Analysis Of Responses To The Consultation On Draft Statutory Guidance For Parts 4, 5 & 18 (Section 96) Of The Children And Young People (Scotland) Act 2014

13 Responsible authority, Child's Plan management and assistance in relation to a child's Plan

13.1 Responsible authorities have a duty to decide if a Child's Plan is required, and in most cases, to prepare the Child's Plan. Section 36 of the Act sets out details of who the responsible authority for a Child's Plan will be and Section 37 sets out the circumstances in which the responsible authority may be different to the definition in Section 36. Section 38 of the Act sets out the statutory duties of relevant authorities in relation to the delivery of the Child's Plan, and Section 39 outlines the management requirements and processes, and the functions of the 'managing authority' for the Plan. The consultation asked three questions about these sections.

Q30: Responsible, relevant, directing and managing authorities

13.2 Question 30 asked: 'Does the draft guidance make clear the different roles of the responsible, relevant, directing and managing authorities?' Table 13.1 shows that 72% of organisations and 20% of individuals thought it did, and 28% of organisations and 80% of individuals thought it did not.

Table 13.1: Question 30

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Local authorities	11	(73%)	4	(27%)	15	(100%)
Health organisations	13	(87%)	2	(13%)	15	(100%)
Partnership bodies and joint responses	11	(85%)	2	(15%)	13	(100%)
Other national public sector bodies	3	(60%)	2	(40%)	5	(100%)
Third sector organisations	13	(68%)	6	(32%)	19	(100%)
Professional groups	4	(44%)	5	(56%)	9	(100%)
Other organisational respondents	3	(60%)	2	(40%)	5	(100%)
Total organisations*	58	(72%)	23	(28%)	81	(100%)
Individual respondents	4	(20%)	16	(80%)	20	(100%)

* One respondent ticked both 'yes' and 'no'. This response is not included in the table.

Percentages do not all total 100% due to rounding.

13.3 Three-quarters of organisations overall agreed that the guidance was clear about the roles of the responsible, relevant, directing and managing authorities. However, professional groups were more divided in their views.

13.4 Altogether, 63 respondents (54 organisations and 9 individuals) made comments at Question 30.

Aspects of the guidance respondents found helpful

13.5 Respondents who ticked 'yes' at Question 30 commented that the guidance was clear, but then often went on to request clarification about specific points, or to make suggestions for improvement.

Aspects of the guidance that were less helpful / required clarification

Relationships between responsible, relevant, directing and managing authorities

13.6 Irrespective of whether respondents answered 'yes' or 'no' to Question 30, they often commented on the complexity and difficulty of the information contained in Sections 11.5 - 11.7 of the guidance. A variety of suggestions were made to help clarify matters. These included: inserting a hyperlinked definition in the electronic version of the guidance every time one of these terms is mentioned and making greater use of flow charts and examples.

Cross-border arrangements

13.7 Some respondents specifically requested clarification about each local authority's responsibility towards looked-after children where the child has been placed in another local authority area. Similar queries were raised in relation to the discussion of Grant Aided Special Schools (GASS), where there were different responsible authorities depending on whether the parent or the local authority made the decision to place the child in a GASS, and in relation to different kinship care arrangements (including where a child from England comes to live in Scotland with a kinship carer, and those where the child is and is not officially a looked-after child).

13.8 Phrases such as 'where the child normally lives' were thought to be problematic when a child is looked after away from home. It was noted that health services are always provided by the area in which the child lives, regardless of whether the child was placed in that area by the local authority or not, and it was suggested that it would be more practical, efficient and cost-effective if a similar arrangement existed between local authorities.

Children's Hearings and the Child's Plan

13.9 Some respondents, including the Scottish Children's Reporter Administration (SCRA), commented that statements in paragraph 11.7.7 and 11.7.8 do not accurately reflect the roles of the children's hearings and the courts, nor the roles of agencies in providing information to them. The point was made that the Child's Plan should reflect the decisions made by the hearings or courts, not vice versa as the text currently suggests. Moreover, paragraph 11.7.8 suggests that a relevant authority can take steps to change decisions made in a Children's Hearing with which the authority may disagree. The point was made that the relevant authority may request a review where a child supervision order is in place; however, it would not be appropriate to request a review because the authority disagrees with the hearing's decision.

13.10 In addition, at paragraph 11.7.7, the reference should be to the Principal Reporter (or children's reporter) not SCRA.

Other issues

• Role of the Lead Professional: Respondents requested further information about how the Lead Professional role relates to that of the Named Person. It was suggested that this section of the guidance was inconsistent about whether a third sector partner could act as the Lead Professional. There was also a query about the appropriateness of a family member / parent acting as the Lead Professional.
• Managing disagreement: Clarification was requested about who the 'responsible authority' would be if a Named Person decides a Child's Plan is required, but the 'relevant authority' disagrees (because the child does not meet their service access thresholds).

Views of individual respondents

13.11 Comments made by individual respondents largely expressed disagreement with the legislation. However, there were also some substantive comments, namely that the process could be simplified by adopting a process similar to that already used for children with additional support needs (ASN), and that the guidance should be clearer about arrangements for children not in school.

Q31: Child's Plan management

13.12 Question 31 focused on paragraphs 11.8.1 - 11.8.13 of the guidance and asked: 'Does the draft guidance make clear the processes and arrangements for managing the child's plan?' Table 13.2 shows that 60% of organisational respondents and 12% of individual respondents agreed, while 40% of organisational respondents and 88% of individual respondents disagreed.

Table 13.2: Question 31

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Local authorities	10	(63%)	6	(38%)	16	(100%)
Health organisations	10	(67%)	5	(33%)	15	(100%)
Partnership bodies and joint responses	8	(57%)	6	(43%)	14	(100%)
Other national public sector bodies	3	(60%)	2	(40%)	5	(100%)
Third sector organisations	11	(58%)	8	(42%)	19	(100%)
Professional groups	5	(50%)	5	(50%)	10	(100%)
Other organisational respondents	3	(60%)	2	(40%)	5	(100%)
Total organisations	50	(60%)	34	(40%)	84	(100%)
Individual respondents	2	(12%)	15	(88%)	17	(100%)

Percentages do not all total 100% due to rounding.

13.13 The pattern of agreement / disagreement was broadly similar across all organisational respondents, except in relation to professional groups where respondents were evenly divided in their views.

13.14 Altogether, 76 respondents (70 organisations and 6 individuals) made comments at Question 31.

Aspects of the guidance respondents found helpful

13.15 Respondents highlighted statements in this section of the guidance which they found helpful, including that:

• The role of the managing authority (paragraph 11.8.4) and possible responses of the Lead Professional (paragraph 11.8.10) were clearly set out.
• The National Practice Model is recommended as an assessment tool.
• The Lead Professional should actively involve the child and parents and take account of their views before taking action - and that communication or learning difficulties should not preclude this.
• The timescales for an initial review of the Child's Plan were specified.
• Responsibility for the exercise of the Lead Professional role lies with the managing authority and not with any individual practitioner.

13.16 Most of those who ticked 'yes' went on to request further clarification, raising the same points as those who ticked 'no'.

Aspects of the guidance that were less helpful / required clarification

Relationship / interface between Named Person and Lead Professional

13.17 Respondents repeatedly asked for further clarification and 'much more detail' about the relationship between the Named Person and the Lead Professional. Respondents asked a range of questions, including:

• Who has overall responsibility for the Child's Plan once it has been initiated if the Named Person is not the Lead Professional?
• Does the Named Person maintain responsibility for updating the Plan based on information received from the Lead Professional, or does the Lead Professional take on responsibility for updating the Plan and ensure that the Named Person is kept informed of the changes?
• How is the Lead Professional (if different to the Named Person) supposed to involve the Named Person in planning and decision making - particularly in the case of looked-after children, where important decisions about placements and support are taken frequently?
• How will disagreements between the Named Person and Lead Professional be resolved?

13.18 There were also concerns about the potential for duplication of information sharing with both the Lead Professional and Named Person.

Managing the Child's Plan for a child subject to a Child Protection Order

13.19 Respondents often requested clarification about the relationship between the draft guidance and the national guidance for child protection in Scotland, and between the processes of creating a Child's Plan, and the processes involved in the Children's Hearing system.

13.20 The point was made that the concept of 'managing authority' appeared to be identical to the concept of the 'implementation authority' (for a child subject to a compulsory supervision order). Thus it was suggested that the guidance should explicitly state that the managing authority will always be the same as the implementation authority in such cases.

Links to other legislation

13.21 More broadly, local authority respondents wanted to see the guidance make better links to processes and procedures already in place related to existing legislation (including the Education (Additional Support for Learning) (Scotland) Act 2004, Looked After Children (Scotland) Regulations 2009, etc.) which impact on the arrangements for managing and reviewing (including timescales) certain children and young people's Plans.

Family member (or parent) as Lead Professional

13.22 Respondents frequently expressed concern (in relation to paragraph 11.8.7) about the idea that a family member (or parent) may be able to act as the Lead Professional, not only because of the potential conflict of interest, but also because, in some cases, it could result in fewer safeguards in relation to child protection. Some respondents wanted clarification about whether the guidance was suggesting that a family member could act as Lead Professional only if they are employed by the managing authority, or if this idea was being introduced to facilitate Self-directed Support.

Lead Professional role fulfilled by a third sector organisation

13.23 It was also suggested that the family may have a preference about who should act as Lead Professional, and the guidance should be worded to explicitly recognise this. It was suggested the statement (at 11.8.6 and 11.8.13) - that the management of the Child's Plan will be carried out on behalf of the managing authority, 'who will normally be the Lead Professional employer' - should be removed, and it should be made explicit that a third sector practitioner may act as Lead Professional.

Training for Named Persons and Lead Professionals

13.24 Respondents asked for further information (or guidelines) about the training and qualifications required by the Name Person and / or Lead Professional, and felt that measures should be put into place to ensure that people had the training they needed. It was suggested that specialised training may be required for those supporting children with specific disabilities and children (and their parents) affected by domestic abuse.

13.25 There were also concerns about the breadth of knowledge required by the Named Person, and about whether the systems and structures were in place in all areas of Scotland to support practitioners in fulfilling their duties.

Timescales

13.26 Respondents called for the guidance to include information about the timescales for initiating, completing and reviewing a Child's Plan, to ensure consistency of practice. The point was made that the guidance included the timescales for review, but not for the earlier stages.

Other issues for clarification

13.27 Other issues requiring clarification included:

• How a Child's Plan would be accessed and updated during school holidays
• Arrangements for managing the Child's Plan for young people in secure care or custody
• Arrangements for managing transitions to adult services or aftercare services for: looked-after children, disabled children, young people involved in the criminal justice system.

13.28 Some respondents also commented on the language and terminology in the guidance and suggested it could be more succinct. There were particular difficulties in differentiating between the 'responsible authority', 'managing authority' and 'relevant authority'.

Other suggestions for improvement

13.29 Other points included that:

• The guidance should acknowledge that there may be cases when it is not in the child's best interests to involve parents / carers in professional meetings.
• The guidance should state that the Lead Professional should refer to (relevant) non-statutory agencies when reviewing and implementing the Child's Plan.

Views of individual respondents

13.30 Individual respondents expressed concerns about the cost and bureaucracy of the arrangements, and emphasised the right of parents to look after the wellbeing of their children. There was also a view that most children would not need 'a Plan'.

Q32: Transferring management of the Plan to another authority

13.31 Question 32 focused on paragraphs 11.9.1 - 11.9.21 of the guidance and asked: 'Does the draft guidance make clear the arrangements for transferring management of a Child's Plan?' Table 13.3 below shows that 83% of organisational respondents and 24% of individual respondents agreed, and 17% of organisational respondents and 76% of individual respondents disagreed.

Table 13.3: Question 32

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Local authorities	12	(75%)	4	(25%)	16	(100%)
Health organisations	14	(93%)	1	(7%)	15	(100%)
Partnership bodies and joint responses	13	(87%)	2	(13%)	15	(100%)
Other national public sector bodies	5	(100%)	0	(0%)	5	(100%)
Third sector organisations	11	(69%)	5	(31%)	16	(100%)
Professional groups	9	(90%)	1	(10%)	10	(100%)
Other organisational respondents	4	(80%)	1	(20%)	5	(100%)
Total organisations	68	(83%)	14	(17%)	82	(100%)
Individual respondents	4	(24%)	13	(76%)	17	(100%)

Percentages do not all total 100% due to rounding.

13.32 The pattern of response among organisational respondents was broadly similar across all sectors.

13.33 Altogether 48 respondents (43 organisations and 5 individuals) made comments at Question 32.

Aspects of the guidance respondents found helpful

13.34 Respondents who made comments about what was helpful in this section thought that the guidance was clear, comprehensive, and provided sufficient detail about when a transfer between managing authorities would be necessary, who had the responsibilities for transfer, and what those responsibilities were. Respondents also supported the idea that transfer should trigger a review of the Child's Plan.

Aspects of the guidance that were less helpful / required clarification

13.35 However, there were a range of issues which respondents felt needed to be clarified. One local authority respondent noted that transfer arrangements were currently being piloted in their area, and on the basis of that experience felt that more guidance would be needed.

13.36 Although, as noted above, some respondents felt the guidance was clear in relation to who has the responsibility for managing transfers, other respondents felt that clarity was needed about which staff should be involved in the process. Within this latter group were those who thought the role of the Named Person role was clear, but that the role of the Lead Professional was not. In addition, there was a request for clarification about how the role of the Managing Authority (in the 2014 Act) relates to that of the Implementation Authority in the 2011 Act.

13.37 There were also comments and questions about the timescales for transfer. Some respondents wanted to see a greater emphasis on the timescales for reviews to ensure they are: a) undertaken; and b) there is adequate administrative support available to support them. The point was also made that the relationship between the transfer of a Child's Plan, and the transfer of the Named Person service should be more closely linked within the guidance. It was noted that one had a 10-day timeframe and the other a 6-week timeframe, which may cause confusion.

13.38 Clarification was also thought to be needed in relation to:

• Handling transfers for 16 to 18 year olds (particularly those who have left school)
• The rationale for 'not being able to comply' with parents' / child's wishes, how this should be communicated, and within what timescales
• Families who do not wish to make use of the Named Person service
• How families can challenge or appeal and where parents / children can access support to appeal
• How long a child must be residing in an area before the incoming authority is responsible for the Child's Plan (as some families move very frequently)
• The consequences if a Named Person fails to complete the transfer process
• How decisions related to the transfer of a Child's Plan should be recorded
• (In relation to paragraph 11.9.8), why, if a school aged child lives in one local authority area but attends school under the management of another local authority, a decision must be made about whether there is a need to transfer the management of the Child's Plan (it was suggested that the management of the Child's Plan should automatically be with the local authority where the child's school is located).

13.39 Respondents thought (in relation to paragraph 11.9.10) that it would be helpful if the guidance placed greater emphasis on the fact that the procedures described for transfer of a Child's Plan are already in place in all areas (in relation to Child Protection Plans). However, there was also a comment that the guidance for Child's Plan transfers differs slightly from the process of transferring a Child Protection Plan. It was suggested that, as much as possible, the guidance should incorporate these well-established processes. There was also a view that the process would be much easier if there is a national standard, paperwork and systems that everyone used.

Suggestions for improvement

13.40 Respondents made a range of suggestions for improving the guidance. Those mentioned most frequently related to issues of information sharing, and of dealing with disagreements between managing authorities at the point of transfer:

• Guidance in this section in relation to the editing and sharing of information should be more closely aligned to the guidance on information sharing. It was also suggested that (at paragraph 11.9.20) a statement should be included to say that information may also be shared between managing authorities without the consent of parents / children for the purposes of preventing or detecting a crime.
• It was pointed out that the arrangements for transfer rely on agreement between managing authorities. However, the guidance should also consider the possibility that they may disagree.

Other concerns

13.41 Respondents also expressed some concerns about the guidance in this section. The following points were noted:

• Targeted interventions provided to the child from the outgoing authority may not be available from an incoming authority. The guidance should address how this should be resolved.
• Transitions can be difficult for children, particularly for vulnerable children. Guidance should include advice to professionals to allow plenty of time for preparing for the transition, and to give particular attention to the communication needs of children and their families.

Views of individual respondents

13.42 Individual respondents were concerned about the potential cost of implementation of the Act, and about information being shared between one managing authority and another without the parents' consent. There was also a view that the procedures for transfer were unnecessary for most children.

Q33: Assistance in relation to Child's Plan

13.43 Question 33 concerned paragraphs 11.10.1 - 11.10.8 of the guidance and asked: 'Is the draft guidance helpful in describing the processes and arrangements for providing assistance in relation to functions under this part of the Act?' Table 13.4 below shows that 78% of organisational respondents and 30% of individual respondents agreed, and 22% of organisational respondents and 70% of individual respondents disagreed.

Table 13.4: Question 33

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Local authorities	12	(75%)	4	(25%)	16	(100%)
Health organisations	13	(87%)	2	(13%)	15	(100%)
Partnership bodies and joint responses	9	(64%)	5	(36%)	14	(100%)
Other national public sector bodies	3	(75%)	1	(25%)	4	(100%)
Third sector organisations	14	(93%)	1	(7%)	15	(100%)
Professional groups	6	(67%)	3	(33%)	9	(100%)
Other organisational respondents	3	(75%)	1	(25%)	4	(100%)
Total organisations	60	(78%)	17	(22%)	77	(100%)
Individual respondents	6	(30%)	14	(70%)	20	(100%)

Percentages do not all total 100% due to rounding.

13.44 The overall pattern of agreement / disagreement was broadly similar across different organisational sectors.

13.45 Altogether, 57 respondents (52 organisations and 5 individuals) commented at Question 33.

Aspects of the guidance respondents found helpful

13.46 Organisational respondents found it helpful that the guidance acknowledged the challenge of achieving a balance between confidentiality and sharing of information.

Aspects of the guidance that were less helpful / required clarification

Declining a request for assistance

13.47 The main point made by respondents in their comments at Question 33 concerned a request for additional information, or specific examples, to illustrate the two points made at paragraph 11.10.2 (the circumstances in which a relevant authority or listed authority may decline a request for assistance from the Named Person or Lead Professional).

13.48 However, there was also a more general view that, while the guidance was reasonably clear about duties related to information sharing and confidentiality, it was less clear about providing advice and assistance.

13.49 The point was made that the requirement to provide clear reasoning for refusing a request for assistance does not appear in the Act or the Explanatory Notes, but is only mentioned in the draft guidance. Therefore, the status of this requirement is unclear. Respondents also commented that it was unclear what action would / could be taken if a request for assistance / information is not complied with, and whether there was scope for a Named Person or Lead Professional (or parents) to appeal or challenge a decision not to provide assistance. Respondents wanted this to be specified in the guidance.

Information sharing / confidentiality

13.50 Some respondents thought that the guidance was too complex in relation to information sharing, and written in a way that was difficult to navigate. Specifically, there were several comments that paragraph 11.10.3 on the breach of duty of confidentiality was far too long, and should be bulleted, or simply condensed.

13.51 There was also a view that, since information sharing was covered earlier in the document, including it in this section as well, has 'muddied the guidance'. It was thought that the guidance did not address the complexities of how and when to say no to a request for information. There was also a request for more consistent wording regarding the 'test for disclosure' of information, in line with earlier sections of the guidance.

13.52 The point was also made that the DPA also allows information to be shared for the purposes of preventing or detecting a crime. There was also a suggestion that training should be made available widely to practitioners across all sectors (including the third sector) so that they are equipped with the knowledge they need to participate in the process of developing, managing and reviewing a Child's Plan with due regard to existing legislation.

Wider issues

13.53 Respondents made the following points related to the issue of providing assistance to Named Persons or Lead Professionals when requested:

• Allied Health Profession service providers currently do not have sufficient capacity to act as Lead Professional, or to deliver the shift in resources that would be required to bring about the changes necessary to focus on early intervention / prevention.
• While this section sets out the requirements of authorities to comply with requests from a Named Person or Lead Professional, there is no guidance about what happens if parents approach a Named Person or Lead Professional to request a specific service and this is refused.
• The role or obligations of the third sector are unclear, particularly when they may be carrying out duties on behalf of a local authority.

Views of individual respondents

13.54 Individual respondents commented on the language in this section of the guidance (suggesting it would be clearer if it 'were written in plain English'), and emphasised again the fundamental right of parents to look after the wellbeing of their children, and their views that the proposed arrangements were unnecessary for most children, intrusive and a poor use of public funds.

13.55 There was also a suggestion that, while the focus in the guidance on the DPA was positive, this Act was seen to be rarely treated seriously.

Q34: Other comments about the draft Child's Plan

13.56 Question 34 invited respondents to provide any other general comments about the draft Child's Plan guidance. Altogether 64 respondents (53 organisations and 11 individuals) made comments.

13.57 Respondents raised a wide range of issues in their comments at Question 34. Many of these repeated comments made in relation to earlier questions, and so these are not repeated here. Additional points included:

• Clarity was needed about when and how to close a Child's Plan
• It would be helpful to have as much consistency across the country as possible in relation to the format of the Child's Plan - there were requests again for examples of completed Plans.
• Practice guidance should include further details about staged assessment and targeted intervention.
• It was suggested that the term 'Young Person's Plan' should be used in the guidance to refer to the 'Child's Plan' for those aged 16 and over.
• The term 'Child's Plan' is itself confusing, as it actually refers to a planning framework including an assessment and core record. The guidance should be clearer on what now constitutes a statutory plan (LAAC / child protection, etc.).

13.58 On the one hand, there was concern about too many Child's Plans being created simply because the concept of wellbeing is so 'amorphous'. However, it was more common for respondents to express concern that targeted interventions (for budgetary reasons) may be identified as services at a universal level - thus there may be few statutory Child's Plans in certain areas of the country.

13.59 There were also numerous comments on the style and presentation of the guidance. There were calls for more concise text and consistent language, and suggestions that the detail could be included in practice guidance. Phrases like 'initiate the preparation', 'prepare', 'co-ordinate delivery of', 'review', and 'manage' were perceived to be unclear, or not always used consistently. There were also concerns about the phrase 'as far as reasonably practicable' used in relation to seeking views of children.

Views of individual respondents

13.60 The comments of individual respondents large reiterated points they had made in response to earlier questions. Some individual respondents repeated their objections to the legislation.

13.61 Others focused more on implementation issues, and expressed the views that:

• There is a lack of capacity in the health visitor workforce to fulfil the role of Named Person.
• Parents and children must be given clear and detailed information about what is involved.
• The role of parents should be central in the process.

13.62 One individual respondent also echoed comments made by some of the organisational respondents that the guidance had not clearly explained the relationship between a Child's Plan and a Child Protection Plan. The point was made that although the latter is not a statutory plan, it is universally used in child protection practice, and so the lack of guidance on this issue could lead to confusion.