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 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.