A few months back it would have been hard to imagine much topping government control of social work regulation as the most controversial proposal in a package of social care reforms. Yet, the so-called ‘innovation clause’ in the Children and Social Work Bill has done exactly that.
The clause, originally drafted as clause 15 but now clause 29 as amendments get added to the bill, gives ministers the power to exempt councils from children’s social care legislation (at the councils’ request) in order to achieve outcomes “more efficiently”.
The government has said the measure will allow councils to test new ways of working as part of the “innovation” drive that’s featured in almost every speech on children’s services in the recent past.
Critics have argued the clause will realise long-held fears that the government wants to outsource children’s services, with private sector involvement inevitable. Campaigners and sceptics are concerned about what road the clause will send services down, and what it could mean for children’s rights.
So what does the clause actually say and what are the key arguments surrounding it?
The clause
The main parts of the clause read:
“The purpose of this section is to enable a local authority in England to test different ways of working with a view to achieving better outcomes under children’s social care legislation or achieving the same outcomes more efficiently.
“The Secretary of State may by regulations, for that purpose –
- Exempt a local authority in England from a requirement imposed by children’s social care legislation;
- Modify the way in which a requirement imposed by children’s social care legislation applies in relation to a local authority in England.”
Exemptions can only be requested by the local authority, or by a commissioner appointed by the secretary of state. Before asking for an exemption, the local authority must consult “other safeguarding partners and relevant agencies in relation to its area as it considers appropriate”.
The legislation local authorities can be exempted from is:
- any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970 so far as relating to those under the age of 18.
- Sections 23C to 24D of the Children Act 1989
- The Children Act 2004
- Any subordinate legislation to the above.
Subordinate legislation in the Local Authority Social Services Act 1970 includes the Children Act 1989, and campaigners have said this means local authorities can request exemptions from fundamental child protection legislation.
Exemptions can last for three years, and can be extended for three more by the secretary of state for education.
What are the arguments for?
The government and the bill’s high-profile backers, which include the chief social Worker for children and Professor Eileen Munro, have said this is an opportunity to free social workers up from over-prescriptive regulations, and allow high-performing local authorities to design systems and change that suits them.
Putting Children First, the policy paper outlining the government’s social care reforms, said: “There is a consensus stemming from the Munro Review that over-regulation gets in the way of good social work practice and prevents social workers and other staff from putting children first.”
It said the clause, which will be tested by the government’s Partners in Practice authorities, “would create a controlled environment in which we could enable local authorities to test deregulatory approaches that are not currently possible, before taking a decision to make substantial changes to existing legislation that would apply across the board”.
Munro has backed the clause and said it will mean “trusting professionals to use their judgement rather than be forced to follow unnecessary legal rules will help ensure children get the help they need, when they need it”.
The children’s minister, Edward Timpson, has also said the opportunities in the bill will allow social workers “to work in the way that you know best for children”, and denied the government had any plans to privatise child protection.
The bill is currently going through the House of Lords. Debating the bill, schools minister Lord Nash, gave examples of where the clause could be used.
Innovations could include exemption from the assessment requirements for family and friend carers, “redirecting” independent reviewing officer resource and exempting local authorities from requiring adoption and fostering panels, he said, adding: “This power responds to the sector’s appetite to go further by allowing it greater flexibility to support young people in the most effective way”.
What are the concerns?
Peers voiced objections to the clause during the bill’s committee stages. Concerns were raised that the clause risked introducing a profit motive into children’s services, it was not needed, and it was wrong to “experiment” with services for vulnerable children.
Labour’s Lord Hunt said the government had “no chance of getting this through the House of Lords as it stands”.
Lord Warner, former commissioner of Birmingham children’s services, criticised the government for having provided “no evidence that primary or secondary legislation is impeding innovation in children’s services.”
Baroness Walmsley also expressed “considerable doubt” about the clause remaining in the bill.
“These clauses, to my mind, fundamentally undermine rights that have been enshrined in children’s social care legislation following intensive debate in Parliament. They are to be removed at our peril,” she said.
“Given that some local authorities have seen an 82% increase in the number of children in need between 2010 and 2015, at the same time as local authority budgets have continued to decrease, there is a danger that these new powers might be seen as a way to save money,” she said.
Campaigners and social work organisations have also voiced strong opposition to the proposals.
In a letter to The Guardian, assorted social work organisations called for the clause to be deleted, arguing “fundamentally undermines a rights-based approach to meeting children’s needs.”
“Removing the “burden” of requirements to meet statutory obligations enshrined in children’s social care legislation enables local authorities to incentivise private and not-for profit providers to bid for parts or all of children’s social care pathways,” the signatories said.
Article 39, a child rights campaign group, has also expressed repeated criticism of the clause.
“It has to be assumed that somewhere in government there has been a conscious decision that in principle the whole of social care legislation related to children could be surrendered,” Carolyne Willow, director of Article 39, told Community Care.
“[This is done] through a process that doesn’t allow a lot of scrutiny at a local level and through parliament,” Willow added.
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This is a very difficult one – I can see BOTH sides of the issue, and as a result, it is hard to come down on one side, or the other. My feeling is that further, more detailed debate involving ALL stakeholders and potential stakeholders – i.e. Social Work professionals, Local Authorities, private child care providers, children’s homes (statutory and voluntary), charities, and so forth – should be taking place. ALL the issues involved need to be fully explored, and any potential problems laid firmly to rest, before the bill goes ahead, or before this clause is removed.
Much as this may not please everyone to hear – especially Children’s Social Workers – I do agree that some amount of change and innovation is needed. There have been problems in Children’s Services for far too long. These are not necessarily the fault of workers themselves, but rather reflect issues caused by unnecessary bureaucracy, or by outdated ideas. I would argue that in Children’s Social Work – as in many other areas of Social Work – problems are created by ineffective systems, or by the pressure of things like funding constraints – but which impact negatively upon the way the job is done.
Of paramount importance is the need to address things that are causing IMMEDIATE and very obvious problems in ALL areas of Social Work across the board. These include making provision for increased funding of Social Care so that organizations are better resourced and more fully staffed. Such a measure could have the knock-on effect of improving working conditions – paying for better office facilities, updating IT systems, and so forth. It could also mean that more money is available for staffing – which means less agency workers, more continuity of care, better strained staff, more availability of training, and perhaps most importantly REDUCED CASELOADS because there are an adequate number of staff to share the workload. Things like this need to be done not just in Children’s Social Work, but in ALL areas of Social Work including Adult’s, Mental Health, Learning Disability, Elderly. INCREASED FUNDING is vital!
Then there is perhaps the issue of addressing legislation. If the argument behind the clause in the bill is the suggestion that some legislation leads to “red tape” that prevents things getting done, or makes things harder to do, then surely – rather than just asking for “innovation” in a way that suggests Local Authorities may just take matters into their own hands (which could be risky, and which is apparently what is causing so much consternation) – ought we not to be considering a thorough REVIEW OF EXISTING LEGISLATION? I understand that there may be objectors who say this is too hard to do – but research is commissioned all the time. Could researchers not be commissioned to carry out a review of legislation, along the lines of a literature review? My feeling is that it is vitally important, now, to understand and to be clear as to what legislation DOES work, in terms of providing and facilitating beneficial outcomes for vulnerable children. Meanwhile, we also need to make ourselves aware of the legislation that does not work so well, or not at all; as well as any legislation that conflicts with other pieces of law. Alas, I do feel that it is morally and ethically wrong to trial an approach to overturning or scrapping ineffective legislation that involved directly impacting upon the lives of vulnerable kids. A literature review styled study would NOT directly affect kids, but it would look at what various pieces of legislation are meant to be doing, and whether they do it.
My feeling – and apologies if I am mistaken – is that what is of greatest concern in respect of this clause in the bill is that in suggesting a need for “innovation”, and “de-regulation”, it risks opening the door to use of vulnerable children as experimental “guinea-pigs”. In other words, methods of working with them, and providing care for them, that are currently completely untried and untested could simply be brought in at will, with the children and their families having no recourse to existing legislation, or to any other form of safeguard should things go wrong. Perhaps the MAJOR problem that I am seeing, here, is one which involves both ETHICS and ACCOUNTABILITY. Whilst there may be nothing inherently wrong with innovative practice, the issue, here, is:
a) That we need to be clear that, if trials of “innovation” involve RESEARCH using vulnerable children and their families, then this research will be ethical, and will involve the gaining of informed consent from families involved, and (if the kids are not old enough to give full consent) at least ASSENT from any children involved.
b) That any Local Authority which will be testing the clause as a Government “Partner in Practice” will remain fully an absolutely accountable to the children and families with which it works, no matter what new and “innovative” practices are tried out. This is because “innovation” carries with it risks, which must be balanced with safeguards. The Government plus its “Partners in Practice” need to be clear as to what steps will be taken should “innovation” go wrong.
The problem with the WHOLE of this bill, and not just this clause alone, is that there has been little transparency, and rather an air of secrecy and defensiveness surrounding it. If the people whom it is most to affect are not permitted to have their say, to be heard, and truly listened to, then it is little surprise when they react negatively. There is nothing wrong – in theory – with the belief that Social Work staff need to be assisted to help vulnerable children in the most effective way possible. However, IF the ways in which they are to help are NOT fully, and openly discussed – with the COMPLETE involvement of all stakeholders – then in practice, such innovative views become problematic.
The sad fact is that several high-profile scandals lead to the public belief that Children’s Social Services had problems – that it did not always work effectively. The unfortunate truth is that this may be the case. However, in considering just WHY something does not work effectively, we should consider EVERY angle. The problems faced by Children’s Social Services are NOT simply for lack of “innovation”. As highlighted above, lack of funding and resources has lead in some cases to working conditions that would make it pretty hard for ANYONE to do a good job. Before we even start to consider the need for “innovation”, obvious problems like excessive caseloads, hot-desking and suchlike need to be resolved – PERMANENTLY. Then, maybe, it is right to address “innovation”.
Even so, “innovation” is NOT simply about de-regulation. The starting point in terms of understanding should be that it was believed existing legislation was there for a purpose. If not, then WHY does it exist? SOME legislation clearly DOES serve a beneficial purpose, in that it safeguards vulnerable children. However, the safeguarding of children is a complex process – one that is NOT cut-and-dried. Sometimes, the application of legislation can make a process appear to be more lengthy and drawn out than it needs to be. A good example is fostering and adoption. Many people complain that it takes too long for a child to be fostered or adopted. Now, that may be so, and indeed that IS a frustrating situation. However, checks of potential foster and adoptive carers ARE necessary, because the last thing that is wanted is for the vulnerable child to leave one dysfunctional home, only to end up in another because the correct checks were not done.
To suggest “innovations” such as removing assessment requirements for family and friend carers is absolutely UNACCEPTABLE and risks placing children in danger. We CANNOT for one moment make sweeping assumptions that a family member, or friend, of a parent who is to have their child cared for would automatically make a safe and appropriate carer. Often, in families where abuse and neglect is taking place – carried out by the parents of the vulnerable child – other family members and friends know, or suspect, the abuse. They may COLLUDE to hide the abuse, or they may even be ABUSERS themselves. In cases such as these, it would be a HUGE RISK to place a vulnerable child with a family or friend carer, as the abuse may simply continue. Family and friend carers DO need to be assessed, because they are only human, and as such, could be unsuitable as carers – they could just as easily be irresponsible, abusive, or even paedophilic, as anyone else. Abusive families could easily choose to abuse such an “innovation” as this, deliberately seeking to have their children placed with family and friend carers of their request, who could simply permit abuse to continue, and allow abusers access to their kids.
Perhaps there is one method of seeking out “innovations” that has not been considered, but which could bear fruit… WHY has nobody asked vulnerable children and families what THEY think might help to improve Children’s Social Services? WHY not ask workers, too? I suspect that responses would highlight the problems of funding, resource and staffing cuts. However, this might help to shed light on what currently works, and can be built upon; and what does not.
My feeling is that the problem with this bill is that it seeks, somewhat randomly, though probably with good intent, to bring in sweeping changes well before any of the groundwork has been done. This groundwork is what is most important – before anything else takes place we need to know how existing legislation works, what is effective and what not. We need to appraise ourselves of the impact of budget cuts and associated staff and resource cuts. We need to know, at grass roots level, what working practices and procedures – what interventions – presently provide beneficial outcomes, and what do not. We need to know what bureaucracy is causing delays. Once we know all this, only THEN can we begin to discuss what changes to make. Only THEN can we fully begin to look for, and encourage “innovation”. FIRST, there has to be a firm “bedrock” upon which to build it.
nothing will ‘be laid firmly to rest’
not assessing Family and Friends/Connnected Persons – really??! how long ago did the most recent child die at the hands of a ‘connected person’ and she had been assessed – if anything we need to strengthen not remove assessments.
If bureaucracy is the issue then deal with that, do not hand over to private or ‘not for profit’ ( why are they called that?? they ARE making a profit or they wouldn’t be doing it!)
It IS the beginning of privatisation and any knowing or naïve involvement in such discussion will only hasten it…………………