Making Good Decisions

Law for Social Work Practice

Michael Preston-Shoot

• Publisher: Bloomsbury Publishing
• Year: 2019
• Print ISBN: 9781352006278
• eBook ISBN: 9781350313590
• Edition: 2
• Topic: Politics & International Relations
• Subtopic: Social Policy
• Index: Politics & International Relations

What does the law require of social workers when deciding how to intervene to protect children and adults at risk? What social work standards should guide decisions about whether, when and how to invoke statutory powers and duties in practice? Making Good Decisions provides an accessible and practical guide to the legal rules and principles that should guide everyday social work practice. It sets out the key elements of administrative law, equality and human rights legislation which shape how social workers practise and illustrates how knowledge and use of legal principles can support core social work goals, including empowerment, equality and social justice. An invaluable reference point for all students and practitioners, this book will support and empower social workers to feel more confident in making and challenging decisions, more credible when presenting assessments and plans, and more creative when working with service users and carers. The text is supported by a range of innovative features and boxed information to aid learning and stimulate reflection:
- Key Case Analysis boxes summarise the details of particular legal cases and outline the implications for social work practice.
- Practice Focus boxes apply legal principles and processes to practice through the use of social work scenarios.
- On-The-Spot Questions reinforce understanding and encourage critical reflection.

1

First principles

At a glance this chapter covers:

•administrative law as a legal framework for accountable decision-making

•principles for professional decision-making

•case law examples of good and poor decision-making

•congruence of legal principles for decision-making with social work values

We all consult professionals on whose knowledge, skills and ethics we rely. They possess expertise through training which is beyond our competence and/or have statutory or positional authority on which we depend to meet our needs. We will have our own standards by which we differentiate between good and unsatisfactory consultations.

On-the-spot questions

What benchmarks for you would comprise a good decision-making encounter with a professional on whose expertise you are relying to meet your needs?

However, what standards does the law require for professional, accountable decision-making? The challenge for social workers is to do the right thing at the right time with the right skills – in effect to get it right every time (HM Government, 2010). Leaving aside, for now, whether this standard is actually achievable, what would regulatory bodies such as Social Work England, judges and the Local Commissioner for Administration (Ombudsman) consider when subjecting social work decisions to scrutiny?

Practice focus

Emma, aged 3, lives with her mother, step-father and maternal grandparents in a small rented house in poor condition in a deprived neighbourhood. Emma and her mother are being supported by a local children’s centre where staff have become concerned about their welfare. Their attendance has become sporadic. Emma has appeared increasingly wary and withdrawn. Staff have seen bruises on her mother’s arms and face but Emma’s mother has avoided answering their questions. They refer Emma to children’s services but both mother and step-father are hesitant about engaging with social workers. Shortly thereafter, the police report that they have been called to yet another domestic disturbance at the house, noting in passing that the step-father is known to them for violent behaviour. The family’s General Practitioner refers Emma’s grandmother for adult social care assessment with a diagnosis of dementia.

Questions

•By what standards should professional practice be judged as social workers intervene in this case?

•What standards have developed within the legal rules by which to measure good practice?

Administrative law

Social workers must be familiar with powers and duties for intervening in the lives of children and adults at risk, contained in primary legislation and amplified by secondary legislation (regulations and directions), statutory guidance and case law. However, whilst these powers and duties outline what may, or in certain circumstances must, be done, decision-making about whether, when and how to use them involves a balancing exercise to reach a reasonable decision based on the merits of the case. Administrative law has evolved principles to regulate what, in effect, is the use of discretion, and to mediate between State officials (here social workers) and individual service users, when the former have powers that could impact on people’s liberty and other rights. Officials must exercise power in good faith, fairly, for the purpose for which powers were conferred, whilst not exceeding the limits of such powers nor acting unreasonably (Bingham, 2011). Similarly, trust between professionals, and between them and service users, is generated by acting with integrity, which includes respect, honesty and fairness, benevo-lence as in concern for others, humility regarding the limits of one’s competence, predictability and an attitude that is relational and accessible (Hope-Hailey et al., 2012). These principles, codified by legal rules, correspond closely to social work values (Preston-Shoot et al., 2001).

Law is concerned, therefore, not with whether the right decision is taken. What the correct decision is might not be obvious or it might be contested. Rather, administrative law is concerned that the right decision-making approach was adopted. It is concerned, therefore, with the lawfulness, rationality and fairness of the process, and with avoiding maladministration, which may result from unreasonable delays, failure to comply with legal requirements, or omitting to investigate an issue and take appropriate action.

Practice focus

Practice with Emma and her family might be measured against several characteristics of a sound decision-making process:

•openness

•fairness

•rationality

•impartiality

•accountability

•consistency

•participation

•efficiency

•equity.

Legal rules have codified standards which Emma and her family could expect, and those professionals surrounding them should adhere to. Assessments and interventions should comply with statutory duties in primary and secondary legislation, and with statutory guidance. Decisions should be reasonable when considered against professional values and learning from research, case reviews, knowledge and practice experience, and should be explained to the family and the professionals who have referred them. Decisions should be timely, including adhering to timeframes where these are specified in law, and all relevant information should be considered from the family and the professionals who know them. Social workers should work with Emma, and also involve her parents and grandparents in decisions about Emma’s welfare and in discussions about their own needs.

Lawful decision-making

This chapter considers seven principles – lawfulness, rationality and reasonableness, timeliness, full examination of all relevant factors, not fettering discretion, participation and information-giving, and giving reasons. Each is illustrated through case law, Ombudsman decisions and/or research findings. Other principles, such as meeting acceptable standards of professional competence, the promotion of equality and human rights, and mechanisms to demonstrate accountability or provide for redress, are explored in subsequent chapters. Two cases demonstrate these principles in action.

Key case analysis

LGSCO and Cornwall Council (2018)

A young man was left in a tent and static caravan contrary to statutory guidance on accommodating homeless children; the council failed or declined to offer accommodation under section 20 (Children Act 1989) (lawfulness). It should have considered if he was at risk of significant harm (reasonableness). It failed to work with other agencies regarding his mental health and drug misuse (Chapter 4). It assumed that the situation was his fault rather than assessing the impact of his chaotic lifestyle and mental health on his decision-making, especially when his wishes fluctuated. (Chapter 5). The council failed to include his mother in its assessments (involvement) and then failed to respond promptly to her complaint (timeliness).

Milton Keynes Council v RR [2014]

An older woman with dementia was removed from her home following notification of safeguarding concerns. No court authorization was obtained for her removal and placement in a care home (lawfulness). Her son was not told where she was and no investigation was conducted into the safeguarding concerns (participation, rationality and reasonableness, timeliness). The local authority delayed requesting a standard authorization to deprive her of her liberty (lawfulness, timeliness) and refused to implement a care package or direct payment to enable her to return home (giving reasons). The Court of Protection, describing practice as poor, found breaches of the right to liberty (Article 5 ECHR) and the right to private and family life (Article 8). The failures to investigate safeguarding concerns (professional competence), to apply to the Court of Protection for her removal from home and to advise the son of her whereabouts (lawfulness, participation, human rights) were deplorable.

Lawfulness

Judicial scrutiny of social work decisions sometimes criticizes failure to perform a statutory duty. Supporting homeless teenagers provides one example, where social workers have expected housing departments to provide accommodation rather than recognizing the young person as a child in need, unable to live at home, and using the provisions of section 20, Children Act 1989 (and equivalent provisions in Scotland and Northern Ireland) (R (TG) v Lambeth LBC [2011]). In Nzolameso v City of Westminster [2015] the housing authority failed to explore accommodating a family as close to its area as possible and to have regard to the need to safeguard and promote the children’s welfare when assessing what accommodation would be suitable (section 11, Children Act 2004). In R (KI) v Brent LBC [2018], the council erred in law by failing to regard the young person as a formerly relevant child. OFSTED (2016c) too has criticized councils for failing to discharge statutory duties concerning child sexual exploitation, missing children and private fostering.

Care plans, particularly for disabled children, have been quashed as contrary to the requirements of child care law. One was unlawful for proposing arrangements contrary to the wishes of the child and parent, and being unable to demonstrate how they would minimize the impact of the young person’s disability (R (CD) (A Child by her Litigation Friend VD) v Isle of Anglesey CC [2004]). A failure to consider powers (section 17, Children Act 1989; section 11, Children Act 2004) to provide services to safeguard and promote the welfare of children in need and to formulate a plan to address risks and a family’s unmet needs was unlawful (R (KS and AM) v Haringey LBC [2018]). The housing authority did not fulfil its obligations (section 27, Children Act 1989) when children’s services requested its co-operation.

In Northern Ireland a court criticized a Trust for refusing to assess the needs of carers. Failure to provide services following assessment was also unlawful (HN (A Minor) [2010]). The failure to act in accordance with the Care Act 2014 when a third party top-up was required for a care home placement that the council had arranged was unlawful (LGSCO and Lancashire CC (2018)).

Judges have particularly criticized local authorities who have sought to sidestep duties to accommodate (section 20, Children Act 1989 in England and Wales), partly to avoid subsequent duties owed to care leavers (Children Leaving Care Act 2000), using children in need provisions instead (R (Behre and Others) v Hillingdon LBC [2004]; R (S) v Sutton LBC [2007]; R (H, Barhanu and B) v Wandsworth LBC and Others [2007]). The Ombudsman has severely criticized councils for continually failing to assess the housing and support needs of teenagers, who experienced physical and/or mental ill-health as a result (Local Government Ombudsman and Kent CC and Dover DC (2012); LGSCO and Cornwall Council (2018)).

Social workers must not exceed the limits of their statutory authority. For example, they must only remove a child with judicial sanction or the active consent of someone with parental responsibility (R (G) v Nottingham CC [2008]). Contacting a school and General Practitioner, without the consent of parents as a precursor to initiating a child protection investigation, is also unlawful (R (AB and CD) v Haringey LBC [2013]). The use of section 20 (Children Act 1989) has evoked criticism as “compulsion in disguise” (Williams and Another v Hackney LBC [2015]), with parents being pressurized into agreeing to “voluntary” accommodation in order to avoid care proceedings. Social workers must consider parental decision-making capacity, including their physical and psychological state, their understanding of what is proposed and their access to advice and support, to ensure that consent is properly and fully given (Coventry CC v C, B, CA and CH [2012]; N (Children) (Adoption: Jurisdiction) [2015]). Parents must be advised of the consequences of agreeing to use of section 20 (LGSCO and Dorset CC (2018)).

On deprivation of liberty and best interest assessment of adults without capacity, practitioners and managers must have statutory authority for what they are doing or obtain court authority for their proposals. Failure to do so violates the individual’s right to liberty (Hillingdon LBC v Neary and Others [2011]). This right (Article 5 ECHR) was also breached where the local authority prevented an older woman’s return home to her husband, apparently concerned about his ability to care for her; it had no lawful power to detain her and then delayed seeking Court of Protection authority for her detention in a care home. It used standard authorization processes to deprive her of her liberty despite objection by the husband (LA v Mrs D and Another [2013]). The complexity of the legal rules surrounding deprivation of liberty is no excuse for ignoring them (G v E and Others [2010]).

Decisions are also unlawful when they fail to apply the requirements of secondary legislation (regulations and directions) and sta...

Table of contents

• Cover
• Half Title
• Series Title
• Title Page
• Copyright
• Contents
• Table of cases
• Table of legislation
• Acknowledgements
• Abbreviations
• Using this book
• Introduction
• 1. First principles
• 2. Accountability for good decision-making
• 3. Human rights and equality
• 4. Partnerships within decision-making
• 5. Capacity to decide
• 6. What can we afford?
• 7. Deciding to share information
• 8. Learning from the uncomfortable and unthinkable
• 9. Embedding and ensuring best practice
• Useful websites
• Glossary
• Bibliography
• Author index
• Subject index