Doncaster slams legal flaws in DfE plan to outsource children's services

August 16, 2013

The Government’s proposed model for children’s services in Doncaster has “considerable limitations and legal complications”, the local authority has warned.

A report by Professor Le Grand and Alan Wood published in July recommended that responsibilities for children’s services in the town should be stripped from Doncaster MBC and handed to an independent trust. Children’s services in Doncaster have been under government supervision for several years after seven deaths over a five-year period.

The council, which is proposing a different solution to be called the Doncaster Children’s Trust (DCT), said it had received advice from counsel saying the Le Grand/Wood arrangement presented risks for national government, the DFE, local government and the council.

Ros Jones, Doncaster’s elected mayor, claimed the LeGrand/Wood model would lead to:

“Unclear, high risk and conflicting legal powers, responsibilities and accountabilities between the Secretary of State and the council;
A very confused view and unworkable proposition around commissioning and the interrelationship and interdependencies between it, resource planning, service delivery and performance management;
In respect of the statutory roles, responsibilities and accountabilities held by the Lead Member for Children’s Services and Director of Children’s Services, an absence of regard for a clear and unambiguous line of political and professional accountability for outcomes for children;
An extremely simplistic and problematic approach to the financial arrangements which fails to take into account the complexity of setting a children’s services budget, alongside the trajectory of funding for local government nationally and the Doncaster context;
The absence of any public consultation about both the decision itself and the impact upon the councils remaining services, which if it were challenged through the courts , I am advised could hold matters up considerably;
An inaccurate understanding of the TUPE position and insufficient regard to the complexities and potential significant costs associated with pension matters;
The apparent absence of any regard to equality duties in determining the substance of the Direction, having regard to the requirements of the general equality duty, which if it were challenged through the courts, I am advised could hold matters up considerably;
Insufficient understanding of and clarity around various areas of responsibility and council functions related to Children’s Services, which will need to be assigned to the Secretary of State;
A lack of recognition that children’s social care cannot deliver successful outcomes without the full engagement of other council services, partner agencies and the voluntary and independent sector;
Scant regard for any additional costs, arising from the arrangements as they are currently proposed, which I am informed will be significant;
More generally, insufficient clarity, detail, substance and rigour in the proposition that the council needs and usually expects to see.”

Doncaster’s Mayor also issued a warning to the Education Secretary and Communities Secretary Eric Pickles over their plans to use their powers to issue a direction.

This direction in part directs the council to comply with any instructions issued by the Education Secretary or the Commissioner for Children’s Social Care in relation to the authority’s exercise of their children’s social care functions.

However, Jones said: “This would mean that prior to the setting up of your proposed trust, the council, while still being statutorily responsible for children’s services, would be required to follow instructions issued by the Children’s Commissioner even if that was not the advice they were receiving from the statutory Director of Children’s Services. In short this provision affords the Children’s Commissioner the power to intervene within children’s services without any concomitant transfer of statutory responsibilities.

“This would create an ambiguous line of accountability, put significant risks in the system and contrast sharply with the powers of existing commissioners who, other than in powers of appointment of chief officers, have 'step-in' powers, rather than decision-making in the first instance. This provision as drafted is incorrect, and I would ask firstly that it is re-drafted and secondly that there are very clear protocols around the operation of the direction once it is confirmed.”

Mayor Jones’s recommendations for an alternative model were that:

The direction (by the Education Secretary) be amended to direct the council rather than the Children's Commissioner to commission an independent children's trust (the DCT). The DfE would work alongside the council to co-design and co-produce the new model.
The DCT would be an autonomous organisation with control over its own infrastructure and support services and would operate within a clear and robust accountability framework. “The Doncaster Children's Trust has the potential to include wider functions over time.”
The council, with the Doncaster Commissioners in consultation with the Chair of the Trust, would appoint a Director of Children's Services who would be the chief executive of the Trust. The chief executive would be accountable to a trust board and a trust chairman appointed by the Secretary of State.
The DCT would have senior leaders from partner agencies on the trust board, supporting the delivery of integrated multi-agency support for children in Doncaster. “Partners in the borough support this approach.”
The trust board would be supported by a stakeholder reference group made up of all local partners, the voluntary sector and staff representatives. “Representation from other national sector representatives would be welcomed.”
Staff would be seconded to the DCT and have continued access to the Local Government Pension Scheme.

Mayor Jones said: "I have to reiterate my disappointment in not being able to finish what I had started with improvements to children's services, however I am not short-sighted in realising that if the Government is determined to follow an independent trust route, that we need to influence this as much as possible to encourage a model that we know will work and not subject our children to an experimental model. After all, this has not been tried or tested when delivering children's safeguarding services anywhere else in the country.”

She added: "I know how effective a tailored approach can be and we can and should use our previous experiences to develop a Doncaster-specific model that will work quicker, cost less to set up and run and ensure that services are integrated across all of children's services - so they work as a whole rather than a fragmented jigsaw of services operating in silos.

"I hope the Secretary of State will see the merits of what we are putting forward and will want to work with us to much improve services to our children and families."

Commenting on Doncaster Council’s response, Andrew Webb, President of the Association of Directors of Children’s Services, said: “ADCS strongly believes that local government should be expected to lead and drive its own improvement. As democratically elected bodies, local authorities should be in control of their local services. ADCS acknowledges and shares Doncaster’s analysis of the complexities of the legal issues created by the recommendations in Prof LeGrand’s report of the review he led alongside Alan Wood and Dame Moira Gibb – these raise serious questions of accountability and need to be addressed head-on before any further action is taken.

“Members of ADCS hope that the Secretary of State will give full consideration to Doncaster’s alternative proposal which has the merit of retaining a strong link between children’s services and other council services which is essential to assure good outcomes for children and young people. Importantly Doncaster’s alternative proposal maintains a single clear line of professional accountability for children’s social care and education functions through the post of DCS as described in the statutory guidance.”