Framework with clout

Local authorities are falling foul of guidance on Children Act
assessments introduced last year. Steve Cragg examines what has to
be done under the guidance for social workers to discharge their
duty correctly.

Social workers should be familiar with guidance issued by the
Department of Health in March 2000 entitled Framework for the
Assessment of Children in Need and their Families.

The guidance has the legal status of a document whose terms can
be enforced in the high court. Lawyers acting for children
dissatisfied with their assessment for services under the Children
Act 1989 have the document on their desks and will increasingly be
making reference to it. How has this situation come about?

The guidance is issued pursuant to section 7 of the Local
Authority Social Services Act 1970. This says a local authority has
to “act under” such guidance, and case law has held that only in
exceptional circumstances can the authority depart from it. Failure
to comply will be unlawful.

The guidance is long and detailed and fills in a gap in the
Children Act 1989 which contains no requirement that there be an
assessment of a child in need for services pursuant to section 17
of the Children Act 1989. It is described as a framework, “which
provides a systematic way of analysing, understanding and recording
what is happening to children and young people within their
families and the wider community in which they live”. It calls for
clear professional judgements on:

– Whether the child being assessed is in need.

– Whether the child is suffering significant harm.

– What actions must be taken.

– Which services would best meet the needs of the particular
child and family.

The guidance sets deadlines for dealing with cases that many
authorities will have trouble meeting. It insists timescales be
placed on the provision of some services, and sets out details on
the contents of assessments including “invariable” involvement of
other agencies or independent professionals. Assessment needs to
take account of:

– The child’s developmental needs.

– Parents’ or caregivers’ capacities to respond
appropriately.

– The wider family and environmental factors.

The case of AB and SB v Nottingham City Council was
decided by the high court on 30 March 2001 and indicates how
lawyers can use the guidance in practice. SB was a child in need
with many difficulties (including attention deficit hyperactive
disorder, challenging behaviour and learning difficulties) and the
council was seeking an anti-social behaviour order against the
family.

However, AB (SB’s mother) claimed the council had itself acted
unlawfully by failing to follow the guidance. In SB’s case there
had been a series of child protection meetings and reviews since
December 1999. In January 2001 the authority produced an assessment
purported to be based on the guidance that identified continuing
support for the family, including support in “accessing safe and
appropriate housing”.

However, the court decided that the authority had failed to
follow the three-stage process of assessment, care planning and
service provision set out in the framework and in case law. As the
court said: “There was no clear identification of needs, or what
was to be done about them, by whom and by when.”

In particular, its approach to housing needs was criticised as
not assessing “whether there is a need to move and, if so, to where
and to what kind of accommodation”. The council was ordered to
carry out a core assessment that complied with the framework within
35 days.

Social workers should read the judgement to see the analysis the
court gives to the guidance, and to gain an understanding of a
lawful approach to its implementation.

Steve Cragg is a barrister specialising in community
care and judicial review cases and is a fellow in public law at
Essex University.