Memorandum submitted by the Shared Care
Network
1. EXECUTIVE
SUMMARY
1.1 The submission outlines the issues for
disabled children receiving short breaks (with an approved foster
carer). In the response to the Care Matters Green Paper—Transforming
the Lives of Children and Young People in Care, Shared Care
Network and a consortium of other national charities representing
the interests of disabled children submitted a response questioning
whether the Looked After system provided appropriate safeguards
for this group of children.
1.2 The consortium recommended that there
should be a review focusing on:
— current practice across the country;
— how we can best support disabled
children to live with their families and put in place a system
of safeguards which are appropriate for children receiving a short
break; and
— the development and publication of
statutory guidance to assist local authorities in developing good
practice.
1.3 The Care Matters Time for Change
White Paper however commits to "Issue statutory guidance
(within the revised Children Act 1989 guidance) specifically on
the issues of support/short break care to clarify the applicable
regulations for different settings and arrangements. The guidance
will set out the circumstances in which it would be expected that
the child would be looked after."
1.4 Our concern is that this does not address
the issue of whether Looked after status provides appropriate
safeguards and is a proportionate system for children receiving
occasional overnight short breaks. We reiterate our recommendation
to carry out a full review of the legal status of children receiving
short breaks. This is particularly important in light of the recent
£370 million investment pledged by the government to achieve
a step change in short break services.
2. INTRODUCTION
2.1 About Shared Care Network
Shared Care Network is the umbrella organisation
for around 180 family based short break services in the UK. These
services link disabled children with short break carers who offer
planned regular care—either overnight or day care.
3. WHAT ARE
SHORT BREAKS?
3.1 Short breaks provide opportunities for
disabled and other vulnerable children and young people to spend
time away from their primary carers. These include day, evening,
overnight and weekend activities and take place in the child's
own home, the home of an approved carer, or any other community
setting.
Provision of short breaks should be based on
an assessment of the whole family addressing both their personal
and social needs. They occur on a regular and planned basis and
should be part of an integrated programme of support which is
regularly reviewed. No short break should exceed 28 days continuous
care.
3.2 As outlined in the definition, short
breaks encompass a variety of arrangements from overnight care
in a short break carer's home, day carer in the carer's home to
sitting or overnight sitting services in the child's own home.
The statutory requirements that apply to short breaks differ depending
on the setting. This is often the cause of confusion about the
legal status of children using these services. The issues are
outlined below.
4. THE LEGAL
STATUS OF
CHILDREN WHO
USE SHORT
BREAK SERVICES
4.1 Children using overnight short breaks
If a child stays overnight with an approved
foster carer they are required to be regarded as "looked
after". The Children Act 1989 identifies disabled children
as children in need and are classified as looked after under section
20 of the Act.
(2) In subsection (1) "accommodation"
means accommodation which is provided for a continuous period
of more than 24 hours. (The Children Act 1989)
4.2 Over the years legislation and guidance
has been interpreted in differing ways by local authorities. For
example, some authorities have interpreted the legal requirement
in such a way that if a child stayed overnight but for less than
24 hours, the child was not regarded as looked after. A number
of authorities have decided that all disabled children receiving
short breaks will not be regarded as "looked after".
4.3 Several years ago, Shared Care Network
sought clarification from the Dept of Health about this issue
and the advice was that if a child stays "overnight"
then the law applied. We have evidence however that around a quarter
of Local Authorities are not complying with the legislation.
4.4 In a recent survey carried out by Shared
Care Network (Carlin and Cramer 2007) information on whether children
were considered "looked after" was given by 114 short
break schemes. Eight-seven schemes (76%) stated that children
using short break services were regarded as "looked after".
Twenty-five schemes (covering 23 local authority areas) stated
that the local authority did not regard this group of children
as looked after. These areas covered England (18), Wales (3) and
Northern Ireland (2). A further two schemes in England stated
that looked after status depended on the number of nights a child
used per year. Of those schemes that did not regard children using
short breaks as "looked after", two schemes stated that
there were exceptions, for example children on care orders.
4.5 The decision by some local authorities
not to regard children using overnight short break services as
looked after may be due to a combination of pressure on resources
and/or a pragmatic response to a system that many regard as heavy
handed and disproportionate to the service received. Some authorities
in an attempt to avoid the Looked After regulations and provide
a more proportionate system of safeguards are using a range of
alternative regulations. For example one particular Local Authority
no longer regards disabled children using short breaks as looked
after, but they have put in place a robust system which regards
this group as "children in need" and their placements
are regularly visited and reviewed within a "children in
need" system.
4.6 Local authorities are also receiving
conflicting advice from inspectors, many of whom are unclear about
the status of children receiving overnight short breaks. This
is compounded by the differing interpretation of legislation and
guidance by local authorities leading to a system of varying practice
across the country.
4.7 In addition, the introduction of direct
payments, which operate under a differing legislative framework,
but often provide the same service, has further confused the legal
position.
5. HOW MANY
CHILDREN DOES
THIS APPLY
TO?
5.1 A recent survey by Shared Care Network
(Carlin and Cramer 2007) found that 7083 disabled children were
receiving overnight and day care short breaks in a family based
setting. The vast majority of these children would legally come
within the looked after system.
5.2 These figures are for family based short
breaks only and do not include the children receiving short breaks
in a residential setting which means the number of children is
likely to be far higher than this.
5.3 In addition to the children outlined
above, the survey revealed that there are an estimated 3498 children
waiting for family based short breaks alone. This does not include
children waiting for residential services.
6. THE STATUS
OF CHILDREN
RECEIVING OTHER
TYPES OF
SHORT BREAKS
NOT INVOLVING
AN OVERNIGHT
STAY
6.1 As outlined in the definition at the
beginning of this paper, short breaks not only involve overnight
care but also include day/evening care in the child's or carers
home or other community setting.
7. CHILDREN RECEIVING
DAY CARE
IN THE
CARER'S
HOME
7.1 A major issue in the provision of day
care with a short break carer is that, despite how frequently
it takes place, it is not encompassed by statutory requirements.
Many local authorities recognise that this type of day care should
be subject to the same regulations and standards as overnight
family based short breaks, but lack of resources and pressures
of work, mean that is often not the case and many day care placements
are not therefore regularly reviewed. In terms of good practice,
however, day care short breaks should be subject to the same framework
and requirements as overnight care.
7.2 Some authorities have taken an alternative
route for providing day care by using child minding regulations
and accessing approved childcarers. However, it must be acknowledged
that child minders do not have the same level of assessment and
training as a short break foster carer and good practice would
therefore dictate that additional requirements should be put in
place. These regulations also only apply to under eights.
8. CHILDREN RECEIVING
CARE IN
THEIR OWN
HOME
8.1 For children receiving care in their
own home the issues are once again confusing. Some schemes are
being advised by inspectors that they are required to register
under the domiciliary regs in addition to fostering regs if they
also provide short breaks.
8.2 The latest guidance which Shared Care
Network has received from Ofsted takes the view that if a scheme
is set up to provide two services, namely a Fostering Service
and a Domiciliary Service, the scheme needs to register as both
a Fostering Service as well as a Domiciliary service.
8.3 However, if foster carers occasionally
care for children in the child's own home this would be seen as
the fostering agency discharging its functions in accordance with
section 4(4)(a) of the Care Standards Act and would therefore
not be regarded as Domiciliary Care.
8.4 The fostering standards are assessed
to be a sufficient method of assessing the quality of the provision
of the service in the homes of the children for short occasional
periods, and Ofsted will not insist on Domiciliary Care registration.
Providers would need to ensure that any additional requirements
from the domiciliary standards that are relevant would be met.
(Ofsted are in the process of preparing guidance around these
standards)
8.5 This is clearly not filtered down to
inspectors who continue to give conflicting advice to schemes.
8.6 The Domiciliary Care Standards have
had a major impact on services. The standards were developed largely
with adult provision in mind and require any agency which provides
personal care as part of its domiciliary support to register and
be inspected under these standards. In the shared care network
survey, it is one of the reasons given by schemes for either ceasing
their sitter service or contracting the service out to an independent
agency.
9. CHILDREN RECEIVING
A BEFRIENDING
SERVICE
Befriending services are not covered by any
statutory regularity framework.
10. CHILDREN
USING SHORT
BREAK SERVICES
MANAGED BY
HEALTH PROVIDERS
Children using short breaks services managed
by health providers currently fall outside the Children Act. This
means that some of the children with the most complex needs are
not afforded the same safeguards as other disabled children receiving
short breaks provided by the local authority or voluntary organisations.
11. DOES LOOKED
AFTER STATUS
PROVIDE APPROPRIATE
SAFEGUARDS FOR
DISABLED CHILDREN
USING SHORT
BREAKS?
11.1 "The question of whether a child
is looked after is not an obscure question or legal nicety. Where
a child is looked after there are consequential actions, designed
specifically to safeguard the welfare of the child. These actions
are based on an acknowledgement of the separation of the child
from family and of the increased vulnerability of the child."
(Disabled Children in Residential Placements. DfES 2003.)
11.2 Children receiving overnight short
breaks may have only one weekend of care a month, often much less.
The question is whether the needs of children are best served
by regarding them as looked after.
11.3 We recognise the benefits of being
looked after ie:
— The placement is visited and reviewed
by an independent person.
— It gives disabled children a minimum
level of protection.
— The review system also ensures the
package of support is co-ordinated, reviewed and changed as need
changes.
11.4 There are however examples of how these
outcomes can be achieved without the looked after status—and
alternative systems should be considered.
11.5 If we maintain the status quo and disabled
children using short breaks continue to be regarded as "looked
after"—the LAC paperwork should be reviewed. Whilst
we fully recognise and support the need to safeguard children,
the feedback we receive from practitioners is that the LAC system
is disproportionate and that the time spent carrying out LAC paperwork
could be more productively spent supporting families.
12. WHAT WE
ARE RECOMMENDING
12.1 As mentioned above, we recognise that
the LAC requirements offer disabled children a minimal level of
protection and help to ensure that they are receiving a co-ordinated
package of services. The system however is disproportionate to
the service the children are receiving.
12.2 We are recommending that a full review
of the status of children receiving short breaks is carried out.
The review should focus on:
— current practice across the country;
— how we can best support disabled
children to live with their families and put in place a system
of safeguards which are appropriate and proportionate for children
receiving a short break; and
— the development and publication of
statutory guidance to assist local authorities in developing good
practice.
January 2008
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