Public Law

In November last year, a report by Ofsted revealed serious and longstanding failures in the children’s services offered by Doncaster Metropolitan Borough Council. Following on from this report Michael Gove, Secretary of State for Education, despatched two experts to examine the problem and find a solution.

The experts’ report, published on 16 July, highlights the need for radical change and identifies a “cultural legacy of failure” within the service that has obstructed any drive for improvement to date. The only solution, say the experts, is a decisive break with the past; only an organisation external to the Council is capable of making the necessary reforms.

The main proposal is to establish an independent, not-for-profit Trust to provide all children’s services, except those regarding education. The Trust would have responsibility for planning, managing, providing and/or delivering the authority’s children’s social care functions. There is also scope for the Trust taking on more responsibilities over time, like children’s public health services, currently provided by the local health trust.

The Trust would be staffed by Council staff currently employed in the services it takes over and headed by a Board comprising an independent chair, a chief executive, and executive and non-executive directors, plus staff representatives.

Michael Gove wants to see the Trust operational by 1 April 2014. He has drafted a ministerial direction that would require the Council to work with a newly established Commissioner of Children’s Social Care for Doncaster to facilitate the transfer of services to the Trust.

Other (similar) ventures by other local authorities have been billed as a success, like the Hackney Learning Trust (a pioneer provider of children’s services independent of the local council, focusing on education services) and Evolve YP (a small professional partnership in Staffordshire owned by its staff that provides services for looked after children). But this is the first time that an independent organisation will have been used to deliver a local authority’s services on such a large scale.

There will clearly be concerns about accountability. The report says that an independent body providing all of a local authority’s child protection, safeguarding, looked after children and wellbeing services would “create a new understanding of accountability in law”. It says that its proposals are based on legal advice provided by the Department for Education, which suggests that the Trust could carry out the Council’s legal responsibilities relating to child protection on behalf of the Secretary of State… The advice may become a focal point in any future challenge.

While the trend for outsourcing of core local authority functions seems to be confined to England for now, Scottish local authorities will look with interest to see how this project plays out in the longer term. Concerns have already been voiced that this re-organisation is too complex, uncertain and time-consuming and could further undermine the service. Doncaster will certainly have to take care to ensure compliance with the public sector equality duty, if it is making operational decisions in implementing the changes that may adversely affect vulnerable groups. Other authorities have been challenged for decisions to outsource services because it was alleged that they did not pay due regard to the public sector equality duty. Higher up the chain, the decision to move to the Trust model itself has the potential to engage the principles of the Equality Act and it seems likely that an Equality Impact Assessment will be required before any final decision is made. A challenge to the new proposal seems likely, particularly if the changes brought about by the Trust result in budgetary cuts for certain services.

Gemma McKinlay

Associate at Brodies LLP
Gemma is a senior solicitor in Brodies market-leading Public Law & Regulatory team in. She advises on a range of public law and commercial issues.  Her specific areas of practice expertise include powers and duties of local and central government, statutory interpretation, equality and human rights, data protection and freedom of information laws.
Gemma McKinlay