Appendix 1: Memorandum from Kevin Brennan MP, Parliamentary Under Secretary of State for Children, Young People and Families, Department for Children, Schools and Families, dated 5 December 2007

The Children and Young Persons Bill has recently been introduced in Parliament and I am sure the Joint Committee on Human Rights will be very interested in it. Of particular interest to the Committee will be the provisions relating to Social Work Practices in Part 1 of the Bill (referred to in the legislation as "providers of social work services"). I thought it might be helpful, therefore, to provide you with a short paper setting out the approach we have taken to the protection of Convention rights where local authorities contract out certain of their functions under Part 1 of the Bill. I hope this is useful to the Committee.

Kevin Brennan MP

Paper for the Joint Committee on Human Rights on Part 1 of the Children and Young Persons Bill

The purpose of this paper is to explain to the Committee the approach taken by the Department for Children, Schools and Families to the protection of Convention rights where local authorities contract out certain of their functions under provisions contained in the Children and Young Persons Bill.

Part 1 of the Children and Young Persons Bill will enable local authorities to make arrangements with a body corporate (a "provider of social work services") for the discharge by the body of certain of the local authority's functions under the Children Act 1989. Clause 1(2) of the Bill defines the relevant functions as (a) social services functions in relation to individual children who are looked after by the local authority (i.e. children in the care of the local authority by virtue of an interim or final care order or 'voluntarily' accommodated by the local authority[239]) and (b) functions under sections 23B to 24D of the Children Act 1989 (i.e. functions in relation to young persons).

The key functions of the local authority in relation to looked after children are set out in the primary and secondary legislation and underpinned by guidance, and include:-

• duty to safeguard and promote the welfare of the child which includes the duty to promote the child's educational achievement,
• before making any decision about a looked after child, to ascertain their wishes and feelings and those of their parents, and to take to these into account when coming to a decision,
• duty to provide accommodation and maintenance for the child,
• duties in relation to care planning (including permanence options), placement and case reviews, and
• the exercise of parental responsibility by a local authority with respect to a child who is subject to a care order.

In practice, this involves a range of activities, including assessing the needs of children and their families; exercising decisions on where and how a child is to be accommodated (e.g. in a foster placement or children's home); making visits and writing reports; and the everyday decisions of social workers in the exercise of parental responsibility by the local authority as corporate parent (for example, deciding where a child is to go to school).

The key functions in relation to young persons are to keep in touch with 16- to 21-year olds who are no longer in care, to assess their needs, to draw up a 'pathway plan' and to provide a personal adviser for them.

Certain functions are excluded from the arrangements under clause 1. Clause 2 provides that the local authority's functions in relation to independent reviewing officers and its functions as an adoption agency may not form part of an arrangement under clause 1 (unless, in respect of the local authority's functions as an adoption agency, the provider of social work services is also registered as an adoption society in accordance with the Adoption and Children Act 2002).

The intention is first to pilot whether the flexible organisational model offered by providers of social work services is better able to provide a more personalised response to the provision of social work services to individual children in care and their carers and then, if successful, to enable all local authorities to enter into arrangements with providers of social work services. Clause 6 makes provision in respect of the piloting of such arrangements.

The Committee will be aware that the Explanatory Notes prepared by the Department to accompany the Bill make the following statement in relation to Part 1 of the Bill and compatibility with Convention rights:

Part 1 - Delivery of Social Work Services for Children and Young Persons

144. Clause 1 enables the local authority to make arrangements with a body corporate (referred to in Part 1 as a "provider of social work services") for the discharge by the body of some or all of that authority's social services functions in relation to individual children who are looked after by the authority and its functions in relation to care leavers.

145. The authority's functions in relation to looked after children include functions the exercise of which are likely to engage Convention rights, for example, the exercise of parental responsibility by the local authority where the child is subject to a care order. Certain functions are excluded - the authority's functions in relation to IROs and its functions in relation to making arrangements for adoption (unless the body is also a registered adoption society).

146. Clause 6 makes provision for these arrangements to be piloted in the first instance and, if the pilots are successful, the enabling power will be extended to all local authorities. In that event all providers of social work services will be regulated as agencies under the Care Standards Act 2000 (clause 4). The Care Standards Act provides for the registration and inspection of establishments and agencies such as children's homes and independent fostering agencies.

147. A provider of social work services in discharging the functions of the local authority will be exercising functions of a public nature and as such will be a "functional" public authority for the purposes of section 6(3)(b) of the Human Rights Act. As such, the provider will be under a duty to act compatibly with Convention rights and will be directly liable for any breaches of Convention rights, but only to the extent that it does carry out functions of the requisite nature and is not performing private acts. Clause 3, which makes provision in relation to the effect of arrangements under clause 1, provides that the local authority will be liable for the acts and omissions of the provider save in respect of any act of a private nature done by the provider. This ensures that the local authority has no greater liability under the Human Rights Act, for the acts of the provider, than the provider itself.

The Department is of the view that, as a matter of law, providers of social work services will be "functional" public authorities to the extent that, for the purposes of section 6(3)(b) of the Human Rights Act 1998, they exercise, for and on behalf of the local authorities, functions of a public nature.

Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(3)(b) of the Human Rights Act includes within the definition of public authority "any person certain of whose functions are public functions". However, section 6(5) provides that such a person is not a public authority by virtue only of section 6(3)(b) where the nature of the act in question is private. This provision serves to draw a distinction between 'core' public authorities, such as local authorities, who clearly fall within section 6(1) and must therefore act compatibly with the Convention rights in relation to all of their functions, and 'hybrid' or 'functional' public authorities who only fall within the meaning of "public authority" by virtue of section 6(3) and which are only required to act compatibly with the Convention in the exercise of their public functions.

As the Committee will be aware, even in the recent case of YL v Birmingham City Council[240], the House of Lords refrained from setting out a definitive test to determine whether a person or body is a public authority or whether a function is a function of a public nature, though it seems relatively clear that certain factors (such as the statutory basis of the function, whether the function is governmental etc) are likely to be relevant in a variety of contexts.

The intention under the Children and Young Persons Bill is that arrangements under clause 1 will enable providers of social work practices to discharge functions imposed directly on the local authority (unlike the situation in YL, where no duty on the local authority itself was found).

The services that will be provided to children and young persons by providers of social work services in discharge of the functions of a local authority under arrangements to be entered into under clause 1 of the Bill will be paid for at public expense. Were those functions to be discharged directly by the local authority itself, they would be funded by public expense.

For these reasons, the Department is of the view, as above, that the functions to be discharged by providers of social work services by virtue of an arrangement under clause 1 are functions of a public nature and that the provider of social work services will therefore be a 'functional' public authority (rather than a core public authority) for the purposes of section 6(3)(b) of the Human Rights Act when exercising those functions. The provider of social work services will therefore be obliged to act compatibly with the Convention rights and will be directly liable to any person whose Convention rights are breached by an act or omission of the provider of social work services in the exercise of those functions.

The Department's policy is that persons who are affected by the contracting out of the functions in question should be able to pursue an action against the local authority as well as the provider of social work services. Clause 3(1) of the Bill provides that the local authority is to be liable for the acts or omissions of the provider of social work services. A person whose Convention rights are breached by a provider of social work services would therefore be able to take action against either the provider of social work services, by virtue of the status of that body as a functional public authority for the purposes of section 6(3)(b) of the Human Rights Act when exercising functions of a public nature, or against the local authority, by virtue of clause 3(1).

It will be in the interests of the local authority to ensure that the contract between the local authority and the provider of social work services provides expressly for the provider to discharge the functions of the local authority in the same manner as that in which the local authority would have discharged the functions itself. The local authority may well seek indemnities from the provider of social work services against the situation where the local authority is held liable under clause 3(1) for a breach of Convention rights occasioned by the act or omission of the provider of social work services.

Under section 6 of the Human Rights Act where the provider of the services being contracted out is a "functional" public authority, the "functional" public authority is only liable in respect of functions which are functions of a public nature, by virtue of section 6(3)(b). Therefore, for example, where such a body employs staff to enable that body to carry out a function of a public nature, the act of employment may be a private act to which the duty in section 6(1) of the Human Rights Act does not apply. But if all the acts and omissions of the provider are treated as the acts and omissions of the body whose functions are being contracted out, section 6(1) of the Human Rights Act will, absent further express provision, apply as against the body whose functions are being contracted out in respect of those acts. This is because a 'core' public authority is subject to the duty in section 6(1) of the Human Rights Act in respect of all its acts whereas section 6(5) provides that a person is not a public authority by virtue only of section 6(3)(b) where the nature of the act in question is private. Hence, in relation to the example of employment by the provider, the body whose functions are being contracted out may have liability under section 6(1) of the Human Rights Act in relation to acts taken by the provider in respect of employment, while the provider itself may not be liable under section 6 for those same acts.

Clause 3(2)(b) of the Bill addresses this potential dissonance, and provides that the local authority is not liable under clause 3(1) in respect of acts of a private nature within the meaning of section 6 of the Human Rights Act.

For the reasons set out above, the services to be provided to children and young persons by providers of social work services in the discharge of local authorities' functions by virtue of arrangements under clause 1 will not constitute acts of a private nature, i.e. service users will be in receipt of services which are functions of a public nature and, if Convention rights are breached, would be able to pursue remedies against the local authority and/or the provider. Clause 3(2)(b) will not affect children and young persons in receipt of services. However, clause 3(2)(b) will mean that if, for example, the provider of social work services were to infringe a person's Convention rights in the context of employment, that person would not be able to claim against the local authority in respect of the infringement of Convention rights (because the person would have no right of action against the provider itself in respect of the infringement of Convention rights). The Department considers that this provision is compatible with Convention rights and strikes an appropriate balance between the interests of the local authority, the provider of social work services and persons in receipt of services.

240   [2007] UKHL 27 Back