We have published our evidence to The Education Committee, which is assessing the current system of children’s social care in England.  We said there is a lack of support for disabled children and their families, the government should introduce national eligibility criteria in order to access support, ‘ Working Together’ guidance should be reformed to require local authorities to have separate assessment procedures for disabled children, greater use should be made of Disabled Facilities Grants and social workers should be given more discretion to support families.

Executive Summary

This response is concerned specifically with disabled children’s social care. We consider that:

• There is a lack of support for disabled children and their families. Through our casework we see local authorities irrationally denying families support that they desperately need;
•  The Government should introduce national eligibility criteria;
• “Working Together to Safeguard Children” guidance should be reformed to require local authorities to develop separate assessment procedures for disabled children and their families and use these where there is no evidence to suggest neglect or abuse;
• Local authorities can make significant savings through the increased use of Disabled Facilities Grants to enable children and young people to remain with their families rather than becoming ‘looked after children’;
• Front line social care practitioners should be given greater discretion to work across the boundaries of budget silos and to use resources imaginatively to improve outcomes for families – replacing the current ‘command and control’ approach with one that adopts a ‘systems thinking’ methodology.

About the LEaP Project

1. The LEaP Project is part of Cerebra, a research charity that supports families of children with brain conditions. It is an innovative problem-solving project that works in conjunction with the School of Law at the University of Leeds. We listen to and understand families and help them to overcome the legal barriers they face to access social care and other support. We do this by providing resources and expertise to enable families to solve problems themselves, and through direct casework. We identify common legal issues that prevent families getting access to services and we develop innovative ways of solving those issues. We aim to reach as many families as we can by sharing our solutions as widely as possible. More information about the LEaP Project is available here.

Is the current provision of children’s social care sufficient to meet demand?

2. No. Local authorities are, in almost every case, failing to provide sufficient support to safeguard and promote the welfare of disabled children and failing to adequately promote the upbringing of disabled children by their families by providing a range and level of services appropriate to disabled children’s needs. We see this in our casework. All too often, families are denied help through various mechanisms, including:

• Failing to provide a legally mandated assessment – either no Child in Need assessment (s17 Children Act 1989) or carer’s needs assessment (s17ZD Children Act 1989);
• When assessments are provided, these are not fit for purpose, most commonly because the Statutory Guidance, Working Together to Safeguard Children (now 2023) provides a one-size-fits all ‘safeguarding’ process. A process that results in disabled children being assessed through a child protection, rather than a family support lens. (1) This focus directs attention to parental failings rather than addressing the needs that families experience because of the negative disability-related social impacts they experience;
• The application of incomprehensible, unrealisable eligibility criteria. Local authority eligibility criteria are, all too often, impenetrably complex and in practice interpreted in ways that make the thresholds for eligibility for basic, necessary care (i.e. adequate on-going respite care) unattainable. The consequences of denying modest resources to enable families to sustain their caring roles are, frequently, families not being able to cope, and much-loved children with high needs becoming ‘looked after children’. This is often viewed from a budgetary impact perspective rather than the fracturing of a close-knit family and the generally very poor outcomes that ‘looked after children’ experience;
• The variability of eligibility criteria between local authorities (and the way these criteria are interpreted) means that a post-code lottery of unfairness operates resulting in families – in effect – losing their freedom of movement within England. Once a family has managed to secure adequate support for their disabled child, they are loathe to move to a different local authority (for example to take up new employment) as they have no way of knowing if the new local authority would provide the same level of support;
• The diversion of disabled children to Early Help pigeon-holes; a short-term scheme designed for children suspected of being neglected / abused and designed to address perceived parenting failures. In very many cases local authorities refuse statutory help and require that family’s needs can be met at the Early Help level. This includes inappropriately requiring parents to attend parenting courses, providing time-limited support, suggesting universal provision that families have tried before and found not to work, or that universal services providers themselves say cannot meet a child’s needs. It is inappropriate to suggest a short-term intervention can prevent disability or resolve disability-related needs through a time-limited intervention. It also locates the ‘problems of disability’ in a child’s family and not in the wider society in which they live;
• Fabricated or Induced Illness (FII). FII allegations against families have risen significantly over recent years, including after families have made complaints about the lack of support from social services. The evidence suggests that disabled parents are four times more likely to experience such allegations than non-disabled parents. It also suggests that – in the vast majority of cases – the allegations are mistaken or simply unfounded. Families against whom such allegations have been made describe the experience in the language of experiencing long-term trauma, loss of trust in professionals and feeling unable to ask for support (2 – p10, para 8). See, for example, The prevalence and impact of allegations of Fabricated or Induced Illness (Clements and Aiello, 2023) and Institutionalising parent carer blame (Clements and Aiello, 2021);
• Failure to consider a parent carer’s wish to participate in work, education, training or recreation – a local authority must consider a parent carer’s wellbeing when carrying out a carer’s needs assessment (s17ZD Children Act 1989). This includes, in particular, whether a carer wishes to work, following the Care Act 2014 definition of wellbeing, but this is rarely, if ever, considered;

Exacerbating factors

3. A failure of the social care provision ‘market’. There is a chronic shortage of suitably skilled domiciliary and community-based care and support providers. Because of the inadequacy of ‘commissioned’ care arrangements, many families feel compelled to take direct payments in the hope that they can secure suitable personalised care packages by employing personal assistants (PAs). However, in practice, this too is often proving to be impossible due to the low hourly payment rates set by local authorities. All too often families are unable to secure continuity of care, as PA turnover is high (as they move to better paid and/or less demanding work). Families accumulate surpluses in their Direct Payment accounts which local authorities then reclaim. This is, in effect, a vicious circle where – in the short term – local authorities benefit financially from the market failure (by reclaiming funds that would otherwise have been used to support disabled children and their families). However, as noted above, in the medium term this is incredibly expensive as it leads to families not being able to cope, and much-loved children with high needs becoming ‘looked after children’.

4. One indicator of this problem is the failure of local authorities to comply with their duties under section 6 of the Childcare Act 2006: the duty to secure sufficient childcare for parents who wish to work or study. This duty applies to disabled young people up to the age of 18. We suspect, in line with the findings of the 2014 Parliamentary Inquiry into childcare for disabled children report, that there is still insufficient childcare for disabled children and young people and parents are being denied employment opportunities as a result.

5. The latest BASW Annual Survey of Social Workers and Social Work: 2022 A summary report highlights recruitment and retention as one of the biggest challenges facing the profession, with almost 75 percent of respondents feeling unable to complete their work during contracted hours, and 52 percent unable to manage their workload. According to the government’s latest Children’s social work workforce data release, there are 31,600 FTE children and family social workers in post. 5,400 FTE social workers left their post in the latest reporting year – the highest on record, with only 4,800 starting, giving a turnover rate of 17 percent (3). Work carried out by Prof Clements at the School of Law, University of Leeds, in association with independent parent carer groups, identified the importance to families of assessors having the necessary skills, knowledge and competence to carry out needs assessments (4 – para 7), having empathy and understanding (5 – para 12), recognising that it takes time to build trust with families and that families lack trust when there is a high turnover of assessors (6 – para 13). Given the working conditions and high turnover of social care practitioners, it appears social work teams are not always up to the task required of them by families.

6. There is a lack of effective accountability within the system. The current ‘command and control’ model requires complaints processes and inspections to work effectively. The Local Government Ombudsman (LGSCO) upheld 84 percent of education and children’s services complaints in 2022-23 (7 – p7) (1263 detailed investigations), in line with recent years. This implies that local authority complaints processes are not fit for purpose, and yet families are forced to go through often lengthy multi-stage internal complaints before being able to register a complaint with the LGSCO. This is up from 38 percent a decade ago (8 – p6). If LGSCO decision making acted as a deterrent to local authorities, this percentage should have reduced over the decade.

7. The quality of LGSCO decision making is itself a cause for concern. We see this in our casework and in data provided by the LGSCO, which suggests approx. 8 percent of its decisions are not “reasonable or defensible” by its own definition (9 – 58 out of 63 statements reviewed met the LGSCO quality standard – p15). This would amount to approx. 340 flawed detailed investigations out of a total of 17,000 complaints in 2022-23 (all complaint categories) and likely a much greater number of flawed decisions at earlier stages in its investigations.

8. These very high uphold rates are mirrored in the SEND Tribunal. Approx one in ten appeals included health and/or social care, with local authority decision making being upheld in only 1.7 percent of all appeals (10 – See SEND Tribunal tables 2022 to 2023) with a record number of appeals registered in 2022-23. It is a very slow process, now taking approx. one year from registration to hearing for most appeals. This also indicates the SEND Tribunal has similarly no deterrent effect on local authority decision-making beyond individual cases.

Mitigations

9. The current budget driven approach to managing need has, as we note above, the perverse (and unintended) consequence of driving up costs as many families are simply unable to cope and their much-loved disabled child then becomes a ‘looked after child’. In many situations, we believe that front line social care practitioners have been stripped of all discretion: discretion to work across the boundaries of budget silos and the discretion to use resources imaginatively to improve outcomes for families, to the point that practitioners do not want or do not think they require a greater level of autonomy (11 – See fig 4, page 8 ranking of “Autonomy in my work”). The current “command and control” approach within local authorities has so many perverse unintended consequences that there is an urgent need for the adoption of a ‘systems thinking’ / whole systems approach: one that focuses on family support and not short-term budget control. We believe that in this approach will drive down costs as dramatically as they are driven up by the current system.

10. The Government should introduce national eligibility criteria in the same way as it has been introduced for adults in need by the Care Act 2014. This need was described as ‘pressing’ 15 years ago by Black J (as she then was) in R (JL) v Islington [2009] EWHC 458 (Admin)) and remains no less urgent today.

11. The Working Together (2023) guidance needs be revised to:

• require local authorities to develop separate assessment procedures for disabled children and their families in cases where there is no evidence to suggest neglect / abuse. The current ‘one-size-fits-all’ approach to assessments adopted by most Children’s Services departments is unacceptable (an approach that treats parents of disabled children who seek support, in the same way that it treats parents suspected of neglect / abuse);
• ensure that the separate local disabled children’s assessment procedures are coproduced with local parent carers and local parent carer support groups / forums;
• incorporate the blueprint guidance developed by Parent Carer Groups, namely ‘Draft Guidance Assessing the Needs of Disabled Children and their Families’ (2023).

The Government has stated it will “consider implementing a bespoke assessment protocol” (12 – p47) for disabled children at some unspecified time in the future – but only after it has the ‘findings of the Law Commission Review’ of social care legislation for disabled children and the ‘emerging evidence from our Families First for Children Pathfinder’ – a programme that is scheduled to run until March 2025. This does not demonstrate enough urgency. The government can issue guidance in a matter of months if it chooses, without recourse to legislation. See this post by Prof Clements for more details.

The reasons behind the rising cost of children’s social care for local authorities, and ways to mitigate this.

12. The Local Government Association estimates that English local authorities paid approximately £10,000 per week or more for 120 children’s social care placements in the 2018/19 financial year, which increased to over 1,500 placements at the same amount in 2022/23. (13 – key findings) The costs of placing children in care are increasing significantly each year. This is, in the main, due to the reliance on the private sector to provide services for looked after children, the dysfunctional “market” and the aggressive expansion into the sector by private equity. (14)

13. The Cerebra report: Disabled Children and the Cost Effectiveness of Home Adaptations & Disabled Facilities Grants: a Small Scale Pilot Study (Clements, McCormack, 2017) found that significant savings can be made by local authorities by funding home adaptations rather than allowing families to reach crisis point resulting in children and young people being placed into care. The pilot study suggested that possibly 14 years ‘looked after child’ funding had been avoided by the adaptations, saving almost £1.5 million if the cost of looking after a child was assumed to be £2,000 per week, and almost £2.2 million if the assumption was £3,000 per week). The cost of the adaptations was under £300,000. A case study – Disabled Facilities Grants – One Family’s Story (2021) provides further evidence of savings to a local authority, in this case over £1.1M as a result of providing a Disabled Facilities Grant of £165,000. See also Disabled Facilities Grant and other adaptations: external review (Sheila Mackintosh et al, 2018) and Disabled facilities grants (DFGs) for home adaptations (HoC Library, April 2023)

The specific experiences of disabled children or children with additional needs within children’s social care, how they differ from their peers, and ways to improve their experiences.

14. The Children Act 1989 is legally, conceptually and linguistically outdated; it does not take into account the United Nations Convention on the Rights of the Child or the rise of the social model of disability. Are disabled children disabled first or children first? The Act adopts a binary approach which diminishes the impact disability has on the everyday lives of families. We consider that it is inappropriate that disabled children are conflated with those at risk of abuse or neglect. The need for support is profound in its difference between these two groups. As discussed above, unless there is cogent evidence of abuse or neglect, a separate assessment process should be applied to disabled children and their families. See Prof Clements post here for a further discussion.

January 2024