Dr Hendron (Chairperson)
Mr Berry
Rev Robert Coulter
Mr J Kelly
Ms McWilliams
Ms Ramsey
Mrs I Robinson
Mr McFarland

Members will have received separate papers on the Personal Social Services (Amendment) Bill. I sent a briefing note to members on 18 February outlining the concerns raised by the voluntary organisations, which appeared before the Committee, and attached to that were the proposed amendments. I have discussed the issue with the legal adviser to seek, as far as possible, suitable wording for the proposed amendments that the organisations have brought forward. For members’ attention, several clauses, with possible alternatives, were listed at the bottom of my briefing note. Members must be aware that the amendments before them have been drafted by lay people and are not legal drafts, so there may be issues of competency regarding the wording. However, the intent reflects the concerns raised by the organisations.

I have also discussed the issue with the Department and the organisations concerned. Members have a letter before them which the Department sent me on 19 February. The letter outlines the Department’s concerns about the proposed amendments that deal with children, and it reflects a concern raised by one of the members in a meeting last week about the Department’s policy on children. Officials have explained that there is a potential conflict with regard to the Department’s policy on children acting as carers. It said that, in their view, the proposed amendments on children would run counter to the Department’s policy on children and that, if passed by the Assembly, they would recognise legally that children could be seen as carers first, rather than being entitled to support as children. That could be seen as restricting rather than enhancing children’s rights, and the Minister, if she agrees with the officials’ advice, is likely to oppose those amendments.

I received a letter from the organisations this morning stating that they have agreed to the intent of our wording and support the proposed alternative points to amendments 1 and 2 and also the reference to allow carers aged 16 or 17 to request an assessment. There was also reference to the Children (Northern Ireland) Order 1995.

Members must bear in mind the various proposals placed before them. Clause 1A is presented as a possible substitute for clause 1(1), and that wording is very close to the voluntary organisations’ proposal. It targets carers aged 16 or over and makes the boards of trusts responsible for assessments. It is more prescriptive than the existing clause and compels the trust to approach the carer, whether or not that carer desires such an approach. The Assembly’s legal adviser had questioned whether there was a suitable trigger mechanism if that clause were put in place.

The proposal is that members vote on 1B, which voluntary organisations have expressed their support for. If that were accepted, then proposal 1A would obviously be dropped.

Members should note that 1A, the first of those two amendments to clause 1, is a substitute.

Clause 1, page 1, line 4, leave out subsection (1) and insert-

"( ) Where-

(a) an authority is satisfied that a person cared for is an adult for whom it may provide personal social services; and

(b) the carer of that person is aged 16 or over,

The authority shall offer that carer an assessment of the carer’s ability to provide and continue to provide care for the person cared for and if requested by the carer shall carry out such an assessment."

All the organisations stated that 1B, the second alternative, would be an acceptable clause. The new subsection would therefore read

"() It shall be the duty of an authority to disseminate information widely regarding the right of carers to an assessment of the carer’s ability to provide and to continue to provide care for the person cared for.

() An authority shall take such steps as are reasonably practicable to ensure that carers within the authority’s area receive the information relevant to them."

That is intended to require boards and trusts to be proactive in disseminating information and in taking reasonable steps to ensure that those carers receive the information available to them. It would precede the existing clause 1(1) of the Bill.

Have voluntary organisations shown their support for that?

Yes.

The Bill and the motion are in front of you. If members accept those, we shall move on. Is that agreed?

Do we accept the letter from Barnardos and the others stating their support for the proposed alternative points 1 and 2 of the amendment?

Yes.

We shall proceed to the next amendment.

A second proposal has been placed in front of members. That proposal introduces a new subsection to clause 1(2). It targets carers aged 16 and 17 and reflects the wording used by the voluntary organisations. It would require boards and trusts to carry out an assessment under the Bill that would comply with the Children (Northern Ireland) Order 1995. The letter from the Department of Health and Social Services, dated 19 February, comments on the role of carers aged 16 and 17. Members have that letter in front of them.

It is important.

Page two of that letter from the Department states that

"With regard to 16 and 17 year old carers, it is our intention that this Bill will only rarely be used when looking at the needs of this group. As with young people under 16, the intention would be that support services should be provided to the disabled adult so as to ensure that a young person is not undertaking regular and substantial caring responsibilities that undermine their ability to participate fully in education, training, work or social activities."

It goes on to state that

"a young person of 16 or 17 may make the choice in some circumstances to assume caring responsibilities, for example when a parent is terminally ill. In these circumstances, we consider that it is appropriate that services could be provided to the young person to support him in his caring role rather than to simply reduce it."

The point made by the Department is that the Bill as it stands would expect guidance to be issued to clarify those kinds of matters. The voluntary organisations have supported that proposed amendment. What I have gathered from talking to departmental officials is that there is a slightly grey area regarding how far the Department might oppose that, or whether it will accept it; its position is still unclear.

In its letter dated 19 February the Department clearly stated that it would not be content with the inclusion of references to children under 16 in the Bill, since it feels that it could restrict rather than enhance the rights of children.

However, it recognises that those 16- or 17-year-old carers have a role to play in caring for disabled adults.

A central point of that letter states that

"We have made it clear in our evidence to the Committee that it is the policy of the Department that young carers under 16 should be seen as children first, and carers second, and should not be expected to carry levels of caring responsibility that could adversely affect their education and development."

I beg to move

That the Committee recommend to the Assembly that the clause be amended as follows: in page 1, line 11 insert.

"( ) Where a carer aged 16 or 17 has requested an assessment under subsection (1) the authority shall carry out an assessment that complies with Article 18 of the Children Order and provide services in accordance with that assessment."

Where is that reference taken from?

I am reading from page three of the Committee Clerk’s briefing note.

It is important to get the legislation right as we go through these amendments, so perhaps the pages of the briefing note might be numbered. We could follow the paragraph numbers for easy reference. We are working with three documents, and the proceedings are difficult to follow.

We are on proposal 2.

"A new subsection to clause 1(2) would target carers aged 16 to 17…"

That reflects the wording used by the voluntary organisations,

"… and requires HSS boards or trusts to carry out an assessment under the PSS (Amendment) Bill that complies with the Children Order."

The Department may well object to that, but you will note from the Department’s letter of 19 February that it recognises that there is a role for 16- to 17-year-olds. The Department’s final position is unclear.

I propose that we table that amendment and speak about it. The Minister will respond, and that will give everyone an opportunity to have a say and clarify the situation. The Department’s letter is contradictory. On the one hand it recognises that children under 16 should be seen as children, while on the other hand acknowledging that the 16- to 17-year-olds, like those under 16, may require support services. The question arises as to where the assessment comes in, and we need to have that clarified.

That the Committee recommend to the Assembly that the clause be amended as follows: in page 1, line 11 insert

"( ) Where a carer aged 16 or 17 has requested an assessment under subsection (1) the authority shall carry out an assessment that complies with Article 18 of the Children Order and provide services in accordance with that assessment."

Under the third proposal, members have the choice of either 3A or 3B. The voluntary organisation stated in its correspondence that 3B would be a suitable amendment. I wanted to bring that to the Committee’s attention in the light of the Department’s letter, which answers concerns raised by Mr McFarland last week about the Department’s policy on children.

Departmental officials explained to me that the proposed amendments on children would, in their view, run counter to the Department’s policy on children. If passed by the Assembly, the amendments would legally recognise that children could be seen as carers first, rather than being entitled to support as children. That could be seen as restricting children’s rights, rather than enhancing them. The Minister, if she agrees with the officials’ advice, is likely to oppose the amendments relating to children.

I shall read the amendments out. Amendment 3A states, in clause 1, page 1, line 11 insert

"Where an authority is satisfied that —

(a) the person cared for is an adult for whom it may provide personal social services; and

(b) the carer of that person is aged under 16,

that carer shall be treated as a child in need under article 18 of the Children Order and the authority shall carry out an assessment under that article and provide services in accordance with that assessment."

The amendment that we propose, and which the voluntary organisations accept, is amendment 3B, which reads

"After Schedule 2, Part 7 of the Children Order there shall be inserted-

7A. Every authority shall provide services designed to give children defined as carers under section 8 of the Personal Social Services (Amendment) Act 2002 the opportunity to live lives are as normal as possible.""

That word had been taken from the Children (Northern Ireland) Order 1995. Amendment 3A was an attempt to meet the needs of voluntary organisations without being quite as prescriptive as 3B. I want to ensure that the Committee is aware of the Department’s position on both amendments, which the Committee is likely to oppose.

My apologies for being late; I was in another meeting that I could not leave.

I am concerned that we are setting ourselves up as an adjudicator between the voluntary sector’s view and the Department’s clear policy on the law, which is not the Committee’s job. We should ask the various voluntary groups and the Department to produce an agreed system for that. I cannot understand why the Department and voluntary groups both have clear, adamant policies on the law which are chalk and cheese.

Have you seen the letter dated 19 February?

Yes. I have a copy. In response to the Committee’s request, the Department has clearly explained the policy. However, we are being asked to recommend an amendment contrary to the Department’s policy. It could be argued that the Committee has limited knowledge of such matters, apart from what we hear. We are in danger of deciding, on the basis of the modest evidence that we have received, to go against the Department. That is a slightly dicey thing to do — unless we are convinced that it is right.

The amendments were put to the Committee to allow discussion. The Committee can reject the amendments if it feels unable to adopt them. Individual members must decide whether they wish to agree them. I felt duty bound to put both the proposals and the Department’s objections before the Committee.

I take Mr McFarland’s point. One of the Committee’s functions is to tease out areas where there may be anomalies between policy and what ends up in legislation. This is a good example of where policy may have to be updated or amended. The Department accepts that some children are also carers, despite the policy that argues that they should be treated as children first. I said last week that mothers can be carers, since they can give birth before the age of 16.

What has happened is not contradictory; it is quite useful. The evidence shows that we attempt to be as inclusive as possible when making legislation rather than leave the groups concerned with few alternatives. That is why we find ourselves trying to find amendments acceptable to the Department and the sector. We have managed to do so thus far. There was a meeting of minds on the previous amendment, but we may have more difficulty with this one.

If we suggest an amendment, and the Department disagrees for technical or other reasons, suggesting its own, we can withdraw our suggestion, providing that the Department’s amendment deals with our concerns.

I agree with Ms McWilliams that the Committee is supposed to act in this way. There would not have been a problem if the information had arrived during our deliberations, since we could have extended our time to study it. My concern is that we had already examined the matter when a great deal of new information was parachuted in at the last minute. We are now working to a tight schedule. We cannot spend a further three weeks on the matter, for the Bill will soon be before the House. I am concerned that we are required to make a decision at quite short notice and with only limited information. It would be interesting to tease out all the information and seek further legal opinion and advice from groups that have not yet appeared before the Committee.

I do not disagree with what is being said. Could we encourage the Department and the groups concerned to put their heads together once again so that we can devise an agreed system? I feel uncomfortable going against departmental medical policy unless there is a clear reason to support the alternative. As you know, I have no problem with championing causes that go against the Department. However, I am not sure that we have enough evidence to challenge the established policy readily.

I agree with Ms McWilliams and Mr McFarland. To clarify matters, Mr McFarland, are you suggesting that, rather than dismiss the amendments, we should ask those with an interest in the matter to meet the Department to see if they can devise something?

Such amendments would be acceptable, providing that they dealt with the strong concerns which carers communicated to the Committee, and providing that the Committee agreed with them.

Is it correct that such an approach would not prevent the Committee from re-examining the matter if the Department disagreed?

The Bill is before the House and is due for its Consideration Stage. The Department has made clear its aims regarding the Bill. In a letter dated 19 February, it stated what its position would be if amendments concerning children under 16 were tabled. The Department views those amendments as potentially restricting the rights of children. It said that it would seek to address the issues concerning children under 16 by producing detailed guidance to boards and trusts on how to treat those under 16 providing care to disabled adults. The Department would seek to provide families with resources to release those children from their duties, as opposed to placing a duty on children by legally recognising them as carers.

The Department has serious concerns about the two amendments. The Committee has put amendments before the Department. However, owing to its concerns, the Department will not seek to amend those. The Minister will object to the amendments as they stand, since they run counter to the Bill’s intent. The Committee must decide whether it wishes to adopt those amendments.

Is it correct to say that the Consideration Stage is scheduled for Tuesday 26 February?

The Consideration Stage may have been delayed. The new date may be the following week. Although that gives some leeway, the Committee should decide how it handles those points.

I welcome Ms McWilliams’s comment. Will an amendment to the Children (Northern Ireland) Order 1995 deal with the matter? One way to address the concerns of the under-16s is to amend that so that child carers are considered.

Motion 3B changes the Children (Northern Ireland) Order 1995. That is not as prescriptive as 3A, and voluntary organisations have accepted it.

Would the Department accept that?

I understand that the Department would accept neither 3A nor 3B.

As 3B is an attempt to cover the issue by leaving the Bill alone so that it does not interfere with the Department’s policy, and as the Children (Northern Ireland) Order 1995 recognises that children can be carers, what are the Department’s objections? The wording may not be ideal, but the question is once again whether the Department and the voluntary organisations should get their heads together to find suitable wording.

I should like to discuss the Department’s note. One or two points strike me. For example, on the first page of that document it says

"We would expect that Trusts should provide services to the disabled adult so as to ensure that the child does not have to carry out inappropriate levels of caring."

I expect trusts and boards to perform many tasks which they do not fulfil, and I am concerned about that.

In answer to Ms Ramsey’s point, when I discussed the matter with representatives of the Department they hinted that they wished to involve the Committee at the necessary stage when drafting guidance. They said that they would be reasonably willing to prescribe what they want boards and trusts to do.

The other issue I wished to raise concerns the following page of the Department’s note. The last line states its intention to ensure that

"a young person is not undertaking regular or substantial caring responsibilities that undermine their ability to participate fully in education, training, work or social activities."

That concerns me, since one minute it says that 16- to 17-year-olds can be carers but the next says that it must ensure that a young person does not undertake that role. The following paragraph says that a young person of 16 to 17 may make the choice in some circumstances to assume a carer's responsibilities. Some do not have the choice.

In those two paragraphs, the Department sought to recognise that at times 16- and 17-year olds are old enough and responsible enough to take on certain caring duties where appropriate. That is why it differentiates between those under and those over 16.

How shall we proceed? The Department is clearly unhappy, and the Consideration Stage is scheduled for the week beginning Monday 4 March. Is there any point in having further discussions with the Department at this stage?

The Department has made its views fairly clear, and rehearsing the issue will not change the position. It is up to the Committee to make a decision on whether it wishes to accept, for example, 3B, or to decline that amendment, and if individual members wish to raise that they can.

What are the Committee’s views? Do members wish to decline 3B in view of what has been said?

I reiterate that the Department’s letter is internally contradictory. It recognises that such people are carers. It may wish that young people did not have to do so, but that is pointless.

The evidence we have taken to date shows that there are individuals in Northern Ireland who are under 16, and others aged 16 and 17, who currently undertake such duties, either because a parent is terminally ill — and the Department recognises that — or because they have no one else to care for them. If the Committee has taken that evidence and recognises that those individuals exist, it should proceed with the amendment. The whole purpose of legislation is to make people’s lives better; we have an opportunity to do so. This legislation allows those duties to be recognised, rather than ignoring them and hoping that they will be picked up elsewhere. We should go forward with it.

The motion was that 3B should be adopted by the Committee.

So 3A is out. To recap, 3B leaves the present legislation intact, instead changing the Children (Northern Ireland) Order 1995 to recognise children as carers.

That the Committee recommend to the Assembly that the clause be amended as follows: in clause 1, page 1, line 11, insert

"() After Schedule 2, Part 7 of the Children Order there shall be inserted-

"Services for children defined as carers

7A. Every authority shall provide services designed to give children defined as carers under section 8 of the Personal Social Services (Amendment) Act 200x the opportunity to live lives which are as normal as possible."