Covid-19: children’s social care guidance criticised for ‘unlawfulness’ and approach to PPE

DfE says councils may depart from statutory duties but does not provide legal basis for doing so and also faces criticism for failing to recognise risks of asymptomatic transmission of disease

Image of an N95 respirator face mask (credit: dontree / Adobe Stock)
(credit: dontree / Adobe Stock)

Government guidance on children’s social care’s response to coronavirus has been criticised for ‘unlawfully’ saying councils can depart from statutory duties, and not recognising the risks of asymptomatic transmission of Covid-19 in its position on personal protective equipment.

The Department for Education (DfE) document also prompted council leaders to urge ministers to amend regulations to enable them to prioritise need during the pandemic – something the DfE is considering.

The document, published on Friday, contains advice on a range of issues (see box) including home visits, conducting child protection conferences and supporting care leavers while social distancing measures are in place.

It also sets out examples of how the £1.6bn of coronavirus funding allocated to councils can be spent by children’s services departments, including on sourcing additional placements and fostering capacity, and providing discretionary funds to care leavers experiencing hardship.

But while acknowledging that children’s social workers may not always meet duties during the pandemic, the guidance does not specify circumstances in which this may be acceptable or provide a legal framework for doing so.

“It seems to me patently unlawful for departmental guidance to set out a process where local authorities can record non compliance with statutory duties in circumstances where those duties have not been modified or disapplied by Parliament,” tweeted Steve Broach, a barrister at 39 Essex Chambers who specialises in children’s social care and disability law.

Duties disparity

With the passing of the Coronavirus Act, adult social care directorates have been granted specific ‘easements’ on their Care Act duties, to enable them to prioritise “the most pressing needs” should resources become completely overwhelmed, along with an ethical framework to guide such decisions. The act made no comparable changes to the legislative frameworks under which children’s social workers practice.

Guidance at a glance: key points

  • There is an expectation that all local authorities have arrangements in place to ensure scrutiny of children’s safety and wellbeing, similar to those in place in many areas that involve risk-assessing and reviewing the circumstances of every family in the system and ensuring those facing the highest risks are visited the most frequently.
  • Where authorities need to deviate from standard practice and statutory requirements, they are expected to keep clear records to capture the rationale and risk assessment for that.
  • Judgments around home visiting should balance considerations of risks to children and families, young people and members of the workforce.
  • Where social workers and other staff undertake home visits, PPE is not required unless the people being visited are symptomatic of coronavirus or have a confirmed Covid-19 diagnosis.
  • Where families are reluctant to engage due to infection concerns, social workers should make contact and explain why it is essential that they have access to the home, or to see and speak to the children.
  • Multi-agency support and forums such as child protection conferences should go ahead where possible via virtual means.
  • Local authorities should “use their discretion” to assess whether care leavers who are turning 18 should continue to transition into independent accommodation or remain in their placement during the pandemic.

The children’s guidance note makes repeated acknowledgement that children’s services will struggle, and at times be unable, to fulfil their statutory duties. However, it says local authorities are best placed to decide themselves how activity should be prioritised as a result, and are expected to “make sensible, risk-based judgments” during the Covid-19 crisis, recording and justifying any departures from the law and standard practice.

“We expect that local authorities will have arrangements in place to ensure sufficient management oversight of practice on a day-to-day basis,” the guidance says. “Where authorities need to deviate from standard practice and statutory requirements, we expect that they will keep clear records to capture the rationale and risk assessment for that.”

It says such decisions should follow the principles of promoting children’s best interests, prioritising those at greatest risk, harnessing families’ strengths, being evidence-informed, collaborating with parents and other professionals and being transparent.

‘Need for urgent clarification on prioritising need’

“DfE could have asked Parliament to approve relaxation of duties re children’s social care in CV Act, but didn’t,”  Broach added on Twitter. “So guidance to local authorities should be that they have to comply with their duties unless impossible to do so. The actual approach undermines the rule of law.”

Responding to the document, the Local Government Association’s children and young people board chair, Judith Blake, called for more specific legal direction on how councils should prioritise need, something the DfE is considering.

“Children’s social care departments need urgent clarification about amendments to regulations that will support them to prioritise those children and families in most need of help. We understand the Department for Education is currently exploring this.”

The guidance does say that the government may amend regulations to streamline fostering procedures, including to speed up approval of emergency carers, but does not refer to doing so in terms of prioritising need.

Claudia Megele, the chair of the Principal Children and Families Social Work Network (PCFSW), which has been advocating for greater clarity and support for social workers in discussions with the DfE, said she understood the department’s aim had been to provide children’s services with some latitude in terms of how they operate during the pandemic.

“The guidance is helpful, and provides some degree of flexibility for local authorities,” she told Community Care. “But it would be useful to have greater clarity about a number of frontline challenges.”

Home visit concerns

The most important of those challenges surrounds home visiting and the use of PPE. Many social workers have expressed anxiety that shortages of masks and other equipment – and of protocols for using them when available – risks exposing both them and the children and families they work with to infection risks.

Where home visits are essential, the new guidance says PPE would not be required unless children or families were displaying symptoms of Covid-19 or had a confirmed diagnosis. While this is in line with wider guidance for health and social care staff issued by Public Health England, the PHE guidance goes further in saying that workers should have access to PPE if they cannot establish before a visit if the person is symptomatic.

The PHE guidance says that current evidence suggests that most people will not be infectious until the onset of symptoms and that further study is required to determine the extent of pre-symptomatic or asymptomatic transmission, though the World Health Organisation (WHO) has said pre-symptomatic transmission has been documented in a small number of studies. 

However, the British Association of Social Workers (BASW), which issued its own guidance on home visits last week, warned that the PHE guidance was not sufficiently social work-focused and did not acknowledge the profession’s particular challenges of needing to establishing rapport with families, while making use of statutory powers. In an open letter to the Department of Health and Social Care’s public health director general, Clara Swinson, BASW said both the PHE and DfE guidance failed to recognise the risks of asymptomatic transmission.

“PHE guidance overall does not advise ‘in case’ use of PPE to deal with asymptomatic risk,” said the letter from association chair Gerry Nosowska and chief executive Ruth Allen. “Given emerging evidence of viral shedding in the absence of symptoms (and given the reported of symptoms in ‘mild’ cases, for instance) we believe this is an inadequate interpretation for inclusion in national guidance designed to protect public professionals in the workplace and to protect – and importantly, to reassure – the public.”

Megele said the lack of consideration around asymptomatic individuals was a point of concern for PSWs and practitioners, many of whom had been in touch with the network.

“Families are also concerned about contracting the virus by contact with professionals,” she said, adding that many PSWs had emphasised the need for priority testing of social workers and colleagues, as well as foster carers, as a way to mitigate infection risks and anxieties.

The DfE is working with other government departments and wholesalers to secure sufficient PPE for frontline staff, including social workers, though on the basis of it being available for cases where the person being visited is symptomatic or diagnosed with Covid-19.

Practice-based support

The Principal Children and Families Social Worker (PCFSW) network has produced ethics and risk assessment guides for children’s social workers and will be releasing others in the coming days, including around best practice for home visits, online safeguarding, working with domestic abuse, return-home interviews and child protection conferences.

“The [new] DfE guidance recognises the Covid-19 risks to continuity of service and offers some flexibility, but it does not address some of the emerging practical challenges, which is partially understandable given the diverse context and rapidly changing situation across the country,” said Megele.

“The PCFSW guides are aimed at providing more practice-based support and clarity for practitioners during this time,” Megele said.

Virtual practice

Aside from situations where face-to-face contact is essential, the DfE guidance endorses technology-based measures – which many local authorities have already been putting in place – to continue delivering services as far as possible.

“As far as possible, multi-agency support should continue, while being mindful of changes in how this is offered, for example, offering telephone or online support rather than face-to-face meetings where it is safe to do so,” it says.

“Local authorities should be conscious of reduced protective factors available to children and families and the increased stressors as a result of coronavirus and try to ensure continuity and consistency of support where possible.”

The document similarly says that as far as possible multi-agency forums such as child protection conferences should go ahead via whatever means possible.

“We welcome local authorities’ and their partners’ creativity in ensuring that vital information-sharing and joint risk assessments continue to benefit children at this time,” it adds.

2 Responses to Covid-19: children’s social care guidance criticised for ‘unlawfulness’ and approach to PPE

  1. Me April 18, 2020 at 6:44 pm #

    It is not visits that are the issue. But the continuation of tasks by social workers, to deliver PP letters and assessments that could arguably place children, parents and professionals at risk

Trackbacks/Pingbacks

  1. 39 Essex Chambers | Steve Broach on the criticism being received by the Department for Education’s for its children’s social care guidance in relation to COVID-19 | 39 Essex Chambers | Barristers' Chambers - April 9, 2020

    […] Department for Education’s for its children’s social care guidance in relation to COVID-19. See here to read the full […]