Government to review case for powers of entry for social workers in adult safeguarding cases

Posted: 9th August 2023

The government is reviewing the case for giving social workers in England powers of entry in adult safeguarding cases.

It made the pledge after a review it conducted found practitioners “often [lacked] the necessary tools and resources” to protect people with care needs who were experiencing, or at risk of, abuse from those caring for them.

Social workers who gave evidence to the review, jointly carried out by Home Office and Department of Health and Social Care (DHSC), said the lack of powers to enter people’s homes meant they had few options when families deliberately prevented them from speaking to adults at risk.

The Safe care at home review also found that practitioners struggled to understand or apply legislation, resulting in them not using existing powers effectively enough to protect people with care and support needs

The review, which engaged with 127 people representing 40 organisations, was designed to examine the “scope and accessibility” of existing protections for adults experiencing, or at risk of, abuse in their own home by people providing care.

Concerns over abuse not covered by domestic abuse law

It was triggered by concerns raised by disability groups about the abuse of people by carers who were not “personally connected” to them – ie relatives, partners and ex-partners – under the definition of domestic abuse set out in law.

This meant they were not afforded the protections of the Domestic Abuse Act 2021 (DAA), such as domestic abuse protection notices/orders (DAPNs/DAPOs), which will replace the existing domestic violence protection notices/orders (DVPNs/DVPOs) following pilots in three areas starting this year.

Like their predecessors, police-imposed DAPNs, which last up to 48 hours, and longer-term DAPOs, which must be granted by a magistrate, are designed to give victims immediate protection, including through requiring perpetrators to leave their homes. Unlike with DVPOs, specified third parties will be able to apply to the family court for a DAPO on behalf of someone else at risk.

Care Act ‘should provide protection’

Most stakeholders told the Safe care at home review found that people abused by carers not covered by the DAA domestic abuse definition, such as friends or volunteers, should be protected by the Care Act 2014’s adult safeguarding provisions.

Notably, section 42 of the 2014 act requires councils to make enquiries where it reasonably suspects that an adult in its area with care and support needs is experiencing – or at risk of – abuse or neglect, and is unable to protect themselves because of their needs.

However, stakeholders said that the experiences of victims abused by carers in their own homes “can vary significantly between areas”, with some authorities setting high thresholds for section 42 enquiries due to funding pressures. This included not believing that victims had care and support needs.

Lack of understanding of ‘complex framework’

Frontline practitioners, safeguarding adults board (SAB) chairs and academics also highlighted gaps in understanding of a “complex legal framework”, which meant it was sometimes not being used effectively to protect people.

Social workers and police representatives highlighted problems understanding the interaction between the Care Act and Mental Capacity Act, resulting in section 42 enquiries not being investigated fully where there were doubts about the victim’s capacity to make key decisions.

However, the review said that social workers “often referenced” their lack of a power of entry as a barrier to effectively protecting adults experiencing abuse at home from carers.

Powers of entry rejected during passage of Care Act

During the passage of the Care Act, the then coalition government rejected calls from social workers, charities and parliamentarians to introduce a power for practitioners to gain entry to premises to speak to potential victims of abuse, on the grounds that existing powers were sufficient.

However, an analysis by leading Court of Protection barrister Alex Ruck Keene and then chief executive of Action on Elder Abuse (now Hourglass), Gary FitzGerald, published in the same year (2014), identified gaps in these measures (briefly summarised in the box below).

Existing powers of entry and their limits

    • Mental Capacity Act 2005: with the permission of the Court of Protection, a council can apply to it to facilitate access to an adult who lacks capacity, or where there is a reason to believe they lack capacity, to make decisions about their safety, and access is impeded. This would not apply in cases where the person has capacity to make decisions about their safety.
    • Mental Health Act 1983: under section 135, a magistrate may issue a warrant to a police constable to enter premises, using force if necessary, on the basis of evidence under oath from an AMHP that there is reasonable cause to suspect a person with a mental disorder is being ill-treated or neglected. This would not apply where the person does not have a mental disorder.
    • Police and Criminal Evidence Act 1984: the police can, under section 17, gain entry to premises without a warrant to ‘save life or limb’, or for the purpose of arresting someone for an indictable offence, such as crimes involving ill-treatment or neglect. However, ‘life or limb’ sets a very high threshold and councils would need to have evidence that a crime had taken place under the other provision.
    • The inherent jurisdiction of the High Court: this can protect vulnerable adults whose ability to make decisions has been undermined through constraint, coercion, undue influence or anything else. However, it is a costly and time-consuming option.

Source: Briefing paper on the need for a new power of access in defined circumstances (by Alex Ruck Keene and Gary FitzGerald)

Social workers in Scotland and Wales do have powers of entry in safeguarding cases, granted through warrants, under the Adult Support and Protection Act (Scotland) 2007 and Social Services and Well-being (Wales) Act 2014, respectively.

Pledge to review powers

The Safe at home review said that practitioners, SAB chairs and academics backed giving such powers to social workers in England to “enable them to better protect and support people with care and support needs who are, or are at risk of being, abused in their own home by the people providing their care”.

On the back of this, it added: “DHSC will review any new and relevant evidence on powers of entry for social workers since this issue was last considered by government during the passage of the Domestic Abuse Act 2021. This should include safeguarding adult reviews in England and the use of equivalent powers in Scotland and Wales.”

In response to the review, the British Association of Social Workers England said that “further exploration of the complexities and the unintended consequences of changes to the legislation is needed and an area which BASW will want to consult further with members on”.

Practitioners ‘under extreme pressures’

However, on behalf of BASW England’s adult thematic group, Michael Chapman said that the review’s recommendations did not reference the current pressures on practitioners.

“The extreme pressures of the Covid-19 pandemic have impacted dramatically on the social work workforce with increased waiting lists for assessments, higher workload and lack of availability and demand for social care services,” he added.

“This may mean that staff less experienced or even unqualified could be leading on investigations, coupled with the pressure to conclude investigations quickly.”

Source – Government to review case for powers of entry for social workers in adult safeguarding cases – Community Care
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