In little more than a thousand words, a passage in the Children and Social Work Bill hands the education secretary powers to exempt councils from duties under social care law for up to six years.
The controversial measures, set out in clauses 29-33, have been both praised as a bold attempt to free social workers from red tape and attacked as a reckless piece of lawmaking that amounts to a ‘bonfire of children’s rights’ and paves the way for privatisation.
Under the proposals, councils can apply to be granted exemptions with a view to achieving better outcomes or the same outcomes more efficiently. Poorly performing authorities under government intervention may be directed to opt out of certain functions.
Any changes would apply for up to three years, with a possible further three year extension.
The bill’s supporters say the aim is to test new local innovations that, if successful, could be rolled out nationally. But a coalition of more than 30 organisations is calling for the clauses to be scrapped, arguing they threaten a legal safety net for children and families that has been carefully built up over the past 80 years.
Isabelle Trowler, the chief social worker for children, has been heavily involved in the development of the bill. She believes the innovation clauses can help break the “endless cycle” of governments reacting to concerns over children’s services by creating more and more rules.
Each new piece of legislation may have been well intentioned but the cumulative effect, Trowler argues, is a bureaucratic system that leaves social workers little room to exercise their professional judgement.
“I think we’ve got to do something about that,” she says. “Switching from a legislative approach to placing more confidence in professional practice is really, really critical if we want to get a strong, confident workforce in place.”
Trowler says the DfE’s intention is to re-focus the system on practice, not procedure. Projects trialled through the department’s innovation fund have already helped, she says, as has the work of the partners in practice – a group of eight ‘high performing’ councils singled out by ministers.
“Those authorities are now saying ‘okay, let’s go further because we are limited in what we can do because of a range of not just legislative and regulatory rules, but also statutory guidance’,” says Trowler.
“We’re at that point where, if we’re serious about this, we have to challenge the core infrastructure. I don’t think it’s reasonable or sensible to just change the whole system. We’ve got to test innovations otherwise we’ll risk doing what’s happened before, which is imposing blanket rules without really understanding the consequences.”
‘Legislation can get in the way’
Leeds children’s services is one of the partners in practice authorities who back the plans. Steve Walker, the council’s director of children’s services, says there are situations where legislation can “get in the way” of creative practice.
He points to the approval processes for kinship carers as an example. Under the current framework, kinship carers are subject to the same processes as any other foster carer.
In some cases this has jarred with Leeds’ overarching ethos of working in partnership with families rather than “doing things to them”, says Walker, and a more tailored assessment might work better.
“At the moment we risk dragging families into a process which is quite complex and hasn’t necessarily been designed for them. We’d want to work with families and kinship carers and people like the Family Rights Group to ensure we put the right kind of assessment in place.”
Walker says that the checks and balances built into the legislation for assessing applications for exemptions is key to his support for the measures.
The bill requires councils to consult with any local safeguarding partners “and relevant agencies” it considers appropriate before applying for exemptions. The government must consult the Children’s Commissioner and Ofsted before making a decision on councils’ applications.
Walker says this external scrutiny is important to test the robustness of any proposals.
“We may come up with something here in Leeds that we see as a brilliant idea but then the expert panel may look at it and say ‘this just won’t work, you haven’t considered this, this and this’.’”
Other partners in practice have also shown interest in exemptions. Hampshire council wants to look at making more “effective use” of Independent Reviewing Officers by seeking exemptions from the current requirement for every child in care to have one. Lincolnshire has also backed the clauses, without specifying how it would use them.
Support for the plans can be found outside of local government too. Mark Costello, chief executive of fostering provider Foster Care Associates, says a “really obvious” area where exemptions could be applied is arrangements for children in settled long-term foster care.
At present legislation dictates these children currently receive the same assessment and reviews as children in short-term placements. But, says Costello, this may not always be wanted, or needed.
“If a child has been in a placement for 15 years and they view it as their home should they need the same level of social work involvement and the whole weight of the looked after children system? Perhaps for some children that just isn’t needed at all, so a pilot must be a good idea.”
He also feels there could be scope to trial fostering providers taking on some case holding responsibilities from councils, an approach he says has had success in Australia.
“I think it’s a good, sensible idea to pilot ideas at a local level, before you make more widespread changes. It offers the chance to test things safely and make sure any changes are evidence-based.”
Child in need cases
Chris Wright, chief executive of non-profit provider Catch 22, hopes the exemptions will help test new ways of working with child in need cases.
Under the current framework every child meeting the section 17 threshold must be allocated to a social worker, he says. In practice, Wright argues, most support goes to children at the more acute end of a social worker’s caseload and little activity takes place with children with lower needs.
Catch 22 currently runs a project in Crewe, backed by the DfE innovation fund, which uses a ‘hub’ model where the allocated social worker also manages a team of non-social work staff, including volunteers.
The wider team can help deliver day-to-day support to lower risk children. The approach means more time is spent with children and families, social worker time is freed up to focus on acute cases and future demand is reduced because of the early support being provided, says Wright.
He feels the exemption powers could help this approach go further by allowing a judgment to be made on which cases need an allocated social worker, rather than it being an automatic requirement.
He also hopes the exemptions could enable organisations like Catch 22 deliver more statutory children’s services. At the moment they run leaving care services but, says Wright, tenders will often be heavily specified to be compliant with the current statutory framework.
“I think that closes down the opportunity to co-design, co-produce and think imaginatively about how we might be able to work with children in the care system and those leaving the care system.”
Wright argues the capacity of organisations like his is currently underutilised but hopes that might change, pointing to a speech given by David Cameron during his time as prime minister that hinted at trialling new delivery models for children’s services.
“The state is proprietorial about risk. I think risk can be managed by many different types of organisations.
“I know you get into a real philosophical debate around the power to remove children from their families. I’m not being simplistic about this, I just think we can arrive at a considered set of arrangements that allow other organisations to play a role.
“The state has a really critical role. It is there to facilitate, enable, encourage, and sometimes do. But it’s also there to let others engage in that.”
Wright feels that without the kind of radical proposals tabled by the DfE “we could end up repeating the same types of conversations we’ve had for the past 10 or 15 years.”
“I trained as a social worker 30 years ago and it seems to me that since then we’ve made things more transactional at the expense of the one thing that we know can make most of a difference – that’s building a really positive relationship with the child and family.
“We should trust practitioners and professionals at the local level. We’ve got to give them the sense that the system allows and enables them to do the right things.”
As well as professionals looking to trial new approaches, Trowler says families of disabled children have voiced “a really powerful argument” around whether children with a disability should “be subject to the whole raft of looked after children regulations just because their care package tips over into a certain number of days”.
On the wider ideas for exemptions being floated, she adds: “It’s really important to say it’s not about the functions themselves. No-one is saying it is not important to visit children or review or to plan.
“It’s just about being able to use your professional judgment on an individual basis to decide what’s the best course of action without that being overly influenced by a very rules-based framework.”
Steve Broach is a lawyer specialising in social care, with a particular interest in disabled children’s rights. He is also fiercely critical of the innovation clauses in the Children and Social Work Bill.
For Broach, a major problem is that provisions that one person might dismiss as “red tape” are another person’s legal entitlements.
“This bill gives the secretary of state the power to effectively dispense of basically any requirement of children’s social care law, including primary legislation.
“I just think that’s astonishing – the idea that the secretary of state will be able to simply wish away duties that should be the building blocks of the legal safety net for children.”
He feels the case “simply hasn’t been made” to justify the scale and scope of the powers the government is proposing and questions the examples of potential exemptions given so far.
The IRO safeguard for example, says Broach, is a “fundamental” right for looked-after children. Meanwhile he’s seen “no clamour” from disabled children or their families to change the law around short-breaks. In any case, says Broach, statutory guidance already sets out a “proportionate approach” to the issue raised by Trowler.
The specific examples being put forward by councils are secondary to a wider principle, says Broach. The legal framework underpinning social care, he says, is supposed to be a minimum safety net that applies to all local authorities, not a set of measures that the government can simply revoke or change in different parts of the country.
“If there are real problems with detailed aspects of the statutory scheme we have, then those aspects of the scheme should be changed in the normal way by amending regulations. So, for example, amend the care planning regulations so that different visiting or IRO requirements apply in certain situations.
“It’s not good enough for proponents of this clause to simply give these very specific examples. What they’ve actually got to defend is an incredibly broad power for the secretary of state to vary or disapply any provision in children’s social care law.”
Ruth Allen is chief executive of the British Association of Social Workers, which represents more than 21,000 practitioners across the country. She’s supportive of the notion of promoting creative practice but, like Broach, feels the exemption approach is the wrong way of addressing any problems identified with the current framework.
“There is a feeling this is going to bring about a postcode lottery, at least for a period of time. Where does that leave families and children if they think a child has actually been denied something that they would have been entitled if an opt out hadn’t come into force?
“The other concern is it enables the parcelling up of parts of services in order to bring different providers in – providers that may not want to comply with the same types of restrictions that local authorities are used to complying with.”
Allen says that so far she’s not seen evidence that justifies the government’s plans – or heard widespread support for them. She claims one council that has been praised for the quality of its social work practice nationally actually told her they felt the ‘opt out’ measures were unnecessary, although she acknowledges some partners in practice councils are keen on them.
“One of my concerns is that people are not coming forward with a longer list of flexibilities they’d like to test because some of those ideas might be very unpopular and controversial. So they won’t want to talk about them until they have the opportunity to bring this forward more formally.
“Some of the things that have been quoted to us are quite concerning. They involve thresholds for support and provisions around asylum seeking children, particularly when they get a bit older. So it’s moving away from that notion of universalism.
“It seems unlikely that a safeguarding board or a local children’s service would want to disadvantage children in a willful way but there is a concern that stretched local authorities might want to cut their cloth in a different way or outsource more work.”
‘Opening a floodgate of real risk’
John Simmonds, director of policy at adoption and fostering charity CoramBAAF, can see the argument for reviewing certain areas of legislation too. He says the issues raised about how some duties currently apply to long-term fostering placements, for example, are of real concern.
“But this kind of problem needs a comprehensive solution that would apply to all children, not one where an exemption might apply in Westminster but not in Camden.
“Parts of the system may not be working well. We may need to test new ways of working to make sure we’re doing the best by children and families. But it seems to us that the clauses as they are currently set out open a floodgate of real risk.”
Simmonds says the government has failed to produce a robust assessment of its plans. He compares it to the burden of proof that might be needed if the NHS wanted to introduce a new procedure or drug.
“You would always have to apply the standard of ‘do no harm’. There would be ethical procedures to follow and rigorous reviews of risks.
“Is this the right thing to do and are we going to harm anybody in the process? There’s none of that being identified in relation to this. It just wouldn’t be acceptable in the health service.”
Broach, BASW and CoramBAAF have all lent their backing to the Together for Children group that is lobbying for the innovation clauses to be scrapped.
More than 30 organisations and 60 individuals – including teachers, parents, social workers, teachers, care leavers and a former children’s commissioner – have so far signed up in support.
The group was set up Carolyn Willowe, a social worker and the director of children’s rights group Article 39.
She has accused the government of having no mandate for the changes and of effectively minimising parliamentary scrutiny of exemptions by ensuring they are brought through secondary regulations – of which 0.001% have been rejected since 1965 – rather than primary legislation. The proposals, in her view, pose a “massive threat” to children’s rights.
Trowler rejects this suggestion. The people interested in trialling innovations, she says, work in “the best interests of children and families, it’s in their professional value base”. The plans are motivated by a desire to improve care for children, she says, not undermine their rights.
“Many of the people arguing that would be the first to say we don’t always do right for children, and that’s in spite of all the rules. So I think we just need to look really afresh at how we can actually deliver what we’re meant to be delivering to them.”
But there are no limitations on the clauses. Once such a far reaching power is in the statute book how do you guarantee people’s intentions for using it won’t change?
“I think that’s a fair point,” she says. “None of us want to create legislation which isn’t future proofed and can then be used negatively.
“My understanding is there are a number of discussions going on to try and alleviate some of those concerns. I’m totally on board with that because we’ve got to make sure that it’s not going to be detrimental.”
Trowler gives less weight to the “postcode lottery” criticisms. She argues there’s already a “huge difference” in the quality of services that children receive in different parts of the country. The exemption clauses would at least allow projects to be tested for a temporary period to assess their impact. “You either believe in building evidence to support changes or you don’t,” she adds.
But why did the government decide to legislate using the catch all ‘opt out’ approach, rather than – as Broach, Allen, Simmonds and others have suggested – drawing up a list of the specific types of changes wanted by councils, consulting on them, and then legislating for them in a more traditional way?
This, Trowler feels, would be overly restrictive and limit the ambition of the proposals. The approval processes for exemptions are there to ensure any concerns are “thrashed out”, she says, and the current debate with the sector and peers is to ensure that “whatever local authorities are proposing is properly scrutinised”.
“My sense is there are lots of people who want to back this but they all, me included, want to make sure it is a good piece of legislation. That is the process that we’re in now. That’s what happens when you make new law. I feel very comfortable that there’s a lot of support for it.”