Living in interesting times

The former president of the Association of Directors of Children’s Services (ADCS), John Pearce, speaks to Local Government Lawyer about the issues which have dominated the sector in his recent tenure.

The “failed” children’s residential market, the broken SEND system, moves towards greater transparency in the family court and the funding of Social Care all mean that the outgoing ADCS President John Pearce’s term of office has been anything but dull.

After handing the Presidential baton to Andy Smith at the end of March this year, Pearce, Director of Children’s Services at Durham County Council, can reflect on his achievements as ADCS President, and what challenges remain within the sector.

Beginning on the topic of children’s residential provision – a prominent priority during his tenure – Pearce outlines his current apprehensions, and what steps he would like to see taken by the Government and policy makers.

According to research by Ofsted, more than 90% of local authorities “frequently” struggle to find homes for children with complex needs.

The report, ‘How local authorities and children’s homes can achieve stability and permanence for children with complex needs’, informed by a national survey of local authorities and children’s home providers across England, found that children with complex needs are frequently placed out of area, experience unplanned placement moves, have referrals rejected by homes and/or are served notice by their setting.

During his Presidency at ADCS, Pearce highlighted the need for interventions to address what he describes as a “completely failing market system” for children’s residential provision.

He warns: “We have a market system, but it isn’t operating as a market. In any normal circumstances, as demand increases, supply would also increase to meet that need, but that just isn’t happening.”

His apprehensions are around cost and quality, particularly for those with the most complex needs. He also voices concerns about excess profiteering within the private sector.

A recent investigation by the Observer found that hundreds of vulnerable children in England are being sent to homes not registered with Ofsted every year because of a “chronic shortage” of places in secure local authority units. Most of the providers that staff or operate unregulated homes are private companies.

Pearce says: “Over 80% of provision is within the private sector. Over 90% of councils have at least one child in a home that will cost more than £10,000 a week, with the most expensive at £60,000 a week. It’s pretty obvious that there is very significant profiteering in that space. So we need some intervention – to look at quality as well as cost. We need national intervention that enables local authorities to carry out their statutory duties and to meet the needs of children at a local level.”

He adds: “At the moment there’s no regulation. We’d like to see a rebalancing of the system much more towards local authority not for profit providers.

“If we get to a place where there are a set of national rules that providers have to sign up to, and those who are in the market [are there] for the right intention, provide a good quality service for children and are not profiteering – we’re fine with that.”

Special pleading

Another major priority during Pearce’s presidential year was the Special Educational Needs and Disabilities (SEND) system, which he notes is the area he has the “highest concerns about” going forward.

“I think there’s a really strong, unified view on the problems; however there doesn’t appear to be, at a national level, any real appetite to tackle the fairly systemic problems within the SEND system at the moment,” he warns.

According to a survey of more than 8,000 of its members, the National Education Union (NEU) found that seven in eight teachers and support staff said the resources they have for pupils with Special Educational Needs and Disabilities (SEND) are “insufficient”.

Pearce claims that the SEND system is “financially unsustainable” and is not meeting the needs of children.

A persistent cause for concern across the sector has been the growing demand for Education, Health and Care Plans (EHCPs). During 2022, there were 114,482 initial requests for a plan, up from 93,300 in 2021. As of January 2023, the number of children with EHC plans increased nationally to 517,000, up by 9% from the previous year.

In 2022, 30,932 children waited beyond the legal limit for an EHCP.

During Pearce’s presidency, the ADCS published ‘A Future Vision for the Education System’ – setting out proposals for a more inclusive education system. The Association noted that at a time when government had a focus on improving the SEND and Alternative Provision system, it was important any reforms would work alongside reforms to the mainstream education system.

Pearce says: “We’ve put a real focus on how we move back to a world where children are able to engage with mainstream education. In terms of progress against these agendas – whilst often the detail on the ground hasn’t moved, the narrative has moved significantly.”

Courting controversy

In November 2022, the President of the Family Division, Sir Andrew McFarlane, reiterated the need for all involved in public law children cases to “reconnect with the core principles of the Public Law Outline (PLO)”, to ensure that the statutory requirement of completing each case within 26 weeks is met once again.

Asked whether the Family President’s relaunch of the PLO has been a success, and whether it has thrown up challenges for social workers, Pearce considers it a positive development.

“I think we are all supportive of the position that delay for children is not a good thing. We want to get back to a stage where timescales are improving to where we got to pre-covid, and that does create demand pressures in the system. However, that’s across all parts of the system: social care, court listings and the judiciary.”

He adds: “There are some capacity challenges but we’re going in the right direction. What we’re seeing is areas with stronger infrastructure have been able to move much more quickly and have made significant progress, and there’s been some quite interesting models around pre-proceedings work that have definitely had an impact on timescales which has been really positive.”

Pearce suggests that when we look at the PLO it shouldn’t just be through a social care lens. “We have to look at the challenges across the whole system and how we can minimise delay for children within the process, and get to them as quickly as possible”.

A further notable development this year has been the movement towards greater transparency in the family court, with the expansion of the Transparency Implementation Pilots from three court centres to almost half the Family Courts in England and Wales.

At participating courts, accredited media and legal bloggers may report on what they see and hear during family court cases, subject to “strict rules of anonymity”.

Asked for his views on a departure from the long-established confidentiality of such proceedings, Pearce feels mostly optimistic.

“At its heart, the principal of greater transparency is a positive thing. Transparency within a clear framework and with responsible reporting can work well. I don’t think I’d have any problem at all with an expansion [of the pilot], as long as we have the right safeguards in place”, he says.

‘Twin Hats’ no more?

This year has meanwhile seen one of the highest levels of Director of Children’s Services (DCS) postholder changes at local authorities since the role was established. According to new data provided by the ADCS, during 2023/24, 49 of 153 local authorities experienced a change in DCS post-holder, and across the 49 LAs, there were a total of 62 changes.

The data also revealed a “continued decline” in the number of LAs with ‘twin hat’ directors, who hold the statutory duty for both children’s services and adult services. As of 31 March, there were 13 such arrangements in place.

Asked whether the same could happen in relation to children’s social care and education - in light of the challenges that local authorities currently face around SEN - Pearce is not so keen on the idea.

“We have seen one or two local authorities that have moved towards that. However, I would be very wary of a direction of travel around that. The interactions between education, health and social care for a child are so important, I think moving back to a world where they are a bit more siloed would be a step backward.”

He adds: “If anything we should be going the other way and should be asking the question about whether there’s learning for national government about how joined up children’s services on a local level can grow to quite a significant size and exist at a national level.”

Funding Social Care

And finally, the issue of funding social care. In the last decade, demand for services has been a key factor behind the financial problems of many councils.

“What we’ve seen over the last 14 years is the growth and spend on demand pressures in children’s social care have effectively squeezed the local authority budgets, so they’ve squeezed discretionary budgets and that has a negative impact”, says Pearce.

Asked for a proposed solution, he says: “We need to look at how you link funding to needs. If you look at spend on children in care, which is the biggest proportion of spend in any children’s social care budget, that’s diverged massively since 2011. It’s particularly driven by child poverty – so you end up in a world where those areas with the highest level of demand aren’t able to sustain their preventative services, which leads to a vicious cycle.”

He adds: “We know there’s lots of money going out the system and being spent on things that aren’t productive, aren’t value for children, or in the best interests of children. And some of that is about legislation and policy framework which often conflicts with one another.”

“We need to be investing far more in preventative services,” he says. “But we can only do that if there is some sort of mechanism to enable us to do that.”

He describes the financial model that was done within the Care Review by Josh McAllister as “really powerful”.

McAllister’s independent review of children's social care, published in May 2022, warned that without a dramatic whole system reset, outcomes for children and families will remain “stubbornly poor”, and by this time next decade, a flawed system will cost over £15 billion per year (up from £10 billion in 2022).

Pearce says: “[The Care Review] was talking about 2.6 billion of which 2 billion was needed around family help - and that wasn’t money for addressing the black hole, that was about rebalancing the system.”

“The LGA (Local Government Association) were talking about a 4-billion-pound gap, in an analysis carried out 18 months ago, but if you start with a 4-billion-pound gap, you then need to put 2.6 billion on top of that to rebalance the system”.

He concludes: “We need a system that’s much more linked to need, and we need to look at how we focus the spend and rebalance the spend.”

In what he described as ‘a wonderful rollercoaster of a year' as President in his final ADCS blog, Pearce has passionately highlighted a vision for a more inclusive education system, drawn attention to key challenges facing children and young people such as poverty and poor mental health, and been an important voice for change on children’s residential provision. Succeeding Pearce, current ADCS President Andy Smith has similarly voiced the need for a “fundamental” rethink about the SEND system, and has vowed to continue to push government for a “clear and properly resourced plan” to tackle the placement sufficiency crisis. As we head into a general election, the next year will be a critical period to champion key issues within a sector infected with challenges, and Pearce has left big boots to fill.

Lottie Winson is a reporter at Local Government Lawyer.