Children & Social Work Bill [Lords]

Written evidence submitted by Action for Children (CSWB 46)

Children and Social Work Bill

Public Bill Committee Written Evidence Submission

Amendments NC2 – NC9: Power to test new ways of working

1. Introduction

1.1. Action for Children’s ambition is to make sure that every child and young person has the love, support and opportunity they need to reach their potential. We provide more than 600 services across the UK, and have worked with 390,000 children, young people, parents and carers in the last year.

1.2. Action for Children works hard to put children at the centre of all of our practice. We work in partnership with local authorities to develop innovative solutions and are committed to tackling any barriers that exist to improving children’s lives. This includes exploring innovative and flexible practice, while measuring and monitoring its impact for individual children.

1.3. This evidence submission outlines Action for Children’s views on amendments NC2-NC9, which introduce the "power to test new ways of working" ("the power") and outline how the power will be used.

1.4. Children’s social care law is a fundamental way that society protects its most vulnerable children. It is designed to offer a basic level of safety and welfare for all children. In particular, it helps to remove children from abusive situations and empowers the state to care for those who do not have family to protect them.

1.5. It should only ever be amended on the basis of a strong evidence-based case that change is needed to improve children’s safety and welfare.

1.6. Nationally, the quality of help and protection for children has been identified as unsatisfactory and inconsistent, suggesting systemic rather than just local failure. [1] This is further hampered by an evidence gap about what works in children’s social care. We recognise that there can also be a problem around too much prescription and that social work has become process-driven. This can take time away from working directly with children and families.

2. The case for the power to test new ways of working

2.1. Action for Children strongly supports innovation to improve the lives of vulnerable children. We recognise the need for local authorities to work differently to improve their outcomes in the current context of increasing demand and decreasing resource, and we have participated in, and welcome, the Government’s Innovation Programme.

2.2. We recognise that the Government has offered some clarity regarding its intentions for innovation by removing reference to ‘efficiency’ from the face of the Bill.

2.3. Since the introduction of the power, Action for Children has indicated willingness to work with Government to design a framework for innovation that we can say with confidence will improve children’s lives. We have requested information about the evidence as to why the power is the most appropriate mechanism to improve innovation in children’s social care.

2.4. We are concerned by the lack of supporting evidence presented by the Government, and that such a wide-ranging power was introduced without prior consultation. The Children and Social Work Bill was introduced in May 2016, while the Department for Education’s report Putting children first: delivering our vision for excellent children’s social care, which outlined planned reforms of children’s social care, was published in July 2016. No white or green paper, impact analysis or other assessments that could address outstanding questions accompanied them.

2.5. Action for Children supports the Munro Review of Child Protection’s framing of children’s rights: "[Children] are neither the property of their parents nor are they helpless objects of charity. Children are individuals, members of a family and a community, with rights and responsibilities appropriate to their age and stage of development". [2]

2.6. We recognise efforts by the Government to offer reassurance about the impact of the power on children’s rights by protecting some "core legal duties." [3] However, the proposed core legal duties do not include critical elements, such as support for disabled children and young carers. To define the fundamental elements of children’s social care legislation comprehensively, a robust process that includes public consultation would be needed.

2.7. Furthermore, unpicking primary legislation risks undermining a comprehensive legal framework that includes universal rights, entitlements and protections covering interdependent parts of public and private law, and which have been thoroughly tested through Parliament and the courts.

2.8. The Innovation Programme has demonstrated significant successes within the existing legislative framework. We note that the great majority of the examples offered by the Government on how the power would be used are possible with only modest changes to secondary legislation. The Government has not yet explained which parts of primary legislation present a barrier to improving social care. We do not believe that children’s social care legislation, particularly primary legislation, is a barrier to innovation. In our view, more consideration is needed of the role that risk averse organisational culture, the risk-averse interpretation of existing regulation, under-utilisation of existing flexibilities, and, resourcing challenges play as a barrier to innovation.

2.9. The Government needs to demonstrate why this particular approach is necessary to enable innovation, particularly exempting local authorities from primary legislation when new ways of working can already be tested within existing legal and regulatory frameworks. In Action for Children’s view, the case has not been made that the power is a proportionate and appropriate mechanism that is best placed to address the challenges in children’s social care.

3. Unintended consequences of the power to test new ways of working

3.1. Action for Children is strongly committed to improving children’s social care, and the lives of vulnerable children across the UK. We have concerns that the power may have unintended consequences and pose risks to the safety and wellbeing of children, and hence is not the best mechanism to improve children’s social care.

3.2. There is limited information available about how the power will be implemented, and how many ‘trials’ of new ways of working may occur simultaneously. The Bill does not contain any specific requirements for trials to be monitored and evaluated. We also have concerns that, in the current resource environment, local authorities would need significant support to carry out these functions robustly.

3.3. Fragmentation of the legal framework is likely to create confusion and hinder effective multiagency working. Social work is not undertaken in isolation. Changing how a local authority delivers services may necessitate changes to the way that partners such as the police, GPs, teachers and others work. Analysis of serious case reviews shows that "professionals need to have clarity about their own role and an understanding of other professionals’ roles to work together effectively". [4] Lack of clarity between agencies too often results in missed opportunities for intervention to protect children and young people. This will be particularly challenging for professionals who often operate across local authority boundaries and different legal frameworks, which is especially the case in Greater London.

3.4. We have concerns that the loss of a universally understood and applied legal framework will mean that vulnerable young people and families may be left in a position where they need to navigate different legal frameworks simultaneously. This could occur where a family or young person moves, attends school in a different borough from their home or receives a service out of area (as is often the case with short breaks for disabled children). It remains unclear whether these children would retain the rights associated with the law in their home authority, or if entitlements would change depending on the location of the service received. This is burdensome on children, young people and families, and could create barriers to accessing their entitlements.

4. Risks to children’s safety and wellbeing

4.1 Action for Children has strong concerns about potential safeguarding risks that could arise if the oversight, monitoring and risk mitigation mechanisms provided for in the law are removed without sufficient safeguards.

4.2 We have examined selected examples provided by the Government. Through this analysis we have identified potential for vulnerable children and young people to be at increased risk of experiencing abuse, neglect, being sexually exploited, going missing, reoffending, substance abuse and poorer life outcomes. For an indicative example, the potential risks from changing the law around short breaks for disabled children is outlined below.

5. Potential risks to children from changes to short break regulations

5.1 Short breaks are services where disabled children and young people have the opportunity to have fun, gain independence, learn and develop while families get to take a break from their 24-hour caring. Action for Children is a provider of short break services, and understands the positive impact that they have for children, young people and their families.

5.2 The Government has suggested that the time limit that a disabled child can use short break services before being classified as ‘looked after’ should be extended as families can find the review and statutory planning processes intrusive. The current limits are 17 days in a row, or 75 days over a year.

5.3 Action for Children has concerns about changing these timeframes in an ad hoc manner, without evidence of the benefits and risks of this approach compared to alternatives. Disabled children can have higher safeguarding risks than other children, particularly if their disability includes communication or behavioural difficulties. These children are also disproportionately likely to be placed out of area due to the more specialist provision they might require and may also be more susceptible to fluctuations in the level of their needs. Safeguarding in such circumstances often relies on children keeping in touch with their family and regular support for extended periods, allowing problems to be picked up early by the people who know them best (including placing authorities themselves), as well as tracking children if they are placed out of area and ensuring that the appropriateness of the placement is reviewed.

5.4 Short breaks are intended to provide relief for short periods, with the time limits intended to combat the problems outlined above. If a child is using more than the 75 day limit, this could be in effect an unplanned transition to residential care which poses risks to children’s wellbeing. Increasing the time limit without adequate review and care planning introduces a new safeguarding risk that, without very careful planning, monitoring, and accountability mechanisms in place, may jeopardise outcomes for disabled children and young people. A range of options which could help families of disabled children who find care processes intrusive should be considered, including increased parenting support, improvements to practice, or a supported transition into suitable residential care.

5.5 In Action for Children’s view, changes to children’s social care legislation should be pursued where there is evidence that this is the best option for children and their families, and will address the underlying causes of the problem identified. We have concerns that an ad hoc approach will not result in disabled children and their families getting the best support to meet their needs.

6. Points for clarification

6.1 Action for Children welcomes the additional safeguards that the Government has incorporated in the re-introduction of these clauses. Nonetheless, we question whether they are sufficient to minimise the likelihood of unintended consequences and the risks to children and young people outlined above. The Government should clarify how it will ensure children’s outcomes are improved and mitigate the risks of harm that arise from the temporary suspension of children’s social care legislation.

7. NC2 Power to test different ways of working

7.1 We welcome that the Government has offered some clarity regarding its intentions for innovation by removing reference to ‘efficiency’ from the face of the Bill. Instead, NC2 outlines seven dimensions in which new ways of working should improve (e.g. physical and mental health, preparing children or young people for independent living). It is not clear whether these broad domains will be further defined in an outcomes framework, nor is it clear how the outcomes will be measured, monitored and evaluated. We note the National Audit Office’s finding that current systems for monitoring outcomes for children in need are lacking. [5]

7.2 We recognise attempts by the Government to offer reassurances by protecting some parts of children’s legislation. However, by unpicking primary legislation, the Government risks undermining a comprehensive legal framework. The list does not include critical elements of children’s legalisation, such as support for disabled children and young carers. Transparency is lacking over how such a list, referred to in the Government’s factsheet as ‘core legal duties’, of children’s legislation was defined. [6]

8. NC3 Duration

8.1 Under this clause, the Secretary of State will have the power to revoke regulations. The Minister has said, "If evidence arose that children were being adversely affected as the result of a trial, the Department will act swiftly to revoke the exemption – this would be done through the negative resolution procedure". [7] The Bill does not require local authorities to measure, monitor or evaluate the impact of trials on children. It is not clear what the threshold for Government intervention in a local authority trial would be, nor what circumstances would constitute "adverse effects" on children.

9. NC6 Consultation by Secretary of State

9.1 Under this clause, the Secretary of State must invite an expert panel to give advice about the capability of a local authority, the likely impact of the regulations on children and young people, and the adequacy of any measures that will be in place to monitor the impact on children and young people. The expert panel will consist of the Children’s Commissioner, Her Majesty’s Chief Inspector of Education, Children’s Services and Skills, and one or more other persons.

9.2 The Bill does not require local authorities to measure, monitor or evaluate the impact of trials on children. The Panel should include members with expertise in research ethics, with the social care research skills to be able to robustly evaluate adequacy of monitoring and evaluation and impact on children’s outcomes.

10. NC7 Guidance

10.1 Action for Children welcomes this amendment by which the Secretary of State must give local authorities guidance on the use of the power, and requiring the Secretary of State to consult before issuing guidance. Since there was no public consultation on the need for the power, consultation on statutory guidance is welcome. The Government should clarify whether this will be a 12-week public consultation.

11. NC8 Annual Report

11.1 Action for Children welcomes the increased transparency from annual reporting from the Secretary of State on the extent to which the regulations have achieved the purpose in section (power to test different ways of working) (1).

11.2 Transparency at the national level should be supported by local transparency. Currently there is no clarity on how children, families and communities will be kept informed on the impact of localised changes to the law.

12. NC9 Interpretation

12.1. This clause outlines the scope of the children’s social care legislation from which local authorities can request an exemption. In Action for Children’s view, there is no evidence to support primary legislation being within scope of the power to test different ways of working.

January 2017

[1] National Audit Office (2016). Children in Need of Help and Protection

[2] Munro, E (2011). The Munro review of child protection: final report - a child-centred system

[3] Power to test different ways of working – fact sheet, circulated with letter from Edward Timpson MP, Minister of State for Vulnerable Childre n and Families, 7 December 2016

[4] Sidebotham, Brandon, Bailey, Belderson, Dodsworth, Garstang, Harrison, Retzer & Sorensen (2016). Pathways to harm, pathways to protection: a triennial analysis of serious case reviews 2011 to 2014

[5] National Audit Office (2016). Children in Need of Help and Protection

[6] Power to test different ways of working – fact sheet, circulated with letter from Edward Timpson MP, Minister of State for Vulnerable Children and Families, 7 December 2016

[7] Edward Timpson MP, Minister of State for Vulnerable Children and Families , written PQ Response on 14 November 2016


Prepared 5th January 2017