Teachers’ Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/97)
Teachers’ Superannuation (Scotland) Amendment Regulations 2015 (SSI 2015/98)
Good morning and welcome to the Education and Culture Committee’s seventh meeting in 2015. I remind everybody present to ensure that all electronic devices are switched off.
Agenda item 1 is to consider two negative Scottish statutory instruments. The Cabinet Secretary for Education and Lifelong Learning is here and is in place but, for clarity, she is not here for this item. Do members have any comments on either instrument?
I place on record my disappointment that the Government says that no equality impact assessment has been done of SSI 2015/97 because that will happen in a wider context. An impact assessment of SSI 2015/98 has been done, but it has not yet been published. We are being asked to agree to regulations on which we have not been given the full information. I do not think that that is the right practice.
I know that the cabinet secretary is not officially here for this item, but I am sure that she heard those comments.
As there are no other comments, does the committee agree to make no recommendations to the Parliament on the regulations?
Members indicated agreement.
Post-16 Education (Scotland) Act 2013 (Modification of Legislation) Order 2015 [Draft]
Our next agenda item is evidence on a draft order. I welcome Angela Constance, the Cabinet Secretary for Education and Lifelong Learning, and her supporting officials from the Scottish Government. After we have taken evidence on the order, we will at agenda item 3 debate the motion in the cabinet secretary’s name. Officials are not permitted to contribute to that formal debate.
I invite the cabinet secretary to make opening remarks.
I intend to make a brief statement about the draft order before taking questions. Then, as arranged, Ms McLeod will offer a statement on the draft Aftercare (Eligible Needs) (Scotland) Order 2015 and the draft Continuing Care (Scotland) Order 2015. We will take members’ questions accordingly.
The order that I am speaking to is modest in its ambition. Essentially, it would tidy up legislation, largely as part of the implementation of the Post-16 Education (Scotland) Act 2013. However, it is important, in that it supports our reforms of the post-16 education sector.
In summary, the order would do four things. First, it would change references in legislation to ensure that they continue to apply to publicly funded colleges and universities—by that I simply mean colleges and universities that receive funding under the Further and Higher Education (Scotland) Act 2005.
Secondly, the order would align the financial year of a regional board with that of an incorporated college. The change is prompted by a late but nevertheless welcome derogation by Her Majesty’s Treasury that enables an incorporated college and a regional board to have a financial year that matches the college academic year of August to July.
Thirdly, the order would update two orders—the Protection of Charities Assets (Exemption) (Scotland) Order 2006 and the Charity Test (Specified Bodies) (Scotland) Order 2008—so that they list the governing bodies of relevant colleges and universities. The first is relevant to publicly funded colleges and universities that are charities and the second is relevant to incorporated colleges.
Fourthly, the order would fix a few snags in the drafting of provisions in the Further and Higher Education (Scotland) Act 1992 and the 2005 act, as amended by the 2013 act. I will take those in turn. The order would insert a definition of the term “recognised”—in relation to unions that are recognised by a college for collective bargaining purposes—and variations of the word. It would also remove a potentially confusing reference to “principal” in the list of people who are not eligible to be chair of a regional college. A specific exclusion is unnecessary, as the legislation lists the chair and the principal as separate members of the board, which means that they cannot be the same person.
The order would also give ministers the power to appoint a person in place of an assigned incorporated college chair when ministers are required to remove that chair from office. That is relevant when such a person is also a member of another college sector board and they are removed from that other board because of a board failure on it. In such circumstances, if the person was a non-executive member rather than the chair of the assigned college board, ministers could appoint someone in their place. The current lack of provision is therefore anomalous.
The order would also remove any doubt that a regional strategic body cannot give directions in relation to the transfer of
“any staff, property, rights, liabilities or obligations”.
That is what section 23N(7)(a) of the 2005 act sought to do. The order would ensure that directions under section 23N(3) of that act could not be given to a college to transfer, or receive from a transfer, any staff, et cetera.
I or my officials will be glad to answer any questions.
Thank you, cabinet secretary. As members have no questions or comments, we will move on to agenda item 3, which is the formal debate on motion S4M-12539.
Motion moved,
That the Education and Culture Committee recommends that the Post-16 Education (Scotland) Act 2013 (Modification of Legislation) Order 2015 [draft] be approved.—[Angela Constance.]
Motion agreed to.
I thank the cabinet secretary and her officials for attending. I suspend the meeting briefly to allow for a changeover of witnesses.
10:09 Meeting suspended.Support and Assistance of Young People Leaving Care (Scotland) Amendment Regulations 2015 (SSI 2015/62)
Continuing Care (Scotland) Order 2015 [Draft]
Aftercare (Eligible Needs) (Scotland) Order 2015 [Draft]
Item 4 is to take evidence on one negative instrument and two affirmative instruments, as noted on the agenda. I welcome Fiona McLeod, the acting Minister for Children and Young People, and her supporting officials from the Scottish Government. After we have taken evidence on the instruments, we will debate the motions on the affirmative instruments at item 5 and consider the negative instrument at item 6. Officials are not permitted to contribute to the formal debate on the affirmative instruments.
I invite the minister to make opening remarks.
I am happy to make what I have to say will be a detailed statement, given the importance of and concern relating to the draft Aftercare (Eligible Needs) (Scotland) Order 2015, the related Support and Assistance of Young People Leaving Care (Scotland) Amendment Regulations 2015 and the draft Continuing Care (Scotland) Order 2015, before taking any questions.
As the committee is aware, our overall policy objective behind all the instruments is to offer appropriate support to eligible care leavers in order to achieve a more measured transition out of care that encourages preventative measures rather than crisis responses. I seek the committee’s support for all three instruments.
I turn first to the draft Aftercare (Eligible Needs) (Scotland) Order 2015. Under changes made to section 29 of the Children (Scotland) Act 1995 by section 66 of the Children and Young People (Scotland) Act 2014, a local authority must assess a young care leaver to establish whether they have eligible needs that cannot be met elsewhere. If the local authority is so satisfied, new section 29(5A)(a) of the 1995 act places it under a duty to provide such advice, guidance and assistance as it considers appropriate to meet those needs. Crucially, the order specifies the types of support that constitute eligible needs.
During the consultation on the order, a range of insightful views were offered by the sector and by care leavers on what categories of care and support were most desirable. As a result, the committee will see that the order specifies eligible needs in such a way as to allow local authorities to offer an appropriate level of support to meet individual care leavers’ needs and that it defines that support in such a way as to be clear and meaningful to the young people.
The committee will be aware that, during the consultation, we proposed that the new ministerial powers in section 29(1)(b) of the 1995 act, as inserted by section 66(2)(a)(ii) of the 2014 act, could be used to extend eligibility for aftercare support to a further category of young care leavers—those who are between their 11th and 16th birthdays and who had been looked after for at least two years. That reflected unfinished policy discussions during the Children and Young People (Scotland) Bill process and was included to illustrate one of many categories of people who could be made eligible for aftercare services.
After we considered the consultation responses, it was clear that the proposed provision needed a lot more work with partners, providers and stakeholders, so it was removed. That removal should not be seen as representing anything other than a desire to achieve a realistic extension of support.
10:15I understand that the committee has concerns and I will try to reassure members, but I must be clear about what will happen without the order. If we do not have the order in place, there will be no provision for the types of support that constitute eligible needs for the purposes of new section 29(5A)(a) of the 1995 act. That definition is a crucial part of the jigsaw to enable the amendments that section 66 of the 2014 act made to section 29 of the 1995 act to work effectively. Without that definition of eligible needs, we would not be able to properly implement and give full effect, as Parliament intended, to the amendments that section 66 of the 2014 act made to section 29 of the 1995 act. The issues are quite technical, but we need to record why the statutory instruments are important.
If we did not agree to today’s order, commencement of the provisions would need to be delayed, because we would have to amend the Children and Young People (Scotland) Act 2014 (Commencement No 7) Order 2015 to remove the provision in it that brings section 66 into force on 1 April. That would mean, for example, that the increase to 26 in the upper age limit for support to care leavers would not commence on 1 April as planned.
I appreciate that no one who has been involved in any part of the development of the policies wants that to happen, so let me offer some reassurance about the order-making powers in section 66 of the 2014 act. On 14 January last year, Aileen Campbell reiterated her announcement of 6 January and described the Scottish Government’s commitment to
“a number of measures to support care leavers”.
At the same time, she sought
“order-making powers to extend those types of support to further cohorts of formerly looked-after children, through secondary legislation.”—[Official Report, Education and Culture Committee, 14 January 2014; c 3319-20.]
Being a librarian, I refer members to column 3319 of the Official Report of the stage 2 debate.
I assure members that that commitment still stands. In fact, the committee may be aware that those powers are already in force and available to me to exercise by virtue of provision made in the Children and Young People (Scotland) Act 2014 (Commencement No 1 and Transitory Provisions) Order 2014.
I commit to beginning the expert working group next month. It will look at defining additional cohorts of young people who are eligible for aftercare. It will also bring together all stakeholders, to map the resource and operational requirements of any extensions, and it will look at the return-to-care commitment. Developing those policies will be a massive undertaking, as they require flexibility and consideration of capacity in the system, as well as of the financial climate, but we are all aiming for the same positive outcomes for our care leavers.
The Support and Assistance of Young People Leaving Care (Scotland) Amendment Regulations 2015 are a negative instrument that relates to aftercare support. The regulations make a number of necessary technical consequential amendments to the Support and Assistance of Young People Leaving Care (Scotland) Regulations 2003 in light of the amendments made to section 29 of the 1995 act by section 66 of the 2014 act. I understand that the Delegated Powers and Law Reform Committee made no comment on the instrument.
Convener, would you like me to take questions on the aftercare order, or shall I continue and talk about the continuing care order?
We would rather that you continued, after which we will have a discussion. Although the orders are different, they cover roughly the same area of policy.
Okay, convener.
Under the Continuing Care (Scotland) Order 2015, the right to continuing care will apply to all young people in foster, kinship or residential care born after 1 April 1999 who cease to be looked after by a local authority after 1 April 2015, subject to certain statutory exceptions. At that point, those young people will already have developed to a stage where the children’s hearing is satisfied that compulsory measures can safely be lifted, and we have to respect the panel members’ role in that regard.
The default assumption is therefore that continuing care will be a good thing for the young person and that their day-to-day experience in continuing care ought to reflect what was in place while they were looked after. The overall aim is to help to normalise the experience for young care leavers, and future orders will extend the upper age limit annually to guarantee that people in the initial cohort are eligible for such care until their 21st birthday.
As part of our essential need to evidence decision making and inform future policy making, the order describes an assessment process that complements existing regulations on aftercare support—the Support and Assistance of Young People Leaving Care (Scotland) Regulations 2003—and which is therefore familiar to young care leavers and local authorities. The order was redrafted following the consultation to ensure that the assessment better reflects issues of importance to young people, including their relationships, their personal identity and their life story.
I am aware of concerns that the sector has expressed about the threshold under the order, but I do not accept that the threshold has been lowered in the order. The threshold that all local authorities will have to consider in determining whether continuing care should either not be provided or cease to be provided is set out in new section 26A(5)(c) and (7)(c) of the Children (Scotland) Act 1995 as inserted by section 67 of the 2014 act. It is that the care would
“significantly adversely affect the welfare of the person”,
and the order does nothing to change that. The list of matters that is set out in the schedule and which the local authority is to consider is designed to build up a detailed picture of the young person and their life which, together with the other views gathered by virtue of article 7 of the order—not least those of the young person—will assist the local authority in considering whether providing or continuing to provide continuing care would
“significantly adversely affect the welfare of the person”.
As I have said, that is the high threshold that is set down in new section 26A of the 1995 act.
I strongly believe that only in exceptional circumstances could anything described or offered as continuing care
“significantly adversely affect the welfare of”
the young person. We will make that expectation clear in the guidance that is being consulted on and which will supplement the provisions. Again, I point out that, if the draft order is not commenced, people will have no right to continuing care from 1 April.
Many care leavers understandably require support for a prolonged period, and I do not believe that anywhere else in the world seeks the views and prioritises the needs of children and young people as we do in Scotland. I have absolute confidence in our care sector and wider workforce, which played a crucial role in developing these outstanding policies, and I am confident that they will continue to have a truly positive impact on the lives of our children and young people.
Thank you, minister. I am sure that the committee appreciates why your opening remarks had to be so detailed. I invite questions or comments from members.
First, I must put on record my welcome that a compromise has been reached. Having received the email on this matter only at 12 minutes past 9 this morning, I think that this could justifiably be termed an 11th-hour compromise.
However, it is only fair to point out that I am not at all happy with the initial proposal, nor with the way in which these proposals have been made. The minister is right to point out the implications of not passing the instruments, given the commencement date of 1 April, but those of us who had concerns about what was presented would be justified in thinking that we have just had a gun put to our heads. There was not necessarily uniform agreement across the board on the Children and Young People (Scotland) Act 2014, but we were absolutely in lockstep with the Scottish Government on the need for improvements in the treatment of and support for those going through the care system.
That was built upon with compelling evidence from the coalition of Who Cares? Scotland, Barnardo’s and the Aberlour Child Care Trust—and in particular with evidence from young care leavers themselves. We have rightly been congratulating ourselves ever since on that aspect of the 2014 act. We had assumed that the letter, and indeed the spirit, of that legislation would be honoured.
I appreciate that you are new to the role, minister. Ultimately, the buck stops with you, but I do not think that you have been well served by those advising you. That is why we are in this situation and it is why we have gone through contortions in recent days.
Turning to the specifics, the negative instrument—the Support and Assistance of Young People Leaving Care (Scotland) Amendment Regulations 2015—seems fairly straightforward.
On the draft Continuing Care (Scotland) Order 2015, I hear what you are saying about the threshold not having effectively been lowered. I find that difficult to understand. Under new section 26A(7) of the 1995 act, which was inserted by section 67 of the 2014 act,
“The duty to provide continuing care ceases if—
(a) the person leaves the accommodation of the person’s own volition,
(b) the accommodation ceases to be available, or
(c) the local authority considers that continuing to provide the care would significantly adversely affect the welfare of the person.”
There seems to be a range of options there. I heard what you said but, at the very least, the schedule that is attached to the draft order muddies the waters somewhat. It seems to talk about issues that, while they certainly concern wellbeing, are not strictly about welfare. Issues that are covered in the schedule include
“The eligible person’s future plans for study, training or work”
and
“The eligible person’s general health (including any mental health needs)”.
To my mind, those factors concern wellbeing rather than welfare. Aberlour, Barnardo’s and Who Cares? state in their briefing:
“The Order should in fact make very clear that the threshold for removing a care leaver from a placement that they want to stay in must be, for example that their health and emotional and mental welfare is being significantly adversely affected; not simply that they have health and emotional and mental wellbeing issues that are not being met.”
I look forward to the work that is being done to clarify that. At the very least, the schedule has muddied the waters.
Turning to the—
I am sorry, but I will let the minister respond. You have covered a lot of stuff already. I will bring you back in later, but let us hear from the minister now.
In my opening remarks, I tracked us back through all the different stages of legislation. This concerns the phrase “significantly adversely affect”, and that has not changed. That goes through absolutely everything. Whenever any decision comes to be made, it has to show that staying in care has significantly adversely affected the young person. I cannot think of many situations where that would be the case, but that phrase runs through to today from back when it was first used. The proposed measures set out to ensure that that provision is always there.
That is a helpful clarification. What you are able to put on the record today, in addition to the papers before us, will be helpful, as a combination, in interpreting the legislation.
However, I think that there was a problem in how the draft order was presented, which gave rise to concerns that we were seeing a dilution; that we were not dealing with situations in which, for example, there might be a manipulative relationship between the eligible person and whoever was providing the care; and that we needed local authorities to have the power to intervene. What seemed to be being created as a result of the draft order was less than that. Given the advances in the continuation of care that are being delivered through the 2014 act, the perverse incentive on local authorities potentially to exploit that gave rise to legitimate concern.
I turn to the—
I am sorry but, before you move on, other members want to comment on this specific point.
Are we bundling it all together? Right—that is fine.
I will come back to you, but others wish to comment on the specific point that you raised.
Thank you, convener—my question is very much on that specific point. When the Children and Young People (Scotland) Bill was going through the Parliament, we debated in great detail the definitions of the terms “welfare” and “wellbeing”. At the time, some witnesses presented a case to us that it was very much easier to define welfare, because it is embedded in a lot of other legislation. Wellbeing was slightly less well defined.
I agree entirely with Mr McArthur’s point that, if we do not have a specific definition of wellbeing, a misinterpretation of that is very easy. The genuine concern that has been given to us is that, because of the slightly amorphous definition, local authorities are not entirely sure what they are doing and might use that as an excuse not to provide the care that everybody believes was intended. Do you accept that defining welfare and wellbeing is a problem that has got the Scottish Government into difficulty?
10:30
I have two responses to that. Can we look at welfare and wellbeing under getting it right for every child, which the legislation embeds? Local authorities and all of us have to think about everything that we are doing under that.
We are working on non-statutory guidance to go with the instruments, and it will be absolutely clear in the guidance what is meant by the difference, if there is a difference, between welfare and wellbeing.
Forgive me, minister, but there is a difference between guidance and the statutory responsibilities. The concern is that the local authorities are obviously interested in what they can do on a statutory basis, and they are up against significant financial difficulties. The real concern that has quite properly been raised by the continuing care coalition is that, unless the definitions are tight, it is too easy for local authorities to slip out of their responsibilities. I think that that is the main issue.
Okay. I take us back to their statutory responsibility. They can remove a child from care only if continuing in care would “significantly adversely affect” the young person. That is the statutory position that is tracked through all the legislation that I have mentioned. There will be guidance to ensure that local authorities understand what we mean by wellbeing. That is all within the context of GIRFEC.
I want to follow that up, as the issue is clearly a concern of the committee and it has been raised with us by the continuing care coalition. I am sure that those of us who were on the committee remember in great detail the discussions that we had.
Section 26A(6) of the Children (Scotland) Act 1995 says:
“A local authority’s duty to provide continuing care lasts, subject to subsection (7) below”.
Subsection (7) says:
“The duty to provide continuing care ceases if”.
Paragraphs (a), (b) and (c) follow. We have just been talking about paragraph (c), which says:
“the local authority considers that continuing to provide the care would significantly adversely affect the welfare of the person.”
I think that we all thought that we understood what that meant when we passed the legislation that inserted that into the 1995 act. The concern is not what the act says, but the interpretation of it.
Can you give us a real-life example of what that means? I think that our concern—I do not want to speak for other members of the committee—is whether it would be possible for a young person to be removed from a continuing care placement on the basis of an interpretation by, for example, a local authority of section 26A(7)(c) of the 1995 act in particular, and what
“significantly adversely affect the welfare”
actually means.
You need to turn to the schedule to the Continuing Care (Scotland) Order 2015, on
“Matters to be considered in the welfare assessment”.
We are talking about the young person’s
“emotional state, day to day activities, personal safety”.
It is all there in the schedule at the end of that order.
Can you point to exactly where in the schedule you are talking about? Are you referring to all of it?
Yes. The schedule refers to
“1. The eligible person’s emotional state...
2. The ... person’s family relationships...
3. ...general health...
4. ...schooling...
5. ...future plans...
6. ...accommodation...
7. ...sources of income”.
I am trying to understand the relationship between that schedule and the act, minister. Those are the matters to be considered in a welfare assessment in the schedule to the order. Is that for entrants into care?
No. They are
“Matters to be considered in the welfare assessment”.
Does Liam McArthur want to come in on that?
I thought that I was being reassured there, but on the back of the convener’s question, I am concerned anew about the matters that will be taken into consideration when a welfare assessment is being made. One of those matters is:
“The eligible person’s future plans for study, training or work.”
Everybody knows that teenagers go through a bit of a funk from time to time. Will a welfare assessment and the provision in section 26A(7)(c) of the 1995 act be triggered on the basis that a young person’s
“future plans for study, training or work”
might not be all that local authority officials would have them aspire to? That is the real concern.
We understand and are clear about the provision in the 1995 act and I think that we appreciated that secondary legislation would flow from that to detail the way in which the welfare assessment would be implemented, but at the very least—I return to my earlier point—there appears to be scope for a dilution of the assessment and the trigger for section 26A(7)(c) through the provisions in the schedule to the order.
As Ms Smith rightly pointed out, with local authorities being under some financial pressure, the last thing that we want to do is to create incentives for them to make a decision that could have long-term life-changing ramifications for the individuals whom we are trying to serve through the act.
I am sorry, but what am I being asked?
Sorry, minister. Liam, can you clarify that for the minister?
As I said, I thought that I was reassured earlier, given the statements about the provision in section 26A(7)(c) regarding a significant adverse effect on welfare. However, what the minister described has brought in the provisions that are set out in the schedule to the order, which include:
“The eligible person’s future plans for study, training or work ... The eligible person’s schooling, skills and experience”,
and a series of things that, frankly, look as though they are taking the threshold for intervention down to one of wellbeing rather than one of welfare.
No, because it always goes back to whether care would “significantly adversely affect” the person. A young person would continue in care unless that would “significantly adversely affect” their welfare. That is the bottom line. In the schedule, we are trying to make that clear enough in language that a young person can understand, so that they can get involved in their welfare assessment.
As I said, the problem is that the order is secondary legislation that is intended to help and amplify, but which has ended up raising concerns because of the way in which it could be interpreted. That is the concern.
I agree with every comment that committee members have made, especially those about the timing of the order. We are being given a week, and if the order is not passed, people will not get what they require. Frankly, it is in poor taste to bring the order to the committee at this stage.
I think that the order dilutes the welfare assessment. The confusion arises from the fact that no examples are given, so that what is meant, for example, by a young person’s
“future plans for study, training or work”
is open to interpretation. Is it just about going to college? Is it about the course that they take or how long they are at college? How detailed do their plans have to be? If each local authority interprets the provision in a different way, of course the wellbeing of the young person or child will be adversely affected.
At no point are we given any examples of what is meant or a clear framework. Liz Smith made the point that we cannot have that in guidelines that will come into force after 1 April. The order will come into effect—if the committee votes to pass it—on 1 April and will affect young people’s lives from that very day. However, guidelines will not be issued because the minister is still consulting on them.
That is unacceptable, and the confusion arises because there are no examples whatsoever to show what provisions 1 to 8 in the schedule mean. Provision 8 is:
“The eligible person’s knowledge of their rights and legal entitlements, any previous or current involvement in legal proceedings, including criminal proceedings as a victim, witness, or alleged perpetrator.”
I do not know what that means. Does it mean that they understand what court is or what legal responsibilities that entails? That is not clear to me, and I do not understand why that would be clear to a young person. You have said numerous times in your evidence that it is about the young person knowing their rights and responsibilities, but I do not think that that clears it up for us, never mind the young person.
I do not think that legislation is the place to give examples. That is not how legislation works, but I shall turn to our legal officer for that. The examples will be worked through in the guidelines, which everyone is involved in working on. Off the top of my head, I think that I am right in saying that the Convention of Scottish Local Authorities, individual local authorities, young people themselves and the Care Inspectorate are all involved in working on those guidelines. Mr McGlashan can say more about what we can and cannot put in legislation.
I can clarify the minister’s points about the matters in the schedule. They are quite similar to existing 2003 regulations related to aftercare and they are part of the picture that forms the welfare assessment. Article 7 of the order provides that the local authority must
“seek and have regard to the views of the eligible person”
and that it may also seek the views of other people, including
“the parents of the eligible person”,
and those who have
“parental responsibilities for an eligible person”,
as well as education professionals and the young person’s carer.
The matters in the schedule are part of the general picture that is built up around the young person so that the local authority can assess whether the high thresholds that are set down in the 2014 act are met or not. It is all part of an assessment process to allow the local authority to consider whether providing continuing care or continuing to provide it will significantly adversely affect the young person.
We understand that. Our concern is about what is put in the order. I accept that you cannot put everything in legislation, but as you are still working on the guidelines and you wish the order to be passed so that it can be in effect next Wednesday, that is a real concern for all of us around this table.
Having explained the order-making powers, and given the fact that we are going to set up the expert working groups, I am confident that that is the right thing to do. Once we put the orders into practice, if there is any suggestion that they are not working in the way that I think they will work, I have the power to review an order and to bring back amendments to the committee. I give you the commitment that I will do that if it is necessary. However, I am convinced that what we are looking at today is the right thing to do.
That is helpful. Before I bring in Liz Smith, I would like to clarify one thing. You mentioned that you were currently consulting on guidelines. Which guidelines are you consulting on and who are you consulting?
We are consulting on guidelines for both the orders that are before us today. I mentioned some of the people we are consulting, off the top of my head, but I turn to my officials to ensure that I have got the list of consultees right.
There is non-statutory guidance on the aftercare order and the continuing care order. At the moment, they are two separate documents, but they are closely linked. They are going through an active consultation, not in the way that the statutory guidance on corporate parenting did, which was online for responses. We are doing it as a live, iterative drafting process. It is much more important for us to get the guidance right, and I accept that it will not be in place on 1 April.
I was asking who you were consulting.
I am sorry. We are consulting the sector and the service providers. We have had a series of events, and we have another series of events planned, to bring in local authorities, COSLA and the Care Inspectorate, as the minister mentioned. We also have a series of events for young people and care leavers. If they have not already been issued, invitations are due to be issued for events in May, including the Scottish throughcare and aftercare forum. Who Cares? Scotland is a key contact.
Now I am slightly concerned. Let me clarify this. The minister said that you were currently carrying out consultation on non-statutory guidelines. I just asked you who you are currently consulting and, right at the very end of your answer, you said that you will be inviting—in the future tense—members of the continuing care coalition, which has been involved in the bill all the way through, including very active members such as Barnardo’s. Are you saying that you have met and have been consulting Barnardo’s and the other members of the coalition or that you intend to do that in the future?
10:45
It is a combination of both. We have not met the members formally around a table to discuss all aspects of the guidance, but we have received quite a lot of feedback on the content of the guidance as part of the consultation on the draft instruments. Therefore we have used the evidence—
Sorry. The draft instrument is one consultation; the consultation on non-statutory guidelines is something else. I am not trying to be difficult, but I am trying to make sure that we are all clear about this. Have the members of the continuing care coalition been involved in the consultation on non-statutory guidelines that was mentioned by the minister?
No, not yet.
They have not been involved.
They have not seen the document, no. It is an on-going consultation.
I am sorry, but that opens up more questions.
We should perhaps put it on the record that one of the groups that we have consulted is the centre for excellence for looked after children in Scotland.
CELCIS is a crucial part of drafting the guidance. In fact I am meeting it this afternoon to go through both documents.
When did the consultation start, when does it end and at what point do the coalition members get involved in it?
The consultation has been on-going since last autumn. It has not been a formal consultation because it is on guidance that is non-statutory—both sets of guidance are non-statutory. We have been doing them much more as an iterative development process because, particularly on continuing care, we were effectively starting with a blank canvas and building on existing processes for aftercare.
The other part of my question was, when does it conclude and when do they get involved?
We would like it to be concluded in April so that we can publish the papers, but it is more important for us to make sure, with the group that we are talking to, that the guidance is absolutely perfect.
At this stage, I am quite happy to be able to say to the committee that I will make sure that all the relevant bodies are brought in within the next few weeks and that we sit down and work on this with urgency.
I very much welcome what you have just said, but I am genuinely now concerned that what I have just heard is that a consultation on non-statutory guidelines that was started in the autumn is due to finish in April, which is about a week away—even if it is the end of April, that is only a month away—and the continuing care coalition, which has been heavily involved in the committee’s work and in the process of the bill, has not yet been spoken to as part of the consultation.
I am more—
Can you understand the concern that we have?
Yes, absolutely, convener, and I reiterate that I will leave here and make something happen.
Thank you very much.
To set it in context, there is nobody in the room who is not aware of the crucial need to ensure that we are doing the best for the young people and the carers involved—that goes without saying. I do not think that anybody in any way has a problem with the intentions of the 2014 act—let me be clear about that.
Where I think that there is a significant problem, which has been amplified this morning, is that, although the definition of welfare is an easier one to pick up, because it has a long-established definition in other legislation, the definition of wellbeing is not nearly so easy. The schedule, which intimates some of the matters to be considered in welfare assessments, is woolly. It does not give the specific guidance that is required to make sure that local authorities and any other bodies involved understand what the interpretation is. That is the point that the convener was making earlier. There is an interpretation issue here.
The questioning over the past few minutes has amplified the fact that the consultation process has been, at best, rather spasmodic. You are asking the committee this morning to vote on something on which complete information is not available. That is quite a serious issue.
I must emphasise that I am confident that the two orders do what they say they do. I am absolutely certain that they go ahead on 1 April. I am certain that, for instance, the “significantly adversely affects” condition runs through everything that we do, which means that, as of 1 April, local authorities cannot suddenly have a different way of looking at whether a child should continue in care, because their consideration must be about whether something would significantly adversely affect the young person. I am confident that that will happen and that these are the right things to do on 1 April, but I am also happy to make a commitment to the committee that, when I go away from here today, I will speed things up by bringing everybody together to ensure that the guidelines are understandable to everybody.
Given the previous question and regardless of the commitment that you have given us, which is welcome, the fact is that something is going to be put together quickly. How are you going to ensure that there is consistent application of the guidance across all local authorities? What happens if there is not?
There has to be consistent application of the orders, because they are legal orders. The statute tracks back through different acts—the 2014 act, the 1995 act and so on—and regulations. The orders that we are discussing today do not exist in isolation; they grow out of previous legislation, guidelines and guidance. There should be consistent application, because that is what the law is. What I am saying today is that we will ensure that the guidelines make clear what that means.
I welcome that and I accept that there should be consistent application of the orders. Given your commitment today, which, as I said, is welcome—
Can I just pick up on one point? You suggested that my commitment today will mean that we will put something together quickly. As the official said, we have been working on the issue for many months. It is not about putting something together quickly; it is about ensuring quickly that everything that we are working on comes together in one place.
Perhaps I misunderstood. I know that you have been working on it, but we are talking about 10 days—no, not even 10 days; eight days. You have talked to the coalition for continuing care. Are the guidelines explicit enough to ensure that local authorities will clearly understand what is expected of them?
I do not think that I said that I could do that within eight days; I said that I will ensure that everything that we have been working on comes together and that everybody who needs to be involved is involved.
I am grateful to my colleague Liz Smith, because she sat on the committee when the evidence was being heard and I came on the committee after that. However, I have been around this place for quite a long time and I am sitting here with a heavy heart. I feel that, as Liam McArthur said, we are having a gun put to our head today. I do not feel confident about taking this forward. I had hoped that we would get clarity today. However, having listened carefully to all the questions and, more importantly, the answers, instead of clarity, I have got more confusion.
In relation to the continuing care order, the Government tells us that it has consulted COSLA, all the local authorities, the Aberlour Child Care Trust, Barnardo’s, Who Cares? Scotland and so on. However, at 9.12 this morning, we received a letter from the continuing care coalition—representatives of two of its members, Aberlour and Barnardo’s, are in the audience today—saying that it is still concerned about the matter. It is concerned, and we have no opportunity to go back to its members and say that we know that they have not been asked for their opinions or consulted. I am sorry convener, but I am uncomfortable about that.
The legislation might be good, but the implementation is rubbish. I point out that it has taken a year—a whole 12 months—for us to get into this muddle and confusion. We are told that the minister is going to go away and talk to people. Well, that is great, because not a lot of that has gone on in the past year. We are going to get more meetings and more guidelines. People remain concerned. They are asking for secondary legislation and are submitting papers at 10 past 9 in the morning.
I am sorry, but I want to put this on the record. I have put legislation through this Parliament and this is cross-party—this is not party political. My colleague Liz Smith and I support every single piece of this legislation. However, what we have seen this morning is poor by all standards and I wanted clarity. I have an open mind on this and I want to be supportive, but I want the third sector, which cares about this, to have a voice and it does not have a voice. I put it on the record that I will probably abstain. It is the best that I can do. Whatever happens, the majority in this committee is the majority but, hand on heart, this is not a good morning for legislation.
Ms Scanlon is saying that we have not involved the third sector, but we have. We consulted on the schedule to the order, “Matters to be considered in the welfare assessment”, and the members of the continuing care coalition were part of that consultation.
Thank you. That was kicked off by Liam McArthur’s question about the significantly adverse impact on welfare to which the act refers. I interrupted Liam at that point, but I know that he has other points that he wishes to make.
I will move on to the aftercare order. There are some similarities with the points that a number of colleagues have made about the continuing care order in that the aftercare order, which radically improves provision for those going through the care system—which all members have confirmed their unswerving commitment towards—could create perverse incentives for local authorities.
For those of us who considered the bill, the concern then in relation to aftercare was that when we pick a point in time—the 16th birthday in this instance—we create the potential for a cliff edge. I think that that was acknowledged by the minister in the exchanges with us. At the time, the coalition illustrated that by saying that, if we were not careful, we could have individuals who had been in the care system for 15 and a half years going out of the care system and not being eligible for aftercare simply because they were not in care on their 16th birthday. However, as we all know, the support that individuals need waxes and wanes. That is why the provisions were seen as so important. At the same time, somebody who found themselves going into care three months ahead of their 16th birthday, for example, would be eligible under the act for significant aftercare up to their 26th birthday.
There was a recognition that there was a problem to resolve, but it was a problem that could not be resolved in the act; it had to be resolved in the orders. I note that the policy note that comes with the order suggests that
“in light of consultation responses, that draft provision, which would have extended eligibility for aftercare support to a further category of formerly looked after young people, is not being taken forward at this point in time until further evidence is gathered from the sector to ensure its deliverability.”
I do not think that any of us wants to put in place something that is not deliverable. It may make us feel good in the short term, but over the medium term and longer term, it is in no one’s interests. What I am struggling with in this order—which looks very different from the initial order that was consulted on, which very much reflected the spirit as well as the letter of what we passed in the 2014 act—is that there does not even seem to be an intimation of direction of travel.
The coalition of Aberlour, Barnardo’s, and Who Cares? Scotland has even suggested the idea of tapering, such that we build it back from the 16th birthday to start off with those who are 15, 14, 13, 12 or 11. In that way, over time, we would allow the new provisions, which are, as I think everybody would expect, a bit of a radical departure from what was there before, to settle down.
However, without even any sign of that tapering—although I know that assurances have been given in the exchange of letters with the coalition about the work that will be done over the coming months—it would have been more helpful had there been a signal in the order that at least the Government was moving in that direction, rather than what appears to be the case, which is that it has been left in the “too difficult” box. I am sure that you will appreciate the position that that puts the committee in.
11:00Like others, including Mary Scanlon, I am hugely supportive of the 2014 act; indeed, one of the committee’s crowning achievements is the way in which we worked with stakeholders and the Government to deliver something that will make a massive improvement for some of the most vulnerable people in our society. However, I am concerned that, at the point of implementation, the Government seems to be stumbling in its approach. I cannot in all good conscience vote for this order; I certainly will not stop it coming into being, because you have articulated very well the consequences of that happening. We therefore propose to abstain on it, but again I put on record my concern about what we have been presented with and how things have happened. We have managed to snatch from a victory of the legislative process if not a defeat then something that taints the sense of achievement that we all felt.
I hope that we can come out of this not feeling like that. Even though I was not involved in it, I, like you and the rest of the committee, thought that the 2014 act was a fantastic piece of legislation. What it does now and what it gives us the ability to do in future for young people, especially care-experienced young people, is phenomenal, and I hope that we can move beyond this situation.
I have already quoted from the Official Report of the evidence that the minister gave to the committee. She made it absolutely clear that we would look at extending aftercare and continuing care to “further cohorts” of young people, but over an extended period of time. This morning, I have given the commitment that the expert working group will start meeting in April to look at and work on this issue. The instruments before the committee will extend continuing care and aftercare perhaps to the age of 26, if the young person needs it, and we are also extending provision backwards to 11 to 16-year-olds who have been but who are no longer in care on their 16th birthday. We are acting on the responses to our consultation that we received from stakeholders, providers and, indeed, everyone else, who, like you, were asking, “How do we approach this?” I have made the commitment that the expert working group will meet in April and begin a mapping exercise that will involve everyone. There is nothing worse than promising to do something and not delivering it, so we have to get this right.
I appreciate that and I think that the order’s original draft might have been an ask too far in terms of deliverability. Indeed, the minister Aileen Campbell put on record that she was looking to do this over a certain period.
However, although I do not dispute that, I am concerned that this draft order does not appear to contain the beginnings of the step in that direction. You have set out a process whereby, I hope, we will reach the point at which that aim can be achieved, but, given that the committee is being left in the position of passing these orders or not, I seek a commitment on the timeframe for delivering that and on the committee having sight of that. If the idea is to put this in place, we will, working back from that, need to see the text of that agreement in good time, instead of being told, “Well, it’s now the end of the year, so things might lapse into the new year. There’s no great difficulty with that.” Frankly, there is difficulty with that and, although next year’s election will not bring things entirely to a halt, it would be more than unfortunate if, given the position that we are in at the moment, we were to find ourselves scrambling around desperately, trying to sign off things that one would have hoped to have been dealt with by now. In short, minister, it would be useful to get a commitment from you today on a timeframe for coming back to the committee with revised wording for an order that gives us confidence that feet will be kept to the fire once this evidence session has ended.
I am quite happy to do that. As minister, I will want to be involved in and kept up to date on all the work that the expert working group is carrying out. If the committee has room in its timetable, I am more than happy to make a commitment to come back fairly regularly to update the committee on where we are and how things are going.
The Children and Young People (Scotland) Act 2014 (Commencement No 1 and Transitory Provisions) Order 2014, which is already on the statute book, will allow the minister to lay orders when we have worked out exactly how implementation is feasible, practical and doable to everybody’s satisfaction.
Indeed. I do not doubt that there will be people who resist implementation, but I am concerned that some will argue that it is still too difficult and always will be. However, the policy intent of the 2014 act needs to be honoured and, therefore, people who raise those objections need to recognise at some point that the Parliament’s will was not only to pass the act but to ensure that its implementation was in keeping with the letter and spirit of the act.
The spirit of the act is that the expert working group will get everybody round the table working together so that we all come to an agreement.
What is the timeframe for laying additional orders to extend eligibility? When do we expect to see them?
The expert working group will convene in April. We have to go through a huge mapping exercise, but I am happy to say that, if everything works out, Aileen Campbell or I will be able to come and talk to you about it by the end of the year.
So the intention is to lay the orders by the end of the calendar year.
It would not be right for me to say that before the expert working group has started the mapping exercise but, under the Children and Young People (Scotland) Act 2014 (Commencement No 1 and Transitory Provisions) Order 2014, we can lay the orders whenever we are able to do so.
However, the end of the year is your hope.
Yes, I hope so.
When we debated the Children and Young People (Scotland) Bill, COSLA expressed concerns about whether sufficient funding and resources were in place to allow implementation of the aftercare policy. Will the Scottish Government give a commitment that the resources are in place?
We are just at the beginning of the process with the expert working group, so we need to map and work out the requirement. I think that about 900 young people would be eligible for aftercare, but the question is how many will take it up. That will be part of the mapping exercise to ensure that finance is available.
At what stage might we get a commitment on that?
As soon as we know the figures and I am able to sit down and work out the requirement.
I will take other questions but I want to wrap the discussion up.
I have a question that arises from the answers that the convener got about the timeframe. I do not doubt your commitment, minister. I think that part of the problem is that we have had a change of minister between the passage of the 2014 act and the laying of the implementing orders.
Any working group will have a set framework for what it is expected to deliver. I would be more comfortable if we could get something more than just a hope that the orders will be in place by the end of the year. We all know that, once we get into 2016, with an election coming, minds will start to get focus on other things.
The working group needs to begin its deliberations in the knowledge that a set of orders is expected by the end of the calendar year, and, by the end of the year, orders need to be presented to Parliament that command the group’s agreement. If the timeframe is remotely vague going into the process, sure as eggs is eggs, somebody will find a way of running down the clock if they believe that it is too difficult to implement the policy.
The expert working group will begin its work in April. I will set it a deadline of reporting to me timeously, and definitely by the end of the calendar year. I commit myself to keeping in touch with it regularly and bringing updates to the committee as and when the committee requires.
I thank you for your time on the matter, minister. You will understand why we have spent so much time on it, given the background. I also thank you for your offer to come back to the committee and provide us with regular updates. On behalf of the committee, I invite you to return to the committee before the end of April to update us on the progress of the guidance.
Hear, hear.
I have concerns about that progress and I am sure that other members do, too. If you do not mind, I think that it would be appropriate for you to come back before the end of April to discuss the guidance.
I am happy to do that.
Thank you.
We move to agenda item 5, which is the formal debate on the two affirmative instruments that we have just discussed. I invite the minister to speak to and move motion S4M-12540, on the draft Continuing Care (Scotland) Order 2015.
Motion moved,
That the Education and Culture Committee recommends that the Continuing Care (Scotland) Order 2015 [draft] be approved.—[Fiona McLeod.]
I do not want to go back over what we have just covered but, if anyone wants to make a very short comment, I am happy to take it.
I simply want to say that we all felt genuinely proud of the aspect of the 2014 act that we are discussing, because of the way in which it came about. It was prompted by an award-winning campaign by the continuing care coalition. I hope that we can still achieve what all of us hoped we could achieve through the legislation.
I hope, too, that the process has been a lesson to the minister and her officials about the way in which they engage with the committee. We understand the deadlines to which they are working in relation to commencement orders, but the assumption that we will simply vote things through because we are right up against a deadline has not been helpful to the committee’s relationship with the Scottish Government.
I fully appreciate the position that we are in. I will not be able to support the orders, but nor do I wish them to fall.
I just want to put on record that my party and I are supportive of the 2014 act. I do not wish to repeat what I said previously, but I am disappointed with the lack of clarity that we have received today. The phrase “kicking into the long grass” comes to mind, and I do not like that. The phrase “could do better” also comes to mind. Doing something by the end of the year is not good enough. The Government has already had 12 months, and it had the years of consulting, preparing for and looking forward to the legislation. We are now a few years down the line, but we still have another nine months to wait.
I thank the convener for suggesting that the minister should come back to the committee by the end of April, which I support. I just wanted to explain why I will abstain on the motions. That is not in any way an illustration that I do not favour the legislation. My party is supportive of it. It is only because of the lack of clarity in the information that we have received today that I will abstain on behalf of my party.
To follow on from what Mary Scanlon and Liam McArthur have said, the 2014 act is an important part of the work that the committee has done. I think that I am on record as saying that it is a perfect example of how committees can deal with and influence legislation. I can see that there is work that still needs to be done. I am happy with the idea that the minister will come back to the committee with information and will work with third sector groups.
The continuing care coalition has raised issues, but we have got to the stage at which, although it is not exactly ecstatic, it feels that it can work with the legislation. That is important, because we do not want to be in a situation in which we lose the important parts of the 2014 act. It is literally life-changing legislation. We have to ensure that we take on board everything that has happened, but we are where we are and we have to deal with the situation. We cannot lose the important parts of the legislation, and we need to bear that in mind in deciding how to go forward.
I will support the motions. I look forward to working with the minister and others to ensure that we make the legislation work, because that is the most important thing. We cannot often say that legislation will change people’s lives to the extent that we are talking about, but that is exactly what the 2014 act will do, and we have to remember that.
I will make a short comment. I thank members who have spoken under the previous agenda item and this one. The minister will understand the committee’s concerns, given the work that we have done since 2011 on looked-after children, moving through our inquiries to our work on the Children and Young People (Scotland) Bill, which eventually became the 2014 act. As I am sure the minister understands, we treat the matter very seriously, as I am sure the Government does.
Obviously, we all have concerns, but I very much welcome the minister’s commitment to do the work that still has to be done and to come back to the committee and keep us in the loop and engaged in the process.
I accept that, in a sense, the implications of not approving the orders are far greater than the implications of approving them. Therefore, I will vote in favour of the motions. However, I leave a caveat, in that I am concerned about the process that we have undertaken and the position that we have been left in. I still have those concerns, although I fully accept the commitments that the minister has given and the necessity to approve the orders.
Minister, do you want to make any comments?
Further to what was said earlier, I want to clarify that, in producing the secondary legislation that is before the committee today, we have consulted widely and taken into consideration views from stakeholders. That is why the instruments are in the shape that they are in.
The question is, that motion S4M-12540 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Adam, George (Paisley) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brodie, Chic (South Scotland) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
Abstentions
McArthur, Liam (Orkney Islands) (LD)
Griffin, Mark (Central Scotland) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
The result of the division is: For 5, Against 0, Abstentions 4.
Motion agreed to,
That the Education and Culture Committee recommends that the Continuing Care (Scotland) Order 2015 [draft] be approved.
We now come to consideration of motion S4M-12541.
Motion moved,
That the Education and Culture Committee recommends that the Aftercare (Eligible Needs) (Scotland) Order 2015 [draft] be approved.—[Fiona McLeod.]
The question is, that motion S4M-12541 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Adam, George (Paisley) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brodie, Chic (South Scotland) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Maxwell, Stewart (West Scotland) (SNP)
Abstentions
McArthur, Liam (Orkney Islands) (LD)
Griffin, Mark (Central Scotland) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
Scanlon, Mary (Highlands and Islands) (Con)
The result of the division is: For 5, Against 0, Abstentions 4.
Motion agreed to.
I thank the minister and her officials for their attendance.
Agenda item 6 is consideration of the Support and Assistance of Young People Leaving Care (Scotland) Amendment Regulations 2015, which is the negative instrument on which we took evidence at item 4. As members have no comments, does the committee agree to make no recommendation on the regulations?
Members indicated agreement.
11:17 Meeting suspended.Previous
Attendance