It’s time to ditch the social care ‘exemption’ plans for good

Despite considerable public, professional and political opposition the government seems determined to battle on with the so-called ‘innovation clauses’ in the Children and Social Work Bill.

The proposals, which allow councils to ask the education secretary for exemptions from legal duties under children’s social care law, have been watered down in recent weeks as the government has come under tremendous pressure. But concerns about ministers’ intentions remain.

Lack of scrutiny

First there is the fundamental principle that statute should only be changed through proper parliamentary debate and decision. This is especially important when it concerns the welfare and safety of children. The clauses undermine this by allowing the education secretary to approve exemptions for individual councils, albeit after minimal consultation with a panel and very little in the way of parliamentary scrutiny.

Second, innovation and creativity does not require setting aside legislation in a piece-meal fashion. Indeed there is plenty of scope within existing legislation for innovation. This is illustrated in the government’s response to a recent parliamentary question about the Munro report, where it noted that a range of Munro’s recommendations have already been implemented without changing the law.

Third, the government’s agenda does little to address a major factor deterring innovation in children’s services – the threat and fear generated by Ofsted inspections. It is this which is driving the audit culture in services. It also makes it safer for the agency to do what is expected by inspectors rather than, for example, investing significantly in early help, community involvement and multi-agency working. Changing this does not require the law to be amended, but it does need to be addressed.

Statutory duties

Fourth, when I was a social services director it was a help rather than a hindrance that I was able to argue within the council that it had statutory responsibilities to fulfil and fund. I would not want to be in a position where I was under pressure from the council leader, chief executive or other chief officers to bid to the education secretary that these responsibilities should be set aside in our area, even if I had to dress it up as being in the interest of children rather than “efficiencies”.

But the fifth, and may be the major reason, to be concerned about giving huge power to one politician to override carefully debated and structured children’s legislation is the lesson of recent history.

In April 2014, with little publicity and at the start of the Easter holidays, the government, with the same minister, senior civil servant and chief social worker for children as today, published a draft change in regulations which would allow any organisation or company to be contracted to provide statutory children’s social work services, including child protection assessments and decisions about looked-after children.

A lesson from the past

Following much opposition the government appeared to backtrack on the plans. It said it would bar profit-driven companies from being contracted to provide statutory children’s social work services.

Then quietly and largely under-the-radar in September 2014 it went on to create a change in statutory regulations that allowed just that. A memorandum explained that the regulations did not prevent “an otherwise profit-making company from setting up a separate non-profit making subsidiary to enable them to undertake such functions”.

The same month civil servants in the DfE had meetings with G4S, Serco, Virgin Care, Amey and Mouchel to consider the future shaping of statutory children’s services and how to open-up the market place. Around this time the government also commissioned consultancy firm Laing Buisson to assess the possibilities of profit and non-profit providers taking on more responsibilities. It appointed a panel of three DfE-appointed advisors, including the chief social worker for children, to oversee the project.

More than two years later the government has finally published the Laing Buisson report. The document reveals private sector firms have an appetite to run the full range of children’s services, including child protection. It also urges ministers to consider forcing local authorities to tender out more statutory children’s services to the marketplace.

The government has publicly distanced itself from the report it commissioned and which was overseen by its own advisory panel. The children’s minister Edward Timpson has also stated that “I want to be clear: we do not want to privatise protection services for children”. This has to be good news, as it should indicate that government will now propose an amendment within the Children and Social Work Bill reversing its 2014 regulatory change allowing profit-making companies to set up subsidiaries to provide any or all statutory social work services.

But beware. Back in 2014, 72,000 people signed petitions opposing the then regulatory changes allowing for private involvement in statutory services. In essence, despite a message to the contrary, the government ploughed on with the change.

In 2016 over 107,000 people have already signed a petition opposing the so-called ‘innovation clauses’ in the Children and Social Work Bill. Is it wise to trust that the government will listen and seriously revise what it initially intended and proposed?

This is why opposition to these measures continues. It is also why Justine Greening, as the new secretary of state for education, should withdraw these clauses and initiate a proper green and white paper consultation about any changes which are still to be proposed.