by Kevin Ball

 

Kevin Ball is currently employed as an independent consultant to undertake the Regulation 33 role in two Children’s Homes. He has extensive experience of working in residential children’s homes, but has held posts as a local authority Senior Social Worker and Team Manager of a child protection team, also with responsibility for placing and reviewing children who live in care. He has been a regional Allegations Management Adviser for the Department for Children, Families and Schools and a Regulatory Inspector for CSCI, regulating and inspecting Children’s Homes, fostering agencies, special residential schools and independent boarding schools provision. Kevin is also currently employed as a part time Senior Consultant with the NSPCC. Contact Kevin at: kevinball30@btinternet.com

 

 

Regulation 33 : Principles to guide independent scrutiny of Children’s Homes

 

Introduction

The purpose of this paper is to stimulate debate about the function, role and practice of Regulation 33 visiting in children’s homes. The Regulation 33 function has the potential to play a pivotal role in the quality assurance framework for any children’s home. Building on a previous paper by the same author (1) the paper argues that, through adopting a curious mind-set, and through the application of clear principles, individuals undertaking the Regulation 33 task can be better equipped to make a meaningful contribution to the quality assurance role.

 

Developments for the Regulation 33 visitor role & function

Recent amendments which came into force in 2014 to the Children’s Homes Regulation 2001 (2) have seen the profile given to the Regulation 33 visitor shift.

The main shift being that the person fulfilling the Regulation 33 function should have significantly greater independence than was previously the case. The Regulations provide a list of criteria which disqualifies individuals from being appointed as a Regulation 33 visitor and independent person. These are specific and are detailed in Appendix 1. Along with changes to reporting requirements the role of the Regulation 33 visitor appears to have been strengthened.

In the recent consultation (3) prior to the new Regulations being enacted, the Department for Education provided an indication about the perceived status of the Regulation 33 function, describing it in one of the consultation questions as being a “ … significant monitoring role …”. However, despite the use of the word ‘significant’ there remains very little formal guidance, research or closer examination of the role. Recently the Independent Children’s Homes Association have issued some practice guidance along with a template for Regulation 33 reporting. Whilst useful and providing some insights into the possibilities for the role, a relative vacuum remains in which those performing the function operate.

We have seen from recent high profile case reviews and inquiry (4) that children in care continue to be extremely vulnerable, despite being removed from situations where they have been deemed to be already at risk of harm. The care system should protect the most vulnerable children and the role of the Regulation 33 visitor has an important, albeit defined, contribution to make to ensure care systems within individual institutions are maintained and upheld. The Regulation 33 visitor therefore carries an element of accountability.

The changes in Regulations point towards a more professional role with clearer expectations, thereby supporting the aim of maintaining or improving standards of care for vulnerable children and young people.

 

Principles guide our actions

In a previous paper,(5) Ball offered five principles which might guide those undertaking the role of the Regulation 33 visitor. The importance of having a set of principles which guide one’s approach and practice cannot be under- estimated. They provide a code for behaviours and conduct, a framework for constructing a perspective and set of findings; in this context, a healthy foundation on which to argue and debate issues concerning the quality of care provided to vulnerable children. These principles are now examined in further detail;

 

Principle 1 – The welfare of the child is paramount

This principle has to be explicit in all interactions and involvement with the Home in fulfilling the Regulation 33 function. It is a clear legal and moral principle and founded on the requirements on the Children Act 1989.

O’Halloran (1999) discusses the welfare of the child, stating

“… the principle of the welfare of the child is notoriously imprecise. Any elucidation of the principle’s content can only be sensibly attempted in relation to the particular needs of the child to whom it is to be applied. Those needs will be defined according to the values of the cultural context to which the child belongs. They will also vary according to the age of the child ….The welfare principle has never been a fixed standard capable of uniform application …” (p59).

He goes on to describe common core elements of welfare, which have evolved into groupings comprising “….physical welfare, moral welfare and psychological welfare” (p65). Given the complexities, and often subjective nature of assessing welfare, especially in a children’s home, the use of a hierarchy may be a helpful way to construct a framework on which one can judge whether the welfare of the child is of paramount consideration. Maslow (6) provides one such hierarchy and those performing the role may find it helpful to familiarise themselves with this.

From research and inquiry into institutional abuse, we now understand and appreciate the importance attached to ensuring children’s safety, and physical and emotional wellbeing. Seeking the views of children themselves is an important aspect of seeking assurance (7&8). The benefits of high quality independent scrutiny in this respect, provided by the Regulation 33 function in monitoring standards of care, are obvious.

One practical application to assist the Regulation 33 visitor in this area is to ensure that the reporting template guides you to seek information about safeguarding practice, e.g. child protection issues, allegations, complaints, health and safety, care and control (de-escalation and physical intervention) measures. Ensuring children are safe is an important foundation to empowering greater developments for children in care.

The welfare of the child should also be considered in the context that the Regulation 33 person is visiting and potentially intruding into the child’s life by visiting their home to conduct a formal function. Sensitivity to the child’s needs at the time of the visit/inspection should be shown along with sensitivity to the circumstances of daily routines and events. For example, it is unlikely to be appropriate to wish to see bedrooms and bathrooms around bedtime as this may be intrusive however it may be useful to be in the home at this time to experience routines from a distance so as to form an opinion about the quality of this important aspect of daily life.

Key question to ask, as a Regulation 33 visitor: Is the care being provided to each child in this Home, developmentally appropriate, safe and good enough? What leads me to form this view?

 

Principle 2  Ensuring independence and objectivity

Given the paucity of information and guidance about fulfilling the independent function, it is worthwhile examining information and resources available to other professions where, not only independence is required, but where a degree of status, responsibility and accountability is a pre-requisite. There are useful concepts and guiding principles to inform not only those fulfilling the Regulation 33 role, but also those commissioning individuals to perform the role.Ensuring that the Regulation 33 person has no conflict of interest which may compromise their ability to fulfil the function is vital. Complete independence increases the capacity to make objective findings about the quality of care, provision and service delivery. This element has been strengthened by Regulations.

The Centre for Public Scrutiny (9) has established four core principles to assist our understanding about some of the most important qualities of scrutiny and accountability. These are set out below, with additional consideration given to their applicability to the Regulation 33 function.

•  “Constructive ‘critical friend’ challenge”: This is a useful position to adopt and links closely to the principles set out in this paper, particularly regarding approaching each visit with respectful uncertainty. Costa and Kallick (10) describe the role of a critical friend as “… a trusted person who can take the time to understand the context of the work/task and the outcomes that the group or person is working toward, and offer support and challenge throughout the process …” In the context of monthly visiting to a Children’s Home, it is possible to see how the Regulation 33 visitor can add value, and support the Registered Manager to provide an effective quality assurance mechanism.
•  “Amplifies the voices and concerns of the public”: The welfare of children in a home must be of paramount consideration. Regulations explicitly require the Regulation 33 visitor to seek the views of children, parents, relatives and staff. This could be extended to seeking the views of placing local authority social workers, Independent Reviewing Officers, local Police, and neighbours – all when and where appropriate. By extending the reach of consultation – conducted in a sensitive and appropriate manner – it may make the difference between a ‘good’ home and an ‘outstanding’ home (11). It opens a channel of communication which may be of benefit and supports the triangulation of evidence, thereby allowing a more robust set of findings and a more informed opinion to be formed about the quality of care in the home. Whilst the responsibility for this extended reach may be best placed with the Registered Manager, there is no reason why the Regulation 33 visitor cannot influence this move.
• “Led by independent people who take responsibility for their role”: Regulations now provide a tighter definition of what constitutes independence; local authorities, when commissioning placements in Children’s Homes will need to ensure providers of Children’s Homes are appropriately interpreting the new Regulations. The style and quality of scrutiny and challenge may well be determined by the experience, skill, knowledge and competence of the individual being asked to fulfil the Regulation 33 function. Providers of Homes will need to ensure they appoint suitably skilled and capable individuals.
• “Drives improvement in public services”: The improvement of care standards and outcomes for children placed in a Home has to be an overriding principle. Research highlights that, often, due to early disadvantage, positive outcomes for children in care can be harder to achieve, frequently exacerbated by placement instability and exclusion (12). The scrutiny and challenge offered by a suitably skilled Regulation 33 visitor has the potential to uphold or improve standards and, in turn, outcomes. The Regulation 33 visitor should be viewed as someone who has an important contribution to make, and who can influence practice in collaboration with the Registered Manager.

It is vital that the Regulation 33 visitor is able to form an opinion on the quality of care solely using the evidence at hand – documentary evidence, observation, discussion with staff, children and others – and benchmark this against statutory requirement and minimum standards. This allows a fair and impartial set of findings to be made.

Independence does however mean that the Regulation 33 visitor must be free to express their opinions without interference from managers and others who might have an interest in shaping opinions. It would be unacceptable for a Regulation 33 visitor to come under pressure to report, or not report, certain information.

Key question to ask, as a Regulation 33 visitor: If I should need to account for my actions (or in-actions) as a Regulation 33 visitor, can I do so confidently and with authority? What leads me to form this view?

 

Principle 3 – Approach each visit with respectful uncertainty

The phrase ‘respectful uncertainty’ was used by Lord Laming when conducting the Victoria Climbié inquiry (2003). It refers to the need to remain open minded whilst having a healthy scepticism about practice. It is not based on distrust, but rather uncertainty and a need to seek clarity and reassurance through questioning and evidence gathering. As a Regulation 33 person you are being asked to form an opinion – that opinion (regardless of how you report it on paper) – should be evidence based and withstand scrutiny. In order to satisfy yourself and base your opinion on sound evidence the Regulation 33 person will want to obtain data from a range of sources. This may occur during one single visit or be part of a process over a number of months looking for patterns of practice or behaviours. Seeking clarity and reassurance is an important part of the Regulation 33 role, particularly given some of the challenges outlined earlier in the paper.

• Look for patterns of behaviour; challenge the Registered Manager, as a critical friend, to undertake thematic reviews and deep dive audits of specific areas to highlight practice.
• Be curious about how children are cared for, what mealtimes are like, how staff make plans for school holidays, etc.
• Seek evidence to support your findings. If it is good practice, report on it, and make sure Ofsted learn of it when they inspect. If it is unsatisfactory or poor practice, ensure it is remedied in a timely manner or appropriate action is taken.
• Vary the time and duration of visiting – see how the home operates at different stages of the day and week. Children’s homes remain open at weekends – not just week days.
• Use your reporting template to provide a framework for visiting but do not be constrained by tick boxes and rigid reporting mechanisms. The Regulatory requirement, in many respects, is broadly defined; use this to your advantage to seek reassurances about the quality of care.

• Look for patterns of behaviour; challenge the Registered Manager, as a critical friend, to undertake thematic reviews and deep dive audits of specific areas to highlight practice.
• Have robust conversations. Be bold and confident to ask those awkward and probing questions – remember your role and accountability.
• Look for areas that could be improved.
• Ask staff – what do you do well in this home? What works well in this home? What could be better? What are the reasons for practice not being to a satisfactory standard? What could you do that you are not doing? What would need to happen to make it possible for this child to succeed? Offer the opportunity for all to reflect on practice and raise standards.

Key question to ask, as a Regulation 33 visitor: What do I need to do to make my monthly visit worthwhile and of value to everyone in the Home – children, staff, Registered Manager?

 

Principle 5 – Consider the whole system in which practice takes place. Regulation 33 function is just one input into the quality assurance systems in the home

Regulation 33 function is just one input into the quality assurance systems in the home; in a well-managed Home there should be others. With greater expectations and scrutiny now in place through National Minimum Standards and the regulatory framework, it would be hard for history to repeat itself in the form of large scale institutional abuse episodes in children’s homes, but the lessons learnt through the decades of scandals should not be ignored. We have seen in the recent past that systematic abuse and failures to uphold professional standards of conduct and care can still occur in places such as Mid Staffordshire Hospital and Winterbourne care home (13 &14). We also know that those who wish to misuse their position of trust and perpetrate abuse will find even more sophisticated ways of doing this to avoid being caught (15). An appreciation by the Regulation 33 person of institutional and cultural practices at a systemic level – both functional and dysfunctional – that affect the quality of care is crucial. Children’s home are complex and dynamic places. Smith (16) cites White(17), who offers an interesting metaphor for residential care,

“…he likens residential care to a compost heap. A compost heap is a particularly complex organic structure where constituent parts interact with one another to produce compost. When this interaction goes well the result is a medium for growth; when something within the biochemical process goes wrong it can let off a stench. It does not take too much imagination to extend this metaphor to residential care; as a form of intervention with children it can be a powerful medium for growth or at its worst it can become decidedly rotten” (p.87)

The Regulation 33 visitor has a unique opportunity to observe this system on a monthly basis, and monitor growth or stench. By remaining independent and objective, it can greatly assist in the regulation of a healthy environment.

• Familiarise yourself with the findings from inquiries and relevant reviews, and statutory guidance for responsible placing local authorities.
• Form an opinion, based on your findings (observations, documentary evidence, discussion) and express it.
• Questions to ask others might include; what is the greatest challenge you face when working in this Home? What is the best and worst thing about living in this Home? What single change would you like to make to make your work easier/better? What single change would you ask for to make living in the Home more enjoyable?
• What is the milieu? What does it feel like when you enter the home e.g. tense, buzzing, or calm? How do staff and children feel and how do they describe the home?

Key question to ask, as a Regulation 33 visitor: Am I familiar with the findings from research, Inquiry and review, concerning children in care sufficiently enough for me to appreciate the whole system in which children are cared for?

 

Conclusion

This paper has attempted to promote debate into the role and function of the Regulation 33 visitor. It has suggested that, by adopting a clear set of principles which are designed to inform and contribute to curious and mindful practice, the scrutiny function can be greatly enhanced.

 

Notes

1. Regulation 33: Quality assuring practice in Children’s Homes, December 2013, Kevin Ball, Good Enough Caring Journal,

http://goodenoughcaring.com/Journal/Articleball243.htm

2. The Children’s Homes and Looked After Children (Miscellaneous Amendments) (England) Regulations 2013.

3. Consultation on reforming children’s homes care: consultation on changes to The Children’s Homes Regulations 2001 (as amended) and The Care Standards Act 2000 (Registration) (England) Regulations 2010, Government response, Department for Education, January 2014.

4. House of Commons Home Affairs Committee; Child sexual exploitation and the response to localised grooming, Second Report of Session 2013–14.

5. Regulation 33: Quality assuring practice in Children’s Homes, December 2013, Kevin Ball, Good Enough Caring Journal,

http://goodenoughcaring.com/the-journal/regulation-33-quality-assuring-practice-in-childrens-homes/

6. A Maslow, A Theory of Human Motivation, 1943.

7. Children’s views on restraint 2012, Office of the Children’s Rights Director, http://webarchive.nationalarchives.gov.uk/20140204083008/https://www.rights4me.org/en/home/library/reports/report- childrens-views-on-restraint-2012.aspx

8. The Children’s Care Monitor 2013, Ofsted, http://www.ofsted.gov.uk/resources/childrens-care-monitor-201314

9. Centre for Public Scrutiny, http://www.cfps.org.uk/mission-and-purpose

10. Costa, A. and Kallick, B.(1993) “Through the Lens of a Critical Friend”. Educational Leadership 51(2) 49-51).

11. Ofsted, Conducting inspections of children’s homes, Guidance for the inspections of children’s homes from April 2014.

12. Thomas, N,. 2005, Social Work with children and young people in care, Palgrave MacMillan, Hampshire.

13. Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry, February 2013, Robert Francis QC http://www.midstaffspublicinquiry.com/sites/default/files/report/Executive%20summary.pdf

14. Transforming care: A national response to Winterbourne View Hospital, Department of Health Review: Final Report, December 2012, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/213215/final-report.pdf

15. National Crime Agency, CEOP Thematic Assessment: The Foundations of Abuse: A thematic assessment of the risk of child sexual abuse by adults in institutions, October 2013, National Crime Agency.

16. Smith, M., 2009, Rethinking residential child care: Positive perspectives, Policy Press.

17 White, K., 2008, The growth of love: Understanding the five essential elements of child development, Wiltshire, Barnabas.

 

 

Appendix 1 :

The Children’s Homes and Looked After Children (Miscellaneous Amendments) (England) Regulations 2013: Amendments to the Children’s Homes Regulations 200111.

For regulation 33 substitute— “Visits by independent person

33. (1) Subject to paragraph (2), the registered provider shall appoint, at the registered provider’s expense, an independent person to visit and report on the children’s home in accordance with this regulation.

(2) The following persons are disqualified from appointment as an independent person—

(a) subject to paragraph (3), a person who is employed for payment by the registered provider;

(b) a person who is employed by a registered provider that is a local authority, where the person is employed in connection with the carrying on of social services functions relating to children;

(c) a person involved in preparing the care plan of any child placed at the children’s home, or a person responsible for managing or supervising that person;

(d) a person responsible for commissioning or financing services provided by the children’s home;

(e) a person with a financial interest in the children’s home;

(f) the responsible individual, if nominated;

(g) a person who has, or has had, a connection with—

(i) the registered person;

(ii)a person working at the children’s home; or

(iii) a child accommodated at the children’s home,

which the registered provider considers to give rise to doubts about that person’s impartiality for the purposes of producing the independent person’s report.

(3) An employee of the registered provider is not, by reason only of that employment, disqualified under sub- paragraph (2)(a) or (g) from appointment as the independent person where he is engaged pursuant to a contract of service or a contract for services which provides that he is to critically examine and scrutinise—

(a)the way that the children’s home is carried on or managed; and

(b)the quality of care that the children’s home provides for children accommodated there.

(4) The registered provider shall require the independent person to declare any actual or potential conflict of interest, whether pursuant to paragraph (2) or otherwise, to the registered provider without delay and, if practicable, before conducting a visit to the children’s home.

(5) Where the registered provider becomes aware of a potential conflict of interest in relation to the independent person before or during that person’s visit to the children’s home, the registered provider shall—

(a)make arrangements to cancel the visit without delay; and (b)appoint a different independent person to visit the children’s home.

(6) Where the independent person becomes aware of a potential conflict of interest after a visit to the children’s home, the independent person must include in the report pursuant to paragraph (9)—

(a)details of the conflict of interest; and
(b)the reasons why he did not notify the registered provider of the conflict of interest before the visit.

(7) Visits by the independent person under paragraph (1) shall take place at least once a month and may be unannounced.

(8) The independent person, when carrying out a visit, shall—

(a)interview, with their consent and in private, such of the children accommodated there, their parents, relatives and persons working at the children’s home as appears necessary in order to form an opinion as to whether—

(i)children accommodated at the children’s home are effectively safeguarded; and

(ii)the conduct of the children’s home promotes the wellbeing of the children accommodated there;

(b)inspect the premises of the children’s home, and such of the children’s home’s records, as the independent person requires (save for a child’s case records, unless the child and the child’s placing authority consent to the inspection of those records by the independent person).

(9) The independent person shall produce a written report about a visit (referred to in this regulation as “the independent person’s report”) and provide a copy of the report to—

(a) HMCI;
(b) upon request, the local authority for the area in which the home is located;

 

(c) the placing authorities of children accommodated in the children’s home; (d)the registered provider and, if applicable, the registered manager; and (e)the responsible individual, if nominated.

(10) The independent person’s report may recommend actions that the registered person may take in relation to the children’s home and timescales within which the registered person must consider whether or not to take those actions.”

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