By Kevin Ball Date Posted: December 18, 2013
Kevin Ball is currently employed as an independent consultant to undertake the Regulation 33 role in a Children’s Home. This home was established in 2011, and has subsequently received consecutive judgements by Ofsted as outstanding. The home is affiliated to a large independent fostering agency also judged as outstanding by Ofsted over a consecutive number of years. 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 prior to the introduction of the Independent Reviewing Officer function. He has been a regional Allegations Management Adviser for the Department for Children, Families and Schools but also 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 by the NSPCC Consultancy Service. Contact Kevin at firstname.lastname@example.org or Kevin.email@example.com
Regulation 33: Quality assuring practice in Children’s Homes Introduction
Despite the need for all children’s homes to ensure they have a Regulation 33 visitor there appears to be little written information to inform and assist those undertaking the role. Although it may be helpful to examine what a Regulation 33 visitor might look for when conducting visits, the purpose of this practice based paper is to provoke a debate and explore what may be considered as critical success factors whilst fulfilling the function. The paper will begin by briefly setting out an overview of the Regulation 33 role before then considering challenges and opportunities within this context. It will then offer a working model on which practice might be developed based on the author’s experience. It concludes by advising that further work is needed in order to explore the true worth and potential of the Regulation 33 role.
Overview of the Regulation 33 role and legislative context
Following the recent high profile reporting of the sexual exploitation of children in care in Rochdale, there is continued concern about the vulnerability of children in care, particularly those who are placed some distance from their responsible home authority. Reports by the All Party Parliamentary Group (June 2012) and the Office of the Children’s Commissioner (OCC, July 2012) reveal concerning findings; this appears to have prompted a review of children’s homes by Government. One of the recommendations of the OCC report was that the Children’s Homes Regulations should be amended to ensure monthly visits to private children’s homes should be conducted by someone independent and approved or appointed by the local authority. This is in response to findings that the current arrangements may lack rigour and sufficient independence.
The Department for Education (April 2013) go further with this recommendation, seeing the Regulation 33 role as a driver for improvement and recommending
“Regulation 33 visits should always be carried out by persons independent of the home or the organisation running the home. Consideration should be given to these visits being conducted by locally convened panels, including members of the public. Reports should be shared with both placing and host Las”.
The Government is currently consulting (25th June 2013) about achieving greater independence for the Regulation 33 role. Warner (1992) offered findings about the importance of having independent scrutiny and we are reminded about this by Corby, Doig and Roberts (2001, p 173) who consider developments in practice since some of the larger public inquiries into institutional abuse.
The role the Regulation 33 person plays can be exclusive, influential and vital to effective scrutiny and challenge of custom and practice in any children’s home. Recent statistics released from Ofsted (May 2013) highlight that there are 2,050 homes registered in England. This includes children’s homes (1,950), secure children’s homes (16) and residential special schools registered as children’s homes (84). Of these 26% of the children’s homes were run by local authorities with the other 74% being run by either private or voluntary organisations. It is worthwhile pausing to reflect that potentially, there could be as many Regulation 33 visitors conducting visits to these establishments. This equates to over 23,000 visits over the course of a year. This is a significant figure and given the weight attached to the role, emphasises the need to further examine the function.
The Children’s Homes Regulations 2001 (as amended 2011), set out the requirements of the Regulation 33 role (see Appendix 1 for details). Essentially this comprises of someone independent of the management of the home to visit on a monthly basis, unannounced, and examine practice in the home. The result of which is to form an opinion about the quality of care in the home, provide a report and submit this to the managers and owners of the home, as well as to the regulator (Ofsted).
National Minimum Standard 21 (2011, 21.7 & 21.8) provides very limited detail about this aspect of operating a children’s home, but does state,
“Visits of the home carried out under Regulation 33 include relevant checks set out in regulations and guidance and checks of any disciplinary measures and use of restraint and records of missing person’s reports. The registered provider’s written report of a visit carried out under Regulation 33 is lodged in the home for the manager and staff to read and to respond”
The Children Act 1989 Guidance and Regulations Volume 5: Children’s Homes (2013) devotes two paragraphs about the role;
Regulation 33 requires the registered provider to have quality assurance arrangements in place. As a minimum, these will involve visiting the home at least once a month, either announced or unannounced in order to observe the care provided, the practice of the staff, inspect compliance with regulations, systems and processes and the quality of the environment. One important focus for these visits will be to scrutinise how the home is supporting children to enjoy and achieve. The person making the visits will wish to be satisfied that the home has an effective approach to behaviour management. Visits should routinely examine records of restraint and logs of missing person’s reports, to check that the home provides stable, safe and secure care.
The visit must wherever possible include private interviews with children and young people living at the home (and if appropriate their parents, relatives or carers). Where English is not their primary language, the visitor should have access to appropriate translation support. Staff employed at the home must also be interviewed privately. A written report on the conduct of the home must be prepared after the visit and made available to HMCI, the registered manager, and anyone else with responsibility for the management of the home.
The regulator, Ofsted also provides little information on this role, other than a document on how to manage Regulation 33 reports (2010). This document is more for the benefit of the Regulation Inspector, rather than the person undertaking the Regulation 33 role. Interestingly, in a more recent report Ofsted (2011) about outstanding children’s homes, no mention is made of the Regulation 33 role.
We can see from the above information that those undertaking the Regulation 33 role, along with those employing someone to do so, are provided with little substance about how these visits might be conducted, let alone what might make the quality assurance role effective. From a brief review of recently published texts about residential child care, little if anything appears to be offered about quality assurance or oversight of care standards. It seems that, other than ensuring a small number of explicit factors are examined during monthly visits, there is considerable license to interpret how the function might be fulfilled. Whilst prescriptive guidance may not necessarily be the solution or best response there are a number of factors that can be strengthened so as to ensure a more robust approach to the Regulation 33 function. Given the findings from both the APPG and the OCC reports, and the Government’s intention to consider the Regulation 33 role, it is hoped that this paper in some way contributes to developments. The paper shall now go on to examine some of the challenges in undertaking the role.
Challenges and opportunities of the Regulation 33 function
The role and remit given to the Regulation 33 person provides a unique opportunity to quality assure and shape practice in a children’s home. However, it is argued that there are a number of issues worth exploring that highlight challenges to fulfilling the role and function. As part of the process of establishing a successful and effective home there are a number of inputs needed. The Regulation 33 visit is one input into the home’s quality assurance system, the output of which is a written report along with any verbal feedback. The outcome of this process is an independent view about the quality of care which may highlight good practice but also identify areas for improvement. By considering two distinct questions for those fulfilling this input and output role it is possible to begin to see how the Regulation 33 function can be strengthened;
- How is it best to conduct and fulfil the Regulation 33 function?
- What information is needed in order to effectively scrutinize practice and care in the home? Defining the role Legislation, guidance and NMS refer to Regulation 33 ‘visits’, and yet there is a very explicit expectation that the purpose of the role is to quality assure, inspect, and scrutinise. For some, the term ‘visitor’ may seem to offer a softer and more familiar name to a person that is required to inspect on a monthly basis, and yet the degree of responsibility placed on that individual is more than a casual visit. Indeed, the DfE (2013) discuss ‘locally convened panels’ suggesting a degree of formality and coordination currently not seen. The term ‘inspector’ offers a more official and formalised sounding role and may attract greater status and responsibility. This term also has stronger links to the regulatory framework on which standards and quality of care will be judged. Whilst some providers of children’s homes may refer to the role as ‘the Regulation 33 Inspector’, some refer to the ‘Regulation 33 visitor’. It is argued that the use of very different terms to describe the role is unhelpful and presents a challenge by which the status (or perceived status) of those individuals undertaking the role is uncertain; a consistent title which explicitly relates to the function of the role would be more beneficial.
Degrees of influence
Arguably, a further challenge to the function is the authority and standing given to the role; in turn this affects the ability to influence and challenge, thereby raising standards of practice. Whilst the Regulation 33 person may have limited power and authority, their potential ability to influence practice, arguably, should be high. The role requires an opinion to be formed about the quality of care in the home; if standards need improving and this is recognised by the Regulation 33 person but not the Registered Manager, the Regulation 33 person does still have a responsibility to report this. Regulation 33 reports are provided to Ofsted, who in turn, should monitor practice developments as part of their regulatory obligations.
There is therefore a line of accountability that is in place to assist the Regulation 33 person. It is open to question whether this ability to influence may be challenged when one person undertakes the Regulation 33 role across a number of homes and they are employed by a larger company; there is an inherent potential conflict of interest in such circumstances. The potential to have opinions toned down due to financial constraints or fear of compromising ones employment position, or loss of income do need to be considered; such scenarios would be alleviated by ‘locally convened panels’, as seems to be proposed by the DfE (2013). Maintaining the independence and integrity of the Regulation 33 role may be a fine line to tread.
A further complication arises when we consider whether the Regulation 33 person has an advisory role. Visiting and simply commenting on practice and care could be an activity performed by someone with limited experience of the residential and care sector, but who is competent and has a degree of common sense. The DfE (2013) have referred to using ‘locally convened panels, including members of the public’ showing that that there may be merit in involving those with less experience than some may think necessary to scrutinise standards of care.
We can see similar scenarios and roles being employed by Local Safeguarding Children Boards by their use of the ‘participant observer’ role and lay member roles. The ability to give advice is something that the Regulation 33 person may be very well placed to offer however it will be important to ensure that advice is based on sound reasoning and an understanding about the needs of children in care, the care system and the dynamics of residential child care. An advisory and improvement function is something that the regulator, Ofsted, is unable to perform given its statutory functions.
The Independent Children’s Homes Association research report (2013) shares concerns about the experience and knowledge of Ofsted Inspectors when inspecting children’s homes; this is clearly a worrying issue and one that reinforces the need for some level of expert independent scrutiny. Providing independent advice and support may be a useful framework for conducting the Regulation 33 role; this would require relevant experience and knowledge to be effective and strengthens the Regulation 33 role. In turn, this may require a core set of competencies to be developed that provide a framework for recruiting Regulation 33 persons. Figure 1 may be helpful when considering the role of the Regulation 33 person.
This paper contends that the ideal position for those fulfilling the Regulation 33 function is to have high importance and high influence; those that can make a difference, not interfere with the responsibilities of the Registered Manager but perform effective independent scrutiny. Current practice is bound to vary across providers with some providers of children’s homes realising the potential of the Regulation 33 function whilst others see it as a tick box exercise with little importance other than demonstrating compliance. If deemed to have an important role, then Regulation 33 persons need to be afforded both the importance but also the ability to influence, and not be seen as either the bystanders or the irresponsible in situations where children’s homes are failing. The victims, inevitably, become the children and young people placed in the home.
How to report – a dilemma or an opportunity?
Practice experience has shown different approaches to undertaking the Regulation 33 role, particularly in respect of reporting. For some a tick box format with minimal space for a narrative account is seen as best, whilst for others a narrative account about the quality of care in the home is seen as more helpful. Inevitably there are currently many examples that fit somewhere between these extremes and a standardised template that ‘fits all’ may not necessarily be helpful beyond the standards and framework already in place through regulations and national minimum standards.
With the Regulation 33 remit being broad and not totally prescriptive, the importance of the reporting template may be seen as crucial by some, given that it is the tool for capturing findings and demonstrating regulatory compliance. It is also the mechanism through which trends may be identified.
The important issue has to be, whichever design of reporting template is used, the evidence to demonstrate findings (positive and/or negative) should be clear. Findings should be based on concrete evidence and where this is not the case it should be clearly stated that they are opinion. The collection of data by the Regulation 33 person, whether it be through interviews, questionnaires, reading documents, observations or checking database systems is, in many ways, the more straight- forward part of the role. Considering how best to achieve this, does require some thought so as to ensure it fairly and accurately represents a picture of what practice and care is like in the home.
A working model for the Regulation 33 function
Those who fulfil the Regulation 33 function may find it helpful to have a set of guiding principles. This paper proposes such a set of principles which, whilst not intended to replace the regulatory framework or reinterpret the National Minimum Standards, recognise the potential to shape and inform practice. They are based on practice experience and aim to provide a foundation for developing a model of effective Regulation 33 practice.
Principles for undertaking Regulation 33 visiting
Principle 1 – The welfare of the child is paramount: this has to be explicit and a given principle in all interactions and involvement with the home in fulfilling the Regulation 33 functions. It is a clear legal and moral principle and founded on the requirements on the Children Act 1989.Whilst also recognising this principle, the welfare of the child should 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 apparent 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.
Principle 2 – Ensuring independence and objectivity: ensuring that the Regulation 33 person has no connection, business interest or conflict of interest that may compromise their ability to fulfil the function is vital. Complete independence increases the capacity to be objective about judging care and provision.
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 in the home. 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) – 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.
Principle 4 – Look at practice with an appreciative eye and seek excellence but do not be afraid to challenge deficits: the purpose of the role is to monitor and quality assure. If the Regulation 33 person starts with the premise that positive outcomes are achievable for all children and young people (no matter how small or seemingly insignificant they may seem at the time or over the course of the placement), having a mandate to seek improvement is appropriate and reasonable. Asking questions such as – ‘what do you do well – what works well in the home – what could be better?’ offer the opportunity to reflect on practice and raise standards.
Principle 5 – Consider the whole system in which practice takes place: given the limited prescriptive detail about how to conduct a Regulation 33 visit, in order to fulfil the function effectively it will be important to examine a number of factors. The detail of individual components that form the overall practice in the home i.e. physical intervention or health & safety checks will be vital to inspect. However it will be of equal importance to consider the internal systems that are in place which monitor these activities. As described earlier, the Regulation 33 function is just one input into the quality assurance systems in the home; there should be others.
With greater expectations and scrutiny now in place through NMS and the regulatory framework, it would be hard for history to repeat itself in the form of large scale institutional abuse episodes, but the lessons learnt through the decades of scandals should not be ignored. 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.
- Practice experience has shown that a reporting template that combines a narrative account of findings as well as statistical data drawn from relevant areas of practice works well. Such a template can be created by using, for example, the Every Child Matters outcomes headings (2004), but also considering the Regulatory framework and National Minimum Standards to inform the detail of what is needed to be covered during each monthly visit. To complement monthly reporting it may be useful to provide an annual independent overview report of Regulation 33 activity that will assist in identifying and highlighting particular episodes of practice during the previous 12 months. Although retrospective, it does provide an opportunity to reflect on good practice, deficits and areas of improvement noted through recommendations.
Ensuring a sound a respectful working relationship between the Registered Manager and the Regulation 33 person is fundamental to effective scrutiny. Experience has shown that the ability to debate, reflect and seek agreement about how the Regulation 33 person can fulfil their responsibilities is important.
Practice experience has also highlighted the potential for a cosy and complacent relationship to develop; this can become unhelpful, undermining and limit the overall impact and effective scrutiny of the Regulation 33 role.
The significance of engaging with children and young people at all opportunities in a manner that is ordinary and routine cannot be under-estimated. The residents of the home are best placed to provide the Regulation 33 person with information about the quality of the care on the home. Whilst deficits, areas for improvement and recommendations will ideally be based on triangulated evidence, the views of children living in the home are a vital source of information. The importance of promoting a culture, during visiting, of purposeful reflection can also pay dividends. Reflection does not have to be open ended naval gazing but rather focused reflective discussion and activity with the Registered Manager and staff; this assists in developing staff confidence, improving relationships and trust with staff but also thinking through practice episodes so as to encourage a greater shared understanding about the care provided in the home. Other opportunities to reflect will also be worthwhile considering, particularly about the role, function and effectiveness of quality assurance in the home. Examples of reflective questions might include;
- What levels of independence does the Regulation 33 visitor offer and are they truly able to monitor and scrutinize policy, procedure and practice?
- What opportunities are in place for the Regulation 33 visitor to seek and secure the views of others connected to the home i.e. parents, relatives and persons working in the home?
- How does the Regulation 33 scrutiny task complement the Regulation 34 monitoring task, is there overlap and how can the two tasks be effectively used to improve outcomes for children?
- How does the home use audit, review and reflective analysis to improve systems for recording, reporting and monitoring, thereby contributing to the quality assurance systems? The integrity, credibility and experience of the Regulation 33 visitor, it is argued, is crucial for effective scrutiny and challenge and one of a number of mechanisms in place to quality assure practice and standards of care. In order to become a Registered Manager of a children’s home, individuals are required to undergo a fairly rigorous process of interview, being vetted and selected, not only by those who are responsible for employing such individuals, but also by the regulator Ofsted. Given the weight attached to the function of the Regulation 33 role it may be worth exploring whether a similar process should be considered for Regulation 33 persons. The importance of ensuring that those who fulfil the function are both able and sufficiently competent to do so should rank of equal importance and may be a factor that can really improve standards in residential children’s homes.
Children’s homes providers should be aiming to achieve the highest possible standards of care and best possible outcomes for the children they have placed. The Regulation 33 function contributes to raising standards and improving outcomes for children in care; given the right circumstances and with sensitivity and respectful relationships it provides a unique opportunity to inform and shape practice standards. This paper has attempted to initiate a debate about the role and remit of the Regulation 33 person, examining just some of the challenges faced by those fulfilling the function. Whilst it is heartening to see Government consulting on developments this paper has highlighted that there is scope for further research about the Regulation 33.
APPG for Runaway and missing children and adults and the APPG for looked after children and care leavers: Report from the joint inquiry into children who go missing from care, June 2012
Children’s Homes Regulations 2001 (as amended 2011)
Corby, B., Doig, A., & Roberts, V., 2001, Public Inquiries into Abuse of Children in Residential Care, London Jessica Kingsley
Department for Education, 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, Launch date 25 June 2013 Every Child Matters outcomes framework and headings (2004), http:// webarchive.nationalarchives.gov.uk/20100113205514/dcsf.gov.uk/everychildmatters/about/
Independent Children’s Homes Association research report, 2013, For the best regulator we can achieve together
National Minimum Standards, Children’s Homes, 2011
Office of the Children’s Commissioner: Briefing for the Rt Hon Michael Gove MP, Secretary of State for Education, on the emerging findings of the Office of the Children’s Commissioner’s Inquiry into child sexual exploitation in gangs and groups, with a special focus on children in care, July 2012
Ofsted, Official statistics: Children’s social care providers and places, 16 May 2013, Ref: 20110013
Reform of Children’s Residential Care, Report of the Expert Group on the Quality of children’s homes, presented to DfE Ministers –April 2013
The Children Act 1989 Guidance and Regulations Volume 5: Children’s Homes, March 2013
The Victoria Climbié Inquiry, 2003, Lord Laming UK Department for International Development (DFID), Tools for Development – A handbook for those engaged in development activity. Version 15.1 (2003) & Managing for Impact website, 2013, http://www.managingforimpact. org/tool/influence-and-importance-matrix
Warner, N., (1992) Choosing with care: the report of the committer of inquiry into the selection, development and management of staff in children’s homes, Department of Health
Appendix one: Regulation 33
The Children’s Homes Regulations 2001 (as amended) states; (1) Where the registered provider is an individual, but is not in day to day charge of the children’s home, he shall visit the home in accordance with this regulation. (2) Where the registered provider is an organisation or a partnership, the home shall be visited in accordance with this regulation by – (a) the responsible individual or one of the partners, as the case may be; (b) another of the directors or other persons responsible for the management of the organisation or partnership; or (c) an employee of the organisation or partnership who is not directly concerned with the conduct of the home. (3) Visits under paragraph (1) or (2) shall take place at least once a month and may be unannounced. (4) The person carrying out the visit shall– (a) interview, with their consent and in private, such of the children accommodated there, their parents, relatives and persons working at the home as appears necessary in order to form an opinion of the standard of care provided in the home; (b) inspect the premises of the children’s home, its daily log of events and records of any complaints; and (c) prepare a written report on the conduct of the home. (5) The registered provider shall supply a copy of the report required to be made under paragraph (4)(c) to – (a) the Commission HMCI; (b) the registered manager of the children’s home; and (c) in the case of a visit under paragraph (2)– (i) where the registered provider is an organisation, to each of the directors or other persons responsible for the management of the organisation; and (ii) where the registered provider is a partnership, to each of the partners.