Government document tells councils they can bypass legal obligations

A document recently published by the Department for Education tells councils what they are allowed to do in respect of the care and protection of children and young people. It is published on the Children’s Social Care Innovation site.

As we wait for responses to our freedom of information (FOI) requests – see below – we have produced a table showing what’s wrong with the document:

What’s wrong with the ‘myth busting’ document Nov 2018

As can be seen, the ‘myth busting’ document claims to be focused on statutory guidance, though it also concerns primary and secondary legislation.

Acts of Parliament are primary legislation. Secondary legislation is also approved by Parliament though with much less scrutiny and debate. Other terms for secondary legislation are regulations and statutory instruments.

Both primary and secondary legislation must be followed.

In addition to complying with the law, local authorities must follow statutory guidance (issued by government departments) unless there is very good reason not to.

Through a series of so-called ‘myth busting’ questions, the Department for Education document claims to summarise the obligations in statutory guidance and then proceeds to set out what the guidance allows. The document states “all of the responses [that is, the ‘what does the guidance allow’ content] have been agreed by the Department for Education and their lawyers in consultation with Ofsted”.

Action to date
Article 39 co-ordinated a letter (with 50 signatories) to the Children’s Minister setting out the legal inaccuracies in the ‘myth busting’ document. We asked him to withdraw the parts of the document which are inaccurate. Six days later we received a response from the Minister. Very regrettably, the Minister did not agree to withdraw the inaccurate content.

Minister's response to joint letter of concern 10 September 2018

After seeking further legal advice, and convening a meeting of concerned organisations, Article 39 submitted the following FOI questions to the Department for Education and Ofsted. Answers to these FOI questions are due tomorrow (16 November).

Our questions to the Department for Education
1) Please provide a copy of the equality impact assessment completed in respect of the Children’s Social Care statutory guidance myth busting document published by the Department for Education (attached with this request).
2) Please provide copies of correspondence between local authorities and the Chief Social Worker for Children and Families, and any other officials within the Department for Education, in connection with the Children’s Social Care statutory guidance myth busting document published by the Department for Education.
3) Please state the date of publication of the Children’s Social Care statutory guidance myth busting document.
4) Please state the date or dates agreement from Department for Education lawyers was sought on the content of the Children’s Social Care statutory guidance myth busting document, and by whom.
5) Please state the date or dates agreement was provided by Department for Education lawyers on the content of the Children’s Social Care statutory guidance myth busting document.

Our questions to Ofsted
1) Please provide copies of correspondence between Ofsted and the Chief Social Worker for Children and Families, and any other officials within the Department for Education, in connection with the Children’s Social Care statutory guidance myth busting document (attached with this request).
2) Please state the date or dates Ofsted was asked to agree the responses to the ‘myth buster’ questions contained within the Children’s Social Care statutory guidance myth busting document.
3) Please state the date or dates Ofsted gave its agreement to the responses to the ‘myth buster’ questions contained within the Children’s Social Care statutory guidance myth busting document.

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