KM v Cambridgeshire: the Supreme Court’s decision is not about assessment

“I’m just hoping that after tomorrow the link between value of cash payment and cost of meeting need is not utterly broken!”

…I tweeted yesterday, contributing to a debate about our hopes and expectations for today’s Supreme Court ruling in KM, R (on the application of) v Cambridgeshire County Council 2012] UKSC 23 (31 May 2012). This blog is about that case. I’m pleased to say that my hopes have been fulfilled. But I had set my sights low. I am utterly bemused by some of the other claims being made for this judgement.

Community Care: three key questions

Adult Community Care issues can generally be boiled down to three questions:

  • Assessment: deciding what needs should be met
  • Funding: deciding who is going to contribute what to the cost
  • Delivery: deciding how the needs are going to be met

The KM case was about direct payments, so where do direct payments fall to be considered? Answering that question is key to understanding this judgement. Although direct payments involve the flow of money between local authority and service user, they are not about how the package is funded. And although there are tools to determine how much a direct payment should be, these need have little to do with assessment of eligible need. Direct payments are, pure and simple, one of a number of ways of delivering a service.

What the Supreme Court said about assessment

To be fair, the Supreme Court said a fair bit about how to assess eligible need:

  • It set out the legal framework (paragraph 11ff);
  • It affirmed that the statutory guidance ‘Prioritising Need in the Context of Putting People First’ gets the framework right (paragraph 16);
  • It reaffirmed that once a local authority has determined eligible need, it must meet that need (paragraph 21);
  • It decided not to revisit the case of Barry, which held that resources could taken into account during the assessment process (paragraph 43);
  • It decided that the assessment of eligible need in KM’s case was not irrational (paragraph 38).

What the Supreme Court did not do is say anything new. It certainly said nothing that would turn a previously ineligible need into an eligible need. And therefore it said nothing that would turn someone who was previously ineligible into someone who is elible.

And therefore I am bemused by the Guardian headline, ‘Court ruling means thousands more disabled people could get access to care‘.

Where the RAS fits in: service delivery

Roughly, local authorities have three possible approaches to delivering the services to meet eligible need. One is to deliver it directly. One is to commission someone else to deliver it. And one is to allow the service user to commission services themselves.

It is here that the RAS fits in. Essentially, the RAS is a tool used in the process of converting eligible need into a cash value, so that the service can be delivered in cash instead of in kind.

Though this is hardly a secret, I am very cynical abut the RAS. Not only is it a tool used to convert eligible need into a cash value, but it is used to obscure the process. In theory, there is a scientific basis. The RAS uses an algorithm. According to that reputable source, Wikipedia,

“Algorithms are essential to the way computers process data. Many computer programs contain algorithms that detail the specific instructions a computer should perform (in a specific order) to carry out a specified task… Thus, an algorithm can be considered to be any sequence of operations that can be simulated by a Turing-complete system.”

Sounds scientific? But according to Luke Clements (2011) ‘A Sideways Look at Personalisation and Tightening Eligibility Criteria’ in Elder Law 1 pp47-52, along the way, “any science in the process is jettisoned in favour of witchcraft.” The computer does the sums, but what the end result has to do with the original assessment of need is anyone’s guess.

Remember, there are two other ways of delivering services. They can be delivered directly, in which case the local authority must have a fairly good idea how the service delivery meets the eligible need. Or the local authority can commission directly, in which case it will also know how much it costs to meet the eligible need.

It is ironically only when the service user is commissioning their own services that the algorithm – or witchcraft – which obscures the link between the eligible need and the cost of meeting it comes into its own.

Back to KM v Cambridgeshire

KM had his needs assessed. He was seeking direct payments to meet those needs. He has considerable disabilities. Cambridgeshire used the RAS, then another algorithm called the Upper Banding Calculator. Then it jiggled about with the figures a little bit more. Ultimately he was offered £85,000 per annum. But he thought he should get £157,000 per year.

That is a big difference. But was the dispute about what his needs were (i.e. the assessment), or was it about what it would cost to meet them (i.e. the service delivery)?

Here’s the simple answer: Cambridgeshire was so effective at obscuring its decision making process that KM couldn’t tell what the dispute was about. The Supreme Court criticizes Cambridgeshire for three things:

  • Failing to be open about its assessment of the mother’s contribution to care (paragraph 30);
  • Failing to be open about its rejection of the independent social worker’s assessment (paragraph 34); and
  • Failing to explain how it arrived at its own sum (paragraph 35)

It would be correct to characterize this case as being ultimately about transparency and not about assessment or resources.

So is the case good news for service users at all?

A brief history of transparency

Having dismissed the notion that thousands will become eligible, having highlighted that the case says nothing new about assessment, having said ultimately it was just about transparency, is it just a storm in a teacup?

No! It is well worth remembering where we were at before:

In Savva, R (on the application of) v Royal Borough of Kensington and Chelsea [2010] EWHC 414 (Admin) (11 March 2010), the high court upheld the principle of transparency:

“without being able to properly understand the use made of the RAS, the service user and anyone acting on her behalf, is left totally in the dark as to whether the monetary value… is adequate to meet the assessed need… The process of conversion made by the Panel is not explained to the service user. It should have been underpinned by an evidential base, and it was not.”

And as I commented at the time,

“What is being said is that there is a duty to give effect to the rhetoric, and actually demonstrate how the cash payment is adequate to meet assessed need. If the duty to give reasons goes that far, it may help to ensure that the cash payments actually do link to assessed need. Which in turn may undermine the approach of ‘Points mean Prizes’, and defer the day when a computer programme completely replaces the social worker.”

The judgements in KM’s case in both the High Court and the Court of Appeal below were bad news for transparency, and therefore bad news for anyone like me who wants a link between the cost of meeting need and the value of the cash payment. In KM, R (on the application of) v Cambridgeshire County Council [2010] EWHC 3065 (Admin) (26 November 2010), the Court said this:

“[The Claimant] criticises the Defendant for failing to provide an explanation setting out the services required to meet the Claimant’s needs. That appears to me to be a complete misunderstanding of the system of self-directed support. Both the RAS and the Upper Banding Calculator, compared as they were with the assessment and operated using the skill and experience of social workers, were assessment of needs and not services but the RAS was a tool for translating needs into a sum which was adequate to provide the services for those needs by reference to the average costs of the provision by the authority of meeting those needs for other disabled people.”

Upholding this decision last year, in KM, R (on the application of) v Cambridgeshire County Council [2011] EWCA Civ 682 (09 June 2011), the Court of Appeal observed that, “There does not need to be a finite absolute mathematical link” between payment and need.

In short, the history of this case is a history of judicial approval of algorithms and witchcraft, of obfuscation and lack of transparency. The beauty of today’s ruling, the reason I can consider it a victory, is that it reaffirms Savva on the need for transparency. Particularly poignant is the observation in paragraph 36:

“that a local authority’s failure to meet eligible needs may prove to be far less visible in circumstances in which it has provided the service-user with a global sum of money than in those in which it has provided him with services in kind. That point fortifies the need for close scrutiny of the lawfulness of a monetary offer.”

Or to put it another way, it is concerning that it is too easy to use direct payments to obscure potentially unlawful cuts that would be quite obvious if they were delivered or commissioned directly.

The RAS should still go!

The RAS has survived another level of challenge, see paragraph 26. But I still think it should go.

The argument in defence of the RAS in paragraph 24 of the judgement is:

“To set about costing each of the services identified in answer to the question at the [eligible need] stage upon, as it were, a blank sheet of paper would be unacceptably laborious and expensive. So a mechanism has been devised in order to give the exercise a kick-start. It is called a Resource Allocation System (a “RAS”); and many authorities, including Cambridgeshire, have developed one for their own use.”

I am resolutely unconvinced. If we can cost the services to meet the needs on a blank sheet of paper when we need to commission them, then we can cost them on a blank sheet of paper when the service user is going to commission them.

If the RAS is only “the generator of a “ball-park” figure, subject to adjustment up or down” (paragraph 26), then it is a wholly unnecessary extra step rather than a kick start to the calculation.

This is the heart of my concern. Arriving at a cash value of need by generating the starting figure by computer and the final figure by magic is not the most simple way of doing it, it is the most complicated. @TheSmallPlaces has shown in a series of blogs how local authorities actually value the complexity of the process:

In this, the Supreme Court got it wrong. It was right to approve clear and transparent reasons. It was wrong to approve the RAS as simplifying the process. The RAS is the very antithesis of clear and transparent reasons. In this case, it helped to obscure not only the reason for the sum itself, but also disputes about the assessment. It should go.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers.

Adoption Reform Isn’t Just Common Sense

Around 18 months ago, I offered some consultation to a small project that planned to set up activity days where children in care met prospective adopters. Last week I saw a DVD of the first event. There was no sense of the controversy that surrounds these so-called adoption parties. Children, their social workers and adopters mingled happily during the course of a day’s outdoor activity and lunchtime entertainment. The adults acknowledged some awkwardness from their respective standpoints but all agreed this was outweighed by the positive experience, not only of meeting children but also of feeling part of something larger and important.  All valued the careful preparation that had preceded the event.

Seven children were subsequently matched and two more were in the pipeline. One, a severely disabled young girl, had been waiting almost as long as the project had taken to reach fruition. On the day, some carers met her, a real person now rather than a case or a prognosis, and an emotional bond began to form. In the carer’s words, “We just clicked.”

It’s an innovative approach not without its risks and detractors and it’s not right for everyone, but it worked. Other opportunities could and should exist for finding more carers for siblings, disabled children or black children, where shortages of adopters exist. Or just for children full stop. Yet the government is not supporting such practice-based local measures in favour of grander solutions to address long-standing problems in the adoption system.

There’s no doubt that something has to be done and the government’s drive for action comes from the very top. Michael Gove has taken the lead and adoption reform is one of Cameron’s top ten priorities in the life of his term of office. Those in the profession who are involved can barely keep up with the breakneck pace of consultation meetings and unpredictably changing policy drafts.

The result – everything is going to be quicker, including the point at which children are taken into care. The headline news was one measure in particular, that culture and ethnicity is to be of secondary importance to finding a good home. The announcements were accompanied by powerful and moving testimonies from parents who had successfully adopted children from a culture different from their own. Those who have not had such a positive experience were conspicuous by their absence, although articles did emerge as the days went on.

Whatever your views, it’s disconcertingly easy for the evidence of the lasting effects of culture and background to be shunted into the sidings in favour of the ‘common sense’ conclusion that children are better off in a home than they would be in care, regardless of the consequences later in life.  The seductive comfort of common sense in adoption provides a measure of security and sanctity for almost everyone involved in the adoption process, except for the child who has to deal with this, now and for the rest of their life, and has nowhere to hide.

Many decisions about what constitutes a cultural match are absurdly arcane and are based not on a proper understanding of the child’s history and perceptions of their own identity but on a skewed, mechanistic process that equates ‘culture’ to a sum of their parents’ ancestry and distorts complex reality as much as the common sense approach. I’ve come across siblings who waited and waited because their maternal grandparents were Polish and no white family was considered unless that box was ticked, or black prospective adopters rejected because they lived in an area of London that was predominantly white.

Of course there is some truth behind the government’s apparent wish to relegate culture and background to a minor role. The remedy, however, isn’t an arbitrary shift based on ideology and expediency. Rather, it is about better practice, better assessments and a more preceptive insight into the subtleties of identity. This in turn leads to improved matching, including both an acceptance that perfection is not possible every time but also what does and does not constitute an acceptable deviation from the vital principle of a cultural match, what the evidence is for such a conclusion and how this will be handled, now and in future. None of this is encouraged by the proposals.

Which brings me on to two other problems that I have with the government’s suggested reforms. One is that it views carers as static and unchanging, rather than individuals who can learn, develop and grow into the task of being an adoptive parent. How might they develop, what is their potential and how can this be nurtured? And here’s point two, the thorny question of more post-adoption support, which adopters’ organisations will passionately say is the biggest problem we have at the moment, as opposed to dog assessments or paperwork that the government would prefer to focus on. Both these suggestions, extra training and support post-adoption, taken together require considerable extra funding, so they are not a priority.

Of more interest is the idea that children can be placed with their prospective adopters and effectively fostered until the order goes through. This could make transitions easier and create less change for children. However, it is not without its problems. As Adoption UK point out, adopters want to do just that, adopt. The fact that children may have contact with the birth family while they wait or may be removed if the order does not go through could act as a deterrent to carers coming forward.

As I have mentioned in previous posts, the proposals appear to take little account of the court process. Changes are in the pipeline but parents and members of the extended family will still have the opportunity to prove they are a worthy alternative to adoption. These issues and the time-consuming and resource draining assessments that accompany them can delay an adoptive placement extremely effectively.

I desperately want the system to make good placements for children and young people, and to make more of them. It’s needed now more than ever before. My fear is that the complexity of meeting the needs of vulnerable children hopeful for a stable future will become lost amidst the targets, league tables and rhetoric.

 

 

Care Quality?

Another day, another report. This time, Which? has done some undercover work into the quality of homecare delivered to older adults as reported by the Guardian.

The team at Which? asked 30 families to make notes and diaries over a week in January and feed back the information, some of it is horrifying but the sad thing is that it doesn’t shock or even surprise me. That’s the real shame of the system.

One elderly woman was left alone in the dark for hours unable to find food or drink. Another was left without a walking frame, leaving her unable to get to the bathroom, while one man was not given vital diabetes medication, the watchdog said.

Which? has not named the agencies which I feel is wrong. I hope they are going straight to the Care Quality Commission (CQC)  with this information because for a consumer organisation which is supposed to be behind us as consumers of care services (oh, it’s coming in health care too – just wait) I’m surprised they feel they need to protect the names of those companies involved.

The reason they do is that those companies will not be removed from their positions of providing care to those who have been subject to institutional abuse such as that meted out in the examples given, because yes, this is institutional abuse.

These companies are probably tied into long term extensive contracts with local authorities than are bound in law and allow for a certain level of ‘default’ that makes them difficult to replace.

So what should and can be done?

1) However admirable Which? is, the fact that we have to rely on  Which? and Panorama to do the job of council quality assurance teams and more importantly the Care Quality Commission is not acceptable.

2) Embedding advocacy into the system far more fully. These people monitored were the ones who had families to complete the diaries. What about those people without families particularly those who may have cognitive impairments. We have to replicate the ‘checking’ role that involved families have to those who don’t have family support and for me I see that as happening through greater advocacy.

3) Commissioning (again, apologies to Guilty Commissioner who I know does things differently). The people who buy into and commission these block contracts aren’t the people who use them. They award on the basis of cost where quality has to have a greater impact on quality of life and quality of care provision.

4) Politicians. People go to their MPs about Forests but not about social care. The people who need the changes aren’t the people who are most likely to be politically active and that’s why this area has slipped so far down the political agenda. Politicians of worth need to advocate for electors who might not be clamouring at their surgery doors. They need to think of those who may be disenfranchised and take the advocacy and representation role more seriously to affect change.

Let’s hope we stop seeing these reports soon but i remain sceptical.

Is Adult Social Care Broken? And what can and will fix it.

FIX

Over the past few weeks, oh, who am I kidding, over the past few years, I’ve been pondering the way that adult social care is structured in this country from the position of having worked in this area over a number of years. I have seen many changes but anyone who has been involved in social care for more than a year could probably say the same. If there’s one thing that is sure about statutory social work/social care, it’s that the next reconfiguration or improvement is just around the corner.

In my renewed spirit of positivity though, I thought it would be worth reflecting personally on some of the changes I have worked through and look at some of the directions we are going with a thought to what I would do if I were in a policy-making position rather than the position of a front-line practitioner.

So I entered social work in the shadow of the changes pushed through by the NHS and Community Care Act (1990). We were moving from ‘social work’ into care management and this was going to be an improvement for those who used the services as local authorities were going to be contracting out/selling off their own centrally run and ‘inflexible’ services to new, private and voluntary sector providers who would be far more flexible about meeting the needs of individuals.

When I think back to those heady days, the ideas weren’t so different to the ways that the personalisation agenda was presented. Direct Payments were just about to start but the idea was that care would be planned by a care manager to put the service user at the heart of the process and more interesting, more exciting and more specialist services would be commissioned for the same ‘pot of money’.

We were also sold talk of community involvement rather than segregration – gyms instead of day centres –  but the day centres remained and the processes weren’t flexible enough to allow the choices that should have been there.

So Direct Payments were introduced, first as an option and then as a right. They led from the ILF (Independent Living Fund) model of giving mostly younger adults (because you had to be under 65 to qualify for ILF) with physical disabilities a pot of money and a choice of employing a PA directly.

Quite rightly, this model was seen as positive and there were attempts to spread this more widely to all user groups. The take up was much higher in some user groups than others, strangely (I’m being ironic – bear with me) related to access to greater ‘pots’ of money or more informal support.

There has also been a massive push and development of carer services. It might not seem it to those who devote themselves to caring for family members or friends but there are now statutory rights to assessments and increasingly service provisions directly for carers.

And so we moved through to the Putting People First agenda of pushing the right to a personal budget for care services to everyone who uses and is eligible to support.

It is the right direction absolutely. Increasingly choice and control for social care packages is and must remain at the heart of social care provision for adults in the UK but there are genuine practical problems.

Firstly that too often councils have just shifted people who have been more difficult to engage in the process of choosing in the way the LAs want them to choose onto ‘managed’ budgets where the LA implements the care for the user and essentially makes the choices for them leaving very little different.

Secondly, the provision of 24 hour residential and nursing care has been lost in the push towards choice. It feels a lot like an poorly regulated afterthought when actually provision of residential and nursing care can be the most important decision in someone’s life and affects life quality absolutely.

Thirdly and by no means lastly, funding issues.

There is not enough money to pay for good quality care services for all who need it so the decisions are made about who will pay and how they will pay. The Dilnot report offers some potential solutions, personally, I don’t think it goes far enough.

The fact is that people don’t want to pay for care. They don’t want to pay for care related to health needs. People believe it is a right to receive care free. But that isn’t the case. Care costs and it is means-tested.

The postcode lottery comes into its own here with charging policies varying massively. On the ‘ground level’ I know people I assess and review are increasingly refusing care I feel they desperately need purely on the basis of cost. This shifts costs from self and social care onto health in the future, but at least health costs are free to the individual.

The Future

Personal budgets are not going anywhere and must be embraced and embraced positively as they are supposed to be. We must look past some of the cynical ‘target fixing’ of the local authorities who want to prove they are doing better on ‘choice’ and really adopt a strong advocacy role in using them the way they were intended to do and keep pushing and pushing until they deliver the promised change in terms of outcomes for all users of adult social care rather than relying on a few old examples. They must work but they also must work better.

Charging policies must change and this is in the offing. While I don’t agree 100% with the Dilnot recommendations, it is better than what we have. We need transparent and equitable methods to fund social care that don’t regard the sector as an afterthought.

Promotion of advocacy to all user groups who don’t have informal networks and particularly to those who may have issues with capacity is essential to back up and check on progress of professionals and local authorities who have different budgetary agendas. We have to offer support to challenge on an equitable basis.

Our systems have to be more flexible, as professionals within local authorities we have to have access to different styles of commissioning that include micro-providers. We have to have access to different communication formats and promote more interactive feedback using more technology to those who find it more useful while backing up with face to face contact, discussion and feedback for those who don’t.

Our world is becoming more fragmented as we have more access to information sources and accept that people cannot be defined merely by needs identified in traditional style assessments. We have self assessments now but they are more similar to DLA forms based on ability to wash and dress rather than building holistic pictures of who and what someone is. That is what is needed. Yes, it will be labour intensive but we need to find more value in quality and more value in the individual.

Where will be money come from to do this and to make these changes? Well, I think that better quality and treating people as human beings has so many longer term benefits regarding outcomes that it will be a saving and not   just in value but in quality of life.

Is the system broken? In parts. But the people who work in the system aren’t and nor are the people who use and need it. We need to build it back up together. Co-production has to be the answer.

These are exciting times for adult social care – lets build a positive from too many negatives and make things better.

Photo by Amanky/Flickr

Care Lobby 2012

Londra - The House of Parliament e il Big Ben
Today there will be a lobby and representation made to Parliament by the Care and Support Alliance – which is an umbrella organisation of a number of charities and representative groups for people with disabilities, illnesses and their carers.

The Care and Support Alliance is campaigning to change the current system of care which exists, claiming there is a ‘care crisis’ which needs fixing and is pushing the government to act on Dilnot’s proposals to change the system of funding for social care.

There is much that needs to be changed – not least the funding of care which at the moment is very dependent on location. It is a postcode lottery of funding in every sense of the word with different local authorities having very different systems which creates a very extrinsic ‘unfairness’.

But there is  more that needs to be changed than just creating a more equitable national system of payments for care. There is much about the way care is delivered, commissioned and organised that needs changing too.

There needs to be an improvement not just of the quality of care that is delivered but the quality of support that is offered to families of people who have care needs. While the government can have as many meetings about improving dignity in care as they like, these reports will all sound the same unless they do more to change the fundamental way that services are financed and delivered. Currently pushing costs between health and social care is detrimental to those who need support from both and until there is both better integration of budgets and greater attention to the fundamental needs of

I am very much in support of the Lobby today. For those who are not able to take part in person (like me, as I’ll be at work), there are ways to take part and show support online both on Facebook and Twitter.

Everyone needs to push on this point. We have to actively engage with the government to show them how much this matters and how much it matters that social care is important as a political issue. Health and Social Care are intrinsically connected and money pushed between one and the other without proper systems will cost more to both but not much in money, in quality and length of life, in stress and distress to those who need care and those who provide it.

The government has to act. Please join the Lobby or the #Twobby to make our voices heard together.

photo: Gengish/Flickr

Will Adult Social Care Reform Stall?

younger hand and older hand

The Health and Social Care Bill currently limping through Parliament is a mess. Even though I try to take an active interest in its progress, even as someone who is desperately concerned and involved (working, as I do, in an NHS team), I lose heart at trudging my way through some of the details which have been changed, adjusted and repackaged beyond the level of human (oh, ok, maybe it’s just me!) comprehension.

I was baffled though by this piece which turned up on the Guardian website yesterday.

Announcing that Lansley, having been stung and having lost credibility as his health reforms (hopefully) hit the buffers, is going to be delaying his announcement of reform in social care.
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A Dignity Code for Older People?

Old hands

The Daily Telegraph today prints a letter which sets out the need for a ‘Dignity Code’ in Health and Social Care calling on Hospitals, Care Homes and other institutions to prevent ‘issues of abuse and neglect’.

The article accompanying the letter, the Telegraph says, will encourage care workers to have this code written into their contract.
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Fostering Aspirations As The Downturn Bites Hard In Tyneside

Another day, another report on the parlous state of foster care. Media coverage, such as it is, homed in on the shortage of carers, variously estimated at between 8000 and 10,000, and on the poor outcomes for children in care in fundamental areas such as educational achievement, incidence of mental health problems and offending behaviour.

None of this is new – the Fostering Network has rendered impotent the word ‘crisis’, so often have they used it over the years – although there is no harm in it being said once again. However the report itself, Fostering Aspirations by the Policy Exchange  has a wider scope, incorporating the views of foster carers and children in care into their analysis of the quality of care and emerging with radical suggestions for tackling the problem, most notably a salary structure for a professional foster care service and an overhaul of commissioning arrangements that would see local authority fostering departments competing alongside the independent sector in a tendering process for placements or a total outsourcing of fostering.

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The Truth About Adoption Is That There Are Many Truths

Last night’s Panorama documentary ‘The Truth About Adoption’ was a vivid, honest portrayal of the heartbreak and joy of fostering and adoption. As the adults, the social workers, carers, adopters, parents, the court, went about their business, it was impossible not to be profoundly moved as the stories of the children unfolded and their hopes and fears revealed.

Despite the setbacks they have faced in their short lives, all were remarkably optimistic about the future. Undeterred by delays and adoption breakdowns, they hoped for the love, care and security that we professionals call permanence. And why not: it’s the least our society should be able to offer.
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Adoption Is Not Meant To Be Simple

Following National Adoption Week, the movement for change is gathering momentum. Yet following last week’s debate in parliament, I retain my doubts about the direction of travel.

Members from all sides praised the efforts of adopters and for that matter foster carers too. There was cross-party agreement that there were no straightforward answers because the system unavoidably meshes different organisations and professions, such as the court and social services, and to be fair there was little direct criticism of social workers themselves and acknowledgement that they themselves are frustrated with delays in the system.

Speakers from all parties took their cue from the Prime Minister’s comments during questions at the beginning of NAW:

“the Government pledge that we will make the process of adoption and fostering simpler. It has become too bureaucratic and difficult, and the result is that it is putting people off.”
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