Looked-after Children - Children, Schools and Families Committee Contents

Memorandum submitted by the Shared Care Network


  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.


2.1  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.


    3.1  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.

    (Carlin et al 2004:3)

  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.


4.1  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.


  5.1  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.


  6.1  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.


  7.1  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.


  8.1  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.


  Befriending services are not covered by any statutory regularity framework.


  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.


  11.1  "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.


  12.1  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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