Children (Care, Care Experience and Services Planning) (Scotland) Bill: consumer duty statement

Evidence Gathering

What are the impacts on consumers?

Aftercare

The Scottish Government recognises the challenges for young people with care experience who are moving on into adulthood and independent living. At any age and for any young person, moving on from home is a challenging time but when there are limited support networks in place, the challenge can be exacerbated.

Young people with care experience may have experienced adversity in their early life. The Independent Care Review highlighted and recognised the links between those with care experience and the increased risk of poor mental health, addiction, homelessness and exploitation. Care experienced people are reported to be over one and a half times more likely to experience financial difficulties and have more than double the chance of experiencing homelessness, mainly before age 30.

The Scottish Government is committed to keeping The Promise to all care experienced children and young people. In March 2022, the Scottish Government published the Promise Implementation Plan, which sets out the actions and commitments that will be taken across the Scottish Government to keep The Promise by 2030. This includes a continued commitment towards ensuring that young people moving on from care are provided with person-centred support to enable positive transitions from care to more independent living.

The ‘Moving On’ from Care into Adulthood Consultation sought views on whether there should be any changes to the eligibility criteria for Aftercare.

Analysis of responses showed strong support for expanding eligibility for Aftercare to formerly ‘looked after’ children and young people. Individual respondents, some local authorities including but not limited to Aberdeen, East Ayrshire and South Lanarkshire; organisational partners such as CELCIS; third sector organisations for example, Who Cares? Scotland, Aberlour, Barnardo’s and others, including Clan Childlaw, Public Health Scotland, all called for a properly resourced expansion of Aftercare to a wider group of young people. Some mentioned specific groups of young people, in particular those in section 11 kinship care placements, those who are adopted and those who are looked after at home.

Alongside the written consultation responses, a number of engagement sessions were held with practitioners and young people. During these, practitioners and young people voiced support for expanding the eligible criteria for Aftercare, where their experience of care may mean that they require support beyond universal provision.

Quote from one individual: “Please change the access to be on or after a young person’s 16th birthday. Young people are struggling due to this and some professionals are using it as a loophole”.

Quote from another individual: “Remove the 16 or 16+ criteria. Currently a child could have been in care for most of their lives, but because of their success and being able to return to family care have less support than someone who may have only been in care for a short time over their 16th birthday. This seems unfair …”

Quote from East Lothian Council’s Children’s Services: “The criteria excludes children who have been adopted, young people who have been on a section 11 in a kinship care placement or those young people who have returned home ahead of their 16th birthday. This affects their eligibility for bursaries when they are older. It would be better if it (Aftercare) was extended out to these young people too as they are often just as vulnerable as young people in foster care or residential care.”

Quote from Dumfries and Galloway Council: “one potential change to the eligibility for Aftercare would be expanding entitlement to include young people in kinship care, those who were adopted, or those whose care-experience status ended too early to be classified as care leavers. These groups often experience the same vulnerabilities as care leavers and may need similar support, but they fall through the gap under the current criteria.”

Quote from CELCIS: “The entitlement to Aftercare should include all young people who have experience of care, including those who were ‘looked after’ at home with their parent/s or in kinship care – and not only to young people who are ‘care leavers’.”

Quote from Aberlour: “Previously cared for young people still face significant challenges because of their care and often still require significant support into adulthood.”

We heard from one young person at an engagement session who had been taken off his Compulsory Supervision Order and returned home before his 16th birthday. The relationship with his parent had broken down and the young person had moved out and become homeless. As he had not been in care on his 16th birthday, he was unable to get Aftercare support.

Petition 1958 called for Aftercare to be extended to ‘previously looked after young people’ in Scotland who left care before their 16th birthday, on the basis of individual need.

Advocacy for those with care experience

There is a complex advocacy landscape which includes existing provision and anticipated provision for children, young people and adults. Scoping work indicates that there is substantial existing provision for care experienced children and young people. This includes advocacy through the Children’s Hearings system for children and young people as well as local authority led contracts for care experienced children and young people more broadly. In relation to care experienced adults, Who Cares? Scotland receive funding from the Scottish Government to run a National Advocacy Helpline. The service acts a key point of contact for people with care experience which will allow them to access support and advice; and receive sign-posting to other support networks as required.

The policy intention is not to cut across existing bespoke rights of access to advocacy under other enactments (e.g. children’s hearings, mental health, social security etc.). Where there is existing entitlement and provision of advocacy in other circumstances it is not intended that this would cut across, duplicate or supersede those bespoke entitlements.

The policy instruction for lifelong advocacy proposes the inclusion of a requirement on Scottish Ministers to make arrangements by regulations for the provision of independent advocacy support to those who are or might be care experienced. This approach has been taken in the Bill to allow further policy development to be progressed to set out the detail of how a lifelong advocacy service would operate through regulations, considering the requirements of all potential consumers.

As part of the policy instruction process, including a statutory right to advocacy support for care experienced people is being considered. The potential impacts on this, such as the consistency such entitlement could bring for consumers, is expected to be positive.

Language of care

While there are existing supports and entitlements available to people with care experience, particularly children and young people, currently there is not one cross-sector definition of ‘care experience’ which is commonly understood and used in practice. This means that eligibility for existing supports is not currently connected by a universal definition. This means that while eligibility for some existing supports may be linked to legal provisions, such as having been ‘looked after’, the wording used to define who is eligible to access support can vary between different organisations.

Our policy instruction looks to address this by developing a universal definition that relates to existing supports and entitlements available to people with care experience, which could bring about more consistency in terms of access to and eligibility for supports and present more opportunities for consumers.

Common themes evident in responses tour consultation reiterate the importance of providing more equitable services to those with care experience and making it easier for them to access services. Respondents highlight the importance of using terms and language that capture the lived experiences of being in care and that do not encourage stigmatisation or discrimination.

What are the impacts, if any, on consumers in vulnerable circumstances?

As highlighted above, children, young people and adults with care experience are more likely to have experienced adversity and challenges in life. As a result, the entire cohort of consumers impacted by the Bill should be considered to be in vulnerable circumstances.

Is it likely that harm will be experienced by consumers as a result of this proposal?

While there is a risk of risk of harm being experienced by consumers, particularly in relation to the requirement for all Independent Fostering Agencies (IFAs) to become charities and the provisions in relation to profit in residential care, it is not expected that these risks will materialise. It is expected that there will be transition periods put in place to mitigate any impacts on the sector from provisions in the Bil

What alternative proposals are there that can improve outcomes for consumers and/or reduce harm to consumers?

Alternative options were considered in relation to profit in residential care provisions. There were no suitable options that would enable Scottish Government to realise the ambition to keep the Promise by 2030.

How do these alternative proposals compare to the original proposal?

Alternative options did not go far enough to enable Scottish Government to keep the Promise and would not have made any substantial difference to the potential impacts assessed.

Has your engagement with consumers established any themes you hadn’t previously considered?

No, however Scottish Government will remain alert to any emerging themes from continued engagement with stakeholders through the Bill development process and passage through Parliament.