Commentary on Sections Part 1 .Social Care Chapter 1 .Provision of Social Care Services to Children: Restrictions on Profit Section 13 – Ways in which looked after children are to be accommodated
54.Section 13 amends section 81 of the 2014 Act and inserts into the 2014 Act new sections 81A, 81B, 81C and 81D (after section 81).
55.Section 81 imposes a duty on a local authority to arrange for a looked-after child to live with a parent, a person with parental responsibility or a person in whose favour a child arrangements order has been made. However, where this is not consistent with the looked-after child’s well-being, or is not reasonably practicable, under section 81A, the local authority must accommodate the child in the “most appropriate placement available”. (However, this is subject in both cases to any decision made by the authority that it would be appropriate for the child to be placed with a prospective adopter (as to which see section 81C)).
56.In the context of section 81A, a “placement” means accommodating a child:
	with an individual who is a relative, friend or other person connected with the child and who is also a local authority foster parent (commonly referred to as a “kinship placement”),
	with (another) local authority foster parent,
	in a children’s home, or
	(subject to section 82 of the 2014 Act) in accordance with other arrangements that comply with any regulations made for the purposes of section 81A. There are a variety of circumstances where a local authority may decide to place a child in a setting other than foster care or a care home service for children. For example, a local authority may place an older child aged 16 or 17 in supported accommodation as preparation for independent living.
57.As in the case of existing section 81, decisions about where to place a looked-after child under section 81A are to be made subject to the need to take account of what is referred to as the “principal” duty on local authorities in Part 6 of the 2014 Act. This is set out in section 78 and requires an authority to safeguard and promote the well-being of children it is looking after.
58.The changes made by section 13 reflect changes made to the 2016 Act that restrict the making of profit in the provision of fostering services and children’s care home services as “restricted children’s services”.
59.The key change made by this section (found in section 81A(2) and (4)) relates to the decision taken by a local authority as to the most appropriate placement available for a looked-after child. The existing section 81(7) requires a local authority to take a number of matters into account when making this decision. These are expressed as requirements under the existing section 81 at subsections (8) and (9).
60.These matters must still be taken into account under section 81A(5), but as a result of section 81A(4), if the local authority considers that the most appropriate placement (in accordance with new section 81A(2)) is with a foster parent or in a children’s home (giving preference – subject to the principal duty under section 78 – to a kinship placement), then (although this is also subject to the principal duty), the authority will now have to place the child in a way that is consistent with the profit-restricting requirement in section 6A(1) of the 2016 Act. This is achieved by section 81A(4) requiring the local authority to only use the following types of foster parents and children’s homes (provided that doing so does not put the authority in breach of the principal duty):
	local authority foster parents who are authorised as such by the local authority, a different local authority, or an independent fostering agency that is registered subject to the requirements of section 6A(1) of the 2016 Act;
	children’s homes in respect of which one of the following persons is registered as the provider: the local authority, a different local authority, or a service provider that is registered subject to the requirements of section 6A(1) of the 2016 Act.
61.If more than one placement with such a foster parent or in such a children’s home (as appropriate) is available, the amended legislation requires the local authority to once again consider what is the most appropriate placement available in accordance with section 81A(2) – this time to consider which placement of this type should be chosen. In doing so it must have regard to a number of factors specific to the needs of the child in question. These factors are set out in new section 81A(5)(a), which replicate provisions that were previously in section 81(7) and (8).
62.As the factors to be considered reflect interests of a looked-after child that may conflict or overlap, and as they are all subject to the principal duty in section 78, the wording of the duty imposed upon a local authority (previously under s81(7)) has been changed to require the local authority to have regard to these factors (while having to safeguard and promote the well-being of the child). The various aspects of a child’s well-being are set out in the definition of “well-being” in section 2 of the 2014 Act.
63.If a placement with such a foster parent or children’s home provider is not available, or if placing a child in such a placement where one is available would not be consistent with the local authority’s principal duty under section 78, the local authority must once again consider what is the most appropriate placement available in accordance with section 81A(2).
64.At this point the local authority must necessarily consider placements that may be available with other providers, again having regard to the factors referred to in section 81A(5)(a), and also giving preference to a kinship placement (subject again to the principal duty under section 78).
65.Where a local authority places a looked-after child in a placement that does not meet the requirements of the new section 81A(4) , the authority must make an application to the Welsh Ministers for approval (see section 81B regarding “supplementary placements”).
66.As a result of new section 81A(7), a relevant code of practice issued by the Welsh Ministers in accordance with section 145 of the 2014 Act will have to include provision on how a local authority exercises its functions under section 81.
67.Section 81B(3) sets out what information must be provided when making an application for approval of a supplementary placement, which includes (among other matters) an explanation of why the local authority considers that they would be acting inconsistently with their duty under section 78 of the 2014 Act if they did not place the looked-after child with the for-profit or private provider (as applicable).
68.If the Welsh Ministers reject the application, they must direct the local authority to:
	take their reasons for rejecting the application into account, and
	reconsider placing the child in a way that does not run contrary to the requirements in section 81A(4).
69.After doing so, the local authority may resubmit the application if they continue to consider that placing the child with a for-profit or private provider is necessary bearing in mind the principal duty under section 78, but the authority must explain:
	how they have taken the Welsh Ministers’ reasons for rejecting the initial application into account, and
	why they continue to consider that the child should be placed in a supplementary placement.
70.New section 81C replicates what is currently found in subsections (10) to (12) of section 81, setting out the placement duties that apply in respect of a child that the local authority is satisfied ought to be placed for adoption.
71.New section 81D replicates what is currently found in subsection (13) of section 81, which provides that a local authority may determine the terms of any arrangements or placements it makes in respect of a looked-after child under section 81, 81A, 81B or 81C.