Seòmar agus comataidhean

Convener, to clarify my position on the amendments in the group, it may be helpful to set out the Scottish Government’s policy position on continuing care and aftercare.

Continuing care and aftercare policies are tailored to support a successful transition into adulthood and independent living for young people who have been looked after in Scotland. As members will know, there is a range of statutory provision, through primary and secondary legislation, on both policies. The Government’s focus in the bill has been to strengthen implementation so that fewer young people leave care too early, the need to return to care is reduced and young people are fully supported when they leave care.

Continuing care enables young people to remain longer in the place that they have called home and ensures they can progress in life at their own pace. Aftercare is the next step in offering independence through interdependence, to help them to continue to build the skills and resilience that they need as they become young adults.

If young people who have been looked after at home want and need aftercare, it supports them from the time that they leave care. I absolutely recognise that transitions are not linear and that some young people may seek to come back to their local authority for support after a period of independent living. Aftercare supports that, and the bill extends it to a wider group of care-experienced children and young people.

As we have discussed, existing legislation enables local authorities to provide aftercare beyond age 26 where appropriate, but it remains a support that is led by children’s services. The needs of many care-experienced or otherwise vulnerable adults are better supported through trauma-responsive universal and targeted adult services. However, I hear loud and clear the concerns from members and stakeholders.

Martin Whitfield’s amendment 129 would extend continuing care up to age 26 and enable young people to return to continuing care after they have decided to leave. I will come back to some of the bulk of the issue in a second, but I accept that there is a need for more consistency on allowances for continuing care and I advise that the Government will work with local authorities and other stakeholders to provide clear guidance on the matter.

As drafted, amendment 130 would create a right to return for young people who have ceased to be looked after or be subject to a kinship care order, extending that from age 16 to an upper limit that is yet to be specified, with specific provisions on accommodation by children’s services, whereas other services and provisions would be far more suitable, perhaps, for their age, stage and circumstances.

I welcome Nicola Sturgeon’s careful consideration of how young people can be better supported out of care and into adulthood. I have carefully considered all members’ amendments in the group. We have had a question from John Mason about the similarity of some of the amendments and what they intend to achieve. Essentially, we want to ensure that young care-experienced people are supported in every way necessary. Therefore, although I believe that further work will be needed ahead of stage 3, the Government will support amendments 131 to 134 in the name of Nicola Sturgeon. As a package, they most closely align with the Government’s preferred overall approach.

It would be good to have further discussions ahead of stage 3, as clarity is still required. It would be helpful to understand whether Ms Sturgeon intends to give local authorities a power to provide different accommodation to young people up to the age of 25 if the original accommodation is no longer available.

I have other questions, but the Government is intent on supporting amendments 131 to 134 today. I ask other members not to press or move their amendments on the issue, but I would be more than happy to continue discussions. Members will be aware that meetings have been set up to discuss further points on the bill.

Roz McCall’s amendment 98 would add care-experienced people to the “reasonable preference” categories for social housing allocations. Care leavers already have reasonable preference if they are homeless or threatened with homelessness and have unmet housing needs. The Scottish Government’s practice guide on social housing allocations sets out that

“landlords will want to consider awarding priority to looked after young people.”

I recognise that care leavers encounter challenges in their housing situations, so I intend that my officials will refresh guidance for local authorities and corporate parents, improve information on the financial support that is available and continue engagement with the Department for Work and Pensions on how young people who leave care access its services in Scotland.

I believe that the issue was debated in proceedings on the Housing (Scotland) Bill. Amendment 98 gives rise to a risk of discrimination under the Equality Act 2010 or in terms of article 14 of the European convention on human rights by elevating the needs of care leavers above those of people who flee domestic abuse or leave prison—those are just two examples. It is not obvious how that can be objectively justified for the purposes of article 14.

I urge members not to press or move their amendments in the group, other than amendments 131 to 134, which, as I have intimated, the Government will support.

Section 3 of the bill expands corporate parenting duties and responsibilities to all current and formerly looked-after children and young people from birth to age 26, which will mean that corporate parents can support the needs and ambitions of all those who have been looked after within the framework of care, continuing care and aftercare.

Roz McCall’s amendment 95 would remove the age range and give local authorities discretion to determine whether an individual no longer needs support before the age of 26. It would mean that local authorities would no longer be required to hold corporate parenting responsibilities towards children and young people who leave care. That goes against the grain of what we are trying to achieve with the bill, so I hope that Roz McCall will not press the amendment. If she does, I encourage members to vote against it.

Martin Whitfield’s amendment 136 would require local authorities, when they are uncertain about a young person’s age and have reason to believe that they are under the age of 26, to assume that that is the case. While I understand the intent behind the amendment—it pertains to unaccompanied asylum-seeking children—I hope that I can assure members that it is unnecessary.

Detailed age assessment guidance is already in place to enable it to be determined whether an unaccompanied child should be accommodated by the local authority as a looked-after child or placed in adult dispersal accommodation. The age assessment generally materialises for children and young people around the age of 18 rather than 26, when their age status would very likely be settled and they would be afforded advice, guidance and support by local authorities.

I hope that that reassures Martin Whitfield that he will not need to move—

I absolutely recognise the intention behind amendment 139, in the name of Mr O’Kane, but I believe that it duplicates support that already exists in Scotland. The no one left behind approach, for example, has established an employability system, which is delivered through local employability partnerships; the Scottish Government provides funding to those partnerships so that key workers are in place to provide employability support that is tailored to the circumstances and the needs of its participants. They include care-experienced people, who are set out as a priority group for that funding. Indeed, since April 2019, almost 7,000 care-experienced people have accessed no one left behind support.

The amendment would place an unfunded additional requirement on corporate parents without sufficient clarity on the additional benefit that it is intended to create. Many corporate parents already engage with devolved employability services through local employability partnerships, as employers, as anchor institutions and as referring organisations, and creating a separate statutory responsibility risks upsetting the good practice that is already happening and is funded. Worse, it would create duplication of provision.

I do appreciate the intention behind Willie Rennie's amendment 142. Of course, we all want young people who have been in care to thrive in adulthood and to have good employment opportunities open to them. However, the amendment, in part, appears to extend beyond the employability powers that are available to the Scottish Parliament.

Over and above issues of legislative competence, the amendment would again risk placing unfunded duties on the person specified in the provision without consideration of how that should be resourced, and it would also duplicate aspects of existing devolved employability provision that, as I have just set out, are already in place.

Like amendment 139, amendment 142 ignores the funded provision that is already available to care-experienced young people as a priority group. We just need to be a little cautious in assuming that employment is always the best or first option or priority for care-experienced young people. As we have heard, it might be that an apprenticeship or further or higher education is a better fit for the aspirations of the young person before they move into employment.

11:45

We undoubtedly share the common objective of ensuring that every young person leaving care has opportunities to fulfil their potential and that they get the appropriate targeted advice and support, and to help them to do so. The 2015 aftercare regulations already expect care leavers to be given advice, guidance and assistance on education and employment opportunities. However, given the intent behind their amendments, I am happy to discuss with Paul O’Kane and Willie Rennie what more we might do in this area, whether in a legislative or non-legislative fashion, to build on the work that is already there so I ask Paul O’Kane not to press amendment 139 and Willie Rennie not to move amendment 142. Should they do so, I encourage members to vote against them.

I absolutely agree. As I have said, I have followed the debate closely. I still have some concerns about the definition of independent advocacy in the Mental Health (Care and Treatment) (Scotland) Act 2003. I know that it has provided a model for Mr Whitfield’s amendment 146 and Ross Greer’s amendment 147, but I know, too, that it was developed for the specific context of the provision of mental health care, with particular safeguards and timeframes in mind. I hear what Mr Greer has said about tweaking his amendment for stage 3.

I had been intending to support Jackie Dunbar’s amendments in relation to taking the term “independent” out of the bill, but given the committee’s strength of feeling, I would ask members to support Mr Greer’s amendment, on the understanding that we will have to come back at stage 3 to consider the issue further.

Moreover, to ensure that nobody is excluded from being able to provide advocacy services, I want something to be included in the bill about a child not having to take up the offer of an independent advocate—

Thank you, Mr Briggs. That is something that can absolutely be taken into consideration in advance of stage 3.

To sum up what I imagine may have struck members as quite a complicated speaking note, I encourage members to support amendment 147 and not to move the other amendments in this group.

12:45

I thank Mr Whitfield for that intervention.

In developing the regulations, we will consult carefully with the care community and service providers, including those from rural and deprived areas, about the challenges that they face. If we need to address the specific circumstances of care-experienced people, including where they live, that can be addressed in the regulations under section 4(4). Regulations are a more appropriate way to enable a tailored and future-proofed approach to meet the needs of the care-experienced community, both now and in the future.

I understand the intention behind amendments 9 and 10, which were lodged by Jeremy Balfour. Amendment 9 would require that regulations conferring rights to care experience advocacy services ensure that those rights are conferred on an opt-in basis. That reflects what we have heard consistently from stakeholders about the importance of choice and autonomy. Amendment 9 would preserve that choice. Care experience advocacy will not be a one-time offer. If someone chooses to opt in at a later stage, they will absolutely have the right to do so.

Amendment 10 would require that regulations make provision

“to ensure that care experience advocacy services are offered … at the earliest appropriate opportunity.”

That would help to ensure that care-experienced people have access to advocacy support when they need it most. We know that care-experienced people have diverse needs and circumstances, and that they enter the care system at different points, through different routes and with different vulnerabilities. Therefore, what is the “earliest appropriate opportunity” will vary depending on an individual’s circumstances. Amendment 10 would allow the regulations and guidance to be tailored to those diverse circumstances. It would help to ensure that care-experienced people have access to advocacy support when they need it most and in the way that is most appropriate for them.

However, I have concerns about how the amendments are drafted. I would like to work with Mr Balfour ahead of stage 3 to reflect the intention, because I believe that they reflect the priorities of the provision.

Yes, I would.

Roz McCall’s amendment 96 would prohibit regulations from taking into account the availability of other advocacy services when determining access to care experience advocacy. Scotland has a complex landscape of existing advocacy provision, and care-experienced people might already have access to advocacy under existing entitlements. The intention of the bill is not to cut across those existing entitlements; rather, it is to establish a new lifelong right, while recognising that existing entitlements might be more appropriate in particular circumstances.

If amendment 96 is accepted, it could create a risk of duplication and confusion. We could end up with a situation where someone has, for example, a mental health advocate and a care experience advocate supporting them at the same time. I do not think that that is good for the care-experienced person or a good use of resources. I have repeatedly heard from stakeholders about the importance of ensuring that advocacy is relationship based and responsive to individual needs. In some cases, the most appropriate route might be for a care-experienced person to access existing advocacy services, particularly if that is their preference.

The bill will already give Scottish ministers the power to specify in regulations the circumstances in which the right to care experience advocacy can be exercised. Amendment 96 would also remove the flexibility that the bill's structure provides to develop a nuanced approach that will ensure that care experience advocacy services are available while not cutting across existing entitlements. I therefore ask Roz McCall not to move amendment 96. If she is minded to move the amendment, I ask the committee to vote against it.

13:00

I understand the intentions behind Willie Rennie’s amendment 150 and I know that some stakeholders have argued strongly for the approach that is in the amendment. This is another contested issue with differing opinions. We all want to ensure that care-experienced people have access to high-quality, relationship-based advocacy, and I agree with some of the inherent principles behind the amendment.

I agree with Willie Rennie that advocacy should be relationship based and built on trust and continuity. Advocates should be able to attend key meetings where decisions are made, and there should also be transparent monitoring of effectiveness. Those are operational matters that should be covered by the regulations and, following consultation with the care community and service providers, I hope that that would be the case.

However, I cannot support the other matters that he considers should be included in those regulations. The requirement that advocacy services be

“fully independent from local authorities and care providers”

is a point that we have gone over and will come back to.

There is another serious concern with the opt-out model, which is that it could create a power imbalance, with pressure falling on care-experienced individuals to dismiss or resist the allocation of a professional advocacy worker. That would be problematic for children or care-experienced people who have complex communication needs and who might find it difficult to actively refuse advocacy support. The right to advocacy should be based on informed consent and not on assumed consent that individuals must actively refuse.

Therefore, although we might agree on some matters that are in the amendment, I cannot support others.

In the first instance, I thank Sue Webber for explaining the rationale behind amendment 87. I agree that the welfare of a child or young person should be paramount to any decisions that are taken to improve their safety and wellbeing. Many of the principles that Ms Webber has set out in amendment 87 are already provided for in Scotland’s extensive legislative and policy landscape, including placing the best interests of the child at the heart of the delivery of the care system under the getting it right for every child approach.

The Children (Scotland) Act 1995 and the Looked After Children (Scotland) Regulations 2009 already place duties on public bodies to ensure that decisions about the care and protection of children and young people are made with their best interests at the centre. In addition, the GIRFEC approach, which underpins Scotland’s child protection guidance, places the child’s voice and their best interests at the heart of decisions that affect them and the support that they are provided to improve their safety and wellbeing.

09:15

Within GIRFEC, the process of any assessment of wellbeing should, at its heart, start with what the child or young person needs before consideration is given to what measures their family should have in place to support those needs. In some circumstances, the needs of the child will differ from those of the rest of their family, and the emphasis should ultimately rest on having the child’s needs at the heart of any decision making or plan.

Amendment 87 places a duty on public bodies to record their adherence to the general principles outlined in the child’s plan for an individual child or young person. That conflates the purpose of the child’s plan with an assessment of options when planning support for a child or young person. The child’s plan is non-statutory unless the child or young person is looked after under the Looked After Children (Scotland) Regulations 2009.

I am pleased to be able to discuss this issue with Mr Rennie in the committee, because normally we talk about this in the chamber, which means that I do not have very long and I have to rush my answer. Perhaps we can have a little bit more discussion about it.

As Mr Rennie will be aware, I have tried to be very proactive with regard to sustainable rates. The budget protects our £1 billion funding for early learning; I think that, on top of that, it is really important to highlight the progress that we have made with the funding rates. The Government has invested another £11 million in the real living wage for staff in the private and voluntary sector for ELC, and that comes on top of the £25 million that was invested in previous years. It is really important to point out that we are the only country in the UK to have done this, and it has led directly to an increase in sustainable rates.

As I have said, and as Mr Rennie knows, it has been an on-going issue, and is an on-going priority for me. There has been the sustainable rates review, and the Scottish Government and COSLA are continuing to work through the continuous annual rate-setting process. The Diffley Partnership has also undertaken a cost collection exercise, the findings of which will be published in the spring. I am confident from the feedback that I have already had from the sector, and from the uptake of responses, that it will produce some very informative data on the costs of delivering early learning.

I should say that, as a result of our investment, average rates paid to providers for three to five-year-olds receiving funded ELC have increased by around 78 per cent. However, over the past two years, we have still seen a consistent difference of £2.23 between the lowest and highest payments to a funded provider for the free meal commitment. Although, as I have said before, some variation is to be expected, I am still highly concerned about the high level of disparity that we are seeing. Therefore, when the data that I have referred to is released in the spring, I encourage local authorities to have real regard to it when they set their rates for the coming year.

I am yet to receive advice on the findings of that cost collection exercise, and I will be considering next steps as we go along. I just want to ensure that Mr Rennie knows that the door is not closed. That work is still very much in train.

I have been very clear in laying out my concerns. I thought that the cost collection exercise was an appropriate next step to ensure that local authorities were fully aware of the costs of running ELC for private providers and to try to enable a further level of equity to be put in place. However, I have been very clear with my own officials that we will need to consider the next steps if we do not see results from the cost collection exercise that bring a little bit more parity to the situation.