Members present:

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

Witnesses:

Mr J Clarke )
Mr D McGowan ) Department of Health, Social
Ms M Reynolds ) Services and Public Safety

The Chairperson: I welcome the officials, Mr John Clarke, Mr David McGowan and Ms Marion Reynolds. We must complete our consideration of the Bill by Wednesday 26 June and may need extra meetings. We shall begin with clause 1. Perhaps you will explain it, Mr Clarke.

Mr Clarke: Clause 1 introduces the concept of an eligible child, one of the key terms used in the legislation. An eligible child is one who has been in care for a period and from an age prescribed by regulation. The consultation period indicated that the probable prescribed period was 13 weeks and the probable prescribed age 14. However, those are not mentioned in the legislation itself.

The Bill also provides, under 34A(4), for the Department to include or exclude groups through regulation. It places a duty on trusts to assess the needs of each eligible child to determine what advice, assistance and support a young person will need on leaving care. All eligible children are to have a pathway planned from their sixteenth birthday based on the assessment. A pathway plan is in a sense an extension of a care plan covering the transition to independent adult living.

The Chairperson: Do you intend to specify the required period by regulation? If not, should it not be in the Bill?

Mr Clarke: We intend to prescribe the period by regulation.

The Chairperson: Clause 1 inserts a new article, 34A, into the Children (Northern Ireland) Order 1995 and deals with preparations for their ceasing to be looked after. There are 10 paragraphs. Are members content with paragraph 1?

Ms McWilliams: You are asking us to move through each of the clauses today. Perhaps we might return to them after the officials have given their evidence.

The Committee Clerk: Mr Chairman, the officials have already been before the Committee about the Bill’s general intent, along with witnesses. The intention today was to allow Members to consider each clause in turn to ensure that they are content with them and sign them off.

The Chairperson: That is the idea.

Ms McWilliams: That might be the easiest way to do it. Perhaps we could go through them after the officials have given their evidence.

The Chairperson: The Committee Clerk and his colleagues will explain the content of each clause. A lot of the people we consulted were in agreement, but clause 6 is a problem, and we will come back to that.

The Committee Clerk: The Committee has an opportunity, today and next week, to consider the Bill clause by clause. We expect to have that completed by 26 June when we will seek approval of the draft report. The benefit of having officials here as we move through the clauses is that they can answer questions. One of the reasons for scrutinising the Bill now is that the oral and written submissions received by the Committee largely supported it. However, some questions were raised about how it would be implemented and what guidance would be issued. One or two possible amendments have been put forward by witnesses, and they are tabbed. The prime concern was clause 6, "Exclusion from benefits". That was raised by two or three organisations. This opportunity enables members to ask officials about the consequences of, for instance, removing that clause.

The Chairperson: I had hoped that we would get through a few of the clauses today.

Ms McWilliams: That is fine. We will look at the uncontentious clauses and come back to the others.

The Chairperson: Clause 1 is to insert new article 34A after article 34 of the 1995 Children Order. There are 10 paragraphs in article 34A, and, if agreed, we will move through the clause fairly quickly.

Paragraph 1 says that the existing duty of an authority is to advise, assist and befriend a child in its care. Paragraphs 2 and 3 place additional duties on the authority and define an "eligible child" as a 16- or 17-year-old who has been looked after for a prescribed period. Paragraph 4 enables the Department to make regulations to include or exclude particular groups from the definition of "eligible children", for example, children who normally live at home with their families. Paragraphs 5, 6 and 7 require an authority to assess the needs of each eligible child; to prepare pathway plans for each child; and to review those plans regularly. Any such review may be carried out at the same time as a review of the child’s case under article 45 of the Children Order. Paragraphs 8 and 9 enable the Department to make regulations about needs assessments, and paragraph 10 requires an authority to arrange for a child to have a personal adviser.

Ms McWilliams: Was paragraph 10 contentious?

The Chairperson: Evidence has supported the intent of the clause.

Ms McWilliams: We will come to that later; that is fine.

Question, That the Committee is content with the clause, put and agreed to.

Mr Clarke: Clause 2 amends article 25 of the Children Order 1995. It introduces the concept of the "relevant child", which is a 16- or 17-year-old who has left care. An "eligible child" is a child who has been in care and who fulfils the definition in the proposed article 34A. A "relevant child" has left care, but was an "eligible child" while in it. The clause introduces the concept of the "responsible authority" as being the last trust that looked after the young person while in care.

That trust would remain responsible for the young person wherever he or she moves to live. Some of the duties of the responsible authority towards a relevant child are stated generally in the clause. The authority must keep in touch with him, and, where contact is lost, the trust must continue to take reasonable steps to re-establish it. The intention is to prevent the child drifting away and losing contact with the trust’s responsibility. The clause we dealt with mentioned arranging for a personal adviser, and the trust must appoint one for each relevant child.

Clause 1 says that the responsible trust must ensure that a relevant child has a regularly-reviewed pathway plan based on an assessment of his needs. The Department, by means of regulations, may prescribe who is to be consulted in relation to an assessment, the way in which an assessment is carried out and the recording of the results and any other considerations to which the trust must have regard. Additionally, the responsible trust must safeguard and promote the welfare of a relevant child, supporting, maintaining and accommodating him and providing other such support as may be prescribed by the Department. Prescribing suitable accommodation by the Department is significant, because there is always concern about the accommodation in which young care-leavers find themselves. Again, those regulations are subject to consultation.

Mr Berry: Is it realistic for a trust to take steps to re-establish contact with a relevant child until it succeeds?

Mr Clarke: The trust has a duty to try. It is difficult for legislation to say "you shall maintain contact". It may be possible. The point is that an attempt must be demonstrated, and if the attempt fails, the trust will not have been failing in its duty. Life is like that.

Ms McWilliams: Much of the representation has concerned appointing as opposed to arranging. The Department must have seen that evidence. What is your view on the amendment?

Mr Clarke: The arrangement is the lead-up to appointment. An appointment is required.

Ms McWilliams: I assume you have seen the amendment suggested by Barnardo’s. It proposes that, instead of appointing a personal adviser for each relevant child, a personal adviser should be arranged for him and a named worker appointed. Why is such an amendment not acceptable?

Mr Clarke: That means a named worker and a personal adviser.

The Chairperson: Barnardo’s proposed amendment seems reasonable.

Ms McWilliams: The concern was that there would be no input into the role of the personal adviser and that some kind of partnership would be preferred.

Mr Clarke: It depends on the exact definition of the role of the personal adviser. There is a possibility of duplication. I have no problem with the suggestion that two people be involved with a child.

Ms McWilliams: One of the good practice pilot projects that I read about suggested that that policy is not ruled out.

Mr Clarke: No, it is not. Although it has yet to be implemented, the Bill will enhance provisions that already exist. In implementing the Bill, we must be careful to remember that leaving aftercare teams already operate. Barnardo’s and others suggest that the fact that there is an identified person in the trusts responsible for leaving aftercare should be recognised. There is no great difficulty with that.

The Chairperson: Would it be helpful if you were to consider that as a possible amendment?

Mr Clarke: The only problem is that another person with a statutory responsibility would be created whose role we might have to define. The role of a young person’s adviser will be defined in regulations. I do not reject the proposed amendment. Groups and consultees would like to see it included, but we must consider it in a legislative sense.

The Chairperson: So, you are happy to look at that again.

Ms McWilliams: The need for a detailed estimate of costs and the implications for trusts have come up in every piece of legislation that we have looked at so far. Have you made an estimate?

Mr Clarke: We have more work to do on that. We mentioned it generally. We had set up a reserve of £1·5 million against legislative pressures, but, as part of the implementation, we will have to refine it.

Ms McWilliams: Is the £1·5 million set aside for all legislative pressures facing your division or just for this Bill?

Mr Clarke: No. This Bill will have resource implications for trusts. The proportion of the £1·5 million will have to be determined. As a rule of thumb in the lead-up to the introduction of the legislation and before the requirements kicked in, we estimated that £500,000 would be a reasonable amount to cover the legislative pressure. That sum would equate to about 15 personal advisers.

Ms McWilliams: So £500,000 has been set aside for 15 personal advisers. How many children leaving care need a personal adviser?

Mr Clarke: Approximately 200 young people leave care each year. These are enhancements to a system to support care for leavers that already exists.

Ms McWilliams: Will 15 children, out of the 200 leaving care, be selected to have personal advisers?

Mr Clarke: No. Each adviser will deal with several children. It will not just be those 15 extra people who will be dealing with the children. People already work with them in leaving and aftercare teams. The sum of £0.5 million would allow you to enhance the system with 15 extra people.

Ms McWilliams: This is the crunch: it all depends on the cap on the funding, and, given that a substantial sum needs to be found to do that adequately, a lot of children may be attached to one personal adviser.

Mr Clarke: I always imagined several children for each personal adviser. It would never be a one-to-one.

Ms McWilliams: Fair enough. Have you a target for how many children a personal adviser would have?

Mr Clarke: We have not set a target.

Ms McWilliams: Have you set a cap on the funding?

Mr Clarke: We have bid for funding. At this early stage we must make assumptions about what is reasonable. However, we have bid for £1·5 million to deal with legislative pressures in advance.

Ms McWilliams: Could we do with some money? You have £500,000, which you think will provide for 15 staff, and 200 children leave care each year: that is about 13 young people to each adviser. Am I right?

Ms Reynolds: That would only happen if the services currently provided to the children by leaving and aftercare social workers were stopped. A group of staff already provides aftercare support to these children. The 200 children would not, therefore, all require new personal advisers.

Mr Clarke: It is important to note that this is enhancing something already in place. We are not inventing leaving and aftercare services; these are amendments to those provisions that already exist. That is how we want to enhance the service prior to assessing what is needed in the longer term.

Ms McWilliams: That is excellent, but it will only work if it is well resourced. We will expect the personal advisers to make pathway plans, follow-up and maintain contact, and if we overload them, the spirit of the legislation may never be implemented.

Mr Clarke: There are several matters that we must be careful about. For example, who are the young person’s advisers? Some young people do not want social workers as their advisers, and there are issues to do with how that is implemented and how we use the resources. Apart from the financial resources, there is the pressure on social work staff. There is a suggestion in England and Wales that a young person’s foster carer could become his adviser, giving a continuing relationship. Most children in care are looked after by foster carers. There is a variety of options.

The Chairperson: Article 34C sub-paragraph 11(b) requires the trust to continue to take steps to re-establish contact with a young person classified as a relevant child until it succeeds. Is that realistic? We are not going to get through article 34C today, but we can clear parts of the clause leading up to that. Subsection (1) of clause 2 amends article 25 to allow an authority to provide accommodation for a child who has left care, and its doing so, classifies the child as still being looked after.

Question, That the Committee is content with the clause 2(1), put and agreed to.

Question, That the Committee is content with the clause 2(2), put and agreed to.

The Chairperson: Subsection (3) inserts new articles, 34B, 34C and 34D. Article 34B has five paragraphs. Paragraph (1) provides for an authority to have the functions set out in the new article 34C.

Question, That the Committee is content with paragraphs (1) to (5) of subsection (3) on article 34B, put and agreed to.

The Chairperson: We will have to return to the part of the clause that refers to article 34C. We can move on to article 34D, which deals with continuing functions in respect of former relevant children. It sets out the duties of the responsible authority towards former relevant children. It is a similar provision to those set out in article 34C and contains 10 paragraphs. Paragraphs (1), (2), (3) and (10) place similar responsibilities on authorities to those in article 34C, and paragraphs (4) and (5) require authorities to provide financial and general assistance with employment, education and training. Paragraph (6) provides for the duties to last until the person reaches the age of 21.

Question, That the Committee is content with paragraphs (1), (2), (3) (4), (5), (6) and (10) of subsection (3) on article 34C, put and agreed to.

Ms McWilliams: I am trying to follow this. Have we evidence that any of this is problematic?

The Chairperson: No. Evidence from organisations including the Human Rights Commission supports the intent of the clause.

Ms McWilliams: Is it correct to say that concerns have been raised only about article 34C and that we can therefore proceed with clauses that do not cause any problems?

The Chairperson: That is correct. That is why we will return to article 34C at a later date.

The Committee Clerk: If article 34C has an impact on article 34D we will consider that before we agree clause 2.

The Chairperson: Paragraphs (7), (8) and (9) provide for assistance to last beyond the age of 21 where a programme of education or training is already under way and for any interruption to that programme to be disregarded where reasonably practicable.

Question, That the Committee is content with paragraphs (7), (8) and (9) of subsection (3) on article 34D, put and agreed to.

The Chairperson: We will return to article 34C later. We cannot agree clause 2 until we have dealt with that.

The Chairperson: Mr Clarke, can you explain what this clause is about?

Mr Clarke: You have rattled through this very quickly. I am still trying to read the detail of the clause.

The Chairperson: We will return to clause 2 next week to deal with article 34C.

Mr Clarke: The Department may, by regulations, set out details on the provision of personal advisers and pathway plans. Regulations may be made to allow other individuals aged between 16 and 21 to have a personal adviser in addition to those children and young people covered in clauses 1 and 2. Paragraph 2 provides for regulations on the functions of advisers appointed under the Bill. We will give guidance to deal with, among other things, how personal advisers are to be selected and what to do should the relationship between a child and his adviser break down.

Article 34F deals with the content of pathway plans and provides for regulations to give more detail on what they are to cover and how they are to be reviewed. These are enabling powers.

The Chairperson: Evidence has been supportive of the clause’s intent, although questions have been asked about the implementation of personal advisers and pathway plans. That is to be covered in the guidance.

Mr Clarke: It will be covered by regulations and guidance.

The Chairperson: Will those regulations be brought before the Committee?

Mr Clarke: I am told that they will. I accept that these are enabling provisions and that they are not saying a great deal. Their meat will be set out in regulations and guidance, and it will be important for the Committee to look at them.

The Chairperson: Who will the advisers be responsible to?

Mr Clarke: The personal advisers will be the trusts’ responsibility.

The Chairperson: The trusts that appoint them are responsible for the advisers?

Mr McGowan: The trusts will have a duty to appoint the personal advisers.

The Chairperson: I presume that they are paid posts?

Mr Clarke: Returning to what I said earlier, we want to give people a choice. Some could be foster carers, and they would have to be compensated for carrying out that function. I am trying not to get tied down to their all being more and more social worker posts. It is important for many reasons that they are not just viewed that way.

Mr Berry: Pathway plans should be flexible enough to respond to the often quickly changing circumstances of young people. How will they be involved in that?

Mr Clarke: Pathway plans should be agreed as far as possible with the young people, and there is provision for them to be reviewed regularly. I accept the point entirely. Everyone’s life changes quickly, but for this age group changes are frequent, even changes of intent by the young people. They may not have such fixed notions as older people, so it is important to keep the plans under review.

Ms McWilliams: Will it just say that the plans will be kept under review? Is there a timescale for reviewing them?

Mr McGowan: They are to be reviewed at least every six months or earlier if requested.

Ms McWilliams: That will be in the guidance?

The Chairperson: And it will be in the regulations, which will come to the Committee.

Mr McGowan: There will be a review at least every six months, but it can be sooner if a personal adviser or young person requests it because of a change of circumstances.

Mr Clarke: It would be an imposition on a young person if the plans had to be reviewed every month, for example. That would be too frequent, but they will be kept under review.

Ms McWilliams: If many children are attached to one adviser, the adviser could have a backlog. The regulations say that he must carry out a review every six months. What happens if he does not do so?

Mr Clarke: The advisers will be required to do a review every six months. We do not want to burden them and young people with constantly having meetings to review things that do not need to be reviewed. However, if a young person wants the plan reviewed in less than six months, that should be done.

The Chairperson: Clause 3 inserts the new articles 34E and 34F. Article 34E is on personal advisers and has two paragraphs that enable the Department to make regulations to allow individuals aged between 16 and 21 to have a personal adviser and to regulate their functions. Paragraphs 1 and 2 are agreed.

Article 34F describes the pathway plans. Paragraphs 1 and 2 define them and enable the Department to regulate what may be included in the plans and how they will be reviewed.

The Clerk: Barnardo’s submitted a consequential amendment to clause 3. In article 34E, line 21, the word "appoint" is used. Barnardo’s suggested that the word "arrange" would be better. The Committee should consider that change in the context of article 34C and the earlier proposed amendment, so rather than signing off the clause formally today, we should come back to it next week.

The Chairperson: That is agreed.

Clause 3 referred for further consideration.

Mr Clarke: Clause 4 restates and amends articles 35 and 36 of the Children (Northern Ireland) Order 1995. Paragraphs 1 to 3 restate the definition of a person qualifying for advice and assistance, which is contained in the Children Order. Where a young person who has left care qualifies for advice and assistance, paragraph 4 establishes a new duty on the trust that last looked after him to keep in touch with him as it sees fit. That will apply to children who leave care but do not qualify for the full package of support under the Bill. It could be called a "catch-all" for the other children, and it restates a large part of the provisions in the Children Order. It is technical to follow.

Mr McGowan: As Mr Clarke said, clause 4 essentially restates the existing provisions in articles 35, 36 and 37 of the Children Order. However the clause places some new powers and duties on trusts in respect of qualifying persons in relation to education, employment and training and accommodation for higher and further education. So, although the clause is restating certain provisions in the Children Order, it goes beyond the existing provisions and gives additional powers and duties in the four new articles.

Mr Clarke: We must bear in mind that the new provisions relate to young people who must be eligible under the terms of the Bill and that the provisions in clause 4 relate to other young people.

Mr McGowan: It will provide for those who do not qualify because they do not meet the eligibility criteria —

Mr Clarke: They never were eligible.

Mr McGowan: It will also provide for those who were in care after the age of 16 for a short time but do not reach the qualifying period. In many ways it is a safety net for children who may not receive the full benefit of the previous articles.

Ms McWilliams: Did you get evidence on the exceptional circumstances referred to in article 35A, paragraph 5?

Mr McGowan: That provision is not new; it is provided for in the Children Order.

The Chairperson: Which parts are new, as opposed to the provisions in the Children Order?

Mr McGowan: Articles 35 to 35C are similar to current provision. The new provisions are spread throughout those articles.

Mr Clarke: The main point is the difference between the new legislation and the Children Order. What concerns people who qualify for advice and assistance is a repeat of the 1995 Order. That is not new. Responsibility for a young person on the part of the trust that last looked after him is.

Ms McWilliams: Is it presently the case that assistance can be given in cash where necessary?

Mr McGowan: In exceptional circumstances.

The Chairperson: What does exceptional circumstances mean?

Mr Clarke: The point about exceptional circumstances is that the Children Order did not intend them to be a substitute for support. In other words, there was not an ongoing maintenance arrangement. If a washing machine broke, for example, a young person could get money under exceptional circumstances to have it fixed. Trusts did not have a duty to support young people through regular cash payments. That might have raised questions about their responsibilities. The provision is in the Children Order, and that is why the words "exceptional circumstances" are used.

Ms McWilliams: I understand that, but sometimes "exceptional" becomes "normal", because it happens so often. Is it the case that, although it is in previous legislation, it is has turned out to be a frequent occurrence? The evidence that we have suggests that we might do well to drop that.

Mr McGowan: First, the reference to exceptional circumstances refers to the circumstances of an individual young person rather than the general policy.

Ms McWilliams: So it is infrequent?

Mr Clarke: "Exceptional circumstances" are clearly intended in legislation to indicate infrequency.

Ms McWilliams: But is that what happens?

Mr Clarke: It happens that the exceptional circumstance provisions in the Children Order are used and sometimes abused to make regular payments. However, that is not the intention of the legislation. If we did not make it clear that the circumstances were exceptional, we would be placing a duty on social services to provide support for everything. From that point of view, the purpose of the exceptional circumstance provision is to limit responsibility while assisting young people in exceptional circumstances. The words should mean exactly what they say.

Ms Reynolds: The phrase exceptional circumstances does not relate to regularity or frequency but to a young person’s circumstances. The phrase has been carried through from the Children and Young Persons (Northern Ireland) Act 1950 and the Children and Young Persons (Northern Ireland) Act 1968 to the Health and Personal Social Services (Northern Ireland) Order 1972. It is intended to indicate that there is no automatic right to a cash payment. Social Services might want to help a child in kind, so that food is available or a bill paid. The provision allows social services to decide how best to support a child.

Ms McWilliams: I remember some overlap in the past with social security where exceptional circumstances turned out to be a regular occurrence. Exceptional needs payments were not exceptional.

Mr McGowan: Children getting exceptional circumstances payments will still be eligible for social security benefit. Under social security legislation, payments made under these provisions by trusts would be disregarded.

Ms McWilliams: Deducted?

Mr McGowan: No, they would not be deducted, because they were made in exceptional circumstances. One of the reasons for retaining the word "exceptional" is that social security could not deduct the money pound for pound. Any payments made are excluded from income or capital.

The Chairperson: I presume the advisers will have some influence on what constitutes exceptional circumstances?

Mr McGowan: I would have thought so, yes.

The Chairperson: Let us move on to article 35(b), paragraphs 1 and 2, page 7, line 26. Line 30 is to be amended by replacing "may" with "shall". The word "may" is frequently used in legislation, but "shall" is stronger. It is proposed to replace "may" with "shall" in article 35B, paragraphs (1) and (2).

Mr Clarke: Use of the word "may" could be seen as weakening the provision.

Mr McGowan: Children will qualify for help if they spend perhaps a week in care after age 16, so to place a duty on a trust for a child who has spent an exceptionally short period in care would be rather much.

Mr Clarke: Consider what the use of the word "shall" will mean. To say that the relevant authority shall give assistance to anyone does not create a great entitlement — it could mean giving £5, which is not what the suggested amendment presumably intends. It could still give the trust a discretion.

Ms McWilliams: I differ with you on that. I have negotiated many clauses. When the word "shall" is used, it is much less discretionary than the word "may", which leaves a provision up to the individual.

Mr Clarke: The intention behind the proposed amendment is clear. A person reading the provision in legislative terms would ask what it entitles someone to. This legislation is not only for individual young people, but for all young people.

Ms McWilliams: The word "may" could be substituted by the word "will", and the clause would then read "that the relevant authority will give assistance to any person who qualifies for advice and assistance."

Mr Clarke: The difference between "will" and "shall" is up to the draftsman.

The Chairperson: Could clarification of the words "may" and "shall" be included in the legislative guidance?

Ms McWilliams: It is a very important legislative term.

Mr Clarke: The guidance will address that. However, if people are saying that the provision needs to be strengthened by the word "shall", including it in the guidance will not address that concern. Trusts would still be given discretion.

Ms McWilliams: If I were a child who qualified for assistance and came to you and the legislation said that you "may" give me assistance, it would be entirely up to you whether you did so. However, if the legislation says that you will give assistance, I will have some legal backing.

The Chairperson: That is an important point. Will you consider that?

Mr Clarke: I will. The intention is clear. By inserting the word "shall", there will still be discretion. I accept that the word "shall" will strengthen the provision, but it will not create an absolute entitlement to a particular level of support.

The Chairperson: We can come back to clause 4 on that point.

Ms McWilliams: Mr Clarke is not averse to accepting the word "will", and I take his point about the level of assistance.

Mr Clarke: It does strengthen it.

Ms McWilliams: It gives a ceiling to the level of assistance, but there is at least a basic level.

Mr Clarke: I do not want to argue strongly against it because I know why people are suggesting the amendment. If the word "shall" is used, there may be an element of needs-led legislation that would be running ahead of an assessment of need. That raises a question about how the assessment is conducted and the discretion that will creep in.

The Chairperson: We will come back to that, and you will investigate it for us.

Clause 4 referred for further consideration.

The Chairperson: Clause 5, which concerns complaints, seems to be straightforward. It aims to insert a new article, article 35D, into the Children (Northern Ireland) Order 1995. It requires authorities to establish arrangements for dealing with complaints about its services under articles 34B and 34D and article 35B(2). Paragraph (1) of the new article requires authorities to establish a procedure for hearing representations, including complaints made by young people, while paragraph (2) requires authorities to comply with departmental regulations. Evidence that has been submitted supported the intent of the clause. Do you have any comments to make, Mr Clarke?

Mr Clarke: No. Essentially those additions reflect provisions that are already in the Children Order, but the Bill needs guidance because there are issues regarding complaints about personal advisers, for example. That may make the Bill unique, but it is a restatement of a provision that already exists.

Ms McWilliams: The only concern was that there should be a common approach to the complaints procedures, and paragraph (2) gives the Department discretion to make regulations that require authorities to comply with any procedure for making complaints and representations.

Mr Clarke: The complaints procedures that already exist are Province-wide. Individual trusts and boards implement them while trying to ensure a common approach. They are legally separate, but in practice they are not, and I do not expect that to be so under the Bill. Issues with complaints about personal advisers must be addressed, and existing guidance may not cover that sufficiently.

Ms McWilliams: That raises concerns if the complaints procedure varies depending on where one lives.

Mr Clarke: No, I am saying that the four boards implement those procedures.

Ms McWilliams: I know; I heard that, but they are all different.

Mr Clarke: Although the structures are in place, boards and trusts are legally required to implement the procedures, because they are what we have in practice. They all reflect each other, and they come together. It is a pedantic distinction between the legal requirement and what actually happens.

The Chairperson: Clause 5(2) states:

The Chairperson: The words seem a bit odd.

Ms McWilliams: OK; we should remove them.

Mr Clarke: The words "may make regulations" are usually used.

Mr McGowan: That paragraph is not about regulations per se; it states that an authority must comply by considering any representations that are made to it by a child.

The Chairperson: Do you suggest that we leave those words in the paragraph?

Ms McWilliams: No, because the parenthesis comes after the word "regulations".

Mr Clarke: If people wish to remove the words, I do not see any problem. I have no doubt that we will be making regulations — I cannot see how not making regulations is an option for the Department.

Question, That the Committee is content with the clause, subject to the proposed amendment, put and agreed to.

The Chairperson: Various bodies are unanimous in asking why clause 6 exists or in saying that it should be removed, so if someone can explain why it should be there, the Committee might agree with it.

Mr Clarke: Even before we brought forward the Bill, voluntary organisations had seen the equivalent in England and Wales, so they raised the issue, and we have always been aware of it. First, we are talking about planning for a young care leaver’s future, but do we want to plan for him to go into the benefit system before he has even left care? Is that our expectation for those young people? Secondly, all resources, existing and additional, would be deployed in a way which would assist a young person to progress to independent living. Deleting clause 6 may limit flexibility in how resources are deployed, for example, on arranging further education or training.

If this clause stands, we will have to get resources transferred from the Department for Social Development. If clause 6 is accepted, it is incumbent upon us to ensure that the resources deployed by the Department for Social Development are done so in a way that best meets the needs of young people. I apologise — this seems very trite, but we must look at the holistic needs of young people. There is a possibility that removing clause 6 would lead to a fragmented approach increasing the number of agencies and individuals involved with young people.

With regard to the extent that the needs of young care leavers can be fully addressed in the system, there have been suggestions that care leavers could be made a special case in social security legislation. Again, what does that say about our expectations for young care leavers? With regard to the practical aspects in the Bill, it is not necessarily disastrous, but the provision for the trust to provide a young person with suitable accommodation may be prejudiced by cutting off those funds. Those requirements in the Bill need to be examined carefully because we are placing a statutory requirement on people.

The Chairperson: Having listened to what you have said, there are points that I have not thought out. The information that you have given us has been very helpful, and the Committee will think about it.

Mr Clarke: I got the thrust of the argument, and I do not want to go overboard. I am trying to put to the Committee the arguments that would counter its removal. It is a fine judgement at some levels.

Mr Berry: I am concerned that some people might become dependent on benefits, which is the last thing that the Committee wants. The Committee wants those children to get into a more stable environment, with an education and a job. The children should be taken through a proper system gradually rather than being suddenly cut off from the system, and the Department should work in partnership with the agencies on that.

Mr Clarke: The Department is not taking anything away from them because they would not be entitled to anything.

Mr Berry: It is about the Department and the agencies working in partnership.

Mr Clarke: I can see why clause 6 is there, and also possible implications of its not being there. There are arguments for and against it.

Ms McWilliams: The Department’s argument is that the children would still be in receipt of the same amount of benefit. However, evidence suggests that the Department would be putting a dependence on trusts that they may not wish to have. I am also concerned that there may be an increased level of stigma attached to the benefits — and there might already be. Not everyone understands what social security is and that it is a universal benefit. This is just a different way for the children to receive funds from their peers, and they will be immediately identified as having left care.

I have a third concern, which did not arise in evidence sessions. People on jobseeker’s allowance can graduate to other forms of allowance. Therefore if the young people have not been on that benefit they may be denied some types of training.

Mr McGowan: I need to check with the Social Security Agency about other allowances. We must remember that sanctions can be applied to young people on jobseeker’s allowance who do not take up offers of training or employment. Their jobseeker’s allowance could be reduced or extinguished if they do not take up offers of training or employment.

Ms McWilliams: It can work both ways.

Mr McGowan: If a young person did not take up an offer of training or employment, sanctions could be applied by the Social Security Agency. Young people are allowed a couple of refusals, but after that sanctions will be applied which might lead to a withdrawal of benefit.

Ms McWilliams: At present, the young people have some support and assistance. It is hoped that whoever is advising them, and taking care of their assistance in the care system, will make representations on their behalf. Have some young people had their benefits denied to them? Why move to this system? If it is the case that young people are denied benefits and then told by the trust that they may get a benefit because they were in care, then that is a good rationale for moving to this system.

Ms Reynolds: Most children at that age are dependent on their parents. Part of the rationale for the financial arrangements in the Bill is to give effect to the notion of corporate parenting. At present, children in the care of the trust, or who have just left that care, are moving around agencies and social security offices looking for housing and other benefit and then going to the trust for exceptional help. The clause seeks to have those children comprehensively dealt with.

The Chairperson: It is taking a more parental approach.

Ms Reynolds: Yes. It is to underscore the parental duties of the trust. The trust cannot cast aside these children just because they are 16, 17 or 18 years of age, because most children would still be living with their parents or still dependent on them much later than at that age.

The Chairperson: If trusts were totally responsible, the social security aspect would work all right. However, it is this parental responsibility.

Mr Clarke: We have pointed up arguments that we would use in favour of the clause. I know that trusts may view clause 6 in terms of a burden, but another way of saying this is that it places responsibility on them for every aspect of a young person’s life. There are two competing arguments, but there is an element of distance between them.

Ms McWilliams: I am concerned about that. In the light of what you have said regarding young people’s mobility — particularly when leaving care — dealing with such movement between different areas will entail a great deal of bureaucracy if they are to rely on one trust.

Ms Reynolds: One of the safeguards would be that, because the trust has to keep in touch and fund such children, fewer young care-leavers would be lost in the system. From the Fred West case in England we know that many care-leavers were killed without social services being aware of what had befallen them. Part of the legislation aims to develop a much more comprehensive and long-term strategy so that children do not fall between stools.

Ms McWilliams: I hope that happens with the pathway and the assistance. However, it sounds like the long arm of the state saying that it will keep a tag on someone dependent on it for his or her income.

Ms Reynolds: I hope I do not sound naïve, but these children are very vulnerable young adults who need state assistance. It is not so that they become dependent on benefit or the state, but to ensure that, in moving them on to independence, they have the support and help to make it worthwhile and can achieve quality of life.

The Chairperson: We shall not agree clause 6 today. Your comments have been very helpful, since they have shown us another point of view. There are two strong opposing opinions. My colleagues have read the documentation from the various bodies, and what you have said in addition has been very helpful. Since we shall not agree the clause today, perhaps my colleagues will re-examine the evidence, allowing us to return to the issue next week.

The Committee Clerk: I suggest we conclude consideration.