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BASW England response to the DfE and DH&SC consultation on Social Work England: consultation on secondary legislative framework

Social work in England has been subject to statutory regulation since 2003 with the establishment of its first regulatory body – the General Social Care Council (GSCC). BASW England is committed to the need for statutory regulation of social workers and social work for public protection, accountability and to ensure the value and importance of the profession is recognised and that high-quality standards are maintained. Furthermore, as a professional association, BASW has a long history of advocating for the professional regulation of social work prior to the creation of the four UK regulatory bodies.

This consultation is therefore, of immense importance to our members and required us to make every effort to consult with them in a relatively short time-frame of just under 6 weeks. Whilst an online facility has been made available for individuals and organisations to make their responses, we have elected not to follow this format as we do not feel that it is sufficient to enable us to respond fully.

The change of regulator from the Health Care Professionals Council (HCPC) to Social Work England was not subject to formal consultation with the sector by the Government; on 14 January 2016, Nicky Morgan, then Secretary of State for Education, announced her intention to establish a new regulatory body to improve standards in the social work profession as part of broader social care reforms. Following this, the Government set out its intention to introduce a Children and Social Work Bill in May 2016 which included driving “improvements in the social work profession, by introducing more demanding professional standards, and setting up a specialist regulator for the profession”. It is important to emphasise that a new regulator is not something that the profession petitioned for and while the reasons for creating SWE have been articulated more since that time, when the change was proposed, very little was offered by way of rationale for making such a fundamental change. Members remain concerned about added value of this change in what are, after all, economically straitened times, in view of the considerable costs involved as well as the inevitable upheaval for social workers, educators, employers and others that this change will cause.

BASW England submitted evidence to the Bill Committee in December 2016 and posed the following question: “Why is social work being treated so differently to other health and care professions which have independent regulation that is accountable to the Privy Council and Professional Standards Authority not to the Government of the day?” To date, we have

never received an answer to this question. During the passage of the Bill we also put out a survey out to our members which included questions about the new regulator. Over a thousand social workers responded to the survey and 87% of respondents were very clear that social work regulation should remain independent of Government whilst 83% believed that the post-qualification framework should be led by the profession.

BASW England is concerned that the proposals contained in this secondary legislative framework have emerged from what we can only describe as ‘skeleton legislation’; in essence, it has become the custom and practice of this Government to pass ‘skeleton legislation’ onto which detail is subsequently added by government departments which is not open to parliamentary scrutiny. This is applicable to both the Children and Social Work Act 2017 and this secondary legislation on social work regulation. We therefore take issue with the Government deploying a Statutory Instrument à propos the proposed regulations given that Statutory Instruments are not subject to the same parliamentary scrutiny. Furthermore, given that the draft Social Workers Regulations are themselves secondary legislation which go on to provide for the creation by the new Regulator of a whole new set of rules – one could, in fact, think about those rules in terms of “tertiary legislation” in the sense that here we have an Act of Parliament short on detail, a Statutory Instrument (the Regulations) fleshing out that detail without proper scrutiny, but then those Regulations themselves creating power in the Regulator to make a set of rules that again will never be scrutinised by Parliament.

Regulation 3(3) and (4) make provision for consultation 3(4) to be omitted if a revision is “minor or not substantive” and for 3(3) public consultation to be “ruled out if “the Regulator considers … it would be inappropriate or disproportionate”. The problem with the drafting of these regulations is that they are open to all sorts of interpretation; for example, “minor or not substantive” are not defined and “inappropriate or disproportionate” exception could be interpreted as barring all consultation when in fact we think it means that only the public level of consultation is excepted – in which case the Regulator cannot decide that it would be inappropriate/disproportionate to consult representative groups.

BASW England argues that “disproportionate” is a better test than “inappropriate” given that “proportionality” in modern legal thinking has become a guiding principle. We believe that this is a better safeguard to err against a Regulator from deeming something to be “inappropriate” and restrict it from full public consultation making it much harder to challenge from the outside even if unjust.

The consultation document uses the words ‘transparent, proportionate and targeted approach’ in relation to Social Work England’s rule making. Unfortunately, the “tertiary” nature of these proposed arrangements have resulted in a lack of cla ity on the detail making it very difficult to know what it is that one is expected to comment on in terms of the way that things will work once the new Regulator is in place, when so many of those ways of working are yet to be set out even in draft form. An example of this is Regulation 26(3) – which requires the Regulator to make rules to set the criteria that will determine whether there are good grounds for beginning a fitness to practice investigation; there is unlikely to be much more of an important task for the Regulator than to determine when to hold a fitness to practice enquiry. One might therefore think that it would be essential to set the criteria out at least, in secondary legislation (i.e. the draft Regulations) rather than leaving this to later rule-making by the Regulator.

Whilst the consultation document contains 39 pages and the draft social worker regulations are 33 pages in total, there is such a distinct lack of detail, it makes it extremely difficult for our members to respond meaningfully; respondents are being asked to give their views on what are extremely important proposals without the full information being made available to them. In order to address the difficulties regarding both the length and complexity of the documents compounded by the absence of detail, BASW England selected what we believe to be the most crucial elements of the proposals and devised our own survey for our members to help them to better understand both the content and the implications of the proposals.

We have reproduced the quantitative responses in the next section followed by an analysis of the qualitative responses. The survey ran from 23 February – 14 March 2018 and elicited over 400 responses which we consider to be a good take up in the time allowed.