Deazley, Ms Margaret Sisk and Mr John Clarke of the Department of Health, Social Services and Public Safety are with us. Item 8 on our agenda is the Personal Social Services (Amendment) Bill. At annex 5 there is a note of proposed amendments placed before the Committee by Barnardo’s and Carers Northern Ireland, assisted by the Children’s Law Centre. The Committee received those late last Wednesday and agreed to hear from both the organisations concerned and the Department regarding the proposals. We shall hear first from Barnardo’s, Carers Northern Ireland and the Children’s Law Centre, who have put forward two proposals for amendments.

We drafted the first amendment to ensure that there was a duty on social services to offer a separate assessment to carers who provide regular and substantial care. It deals with adult carers who look after another person because of frailty, disability or old age. We put forward the amendment for the reasons discussed when our initial evidence was presented to the Committee. At the moment carers, under departmental guidance, have the right to a separate assessment. Most, however, are not assessed, since they are not aware of their right to ask for an assessment. The implication is that they are not being informed of that right by social services.

I am sure that the departmental officials will say that the intention is to ensure that as many carers as possible have assessments. The Regulations will be crafted in such a way as to ensure that social services are encouraged to offer assessments to carers or to inform carers of their right. My fear is that the existing guidance on carers’ assessments is very good. It sets out the way in which the Department thinks that carers should be treated by social services, and it contains a provision which says that social services should inform carers of their right to a carer’s assessment. The duty to inform is already there in the guidance. However, that is not being acted on. The only way to ensure that all carers will have access to a carer’s assessment is to put the onus on social services to offer one. It is then up to the carer whether he or she chooses to proceed.

Many carers will not want a separate assessment, since it is not necessary for them. At the moment, however, not all of them know of their right to one.

The first amendment deals with those under 16 years of age. Several children in Northern Ireland provide care, and the average age of a young carer here is fourteen and a half. As it stands the Bill does not apply at all to those under 16 years of age. The argument is that those under 16 years of age should not be in that caring role and that it is therefore best if they are not in the legislation. While we accept that those under 16 years of age should not be in that role, the fact is that they are.

Exclusion from this legislation will give rise to a situation where those under 16 are in a caring role without anyone having a statutory responsibility to examine their needs or their getting any services. In Barnardo’s we have evidence of child carers who have not been able to go to school and therefore have no educational qualifications. That has huge ramifications, for there is no duty under any legislation for the needs of those children to be taken on board.

The Children (Northern Ireland) Order 1995 is vague. It does not define children in need exactly, and that has been one of our problems. Young carers are children in need, but it can be difficult to get social services to provide services to those children, since they have a whole list of groupings. Something, whether in this legislation or in the Children (Northern Ireland) Order 1995, must state that, where a child has taken on substantial caring responsibilities for an adult within the home, social services have a duty to assess and provide services that enable him or her to develop in the normal way of children.

The other group is 16- to 18-year-olds. They are covered by the legislation, which applies to any carer over 16 years of age. Our concern is that 16- to 18-year-olds are treated just like adult carers, though they are still legally children. Their needs must be examined and assessed in the context of their being children. They cannot be assessed as adults, who have different needs.

We also suggested an assessment under article 18 of the Children (Northern Ireland) Order 1995. Two assessments may not be required, but they could be carried out jointly under this legislation and the Order. Note of their age — be it 16, 17 or 18 — would be taken, and the services given would recognise that.

Part of our problem has been that legislation in England and Wales did not recognise children. Framework for the Assessment of Children in Need and their Families’, applicable across all social, health and education services, recognised those children and accorded them a status. We do not have that 'framework in Northern Ireland. Our boards and trusts have developed different frameworks, and there is nothing to say that every board and trust will examine the needs of young carers. If young carers are to be protected and helped, they must be included in the legislation before us or under the Children (Northern Ireland) Order 1995 so that they have a right to be assessed and to avail of services.

I am not clear about the 16- to 18-year-old age group and the assessment. Should the right to be assessed be included in both the Bill and the Children (Northern Ireland) Order 1995 or only in the former?

There would be concurrent assessment. Under current legislation, 16- to 18-year-olds are entitled to an assessment. There should also be a right to a concurrent assessment under the children-in-need provisions of the Children (Northern Ireland) Order 1995. That is reflected in the guidance for England and is good practice.

While I do not object, I do not understand why the matter must be covered by both.

The assessment would be slightly different under the two pieces of legislation. I hope that, in practice, assessment of someone aged 16 or 17 would also examine the carer as a child in need. The extra considerations of being a child would be taken into account. For example, if the child wished to continue in education, that would be firmly taken into account.

Assessment of carers concerns the ability of the carer to continue with the task. An assessment of a young person may well say that he or she should not be encouraged or enabled to carry on caring but facilitated to stop.

One reason that most Committees send material to groups is that, while we might be aware of many things, groups such as yours, working at a community level, can raise issues. Ms Kelly said that those under 16 years of age are not recognised in the Bill. The average age of a young carer is fourteen and a half. Since there should be no carers of that age, would recognising them in the Bill present legal problems for the Department?

Another issue is Mr Gallagher’s point that we are treating 16- to 18-year-olds as adults when they are still children, since a 16-year-old carer goes to school and is not entitled to claim benefits. Therefore on the one hand we are treating them as adults and on the other victimising them or discriminating against them because they are still deemed children. I should like you to elaborate on that and also on the vagueness of the Children (Northern Ireland) Order 1995. The Committee raised the concern with officials a number of times and was told that the children were covered by it.

My experience is that health and social services know it is happening. We examine the issues of young carers through children’s and young people’s committees. The problem is that they are a subgroup at the bottom of a long list, and quite often they never get as far as assessments or services. That is our community experience, and, as there is no statutory responsibility to provide such services to child carers, they never reach them. Some young carers in Barnardo’s projects have not had social services provided, and sometimes we must advocate getting those services for them. The Department is aware of their needs, but children in need are not strictly defined under the Children (Northern Ireland) Order 1995. How do you ensure that such a group is assessed without excluding other groups?

Our view, which is reflected in the submission and in the amendments that we have put forward, is that it is a moot point whether it is appropriate to assess a 17-year-old under current carers’ legislation. You may need a dual assessment, and the legislation must reflect that. A 17-year-old has needs as a carer but also as a young person. We want something comprehensive put in place if a 17-year-old comes to the attention of social services in any of those situations. The idea of dual assessment is to examine the situation comprehensively.

We have raised the issue of schedule 2 of the Children (Northern Ireland) Order. Schedule 2 sets out broad categories for expected services for children in need. We have recommended that a broad category could be "services provided to young carers". I know the Department does not agree, but such a course could remedy the situation.

Our understanding is that the broad categories include disabled children and children receiving care. Why can we not also have young carers as a broad category?

We raised the issue with reference to Executive programme funds when we asked officials to define children in need.

Why is this coming so late in the day? Presumably the Department has had some consultations with you on the subject. It cannot have introduced this entire raft of legislation without speaking to you. Having taken the Bill through the Committee, we suddenly have this coming at us late in the day, and I am concerned about that.

We discussed the question of 16- to 18-year-olds and were assured that they were best off, since they fell under the Children (Northern Ireland) Order 1995 and were doubly protected. I am concerned about those under 16 years of age. The average age of a young carer is fourteen and a half, but does a nine-year-old have a right to demand assessment? The law says that those under 16 years of age are not considered competent. I appreciate that they get landed with all that, but in theory the Children (Northern Ireland) Order 1995 protected them.

We agree about those under 16 years of age. Our amendment proposes that they be assessed under the Children (Northern Ireland) Order 1995. There would be no question of those under 16 years of age being assessed as carers under this legislation.

The legislation excludes them from being assessed; it does not recognise them.

On the contrary, it does recognise them. You cannot assess children under the legislation, but our amendment proposes that, having come to the attention of social services, a carer under 16 years of age would have to be assessed as a child in need under the Children (Northern Ireland) Order 1995. That mechanism must be in place in the legislation.

Surely this is an amendment to the Children (Northern Ireland) Order 1995 rather than to the new legislation. I do not disagree with you, but, if we have a problem under the Children (Northern Ireland) Order 1995, we should introduce an amendment to that rather than stating it in this legislation, which, legally, has nothing to do with the Order.

Part of the problem is that, if the legislation does not recognise that anyone under 16 years of age is carrying out caring responsibilities, the matter is left wide open. However, in the legislation we recognise that there is a group of children carrying out caring responsibilities. Many of those children have heavy-duty caring responsibilities, and that caring impinges on their lives. In this carers’ legislation we recognise that such a group exists, and as children they are assessed under that. However, if the carers’ legislation is written in a way that does not recognise them, that will create difficulties for them as a group.

We agree with the principles you suggest. Three officials will speak on the amendment shortly. The competence of the words used in the amendments is relevant.

The provisions allowing for direct payments to disabled parents with children recognise that children should not act as carers for disabled parents. We value and welcome that, but there are those whose parents have problems they do not wish to acknowledge, meaning they will not seek help from social services. Those children are in the worst possible position, and they may be caught by these proposals.

Why is this coming so late in the consultation process?

It is connected with our lack of familiarity with the Committee Stages of Bills and how to influence them. Early in our submissions we flagged up some of the issues, but at that point we were unaware that, if we were to make amendments, that was the best time. It is a result of our lack of familiarity with the process.

Did the Department receive your submissions and ignore them, or did it decide against them? Was it something that you produced late in the day?

We covered those issues in our submission.

Ms Ferguson, we can tidy up the words in your proposed amendment, where you have left out such words as "personal social services", and the typographical error in 1(1)(c) can be cleared up. Could you please explain 1(1)(b)?

We recognised that there would also be young carers’ issues and wanted to separate them. Should the Committee decide that the Bill is not placed to recognise young carers, with the other amendments going, (b) would also go.

You have written that the carer of such an adult —

Is over 18.

- is over 16.

That is how the current Bill is set up. That should say "18", given the other amendments. You are absolutely right to pick that up. There should be three sections — one relating to adult carers, one to carers under 16, and the third to carers between 16 and 18.

Thank you very much; that was very helpful. The Committee agrees with the principle of what you have said, but there are technical aspects to consider. You are welcome to remain while the officials come forward. They know the situation.

The key issue in the first amendment is offering assessment to a carer, as opposed to carrying out an assessment on request. We direct the trusts and boards, and we can cover directions and guidance accompanying the Bill. A duty can be placed on boards and trusts by direction to offer assessment. Following a user assessment, where boards and trusts are aware that there is a carer, to allow that care to continue, the carer should then be made aware of the right to an assessment.

You say that the duty to offer an assessment is not covered in legislation but that it will be included in the guidance circular sent to boards and trusts. That comes across as cynical. I know how boards and trusts operate, so even if it is to be sent out as a circular, why not insert it into the Bill?

I am not sure what effect it would have if it replaced the existing provision. That indicates a right to request assessment and would presumably relate to any carer in the general population who might not necessarily be in contact with social services at all. However, to replace that with a provision such as that put forward

"where the authority is satisfied that the person cared for is an adult for whom it may provide social services"

suggests that social services are already in contact. I am unsure of its overall effect.

If we agree to the amendment, we shall examine its wording. My concern is that some people do not know their rights. It is a matter of acting on a duty to inform people and making them aware of their entitlements.

All carers should know of their right to request assessment. I understand the intention; that was my concern in the amendment.

It should be easier in the Bill.

Your point is good, so if that is the intention, why not do both?

You are talking about two different matters. For the existing provision, the door must be kept open for everyone. The other option is more focused. One might argue that you could have both.

That is what I suggest. I accept your point that the existing provision might eliminate someone. It should be inclusive rather than exclusive; it might then be possible.

Why do you not take the converse pathway and say that all carers will be assessed except those who opt out?

That would impose a duty on the Department, boards and trusts to identify carers, or those for whom they were caring, who have no contact with the social services.

Why is that the case? How would you go about doing that?

It would depend on whether we thought it achievable. We have recently received information about Scotland’s approach, which is that carers should still ask for an assessment, but that the trust or board has a duty to inform them of their right to request one.

How can they do that if the relevant bodies do not know who the carers are?

There would have to be a user of the service for whom the carer was responsible. The board would be aware of that user and his or her carer and would advise the latter of the right to an assessment.

That is what Rev Robert Coulter is saying. Is there a problem with inserting into the Bill my right as a carer to be advised of my due regarding an assessment so I might ask for one?

There is no problem; we should have to ask the Minister if she were content.

It is the duty of the social services to inform people of their right to an assessment rather than waiting for them to find out about their rights.

That is the case when social services are involved with a service user who has a carer. We do not seek out carers not in contact with social services.

The situation is that, where a carer has been identified, the board will assess the situation, except where the carer has opted out.

We are suggesting that the trust officer would advise carers of the right to an assessment and allow carers to ask for it.

You are putting the onus on carers. I suggest that the onus should be to advise carers of the right to assessment.

The Committee must decide whether the Bill, as it stands, addresses the concerns of Barnardo’s and Carers Northern Ireland. If we feel that one or two amendments are necessary, we must return to the subject next week, since the wording will have to be redrafted.

While the situation is not exactly as drafted, the effect is that, once a carer has been identified, he or she will have the right to request assessment. Can you produce an amendment to reflect that for next week, or are we expected to do that from our side? Clearly, if the Department were comfortable with what we produce —

It would be up to the Committee to put forward an amendment.

I was trying to make the point that, if the Department were comfortable with the wording and slipped that to the Clerk, there would be agreement.

The Clerk is very competent.

If everyone is comfortable with the wording, the legislation will go through more easily than if we produced objectionable words.

We should have to clear our lines with the Minister.

That is the point I was trying to make.

It is not the responsibility of the Department to come up with amendments on our behalf. However, although Carers Northern Ireland, Barnardo’s and the Children’s Law Centre are agreed in principle, the wording we have here is unsuitable for amendments. Can we return to that next week and put a proposal to the Committee? The reasoning behind section 1(1) of the Barnardo’s submission is that

"As the Bill currently stands there is no duty to offer an assessment only to give one if requested. This amendment would make it a duty for a carer to be offered an assessment and then they could decide whether or not to take that up."

Is the Committee content?

We have moved the goalposts slightly, but it has the same effect.

We have said to the Committee that the guidance would have required trusts to offer an assessment to a carer where they knew one existed. Now you want to state on the face of the Bill that the trust must offer that. There is probably no great difference in effect, but we must agree to change it.

My point is that those words may not be used. We should produce a formula for next week with which everyone will be comfortable.

I am sure that we can do that.

Subsection 1(2) states

"Where a carer aged 16-18 years old has requested an assessment under section 1(1) the authority shall also carry out an assessment under Article 18 of the Children Order and provide services in accordance with that assessment."

Do members wish to do anything with that?

I should prefer to hear the officials’ views.

Our view is that the legislation does not exclude those under 16 years of age as it does not exclude anyone. There is no reference to age in the Bill.

It is not mentioned regarding an assessment.

There is a problem with children between the ages of 16 and 18 being assessed as adults while still deemed children. Can you take that on board? Shall we examine 2(1)(a)?

Yes. Are you content with that?

We discussed that in detail at the last meeting. I understood from this Bill that carers under 16 years of age were not legally recognised as such. The 16- to 18-year-olds were covered by the Bill and the Children (Northern Ireland) Order 1995, and those under 18 years of age were covered by the Bill.

This proposes that a section be inserted into the Bill stating that those under 16 years of age are recognised as carers. Although it says in the submission that the average age of carers is fourteen and a half, a much younger child could be identified as a carer.

At what age does that right commence? At what age can a child be deemed a carer? From the information it seems that those under 16 years of age were not legally recognised as carers. Is that correct? That seems to go against what you just said. The Bill does not say that you are not such.

In the part of the Bill relating to carers’ assessment, the definition of carer does not have an age limit. In theory, a carer could be any age. When it comes to providing a service to carers, as opposed to assessing their needs, we do not see any services being provided to children under the legislation. Carers under 16 years of age are children first and carers second. Their needs should be dealt with under the Children (Northern Ireland) Order 1995. That is the Department’s policy; we do not want children dragged into adult legislation.

If they are not recognised as carers when it comes to providing them with a service, there is little point in recognising them as carers for an assessment. Even if they were assessed under a right contained in the Bill, they could not be given any support, since it is against departmental policy anyway.

They could certainly get support, but it would be as a child in need under the Children (Northern Ireland) Order 1995.

But they are already entitled to that under the Order.

Yes. The legislation recognises that children can be carers. That is an implicit recognition, in that no age limit is imposed. The policy would not provide support to a child carer under the legislation. They would be dealt with as children in need under children’s legislation.

It was said that Barnardo’s and other organisations were keen for the legislation to recognise that explicitly; you say that it is implicit. Those organisations are asking for an explicit recognition that those under 16 years of age can be carers, though they will be dealt with under the Children (Northern Ireland) Order 1995.

A key issue in a previous presentation concerned the definition of children in need. There are so many definitions that, by the time it gets to carers, children are further down the scale. You said that, while the legislation relates to adults, it does not remove anyone from the equation. Subsection 2(1) of the Bill mentions assessments for carers aged 16 or over. You said that carers under 16 years of age should theoretically be taken into account under the Children (Northern Ireland) Order 1995, which is why they are not included in the Personal Social Services (Amendment) Bill.

The Committee examined the Children (Northern Ireland) Order 1995 in its inquiry into children and young people. We found that young people may be recognised as carers from any age, but under the Order they seem to be taken out of the loop.

As I understand it, the legislation relates to those aged 16 and over. Is there anything on the statute book that prevents the recognition of carers under 16 years of age?

There is nothing on the statute book to prevent that.

Are you suggesting that a legal difficulty would arise if you recognised someone under 16 years of age for a role in conflict with another piece of legislation?

My worry concerns not so much law as policy. Mr Clarke is the best person to talk about the children’s aspect, since adults are my area of expertise. That is why I am concerned about the recognition of children.

A point was made in the presentation about the purpose of the assessment of need. Under the Children (Northern Ireland) Order 1995 the assessment of need would be related to children’s needs as such. Reference has been made to the rather convoluted formula in the Order. I can share that with you, but it is a very general definition of need aimed at the assessment of needs as children, whereas this legislation — as I understand it — concerns the assessment of needs as carers. The question is whether children should be carers. Children should not be prevented from being carers, for that would be impossible to enforce.

However, there is a difference of policy approach in the two categories. The focus on children concerns their needs as such. If their needs or duties as carers are leading to their becoming children in need under the general definition of the Children (Northern Ireland) Order 1995, which concerns their development, that raises a serious question. I agree with some of the thinking behind this, but a distinction must be drawn between the two groups, as a policy matter.

Absolutely. That was my point.

That was mentioned in the earlier presentation, and it has been a problem. Young carers are referred to in the children’s services planning process as an indicative category of children in need, but that is under the definition of need in the Children (Northern Ireland) Order 1995.

This legislation is for carers and is to ensure that carers are properly looked after, no matter what age they are, though the age of 16 is mentioned. Does the Department provide services for young carers through any funding it gives to the boards, trusts or voluntary agencies? I know that it funds Barnardo’s.

The Department does not categorise funding for individual services, and it does not categorise what the money relates to. The principle of the Children (Northern Ireland) Order 1995 is that resources are provided. In response to a broad definition of assessed need, a range of services is developed. That is intended to create flexibility as to priorities. Our children’s services planning guidance document stems from the Children (Northern Ireland) Order 1995. There is a legal responsibility to produce children’s services plans. The guidance for that mentioned indicative categories of need, and the needs of young carers was one category. Money does not emanate from the Department for the service.

The Department has accepted the existence of young carers. Why are they not protected in this legislation?

I understand that it is because the legislation is focused on the needs of people as carers. The Children (Northern Ireland) Order 1995 concerns children’s needs as such, and those children may be carers.

The Committee visited the Mater Hospital this morning, after which I visited the maternity unit, where a 14-year-old girl had just given birth. There were certain questions about whether the baby would have disabilities. Though under 16 years of age, the mother would become a carer of her own child and would therefore need assessment. You are saying that she would be taken care of under the Children (Northern Ireland) Order 1995, but I assume that her child would also be taken care of under the Order, for the woman in question is now a mother, despite the fact that she is 14 years old. If the legislation had this amendment in it, I assume she could ask for an assessment as a mother.

As a mother and as a carer. That is difficult, since she is also a child.

From now on, health and social services and all the other organisations that help young mothers will, to all intents and purposes, be calling her a young parent or young adult, even though she is under 16 years of age.

That is true. There are different assessments for different purposes, but an assessment should cover a person’s needs. Sometimes we get into a state about what legislation an assessment is under.

Ms Ramsey’s point, and the point that we have just made regarding the previous section, is that, if we have a piece of legislation, we should try to be as inclusive as possible. That is the message of the evidence you heard.

Indeed. However, schedule 2 of the Children (Northern Ireland) Order 1995 currently permits assessments to be carried out simultaneously with any assessments under other legislation. It states that an assessment can be carried out at the same time as an assessment under certain listed legislation, meaning those assessments could be co-ordinated. I appreciate that there is a difficulty; you have raised the interesting problem of the person being both carer and child.

Barnardo’s and others have raised issues that the Committee members feel must be addressed by way of amendment. From listening to you, I doubt that you would entirely disagree with that. The worrying must be got over and formal amendments brought forward. We probably cannot gain much by continuing this discussion, but real issues and concerns have been put forward by Carers Northern Ireland and by Barnardo’s.

But there is a fundamental disagreement on the issue. It is a policy of the Department of Health, Social Services and Public Safety in Northern Ireland. It is not a matter of messing around with the law. The Department does not recognise those under 16 years of age as carers.

They are not recognised as carers first, for they are children first. Our policy is that they be dealt with under the Children (Northern Ireland) Order 1995.

It is difficult to reconcile that with what Barnardo’s and others want: to give legal recognition to children under 16 as carers. We shall not get around that with words. Unless the Department accepts that its policy must change, it will not agree to our adding words to the Bill accepting those under 16 years old as carers. If it is against departmental policy, there would simply be a block, and the Department would say no. We can continue to argue about this, but the difficulty is that the process is well advanced. We could stop here and start the whole discussion again. Is the legislation not currently on track?

Can you examine the matter again?

It is down for its Consideration Stage on 25 February.

Amendments being put forward must be in by Thursday 21 February. If the Committee is to adopt any amendments, they would have to come before it on Wednesday 20.

I am satisfied that we can probably find a form of words to get round the first point. We have not yet discussed the 16- to 18-year-olds. We thought that it was agreed last time that they fell under both pieces of legislation and were therefore doubly protected under the law. We can discuss the matter in a moment. We could have an ongoing debate between either Mr Deazley or yourself and the Department in the meantime to find out whether there is any meeting of minds on changing the policy on under-16-year-olds completely. However, even if we sat here all next week, we should be unlikely to agree with the Department on a form of words to change that policy. Perhaps that is wrong, and the Minister would be content to change her policy.

The Clerk and I are to meet the Minister tomorrow, though not specifically on this matter. However, we could certainly raise it. Of course, we cannot expect an answer from the Minister at such short notice. Perhaps you might also examine it and consider the issue raised by Alan McFarland; we shall inform the Minister tomorrow. As I said earlier, the Committee members feel that the issues are important.

We can examine several other issues and see how far we can address them.

I assume that the third one is acceptable. It seems that we are talking about children under the Children (Northern Ireland) Order 1995.

Are members happy?

The key thing is that, if we are not to fall behind, the matter must be ready for agreement by the Committee next week. If we miss that deadline, we are delaying matters.

That is a fair point.

We shall meet our dates.

We shall meet our dates. Peter Deazley, Margaret Sisk and John Clarke, thank you very much.

30 January 2002 /Menu / 20 February 2002