01 May Department for Education Guidance To Local Authorities On Children’s Social Care In The Light Of The Coronavirus Raises Serious Concerns of Unlawful Policy Changes/Practices

In response to the increased demands and pressures faced by Local Authorities amidst the coronavirus pandemic, the Government has published guidance outlining its advice to Local Authorities regarding Children’s Social Care.

What does the guidance cover?

The guidance is aimed at Local Authorities (“LAs”), those with corporate parenting responsibilities and local safeguarding partnerships who work to safeguard and promote the welfare of all children in their area. It also provides advice for social workers, residential care providers and staff, and those with safeguarding responsibilities.

The Department for Education (“the DfE”) acknowledges the “unprecedented challenges to support the most vulnerable” during the coronavirus pandemic and advices the use of principles to inform decision-making. The principles outline are to promote children’s best interest; prioritise children at greatest risk; harness the strengths in families; be evidence informed; work collaboratively with parents and professionals; and to be transparent about a child’s wellbeing.

A range of advice to delivering children’s social care is given to help meet the “expectation that all authorities will have similar arrangements in place which ensure proper scrutiny of the safety and well-being of children”. In summary, the advice states that:

• Where authorities deviate from standard practice and statutory requirements, they will keep clear records of the rationale and risk assessment of the decision;
• Ofsted will suspend routine inspections of children’s social care services, and the DfE are exploring ways to further reduce burdens and requirements for LAs;
• LAs are best placed to make “sensible, risk-based judgements” regarding the needs of children and families during the pandemic;
• Judgements about visiting children and families should be made by balancing considerations about risks to children and young people, their families and the workforce;
• PPE is not required for home visits unless the people being visited are symptomatic or have a confirmed diagnosis of coronavirus;
• LAs should try to ensure continuity and consistency of multi-agency support for children with social workers, including multi-agency conferences which may take place by virtual means;
• Where Alternative Provision (“AP”) schools/providers close, LAs and school need to work together with the affected vulnerable child’s social worker to assess and make appropriate arrangements on a case by case basis;
• Notification timescales for serious incidents to the Child Safeguarding Practice Review Panel remain the same;
• Rapid reviews and submitting reports to the panel within the 15 day target may not be achievable. Decisions should be made locally on how quickly these can be undertaken, however, where child death or serious injury in the context of abuse and neglect, and coronavirus is a factor rapid reviews should be expedited;
• The £1.6 billion funding announced for LAs includes funding to support children’s social care to secure additional children’s home placements if needed. If placements cannot be found, LAs should “continue to do all they can to promote the welfare of looked after children and ensure their safety”;
• LAs that initially collect unaccompanied asylum seeking children after arrival will be legally responsible and should place them in suitable self-isolation accommodation if the child is exhibiting symptoms;
• LAs should use their “discretion” to assess whether care leavers who are turning 18 should continue to transition or remain in their placement during the pandemic. Some of the additional funding announced for LAs should be used to provide discretionary payments to care leavers to cover items such as food, utilities and rent during the pandemic if required.

Does the guidance disapply a local authority’s statutory duties?

The guidance acknowledges that Local Authorities (“LAs”) will “struggle to meet the full range of statutory duties relating to child protection, safeguarding and care at present” and provides advice as to how LAs should continue to carry out their obligations amidst the crisis. It states that:

• Local Authorities should “make sensible, risk-based judgements” to determine how best to prioritise activity;
• Where Authorities cannot fulfil their statutory obligations they must keep clear records of the rationale and risk assessment; and
• Where “difficult and complex” decisions are being made, they must be done in the spirit of guiding “principles” to be child-centred, risk-based, family focussed, evidence informed, collaborative and transparent.

However, the guidance lacks detail and is vague as to how these “risk-based judgements” are to be considered and what exactly the risk assessments should be taking into account where it is decided that LAs cannot fulfil  their obligations.

Of particular concern, despite the new Coronavirus Act not making any legal changes to a local authority’s duties to provide children’s services, the Guidance suggests that local authorities do not need to comply with their statutory duties:

“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 is unclear in what circumstances the DfE consider LAs may need to deviate from statutory requirements, but in any event, in the absence of any law amending the children services duties, it is difficult to understand how this direction in the Guidance can be lawful. We are concerned that it may be incorrectly relied upon by LAs to ease their statutory children services obligations leaving hundreds of vulnerable families without the proper support to meet their children needs during the pandemic. For example, families with No Recourse to Public Funds (“NRPF”) being left destitute and homeless, care leavers being left without adequate support as they transition out of their placements or children and their families who depend on APs being left without the continuity of support they need during the pandemic.

Successful challenge to Greenwich Council

Already we are aware of one Local Authority that had reset its automatic response to MASH (multi agency safeguarding hubs) referral email with the following:

“Due to the current unprecedented situation Children’s Safeguarding & Social Care will be running differently. MASH will operate a S47 child protection service and Covid 19 related emergencies only. Referrers for children with other levels of need will be informed to re-refer if safeguarding concerns emerge or if concerns remain at the end of the crisis.

 Visits to our most vulnerable children and young people will be prioritised and video and voice calls will take place for those in need of a service.”

The message strongly suggested that the Council did not intend to carry out any assessments other than those under section 47 which concerns high risk situations where  children may be taken into Local Authority care and that all other duties, such as the requirement to conduct child-in-need assessments under s.17 of the Children Act would not be completed during the Coronavirus crisis. The result being that many children’s needs would not be met, including leaving some children destitute and street homeless.

MG&Co were instructed by a 7 month old boy and his mother who had No Recourse to Public Funds refused support and assessment via this email response leaving them destitute and homeless. In response to our letter before claim the local authority amended its auto-response emails and confirmed that it would not be taking the approach indicated in the auto-responses. The local authority has also agreed to  provide our clients with financial support and accommodation whilst the Council carry out an assessment under section 17.

Final comments

We are concerned that the misleading and arguably unlawful guidance published by the DfE, gives the green light to local authorities to not fulfil their statutory duties. We are concerned that this will inevitably lead to other vulnerable children being wrongly denied the assistance they desperately need.

If you have encountered any issues relating to the above guidance, how it is being implemented by LAs or have any queries please contact Olivia Halse, William Flack, Rachel Etheridge or Clare Jennings within our Public Law and Community Care team.

See our News section for more updates related to Government guidance and statutory changes in light of the Coronavirus outbreak: