There are a number of laws which outlaw discrimination in various forms such as:
- age
- race
- sex
- disability
- religious belief
- gender reassignment

This is provided by a hotch potch of statutory provision and generally imposes a positive duty on public authorities to promote equality. Social workers and other professionals are representatives of the state and therefore “public authorities”. Further, they are striving to provide an excellent service where discrimination of any kind has no place. However, this does not necessarily mean that service users will take the same view.

Equality and discrimination apply to everyone and from all angles. This can lead to confusion. You must give consideration to everyone in any context (including yourself) and make sure no one is being discriminated against.

As a social worker you have an obligation to ensure that services users are aware of their rights not to be discriminated against. Not everyone is equal. Vulnerable people and those with a disability may need more support than others to put them in the same position when it comes to leading a fulfilled life.

There is also the risk of “positive discrimination”. This is discriminating in favour of someone who is in a minority just to correct an imbalance. This is as discriminatory as any other form of discrimination and equally illegal.

Various key concepts of discrimination include:
- direct discrimination: when someone is treated less favourably than someone else in grounds of their gender, marital status, race, disability, age, etc
- indirect discrimination: a condition imposed that, although applied equally to everyone in practice, means that one group of people who can comply is considerably smaller than other groups.
- Failure to make reasonable adjustments for disability: employers and service providers are required to make reasonably adjustments to the physical environment so that disabled people are not substantially disadvantaged.
- Victimisation: this is if someone is treated detrimentally because of a complaint, allegation or have given evidence in relation to a complaint of discrimination
- Harassment: someone is subjected to harassment by their employer or someone acting for their employer on the basis of their sex/race/disability/age etc.

There is some permitted discrimination, although these are limited. Genuine occupational requirements such as a qualification or other requirement are permissible. There are also some specific statutory exclusions.

The BASW Code of Ethics prescribes professional responsibility for social workers. Workers must always be aware of their obligations and ensure they do not discriminate.

Human Rights Act 1998 – Outline

Social workers will often hear reference to the Human Rights Act 1998 (HRA) and how they must take this into account at all times. Whilst this is correct, it is important to remember that there may be conflicting arguments as to whose rights must be considered. A parent may argue that their rights are being violated by a social worker repeatedly coming into their home, the counter argument is that the child has rights too. The child’s rights may be stronger than the parent’s.

The HRA incorporates into English law the European Convention on Human Rights (ECHR) which the UK signed in 1951. It became binding in 1953 but was not considered a significant part of UK law until 2000 when the HRA came into force here. Despite the age of the original convention it is considered a “living instrument”. It keeps up to date with today’s social and cultural conditions.

The HRA makes it unlawful for all public authorities to act in way which is incompatible with the ECHR. Social workers making decisions about vulnerable people come under the umbrella of “public authorities” and must therefore bear in mind the ECHR and its implications. It is important not just to follow the word but the spirit of the Convention.

There are three categories of Convention rights:
- Absolute
- Limited
- Qualified

Article 3 sets out the prohibition against torture, inhuman or degrading treatment or punishment and is an absolute right. The UK has been criticised in cases for failing to act to protect children from ill treatment and neglect from their parents in accordance with this Article.

Most other Articles are either limited or qualified.

Those of particular relevance to social workers will include the Right to Life (Article 2), Right to Liberty and Security (Article 5) and the Right to a Fair Trial (Article 6) all of which are limited. This means there are limitations or specific exceptions on the right.

The Right to Respect for Family and Private Life (Article 8) is a qualified right, meaning that any interference must be lawful, necessary and proportionate. This will be the Article most likely to be used in child protection situations particularly where a hostile family is claiming a breach of the HRA. The child’s rights under Article 3 are absolute and therefore stronger than those which may be claimed by the family.

Do not allow yourself to be intimidated by threats invoking the HRA. As I have indicated above, you are much more likely to be criticised for not acting to protect a child than you are for “interfering” in a family’s life.
As ever always ensure you record your actions and decisions accurately in case of challenge.

Mental Capacity Act 2005 – Principles

A previous blog outlined some of the reasons for the passing of this legislation. This article aims to expand on some of the workings of the Mental Capacity Act 2005 (MCA).

The MCA covers three areas:
- sets out legal rules that are used to decide if an individual has sufficient mental capacity to make a particular decision
- sets out principles upon which decisions are made when an individual is assessed as lacking capacity
- enables people to make decisions to refuse medical treatment if they lose capacity in the future

All social workers and other professionals working in this area should be aware of the Mental Capacity Act Code of Conduct. This provides Guidance on the working of the MCA and explains it in more detail. Professionals have a legal duty to “have regard” to the Code.

S1 MCA sets out the 5 key principles of the Act
1. Presumption of capacity: every adult has a right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise.
2. Individuals will be supported to make their own decisions: a person must be given all practical help in their decision making
3. Unwise Decisions: just because an individual makes a decision that may be seen as unwise, they should not be treated as lacking capacity to make that decision.
4. Best Interests: an act done or decision made for or on behalf of someone who lacks capacity must be done in their best interests.
5. Less Restrictive Option: anything done for or on behalf of someone who lacks capacity should be the least restrictive option to their basic rights.

The MCA is clear that every adult must be presumed able to make decisions regarding their own lifestyle, and every effort must be made to support such people in their decision making and in communicating their decisions. The challenge for those working with these individuals is how their decision making ability, or otherwise, is determined.

S2 (1) MCA states:
“ a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment or a disturbance in the functioning of the mind or brain”.

In relation to this provision it is important to note:
- any decision making relates to a specific matter
- the capacity issue relates to the decision to be made at that particular time
- material time – is when the decision is required to be made. If the lack of capacity is temporary or the individual requires some support and the decision is not urgent then the decision must be delayed whilst the individual improves or is supported appropriately.

Remember – it is that decision at that particular time.
Also remember, that whatever conclusion you come to, you may subsequently be challenged. Ensure your processes are fully and accurately recorded.

I will cover further aspects of this subject in a later Blog.

The Need for Accurate Concise Recording

No doubt all student and newly qualified social workers will be used to hearing that they must ensure that their records are kept up to date. Whilst many will be sick of hearing this, some may wonder why this emphasis. Why is it so important?

Firstly, you may think that you will remember what happened. Occasionally you may, usually in exceptional circumstances, but when you are carrying out a great number of visits in quick succession, inevitably you will forget things. Specific details are significant and vital. You will be undermined as a professional and as a witness if you confuse one case with another. For instance, in care proceedings, if you are trying to describe the state of a house in detail some months after the event, you need to be able to refer to your records to convince the court and other professionals that your recollection is accurate.

The timing of your recording is also important. The sooner you can complete the recording the better. If there is significant delay (more than a day or so) you may have to answer questions regarding the accuracy of the recording and also the reasons for the delay.

Clarity in the recording is also crucial. Do not ramble on, but make the point, justify it and move on. Remember, the recording is of no use at all if it is ambiguous or so long it is never read.

Also remember records are sometimes required many years after they were prepared. Perhaps in child concerned has grown up and now has their own children who are involved in court proceedings. The new court may require historical information.

The child, as an adult, may wish to consider their own records to find out about their own childhood. This will inevitably be a difficult emotional exercise for them, all the more reason why they should be able to easily find accurate information about their history.

Sometimes lawyers request information from a social care file in criminal proceedings. This information my go to the heart of the reliability of the witness. Although, the Judge must consider the relevant information before ordering disclosure, these documents will then be made public. This underlines the need for the recording to be accurate and easy to read. It may fundamentally alter the course of a criminal trial.

There are many reasons why your recording must be clear, these are just a few. If you always remember, recordings must be timely, concise and accurate this will be of great help to you.

Mental Capacity Act 2005 – Background

The Mental Capacity Act 2005 (MCA) was passed to deal with the then inadequacies of the law relating to capacity issues of adults. Its purpose was to make appropriate and accessible arrangements for decisions to be made for adults who lack capacity to make their own decisions on a day to day basis. This can relate to both short and long term incapacity.

It is important not to confuse the MCA with the Mental Health Act 1983. That Act deals with individuals who are suffering from a mental illness and require treatment for their condition. One Act may follow the other but they are not mutually exclusive.

Prior to the MCA much of the relevant legislation was archaic eg National Assistance Act 1948 and the legal mechanisms were complicated, inflexible and piecemeal. The main issues that were identified by the Law Commission when considering the need for legislation were:
1. the lack of ways decisions could lawfully be made on behalf of people unable to make their own decisions;
2. the lack of effective procedures for resolution of disputes;
3. what powers, if any, should public authorities have to intervene and protect vulnerable adults
4. the lack of a clear procedure enabling lawful decisions to be made for adults who lack capacity had led to makeshift remedies in the High Court. These were expensive, relied on applications being made and unpredictable.

One of the major problems with adult social care law is that it is a mish mash of statutory and common law procedure. The MCA brought one area into a coherent statute. It took ten years from the identification of the need by the Law Commission in 1995 until the Act was passed in 2005 and a further two years before it became law in April and October 2007.

The aim was to have a “quick, cheap, flexible, accessible & easy to use” procedure. This has arguably not been achieved, although the situation is markedly better than it was. However, a straightforward application for a Lasting Power of Attorney can still be expected to take up to ten weeks.

The MCA applies to anyone over 16 years. Under that age the appropriate decisions will be taken by the parents, or alternatively in accordance with the Children Act 1989.

Some Other Sources of Law

In an earlier Blog (Common law – Basics) I explained some of the general principles of precedent in relation to case law.

There are, however, other sources of law of which any professional dealing with our courts and legal system must have a basic understanding.

The most obvious of these other sources of law is statute, namely Acts of Parliament. An increasing proportion of our law is sourced from these Acts and much of our case law relates to the interpretation and exercise of these Acts.

Parliament considers proposed Acts which are called Bills. These go through a number of stages and may be significantly changed during this procedure. Once they have passed through all the Parliamentary stages and received the Royal Assent they become Acts. The Act will have a name and the year it received the Royal Assent.

However, receiving the Royal Assent does not necessarily mean they immediately and automatically become law. This can be confusing as frequently different parts of an Act will become law at different times. It is essential to check whether an Act has become law before acting upon it. Sometimes legislation, passed by Parliament many years ago, has never been brought into force.

Particularly in more complicated Acts, and those that will have a radical effect on procedures generally, it will take some time before they come into force. This is to ensure everything is ready for the new law and that those who need to have training are prepared. For example, the Children Act 1989 did not come into force until October 1991.

Often an Act will be brought into force piecemeal. Some sections will be in force and others not. Again, this can be confusing for practitioners.

The usual procedure for bringing an Act, or part of an Act, into force is for the relevant minister to issue a Commencement Order stating precisely which sections will be brought into force and when 9date and time).

Every Act of Parliament is divided into sections each covering a specific point. A section may be subdivided. In longer Acts groups of sections may be formed into Parts (similar to chapters) dealing with related topics. Some Acts also have Schedules at the end (which can be very long) dealing with some of the more detailed issues.

Increasingly Acts do not contain the detail as to how the law will work. These are contained in Regulations which are often very detailed and have the force of law. Regulations are prepared for the relevant minister and are part of a vast array of law known as Statutory Instruments. Commencement Orders also come into this category.

How will the New Legal Aid Provisions Affect Social Workers?

No one who has been listening to any form of news programme over the last few weeks can fail to be aware that the Government’s new provisions reducing significantly those entitled to legal aid have now come into force.

Will these affect social workers, and if so, how?

Legal Aid is still available for child protection cases. Therefore social workers in this area who have, for many years, habitually advised parents who are on the verge of care proceedings to go and see a solicitor to obtain legal advice, will still be able to do this with the knowledge that they should still qualify for legal aid.

You must remember that non-parents will not automatically qualify for legal aid.

The situation will be more complicated in “private law” cases where a social worker may be encouraging one parent or a relative to apply for a court order to protect a child or children. In these situations it is unlikely that this person will now qualify for legal aid, despite the fact that such an application may prevent much more expensive care proceedings.

If such a person is not now entitled to legal aid they are unlikely to be able to afford legal representation. This could well have a knock on effect for social workers who will almost inevitably be asked to support and assist in an application and even attending court. Always remember that you are not legally qualified and must not give legal advice. You must reinforce this to any service user. You can still provide support.

Equally your legal advisors are not allowed to give legal advice to your service users.

Judges will be experiencing many more situations where there are unrepresented people appearing in court. They will, therefore, almost inevitably, be seeking additional assistance from any other professionals who are involved in a case.

Social workers working with vulnerable adults may notice fewer challenges to their assessments and decisions that involve lawyers. The dreaded threatened judicial review on a Friday afternoon may now be a thing of the past, or at least much less frequent. Whilst this may have some advantages, it is to be hoped it does not reduce the level of provision to the most vulnerable in our society.

All social workers may well find themselves more frequently supporting their service users at court and at similar situations, thereby increasing further their already stretched work loads.

Only time will tell how things will work out.

The “New” Working Together

The revised guidance for child protection social workers based on Professor Eileen Munro’s A Child Centred System has now been published and comes into force on 15th April 2013. After that date local authority workers must follow this Guidance unless there are exceptional circumstances.

The new guidance removes the need for separate Initial and Core Assessments. As someone who has worked closely with social workers attempting to comply with deadlines and also do the best for the children involved this seems to me to be eminently sensible and in the best interests of the children.

There will now be one assessment with a timescale of 45 days for completion. I hope this will assist over worked social workers by not duplicating their work, but at the same time will give a level of continuity to the children and families involved. Hopefully, the same worker will be involved throughout the assessment process, thereby maybe removing the need for some repeated of visits and questioning.

The initial assessment process has always appeared to me to be fundamental to the whole child protection procedure. If, at an initial visit, the family manage to “hood wink” the worker, or vital indicators are otherwise missed, a child may remain in significant danger, despite the intervention. This is much less likely to happen with more time, a more considered approach and opportunities to make many more enquiries regarding the family. Previously this did not happen unless and until a core assessment was carried out. The decision for this was entirely dependant upon the conclusion of the initial assessment.

Let us all hope that it will have the best results for everyone involved.

Another change brought in through the recommendations of Professor Munro is a National Panel to consider Serious Case Reviews, when they should be held and their conclusions. This panel will advise Local Safeguarding Boards. It has always seemed anomalous to me that across the country serious case reviews are coming to important and significant conclusions but many of their recommendations and actions are kept local, and not cascaded further afield.

I hope the National Panel will go some way to address this, so that lessons learnt in one area can be used to benefit everyone.

Foster Carers and the “Bedroom Tax”

By now everyone who has not been on the other side of the world in recent weeks will know that the Government is planning to introduce an additional payment for anyone in receipt of Housing Benefit who has “unused” bedrooms in their home from April. This will hit many people who are already struggling to make ends meet.

Foster carers provide an invaluable service to our society. They often have an extremely difficult job to do in a stressful situation. Local authorities and foster care agencies struggle to keep up with the demand for foster placements. This demand is ever increasing as more families fail to maintain a minimum standard of care for their children in the current difficult financial situation, and the ongoing increase in the number of care proceedings illustrates.

Some foster carers will be hit by the “bedroom tax”. To be approved as foster carers their home must reach a certain standard, this includes appropriate bedroom provision. Although the Government has said that foster carers will be “allowed” one additional bedroom, they will not be allowed any more. Therefore carers who are themselves in receipt of benefits, and therefore more likely to be available all day to support and care for potentially very challenging children, may no longer be able to afford to provide care for more than one child, and certainly not for a sibling group including brothers and sisters.

These groups are often the hardest to place. The Government and society expects local authorities to place such children together save in exceptional circumstances. At the same time, a potentially valuable resource may be lost as families that have been able to offer such placements, may will no longer be able to afford to do so.

Local authorities are so stretched financially that many will struggle to give the extra support foster carers may require to finance any extra space. Surely, as a society, we should be making every effort to support the most vulnerable in our society. Children who have been removed from their own families need every support they can get, having suitable bedroom accommodation and living with their siblings are just the basics.

Why can those who make such decisions not see that the potential cost of making this provision is tiny compared with the alternatives?

Over Emphasis on Adoption?

It is refreshing to read that the House of Lords Adoption Liaison Committee has expressed concern over the Government’s over emphasis on adoption.
Those of us who follow political thinking in respect of child protection matters will be well aware that the present Government are pressing for speedy and increasing numbers of children to be adopted. I have previously written about this matter in this Blog and raised my concerns over the possibility that potential adopters may not be adequately assessed.

The House of Lords Committee are now raising additional points which I hope will be considered seriously by the Government. Whilst adoption is often the best outcome for a young child who is the subject of care proceedings, whatever the child’s age, it is not always the most appropriate or suitable result for them. Every child is an individual and has their own very specific circumstances which must always be properly and thoroughly considered.

Local Authorities must not be pressurised to meet arbitrary targets for adoption (or other outcomes). They must be enabled to consider all the options for each individual and to justify their conclusion in each and every case.

Alternatives to adoption include Special Guardianship, long term fostering and placement with family or friends. A child may not be suitable for adoption; they may have their own difficulties or may themselves not accept a plan for adoption. If a child can safely remain within the wider family, this is often the most appropriate solution for everyone.

Further, there is a shortage of adopters (approved and potential). I am sure no one would want a child to be adopted by anyone who is not totally committed to that child. There are not thousands of people who are suitable, ready and willing to adopt sitting around waiting for the call, especially for older, demanding children.

Adoption can be a fantastic outcome for a child and must always be seen in that light. However, we must not become blinkered to seeing it as the only solution, we must be ready to consider all options.

The House of Lords Committee mention that social workers must be trained and encouraged to make robust and early decisions for young children. I agree. However, my experience is that they do make significant efforts to do this, however, the processes both external and internal, work against them, leading to delays.