Luke Clements

Consultation on the revision of the ‘Working Together’ guidance.

The Department for Education (DfE) has opened a consultation on its proposal to update the 2018 ‘Working Together’ guidance.  It has summarised the overall aim of the update as a ‘re-balancing [of] the system towards help at an early point and ensuring strong, effective and consistent child protection practice’.[1]  The DfE has published a draft of the proposed revised guidance,[2] to accompany the consultation paper (referred to in this briefing as the ‘draft 2023 guidance’).

Looking at the positives, the consultation paper states (page 25):

• We want a stronger focus on support and protection for disabled children in Working Together. This update represents the first step towards re-thinking how children’s services can provide the best possible support to disabled children and their families.
• We propose making changes to Working Together now … to help us re-shape and improve the way children’s services support disabled children and their families. We want to support practitioners to consistently recognise there will be times when parents and carers need some practical, non-judgemental help and support for caring for their disabled child.

For those of us hoping for something more than a ‘first step’, the draft Working Together 2023 guidance will come as a disappointment.  That said, the consultation process provides an opportunity for the making of practical suggestions for improvements and everyone concerned about the way Children’s Services currently assess and support disabled children should be encouraged to engage in this consultation.

The need for reform

There is widespread acceptance that there is a need for significant reform in the way the needs of disabled children (for whom there is no cogent evidence of neglect or abuse) are assessed and care managed.  Much of this concern centres on the ‘one-size-fits-all’ approach adopted by most Children’s Services departments: an approach that treats parents who seek support for their disabled child in the same way that they treat parents suspected of child neglect or abuse.

This evidence of harm resulting from the ‘one-size-fits-all’ approach comes from a wide range of sources, including reports emanating from the Department of Health and Social Care and the DfE (noted in Annex 1 at the end of this briefing).

Summarising the research evidence, our 2021 research report Institutionalising parent carer blame[3] suggested that ‘Working Together 2018’ had materially contributed to this problem, by failing to require authorities to adopt a separate process of assessing the needs of disabled children and their families.

The 2021 research also highlighted the failure of local authority protocols to provide for (among much else):

• discrete assessment / care planning pathways for disabled children and their families; and
• rational / intelligible eligibility criteria by which disabled children and their families could access their statutory rights to the support services reserved for them under the Children 1989 and the Chronically Sick and Disabled Persons Act 1970.

It is welcome that this problem has been recognised at an official level within the DfE and by those undertaking recent reviews on its behalf.  It is also welcome that the Minister has noted these concerns[4] and launched the present consultation on proposed reform of the Guidance.  However, given this acknowledgement of the problem, the published draft disappoints by failing to envision a disabled children’s assessment process that is not overshadowed by (and not anchored firmly within) the discourse of ‘safeguarding’.  Without stronger directive language to local authorities to develop discrete assessment and care planning pathways, the proposed guidance is unlikely to have a material impact on the current damaging system.

The provisions in the 158 pages of the draft Working Together 2023 Guidance that are designed to provide ‘a stronger focus on support and protection for disabled children’ are well camouflaged.  The section in the current Working Together 2018 guidance on ‘Supporting disabled children and their carers’ contains only 2 paragraphs (paras 35-36).  The proposed version (at paras 167 – 170) adds two more – although only one of these addresses’ substantive (ie non-organisational) issues.  This provides:

167. A crucial role of children’s social care is to provide help and support to disabled children and their families. When undertaking an assessment of a disabled child, practitioners should recognise and balance the additional pressures on the family. The assessment process should be non-stigmatising and the focus should be on gathering information to inform decisions on the help needed to:

• • ensure the child achieves the best possible outcomes
  • enable their family to continue in their caring role
  • ensure the appropriate practical supports are in place to enable disabled children and their families to thrive

 

It is a welcome statement, but one that needs to be rephrased in Plain English and expanded with significantly greater detail.  In terms of comprehensibility, it is far from clear:

• what practitioners should balance ‘the additional pressures on the family’ against; and
• why the concept of ‘stigmatising’ is cited. If the intention is to refer to families’ widespread concerns that the system (based, as it is, on a one-size-fits-all assessment process) is predicated on the idea of poor parenting being the root cause of the child’s problems – then this needs to be said – for example, something along the following lines:

Practitioners should make it clear that ‘parent blaming’ has no place in the assessment and care planning process: that they appreciate how challenging it must be for families to negotiate the many barriers they encounter in consequence of their child’s impairment and that they will do everything within their power to ensure that they do not add to these difficulties. 

Our research suggests that parents of disabled children routinely articulate their experiences of the current social care system in terms of being blamed, in terms of trauma and in terms of humiliation.  It is crucial that the revised guidance informs practitioners in graphic terms how inappropriate assessments are experienced by families.  If the concept of stigmatisation[5] is to be used, it should be accompanied by a clear explanation as to what this means in this context.

Implicit within the new paragraph (para 167 cited above) is that idea that disabled child’s assessments (absent any evidence of neglect or abuse) should focus on needs: that the challenges the family face should be analysed from a perspective informed by an understanding of the social model of disability and not through a child protection lens.[6]  For the revised guidance to have an impact at the ‘coalface’ – on the everyday interactions between practitioners and families – this needs to be explicit.  Without such an unambiguous acknowledgment, the laudable aims of the proposed revisions will have no tangible impact. Overloaded authorities will assume that (in so far as disabled children are concerned) it will be ‘business as usual’.  Families will continue to experience ‘a system that is set up for child protection, not support’,[7] experience being ‘blamed for challenges their children face’[8]; experience ‘overly intrusive’ ‘one size fits all assessments’.[9]

Guiding principles

One challenging, but essential element in ‘fit for purpose’ guidance of this kind is a statement of the principles that must guide assessment and care planning practice.  This is a particular challenge given that the 2018 Guidance covers two very distinct contexts: one where there is cogent evidence that a child is at risk of neglect or abuse and one where there is not.

The 2018 guidance avoids this incongruence (in a section headed ‘The principles and parameters of a good assessment’) by referring practitioners to:

the principles of the Children Acts 1989 and 2004 – that state that the welfare of children is paramount and that they are best looked after within their families, with their parents playing a full part in their lives, unless compulsory intervention in family life is necessary (para 11).[10]

Unfortunately, the Children Act 1989 principles are directed at (and only apply to) cases where a court is making a determination.

The draft 2023 guidance contains a section ‘Principles for working with parents and carers’ (para 18) that is a significant improvement and does (in one case) seek to distinguish between principles of general relevance and those that have especial relevance ‘when there is reasonable cause to suspect that a child is suffering or is likely to suffer significant harm’. This section includes welcome reference to such principles as the importance of practitioners:

• approaching families and their wider networks and communities with empathy, respect, compassion and creativity
• avoiding reinforcing family shame, suffering and blaming
• ensuring they understand the families’ background, ethnicity, religion, financial situation, ability, education, gender, ages, sexual orientation and needs
• being mindful of negative stereotypes and discrimination which might lead to false assumptions.

What is troubling, however, is the absence in the draft 2023 guidance of references (in the context of disabled children and their families) to relevant human rights principles – for example, the duty on public bodies to respect the private, the family lives and the homes of disabled children and their families and the prohibition of disability discrimination (which requires, among other things, that public bodies treat people who are materially different, differently[11]).

In relation to disabled children for whom there is no cogent evidence of neglect or abuse, human rights principles of this kind would mean (for example):

• That their assessment process should be distinct from those that concern a child for whom such evidence does exist;
• That the assessment should be predicated on an assumption that parents are best-placed to judge the well-being of their disabled child;
• That any intrusion into the family’s private life and any ‘inspection’ of their home must comply with the rigorous ‘proportionality’ requirements of the Human Rights Act 1998 Article 8.

We are shortly to publish a draft document that has been developed by a number of independent parent carer groups, that sets out in detail what they consider to be ‘fit for purpose’ guidance concerning the process by which the social care needs of disabled children and their families should be assessed.  This guidance identifies (among much else) the overarching principles that should apply when an assessment is being undertaken.  The draft 2023 guidance may not be the appropriate document for such an extended discussion about such principles, but at the very least it should reference the fundamental rights engaged in the assessment process.

Local protocols for assessment

The phrasing of the ‘Local protocols’ section in the 2023 draft (paras 136-138) is little different to that in the current guidance (paras 46-50), save only that it includes a bullet point list, summarising what should be in each local protocol.

The evidence as to the fitness for purpose of the content in current local protocols concerning the assessment of disabled children, is conclusive.  A significant majority of these fail to provide any material detail as to how assessments of disabled children should be undertaken and give the impression that they have been ‘purchased “off the shelf”’ – being ‘very similar – and in some material respects identical’.[12]

If the detail of the assessment process for disabled children is to be delegated to local authorities (as at present), the draft 2023 guidance should (at the very least) require:

• that this be co-produced by the local authority and local parent carers (and their support groups). It is troubling that there is no mention of ‘co-production’ in this context [all that the draft 2023 guidance requires is that the local protocols should be developed by the authority ‘with their safeguarding partners’[13] and relevant agencies’[14] (para 136)]; and
• that all practitioners who have assessment and care planning responsibilities receive in depth training on the co-produced guidance: training in which local parent carers (and their support groups) play a significant part.

It is revealing that the ‘co-production’ only gets one mention in the draft 2023 guidance: namely, in the context of the framing of an individual ‘Early Help’ plan (ie that the authority should ensure that ‘the family co-produce the plan’ (para 103)).  The absence of references to co-production at a strategic level is significant.  It suggests that, despite the good intentions of the DfE, the draft guidance is still about the statutory sector ‘doing to’ and not ‘doing with’ families.  It suggests that it is very difficult to revise a document rooted in the discourse of ‘safeguarding’ to make it suitable for disabled children who are not in need of state ‘safeguarding’.

.                                                             ___________________

This note flags up some of the ‘disabled children specific’ questions that will hopefully be resolved during the consultation process.  There is much else that could and should be noted.[15]

It is vital that disabled children and their families engage – if at all possible – in the consultation process and register their views.

The proposed revision of the Working Together guidance is, as the DfE states, a ‘first step towards re-thinking how children’s services can provide the best possible support to disabled children and their families’.  It is a disappointingly small step but it’s a start and it is welcome that the Minister has accepted that this is an issue that needs to be addressed.

There can be no doubt about the daunting challenges confronting the DfE. Children’s social care has become little more than a ‘crisis intervention’ service and is in need ‘of a dramatic whole system reset’[16] and much the same can be said of the special educational system.  In comparison the imperative of changing the process by which the social care needs of disabled children and their families are assessed may seem like a sideshow – but this is not the case.  The evidence demonstrates that current arrangements are not only causing very significant and unnecessary trauma to families, but that it is also a relatively simple problem to resolve.

• The announcement of the consultation can be accessed by clicking here.
• A PDF of the consultation paper can be accessed by clicking here.
• A PDF of the proposed updated guidance can be accessed at by clicking here.
• A PDF of the current guidance HM Government Working Together 2018 can be accessed by clicking here.
• The DfE is hosting a webinar on the 4 September where ‘your views on the update to Working Together to Safeguard Children’ can be shared. To sign up for this click here and scroll down the web page.

 The consultation closes on 6 September 2023.

 

Annex 1

Examples of reports emanating from Department of Health and Social Care / DfE initiatives that expressed concern about the ‘one-size-fits-all’ approach adopted by Children’s Services departments when assessing the needs of disabled children and their families.

A 2020 Department of Health and Social Care report[17] that noted:

Even where the sole reason for contact with children’s social care was because of the social care needs of an autistic child, there was a tendency to use the social work assessment as an opportunity to judge parenting capacity through a child protection lens rather than through a lens of social care need. This has long been a complaint of families caring for disabled children.

We were also particularly troubled by reports we received from families who had been brought into the child protection process because of disagreements with practitioners about how their child’s behaviour could best be managed within the home setting … this is a repeated concern that we hear from parents and carers outside of this study in the course of our ongoing communications with families over the years both in our roles as Chief Social Workers and during our many years in practice leadership roles.

Fear of being labelled a bad parent or concerns about being blamed for failing as a parent may limit a family’s willingness to seek help.

A 2021 (interim) report from the independent review of children’s social care[18] commissioned by the Secretary of State for Education that noted:

‘a consistent theme in what the review has heard’ was that families with disabled children felt ‘that they are navigating a system that is set up for child protection, not support’ (page 29);

that the review had heard ‘from care-experienced parents who describe the undignified position of being subject to child protection investigations if they seek help, which in turn stops them asking for the support they need’ (page 30); and

that ‘the system appears to be disproportionately spent on assessing and investigating families instead of providing support’ (page 30).

The 2022 SEND Review[19] referred to the experiences of some families with disabled children and noted that they were:

put off seeking support from children’s social care because of fear they will be blamed for challenges their children face and treated as a safeguarding concern rather than receive the support they need. 

The 2022 Final Report of the independent review of children’s social care[20] that noted:

we have heard time and again from both social workers and families [of disabled children] that one size fits all assessments are overly intrusive for families, are not tailored enough to the needs of families, and do not align well with the framework for adult social care.

.

[1] HM Government Changes to statutory guidance: Working Together to Safeguard Children Government consultation 21 June 2023 page 4.

[2] HM Government Draft: Working Together to Safeguard Children 2023 A guide to multi-agency working to help, safeguard, protect and promote the welfare of children.

[3] L Clements and A L Aiello Institutionalising parent carer blame (Cerebra 2021).

[4] Letter from the Minister for Children, Families and Wellbeing to the Rt Hon Jesse Norman MP 13 March 2023.

[5] The Shorter Oxford English dictionary defines ‘stigmatize’ (in figurative use) as: ‘To set a stigma upon; to mark with a sign of disgrace or infamy; to brand; to characterize by a term implying severe censure or condemnation’.

[6] Chief Social Workers for Adults and the Chief Social Worker for Children and Families A spectrum of opportunity: an exploratory study of social work practice with autistic young adults and their families (Department of Health and Social Care 2021).

[7] J MacAlister The Case for change (2021) an interim report of the independent review of children’s social care p.29.

[8] HM Government SEND Review: Right support, right place, right time. Government consultation on the SEND and alternative provision system in England CP 624 Department for Education (2022) p.10.

[9] J MacAlister Final Report. The independent review of children’s social care (2022) p.39.

[10] The guidance contains a section headed ‘The principles and parameters of a good assessment’ (paras 51 – 59) but this in essence merely contains a list of good practice actions that social workers should follow.

[11] See for example Thlimmenos v Greece (2001) 31 EHRR 15; Application No. 34369/9731 6^th April 2000. and Gorry v. Wiltshire Council and others. [2012] EWCA Civ 629.

[12] L Clements and A L Aiello Institutionalising parent carer blame (Cerebra 2021) paras 5.45 – 5.46.

[13] Defined as the local authority, the Integrated Care Board and the police – see s16E(3) Children Act 2004 section 16E(3).

[14] A list of such agencies is contained in the Schedule to The Child Safeguarding Practice Review and Relevant Agency (England) Regulations 2018.  The list details education, social care, local government, criminal justice, police and immigration professionals. Parent Carers and their support groups are not on this list and the only possibility of their inclusion would be as a group (not as an individual) if they came within the category ‘miscellaneous’ and were a charity ‘within the meaning given by section 1 of the Charities Act 2011’.

[15] There are other aspects of the draft guidance that deserve comment – for example the need for clarity about the appropriateness of ‘Early Help’ for disabled children and the need for the draft guidance to better ‘mesh’ with the specific statutory duties to provide support for disabled children in the Children Act 1989 and the Chronically Sick and Disabled Persons Act 1970.

[16] J MacAlister Final Report. The independent review of children’s social care (2022) p.8.

[17] Chief Social Workers for Adults and the Chief Social Worker for Children and Families A spectrum of opportunity: an exploratory study of social work practice with autistic young adults and their families (Department of Health and Social Care 2021).

[18] J MacAlister The Case for change (2021) an interim report of the independent review of children’s social care, p.29.

[19] HM Government SEND Review: Right support, right place, right time. Government consultation on the SEND and alternative provision system in England CP 624 Department for Education (2022) p10.

[20] J MacAlister Final Report. The independent review of children’s social care (2022) p 39.

Posted 28 June 2023