2 What the draft Order proposes
Background to the draft Order
3. Part 1 of the 2008 Act makes provision for
local authorities to delegate certain social services functions
to providers of social work services. The Department explains
that:
The functions which can be delegated under Part 1
of the 2008 Act are a local authority's social services functions
in relation to individual children who are looked after by it,
and its care leaving functions. A local authority must not enter
into such arrangements unless it is satisfied that the functions
will be discharged by or under the supervision of registered social
workers. Functions which are excluded from such delegation arrangements
are the local authority's functions in relation to independent
reviewing officers; and its functions as an adoption agency (unless
the other party to the arrangement is a registered adoption society).[1]
4. To date this delegation has only occurred
"for piloting purposes, with commencement orders relating
to individual authorities".[2]
5. Between 15 January and 28 February 2013 the
Government consulted on two issues:
- the proposal of full commencement
in England of Part 1 of the 2008 Act; and
- the proposal which is the subject of the draft
Order, to remove the requirement for direct registration and inspection
by HMCI of providers of social work services under delegated arrangements.
6. The Department stated that the consultation
found "broad support" for the proposal to bring Part
1 of the 2008 Act into force, and that "the Government is
therefore minded to proceed with the proposal to bring Part 1
of the 2008 Act fully into force before a sunset provision in
the Act takes effect in November 2013".[3]
7. However, as the 2008 Act stands, full commencement
of Part 1 would result in a new requirement on providers for an
additional registration with and inspection by HMCI. The Department
argues that:
This would introduce significant new burdens for
the inspector, providers of services and to a lesser degree local
authorities. HMCI's new inspection framework makes explicit provision
for consideration of the experiences of children receiving these
services under delegated arrangements, and to reach judgements
on leadership and governance on the basis of management of these
arrangements. To introduce the requirement of section 4 of the
Children and Young Persons Act 2008 would mean that where LA [local
authority] functions were delegated, they would be inspected through
LA inspection and through duplicate arrangements for separate
provider inspection. It is the Government's view that this is
an unnecessary burden.[4]
8. The Government therefore simultaneously consulted
on a proposal to remove the registration and inspection requirement
by way of a Legislative Reform Order. The Department explains
that "the consultation was carried out on the basis of HMCI's
2012 proposals for the inspection of services for children looked
after. These have subsequently been incorporated in a wider framework
covering children looked after, care leavers, and those in need
of protection, but the provisions concerning delegated arrangements
remain unchanged".[5]
Statutory Framework
9. Part 1 of the 2008 Act makes provision for
the delegation by local authorities of certain social services
functions to providers of social work services. Currently, Part
1 of the 2008 Act is not fully in force; however, commencement
orders relating to individual authorities have allowed pilot programmes
to be undertaken.
10. Section 4 of the 2008 Act (which has not
been brought into force during this piloting period) amends the
Care Standards Act 2000, requiring providers of social work services
to be registered with and regularly inspected by HMCI. Section
4 of the 2008 Act also enables the Secretary of State to issue
national minimum standards for providers of social work services
and to make regulations under the 2000 Act in relation to such
providers as in relation to other establishments and agencies
covered by that Act.
11. Where a local authority enters into arrangements
with a provider of social work services in England, HMCI may inspect
those arrangements as part of its inspection of the local authority
under section 136 of the Education and Inspections Act 2006.
Purpose of the draft Order
12. Section 4 of the 2008 Act amends the Care
Standards Act 2000 to provide for the regulation of providers
of social work services. Under the Act, providers of social work
services must be registered with HMCI and in respect of those
services are subject to regular inspection. The draft Order would
remove this provision so that providers of social work services
would instead be inspected by HMCI as part of their local authority
inspection arrangements (set out at paragraph 11 above), but not
also through a separate regime.
13. The Department states that the purpose of
the draft Order is to avoid the imposition of new burdens on HMCI,
providers of social work services, and local authorities in the
event of the commencement of Part 1 of the 2008 Act. The Government
aims to achieve this by removing the provision for separate regulation
and inspection of providers of social work services in England.
The draft Order
14. The draft Order proposes to:
- Remove the requirement for
direct registration and inspection by HMCI of providers of social
work services in England.
- Confine the application of section 4 of the 2008
Act so that it will only apply to a provider of social work services
in Wales. The Welsh Government has indicated that it does not
wish changes to apply in Wales, and that it is content for the
sunset provision to have effect. Accordingly, the draft Order
has preserved the current position under Part 1 of the 2008 Act
in Wales.[6]
1 Explanatory Document, p 4 Back
2
Ibid. p 4 Back
3
Ibid. pp 4-5 Back
4
Ibid. p 5 Back
5
Ibid. p 5 Back
6
Ibid. p 5 Back
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