Who holds the Duty of Care?
Jan 4 2024
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The DfE is consulting on draft regulations that will enable local authorities to delegate additional children’s social care functions to third party providers.
These changes are being made to support the DfE’s innovation programme which aims to stimulate new approaches to securing improvements in children’s services. The ability to delegate most children's services functions will help authorities to set up more flexible and innovative delivery structures.
Part 1 of the Children and Young Persons Act 2008 (the 2008 Act) provides for local authorities to delegate social care functions relating to looked after children and care leavers to third parties. Initially this was run as a pilot but the provisions were rolled out to all local authorities in November 2013. These provisions included a requirement that any provider of social care functions to looked after children and care leavers should be separately registered with Ofsted.
The Act also gives the Secretary of State power to make regulations extending the range of relevant care functions that may be delegated.
The Government has now published draft Children and Young Persons Act 2008 (Relevant Care Functions) (England) Regulations 2014 that, once finalised, allow local authorities to delegate almost all of their social services functions relating to children, as defined in the Local Authority Social Services Act 1970.
The draft regulations also allow authorities to delegate certain functions under the Children Act 2004 relating to Children's Trust Boards, Children and Young People's Plans, and the duty to cooperate.
The 2008 Act already excludes delegation of independent reviewing officer functions, and of adoption agency functions other than to a registered adoption society. In addition the draft regulations make clear that an authority's power to delegate under Part 1 of the 2008 Act cannot itself be delegated.
Functions that are delegated under the 2008 Act must discharged by or under the supervision of registered social workers. Local authorities will have to decide with their third party provider how best to manage this requirement. This will require robust contractual arrangement to be put in place between the local authorities and the providers; in particular ensuring any contracts include clear and detailed specifications of the functions to be delivered and effective contract monitoring and review provisions.
The consultation paper makes clear that any such delegation does not remove the authority's responsibility for ensuring that their statutory obligations are met, and any breach of those obligations will be treated as a breach by the local authority. Ofsted will include services provided under delegated arrangements as part of its single framework inspection arrangements, and will hold the local authority to account.
In addition to Ofsted's inspection of local authority functions, under their new single inspection framework, Ofsted currently also inspects delegated arrangements as a result of the commencement of Part 1 of the 2008 Act in November 2013. It is argued that this registration process does not offer any genuine additional safeguards and therefore the DfE, by cl.61 of the Deregulation Bill currently before Parliament, seeks to remove this requirement.
The consultation closes on 30 May 2014 and the DfE plans to publish the results this summer, so the proposed changes could be in force by Autumn 2014. Local authorities that are looking at transforming delivery of their children's services should start planning now for how to make the most of these new opportunities. It is not yet known when the Deregulation Bill's removal of the Ofsted registration requirements is likely to become law nor whether this will be at the same time as the 2014 draft regulations come into force.
Bevan Brittan has recently been advising a number local authorities who have been exploring the opportunities afforded to them by Part 1 of the 2008 Act and how these changes can be incorporated into new and innovative ways of delivering services. It should be noted that the requirement for providers to register with Ofsted was considered by some to be an unnecessary burden and a barrier to making the most of these changes, so the proposed removal of this requirement is likely to be welcomed and encourage more local authorities to consider different ways of delivering children's social care.