The Department for Education has published an updated version of Working Together to Safeguard Children (‘Working Together’), the statutory guidance on multi-agency working to support and protect children in England. It is a very important, wide-ranging document, but I want to focus here on one aspect of the guidance that reflects – I suggest – a profound and troubling misunderstanding of the law. In the summary of the changes published alongside the Working Together, DfE say that Chapter 3 now:
explains that family help combines targeted early help and section 17 support to create a more seamless offer for families, with consistent practitioner relationships and a family help plan led by a multi‑disciplinary team.
This is a laudable and important goal. However, the relevant part of Chapter 3 perpetuates a deep confusion about the powers of local authorities that the Law Commission sought to point out in its Disabled Children’s Social Care Report.[1] At paragraph 5.49, the Law Commission noted that:
Early and Family Help are policies, neither of which are provided for expressly in statute. However, local authorities are statutory bodies. This means that they can only exercise powers conferred by statute. As such, children’s services do not have any power to provide “non-statutory services”. There are a range of views as to the statutory basis upon which Early Help is provided by local authorities. Our view is that any goods, services or financial assistance provided by social services to disabled children and other children in need are likely to be provided pursuant to section 17 of the Children Act 1989, and that this is the case even if the help is provided under the banner of Early Help, Targeted Early Help or Family Help. The legal source of the power remains the same, irrespective of the policy which the power is used to implement.
Chapter 3 of Working Together requires that
Safeguarding partners should publish a threshold document, which sets out the local criteria for action in a way that is transparent, evidence-based, accessible, and easily understood. This should include
-
- the criteria, including the level of need, for when a child should be referred to Family Help, which covers non-statutory and statutory support and services provided through:
- targeted early help under sections 10 and 11 of the Children Act 2004. This support is provided to children and families who are identified by practitioners to have multiple and/or complex needs, requiring a specialist and/or multi disciplinary/agency response, where statutory support or intervention is not required
- statutory support, including assessments, delivered under section 17 of the Children Act 1989 (children in need, including how this applies for disabled children) (emphasis added)
- the criteria, including the level of need, for when a child should be referred to Family Help, which covers non-statutory and statutory support and services provided through:
There are two problems with this.
The first is that it is, with respect, questionable whether sections 10 and 11 Children Act 2004 really do provide a statutory basis for targeted Early Help. The previous iteration of Working Together had suggested this. However, as the Law Commission noted in the Disabled Children’s Social Care consultation paper:
We doubt, however, that this can be correct. Section 10(5A) of the Children Act 2004 allows local authorities to provide staff, goods, services, accommodation or other resources to another authority or public body. It also allows a local authority to contribute to a fund out of which payments can be made to cover the costs incurred by the other authority or body in exercising its functions. Section 10 is not, however, a general power to provide services to help children and their families. It is a power that can only be used for the specific purpose of making arrangements to promote co-operation between the local authority and other authorities and public bodies. Moreover, the powers do not allow the local authority to provide services directly to families; rather, the services or payments are provided to the authority or body with which the first local authority is working. Section 11 of the Children Act 2004, in turn, requires local authorities (amongst others) to make arrangements for ensuring that their functions, and those of partner bodies, are discharged having regard to the need to safeguard and promote the welfare of children.
The second problem is that, for the reasons set out above, there is no such thing as ‘non-statutory’ help.
These problems matter. The more that s.17 Children Act 1989 is seen as a ‘statutory’ form of support to which recourse should only be had as a last resort, the more (especially in a resource constrained environment) local authorities will seek not to invoke it. Conversely, if it is recognised that s.17 Children Act 1989 is (as the Law Commission suggested) the power upon which Family Help and Early Help is provided, then we can start to move to a position where it is understood that ‘assessment’ is not necessarily a complex and time-consuming process, but rather can – in the case of Family Help / Early Help – be a relatively light touch and proportionate identification and planning process.
The interim response of the Government to the Law Commission’s report was published on 16 March, pending the final response which will outline which of the recommendations it will take forward. In that interim response, the Government placed particular emphasis on Family Help, noting that:
we believe the rollout of Family Help as part of the Families First Partnership (FFP) programme, backed by £2.4bn of funding over three years, is already beginning to deliver many of the intended outcomes of the report. Our wider reforms are designed to make a real and tangible difference to children and families, including disabled children. Our vision for Family Help is a seamless, non stigmatising offer of support delivered by multi-disciplinary, community-based teams.
As I said above, such a goal is undoubtedly laudable, but it does need to rest on a clear and sound understanding of the legal basis; that legal basis is most obviously s.17 which – with specific reference to disabled children, and if retooled in the way proposed by the Law Commission – would provide a clear and transparent framework across England for the provision of support for disabled children across the spectrum of need. Even before such retooling, much can already be done – but only on the basis of a proper understanding of the current legal framework.
[1] Full disclosure and disclaimer: I was a consultant to the project, but the views expressed here are mine alone.
