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Social Workers Regulations 2018

Volume 792: debated on Tuesday 3 July 2018

Motion to Approve

Moved by

My Lords, as noble Lords will be aware, the social work profession is a relatively young one; it became a regulated profession only in 2001. But it has come a long way in a short time, with over 95,000 registered social workers in England supporting vulnerable children, adults and their families every day. At its heart, social work is a profession that promotes social change and individual and collective wellbeing, and challenges social injustice.

Many noble Lords will also know that a number of high-profile incidents have seen the social work profession face greater scrutiny and challenge over the quality and capability of the workforce. The 2014 reviews by Sir Martin Narey and David Croisdale-Appleby found that too often social workers are poorly trained and not ready for front-line practice. This Government have responded to these concerns with a comprehensive social work reform agenda. We are committed to promoting a strong, consistently effective social work profession that is well trained, competent and properly supported to transform the lives of the most vulnerable.

Establishing Social Work England as the new, single-profession regulator for social workers in England is vital in achieving our ambition. Like the other health and social care regulators, Social Work England’s primary focus will be public protection, but our aim is also to enable Social Work England to operate streamlined, proportionate and efficient systems. We want a regulator that can adapt to emerging opportunities, challenges and best practice in social work. Providing for a specialist regulator that sets profession-specific standards will ensure that regulation reflects the changing reality of delivering social work practice safely and effectively.

The regulations were made under powers in the Children and Social Work Act 2017. I express my gratitude to those in this House who played such a vital role in shaping and agreeing that Act. Debating these draft regulations signals another significant step towards establishing Social Work England. Noble Lords will know that we have already made great strides in this respect. In March we appointed the noble Lord, Lord Patel of Bradford, as chair of Social Work England. In June we announced that Colum Conway has been appointed as chief executive. These appointments bring significant experience in social work practice, education and regulation and have been welcomed by the sector. The momentum continues with recruitment for other senior posts and non-executive board members.

We have been helped in getting to this point by a number of stakeholders. In December 2016 we established the Social Work England Advisory Group, which has representation from sector organisations, social workers, employers and service users. We then established the Regulatory Expert Group in October 2017, which brings together experts from the world of professional regulation to shape and challenge our thinking. These groups have been invaluable in advising us on this complex task.

We consulted on the regulatory framework for Social Work England during February and March. We received nearly 200 responses, overwhelmingly in favour of our proposals. Some 43 responses were from sector and regulatory organisations. We also held 11 events consulting directly with social workers, education providers and interested parliamentarians. I very much welcome these contributions. The valuable points raised have helped to shape the draft regulations we are discussing today. I also acknowledge the significant input from the social work sector, other professional regulators and Members of this House in developing the regulatory framework.

I have spoken about the importance of creating a modern regulatory framework for Social Work England. It is important to emphasise that these draft regulations draw on a range of evidence and recommendations. These include the Law Commission’s review of health and social care professional regulation, the Professional Standards Authority’s Right-touch Reform report and the Government’s own reform proposals for healthcare professional regulation. There are a number of provisions which, in particular, demonstrate our use of the very best evidence to enable efficient regulation. I will take a moment to outline them.

The first is registration. An accurate, transparent register is crucial for effective regulation. We consulted on a range of provisions. These included powers to register social workers with conditions, introducing English language controls and annotating sanctions, and additional qualifications, specialisms or accreditations. Attaching conditions to registration is linked to the individual’s ability to meet eligibility criteria for registration. This provision might be used effectively, for example, where a social worker has a time-limited health condition. Attaching conditions would allow continued registration while recognising that the individual may not meet standards of health for a period of time. We are confident that this will enable the regulator to adopt a proportionate response to concerns and maximise retention in the workforce, while protecting service users.

We have also provided for Social Work England to annotate additional qualifications and specialisms on the register. Recording post-qualification information will provide more transparent and meaningful information on the breadth and depth of social workers’ skills levels to employers and the public. It will allow for the annotation of the established approved mental health professionals and best interests assessors roles. It will create, for the first time, a national list of those qualified to carry out these roles. Better data on the scope of practice can also be used to support practice improvements and targeted regulation.

Current fitness to practise outcomes will also be recorded on the register. This is critical for public protection. Following the Law Commission’s recommendation, Social Work England will also be able to annotate expired sanctions for specified periods. The regulations are clear that this power must be used proportionately, ensuring public protection while not unduly penalising registrants. Social Work England, in line with some of the other health and social care regulators, will also introduce proportionate English language controls as a registration requirement. We believe that proficiency in written and spoken English is fundamental to safely and effectively engaging with service users.

Next is education and training. We are confident that Social Work England will make a significant impact in the area of training and education. It will set new profession-specific standards and approve initial education and training courses and qualifications for social workers. Maintaining the quality of professional education ensures that students meet the necessary standards for registration and public protection. This is crucial to initial education and to post-qualifying courses. Importantly, Social Work England will be required to reapprove courses over time and determine its own role in the post-qualification space. The regulations make provision for Social Work England to approve post-qualifying courses through approval processes set in regulations and rules.

I turn now to fitness to practise. An effective fitness to practise system is also critically important, both for public protection and public confidence in social work as a regulated profession. As the Professional Standards Authority has pointed out, existing fitness to practise systems can be expensive and overly adversarial. We have taken account of this and of the Law Commission’s proposals for reform in designing a more flexible fitness to practise system for Social Work England.

The system ensures that the functions of investigation and adjudication remain separate. It provides the regulator with new tools to deliver public protection more flexibly. This includes streamlined approaches such as automatic removal from the register. Automatic removal will be used only where registrants are convicted of very serious criminal offences such as rape or murder. There will be swifter processes where registrants have been convicted of criminal offences, with custodial sentences.

Social Work England will also be able to resolve cases without a hearing where the registrant accepts the facts of the case and the outcome proposed by the regulator. The regulations make it clear that this can be used only where it is in the public interest. The Professional Standards Authority has been clear that it wants oversight of such cases. I am pleased to confirm that this will be provided as soon as a legislative vehicle can be found to amend the PSA’s primary legislation. We will also explore extending such oversight to other regulators operating similar systems of accepted outcomes or consensual disposal.

I want to provide reassurance about the role of the Secretary of State in relation to Social Work England. Noble Lords will know that Social Work England is a separate legal entity in the form of a non-departmental public body. It will operate at arm’s length from government. The Privy Council has no role in relation to Social Work England, so the Secretary of State will necessarily have a role. This will be in two specific areas: first, oversight of regulatory rules and, secondly, powers in the event of default by the regulator in the performance of its functions.

We have provided Social Work England with flexibility in relation to how it makes rules. Rules will set out the detailed procedures and requirements for how its functions will be carried out. This will allow Social Work England to change its operational processes efficiently. Rules will be subject to public consultation and oversight by the Secretary of State. The regulations provide for a 28-day review period for the Secretary of State. The rules come into force automatically if no objection is raised, or earlier if the Secretary of State agrees. Social Work England is also able to specify a later date to provide maximum implementation flexibility. The Secretary of State may also draw on independent advice from the Professional Standards Authority.

Default powers ensure that the Secretary of State can intervene in cases of regulatory failure. This includes giving remedial directions and taking over functions where the regulator fails to comply with a remedial direction. The regulations clarify the role of the Secretary of State, established under the Children and Social Work Act, in this area. They provide that the Secretary of State, or a person appointed by them, cannot make a decision,

“to make, amend, remove or restore an entry in the register”.

This addresses any potential for political interference in decisions about the registration of an individual social worker.

Social Work England will operate on a day-to-day basis independently of government. The oversight role of the PSA and the use of default powers only in the most serious circumstance of actual or likely failure to perform regulatory functions ensures this continued independence.

Public protection is at the heart of everything that Social Work England will do. We believe that our approach to developing a modern regulatory framework will ensure public confidence in the profession. It is crucial that those registered as social workers in England can be trusted, are highly skilled and remain safe and effective in their practice.

Subject to the successful passage of these regulations, we anticipate that Social Work England will become the regulator of social work in England in 2019. I am extremely grateful to the very wide range of people, including Members of this House, who have helped to move us towards this important stage in our ambition to establish a new specialist social work regulator. I beg to move.

My Lords, I thank the Minister for introducing these important regulations. As he mentioned, they stem from the Children and Social Work Act, but he may not be aware, because at the time he was not a Member of your Lordships’ House, that there was considerable resistance from Peers on all sides of the House to the concept of introducing a new regulator separate from the Health and Care Professions Council. Ultimately, although the retention of the social work profession within the HCPC could not be achieved, as a result of pressure by Opposition and Cross-Bench Peers, it was agreed that Social Work England would be a non-departmental public body—as the Minister just stated, a separate legal entity operating at arm’s length from government.

The appointments of the chief executive of Social Work England and of the noble Lord, Lord Patel of Bradford, who I am very pleased to see in his place, as chair of Social Work England is a definite plus as both of them have practised as social workers. It will be of some consolation to social workers who often feel rather embattled despite the great work that they do. It is certainly encouraging that the chair is already out and about talking to those whose confidence he will need to build. It is not yet known who will comprise the board of the new body, but hopefully there will be a reasonable presence of social workers and service users to bring practical experience to the shaping of board decisions.

These regulations are generally non-contentious, and we share the view of the British Association of Social Workers, which is committed to the need for statutory regulation of social workers and social work for public protection and accountability, and to ensuring that the value and importance of the profession is recognised and that high standards are maintained.

During the debates on the Children and Social Work Bill, noble Lords on these Benches argued for effective regulation and an independent regulator. As I have said, to some extent that was achieved, although reintroducing the control of the Secretary of State causes us continuing concerns, particularly in respect of Section 3(4), which effectively provides that if the Secretary of State objects to the rules coming into force, the regulator must modify them in light of the objection. We reiterate the need for the regulator to have maximum independence from the Secretary of State, yet here the control of the Secretary of State over the regulator seems to have been reintroduced through the back door. The Minister may well say that that is not the intention, and he may well be accurate in that assertion, but it leaves open that possibility further down the line when all of us have gone on to pursue other interests.

On the new regulator’s sole control of continuous professional development, we also share the concerns of the British Association of Social Workers that there is apparently no requirement to consult or involve the more than 80 universities which deliver social work pre-qualification and post-qualification education and training. Nor will consultation involve employers, service-user groups or the professional association for social workers. Perhaps the Minister can explain why all that expertise should remain untapped.

When these regulations were considered in another place yesterday, my Front-Bench colleague Tracy Brabin MP, standing in for the shadow Minister for Children and Families, Emma Lewell-Buck MP, who was indisposed, asked the Parliamentary Under-Secretary of State for Children and Families a total of 16 questions. As far as I can ascertain from reading the Minister’s reply in today’s Hansard, no more than one of her questions received an answer. So I shall reiterate those points and request that the Minister arrange to write to me in respect of any that he is unable to answer today.

The regulations lack detail, which makes it difficult to scrutinise some aspects of them effectively. The new regulator is required to make at least 90 rules and there could be extensive debate on the most appropriate rule in each case. Can the Minister tell noble Lords the proposed timescale for framing those new rules? He said that he expects Social Work England to come fully into being in 2019, but that is a pretty wide timescale. Regulation 3(2)(a) states that the regulator needs to carry out a public consultation before making the rules. That is certainly to be welcomed, but it carries a get-out clause, stating that the regulator does not have to carry out a consultation if it,

“considers that the content of the proposed rules is such that it would be inappropriate or disproportionate to do so”.

That sounds entirely subjective, leaving it open to whim at best, or misuse at worst.

A majority of respondents to the Government’s consultation thought that oversight should apply to all the rules. So can the Minister say which of the 90 rules he anticipates the loophole being applied to, and what reassurances can he offer to support the view I am sure he will take that the loophole will not be misused by the regulator? He talked of regulatory failure a few moments ago. I am certain that would be a very rare occurrence, but it would be helpful to have the Minister’s indication of the situations in which it might arise.

Turning to part 2 of the regulations, we also seek clarification on how the representatives referenced in Regulation 3(2)(b) will be chosen. It states that the regulator will choose,

“any group of persons who the regulator considers are likely to be affected by the proposed rules”.

Although the inclusion of social workers is welcome, together with employers of social workers, users of the services of registered social workers and those involved in social work training, we have concerns as to how those individuals will be chosen. Those rules will affect social workers across the UK, so what is the process by which those individuals will be chosen? Will there, for instance, be representations from all the nations and regions? How will the numbers be distributed among various job roles?

We welcome the fact that the Government bowed to pressure and abandoned the idea of making Social Work England an executive agency of the Department for Education, but questions remain about the Secretary of State’s role because control seems to have been reintroduced. Under Regulation 3(4)(b) the Secretary of State has the power to object to rules. It is disappointing that the Secretary of State will be given the final say on all the rules despite the efforts of many in your Lordships’ House to ensure that the regulator is, as far as possible, independent.

In Part 3 of the regulations, on the content of the register of social workers, Regulation 9(3) states:

“The regulator may record any other information in the register it considers appropriate”.

Given that the basic necessary details about social workers will already have been collected, what other information is likely to be necessary?

We also share the concerns of the British Association of Social Workers that there is provision for deregistration on health conditions, which are undefined. Because the regulations are not specific enough, it is not difficult to envisage that provision being misused. In paragraph 7 of the Explanatory Notes, the Secretary of State states that he believes the regulations are compatible with the European Convention on Human Rights, but will the Minister say if either he or the Secretary of State have considered whether Regulation 9(3) is compliant with the Equality Act 2010? What protections can the Minister point to against possible misuse?

With others in the sector, I am pleased that Regulation 20 makes provision for sector-wide professional development. As the Minister himself conceded, there is a need for the transitional arrangements to be put in place to protect both social workers and the public whom they serve. The trade union Unison has a plan for the transition from the Health and Care Professions Council to Social Work England, outlining how a service-level agreement between the HCPC and Social Work England would ensure a smooth transition period in which the HCPC retained responsibility for fitness-to-practise cases for an interim period of two to five years. That would give Social Work England time to establish its own fitness-to-practise process, while allowing for meaningful consultation with trade unions and staff in both organisations to draw up a structured plan to ensure the smoothest possible transition. Pointing to the apparent lack of any such arrangements is not a criticism of Social Work England, but we believe they would provide a safety net for all—most importantly, for the public. Do Ministers plan to consult Unison and take advantage of its experience regarding the transition period? Crucially, what assurances can the Minister give that social workers, employers and the public will be protected in the interim period?

In general, our initial opposition to it notwithstanding, Labour is now in a position to say that we welcome Social Work England coming into being and want it to be as successful as it possibly can. Apart from the relatively minor issues that I have highlighted, we do not have a problem with the majority of the rules that Social Work England is creating. However, like many in the sector, we have concerns that its timescale is overambitious, given that, although the chair and chief executive are in post, the board and executive team are not. Even allowing for the good will that is behind the creation of Social Work England, what confidence can the Minister offer noble Lords that it can be successfully established within such a short timescale?

My Lords, I too thank the Minister for introducing the regulations. I draw noble Lords’ attention to my interests in the register, particularly my role until recently as chair of CAFCASS.

I strongly support the creation of Social Work England as a profession-specific regulator with real in-depth understanding of social work and its potential to transform lives, particularly those of the most vulnerable. I very much hope that Social Work England will be able to work as an effective, modern and collaborative regulator, working closely with social work employers, educators and, yes, service users as well, which is important. Statutory regulation of social workers is very important. It is necessary so that the public feel protected. It helps to enhance the status of the profession, to ensure high standards and to ensure that the work that social workers do is truly valued in a way that, I am afraid, too often it is not at the moment.

The devil, as ever, is in the detail, so I want to make a couple of general points and a couple of specific ones. I am aware from talking to colleagues in the sector that a number of concerns have been raised during the consultation process. It must be said that it was not a particularly long consultation, but I know that there were pre-consultation events as well. I want to highlight something that the noble Lord, Lord Watson, mentioned: the role of the Secretary of State. As I am sure that noble Lords who took part in our debates during the passage of the Children and Social Work Act 2017 will remember, they were heated and important debates about what was an appropriate role for the Secretary of State in social work regulation. As has already been alluded to, the upshot of that was the creation of a body separate from government so that the regulator had an appropriate degree of independence from the Secretary of State.

I turn to the drafting of the regulations. As the noble Lord, Lord Watson, said, concerns have been raised about the way the role of the Secretary of State is described in both Regulation 3, about rule-making, and Regulation 7, on powers of intervention. I had a quick look to see whether I could understand the concerns. In particular, I looked at the wording on, where the Secretary of State objects to the rules coming into force, what the regulator must do to modify them in the light of those objections. Although, in some senses, I can understand why it has been drafted as it has, I feel that a few tweaks here and a few different words there and a slightly more inclusive tone could have allayed a lot of the concerns being expressed at the moment. Of course, the Secretary of State must be able to do certain things, particularly if, for whatever reason, the regulator is not undertaking its required functions. Can the Minister assure us that these points are being discussed and understood, and that there is a strong will for the regulator to be seen as independent and to have a good and constructive relationship not only with the Secretary of State but the sector as a whole?

I have a couple of more specific points. I already mentioned my role as chair of CAFCASS. I stepped down in March at the end of my six-year tenure there, but I have been talking to colleagues about how the regulations will impact on the children’s social work sector. Again, there is broad support for the regulations in the sector, but concern has been expressed to me, particularly by staff who are carrying out more specialist roles. CAFCASS employs 1,400 social work staff—the largest employer of children’s social workers in the country. There are also local authority independent reviewing officers. I know that they feel that some of the wording produced so far in the regulations—I am sure we will have guidance as well—does not sufficiently comprehend the specific roles that they undertake, which are rather different to a front-line local authority children’s social worker.

Will more thought be given as the regulations are implemented and guidance produced to ensure that some of the more specialist roles in the social work world are properly represented and understood? That would help to increase support for the regulations across the sector.

Finally, it will be important to consider how the regulations will be implemented, particularly in social work education and training. They must be seen to support various initiatives which have come into being in the past year or two, to take up some of the challenges identified by Sir Martin Narey, David Croisdale-Appleby and others, which have been mentioned, about social work training, particularly the need to grow the pool of on-the-job training places. We now have various programmes—Think Ahead, to train mental health social workers, is one—trying to address the severe shortages that we have in some areas. It is very important that the implementation supports such measures. It will also be important to ensure a smooth handover from the HCPC for courses that it has already approved, to minimise the burden on any pre-approved courses. I look forward to hearing the Minister’s responses on those points.

My Lords, I am most grateful to noble Lords for their comments and questions on the regulations. The noble Lord, Lord Watson, is right that he does have something of an advantage over me here on a subject that he has spent a lot more time on than I have. I shall certainly try to answer as many of noble Lords’ questions as I can. On those that I am not able to answer, I shall write.

I reassure noble Lords that the procedure for making regulatory rules is intended to provide more flexibility for Social Work England, rather than act as a means of giving the Secretary of State control. As noble Lords will be aware, the rules for the other nine existing health and social care regulators need to be approved by the means of a lengthy Privy Council process. If the Privy Council process chooses not to approve rules, the regulators need to make changes to address any concerns before starting the process again. For Social Work England, we have provided a more streamlined procedure, drawing on the findings of the Law Commission’s 2014 review while still providing clear and robust oversight. This allows, importantly, oversight that is enforced by advice by the Professional Standards Authority as needed, while not unduly hampering the regulator’s ability to make rules following consultation and to plan effectively for their implementation.

Of course, for any oversight procedures to be effective, there needs to be an element of veto. That is what has been provided for in the draft regulations. It might be used, for example, when consultation feedback has clearly not been taken on board in the final rules. Let me reassure noble Lords that the language of modification is not intended to allow for further control by the Secretary of State but will simply reflect reality. If rules are deemed not to be acceptable, they need to be revised. Although the language used is different, that is what would happen under the existing Privy Council system.

On noble Lords’ concern about a possible loophole, it is important that Social Work England can change its procedures quickly and efficiently. We do not expect minor and technical provisions to be used often; when they are used, it would be where small technical changes were required to rules. This is not intended to be used in the case of substantive changes, where we would expect the full consultation and oversight procedure to apply. Of course, the Professional Standards Authority will also have oversight of the operation of Social Work England’s functions and report on that annually to Parliament. I fully expect the PSA to highlight any inappropriate use of the provisions.

In establishing the legal framework we have taken the opportunity to provide a power to annotate additional qualifications and specialisms on the register, when that is proportionate to the regulator meeting the public protection objective. Annotation of additional qualifications and specialisms will ensure that the public register gives a transparent, informative record of social workers in England with specialist expertise, such as best-interest assessors and approved mental health practitioners. That will provide further assurance to the public and employers that individuals have the necessary specialist expertise relative to their particular role. Regulations will require Social Work England to set any additional qualifications or specialisms that are to be annotated in rules which are subject to public consultation.

On the transitional arrangements, the Government, Social Work England and the Health and Care Professions Council—the current regulator—are all committed to and working towards a smooth and safe transfer of regulations. As part of the transfer arrangements, ensuring that social workers are treated fairly will be of paramount importance.

I turn to the comments made by the noble Baroness, Lady Tyler, some of which were wrapped up in some of the points that the noble Lord, Lord Watson, made. He made two specific comments that I have noted. One is on the quality of the guidance that will sit alongside the regulations. I spoke to the noble Lord, Lord Patel, yesterday, and he impressed on me that, in his short time in tenure, he has been very anxious to reach out to important stakeholders. I have no doubt that he will continue to consult broadly the important stakeholders who will be affected by them.

Social Work England will be required to operate a scheme for the approval of courses of social work education and training in England, social work qualifications, tests of knowledge of English in England, and courses for those who wish to become approved mental health professionals. I suspect that this situation will evolve over time.

As all noble Lords here will know, I am one of the newest Members of this House. In closing, I add that the contribution made by this House shows it at its best in taking on board important reforms, bringing to bear the significant expertise that exists here, and helping to improve this vital mechanism.

Clearly, I have avoided speaking on these regulations because I have a clear and obvious conflict of interest, so I do not wish to comment on the debate that has just happened. But, just before the Minister sits down, I take this opportunity to reinforce what he said about the contribution that noble Lords in this House have made to the establishment of Social Work England. I have found them particularly helpful over the last few months. I have engaged with and received wise wisdom from many of them, and continue to do so.

I put my thanks on record to the several hundred people I have spoken to, from service users to higher education providers, and from the social work profession to employers, who again have been very engaged in discussions. That certainly will continue.

There is one reason I wanted to speak today and this is probably rarely done. I have worked with lots of government departments and officials in a number of guises, NDPBs and other things. I have not come across a group of officials before that have been so passionate and so committed, and given so much time to developing the foundations for this organisation to go forward. I put on record my thanks to the officials from the Department for Education and the Department of Health and Social Care, because they have really worked hard. I have never seen such passion and commitment to making an organisation come together.

My Lords, I thank the noble Lord for his comments. In closing this debate, I hope this provides reassurance to him: in seeking the chair of this new organisation, we have reached out across the political spectrum to get the very best person that we could for this important job.

These regulations provide a strong foundation for improved and effective regulation of social work in England, and I commend them to the House.

Motion agreed.