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has a point been spectacularly missed? (warning, contains some maths)


Or math, if you’re American, in which case “hello, and you really don’t need to read this”


The LSC have decided that from 1st October 2012, any application for Prior Authority on experts will be refused (unless it is a request which goes above the codified hourly rates).  They point out, unsurprisingly, that 70-90% of applications for psychologists are within the codified hourly rates and that it is a time-consuming and intensive process to deal with all of these requests.


So, we’re left with – if your expert is on or below the codified rate you are okay to instruct them, and can’t seek Prior Authority to make sure your costs will be paid. And if they’re above, well then you can ask if that’s okay (but they’re going to say no, so save your breath for blowing up balloons)


I know that even Stephen Hawkins was told before his book “The Brief History of Time” was completed, that every equation in it would cut sales figures in half, so he only included one, and that’s the one that everyone already knows, though they don’t understand it.  But we need a little bit of maths to show why this new procedure might be even worse than the last one.


Pre October example   – the parties want to instruct Dr Walter Bishop to undertake a psychological assessment. They get the quote, which is £150 an hour, for 40 hours.  There are four parties (which makes the maths easier, hooray!). The parties apply for prior authority, as each of them as liable for £1,500.  The LSC say “We agree the hourly rate, but want to halve the time, so you can all have £750”.   The parties then have to decide whether to (a) beat Dr Bishop down to 20 hours (b) get him to take less total money (c) pay the difference of £750 out of their own pockets (ha!) or (d) look for another expert.  All very time-consuming and far from child-centred, but what we avoid is Dr Bishop spending money that he won’t get paid for, or putting solicitors on the hook.


Post October example – the parties want to instruct Professor Farnsworth, and he says “good news everyone, I’m available.”  He gives a quote of £150 per hour for 40 hours. So each party is responsible for £1500.  But, the publicly funded parties can’t ask the LSC if they are happy with the 40 hours, and any application for prior authority will be refused (so the assessment couldn’t happen at all).  Now, somebody has to take a risk. If the expert produces a final bill of £6,000, the LA can stump up their share of £1,500, but who knows how much money the three publicly funded parties will get. If the LSC run true to form and arbitrarily slash the hours and here’s the nub – after those hours have been incurrred ,  there’s a risk that the expert will be £2,250 out of pocket, or three solicitors will be £750 out of pocket.


Without telling solicitors up front, how many hours are acceptable for an assessment  (even if it was  a generic figure for which exceptions could be sought),  there is now a risk that either the expert or the solicitors will be out of pocket.  The risk on the expert is obviously three-fold, since Professor Farnsworth stands to lose three times as much as any individual solicitor.


Professor Farnsworth’s horrified reaction to not getting his fee paid.

And there’s no way, any more of knowing up front, whether the LSC will pay for the hours the expert has spent on the case, because you can’t ask for Prior Authority.

A lovely little incidental from this is that for ISWs, who have been badly hosed by the whole codified rate thing, there is now far less risk for the solicitors  (because the hourly rate is so much less, the risk per hour spent that the LSC cut costs less) and instructing a psychologist with the hourly rate around the £150 plus mark becomes terribly risky.  [using the hours above, the ISW would be £30 x 40 hours -£300 each, and if the hours got cut in half, each solicitor would be short of £150, rather than £750]
But if I were an expert wanting to do public law family work, I’d want to know up front, if the LSC aren’t guaranteeing to pay my hours, who bears the risk in the event of shortfall? Because if you think it is me, I’m not going to do work for you, certainly not more than once.  And the solicitors can’t take a £750 hit on profit costs on fixed fee work, because it makes taking the case worse than not having been involved at all.


Easy fix, and maybe they intend to do this, or have done so, but tucked it away somewhere and not told us.   (See the Beware of the Leopard post about how public bodies tend to hide the important stuff away)


Type of assessment   – hours allowed     – additional hours allowed for each party being assessed


Or, but they’ll never do this – the LSC declare that they will honour all expert fees where the Court has approved the hours in the estimate  (the Court obviously being seized of the case and having a proper understanding of the issues, the papers, the complexity and how long it takes to do a proper assessment)


Fix please, because otherwise, your solution to the Prior Authority problem has unintentionally paralysed experts and solicitors by fear of capricious hour-slashing and the financial risk of who loses out.

“ISW this a dagger I see before me?”



(Sorry, there’s not much scope for puns around Independent Social Workers. Most of the humour in ISW work at present is in the LSCs idea that they are worth only ¼ of the fees a psychologist can charge for doing a similar task)




The independent research into the quality and efficacy of Independent Social Work reports is now available. The report was carried out by Dr Julia Brophy.


The report can be found here: –


The keen-eyed will note that Dr Brophy is a different person to Dr Ireland, who did the same task on psychologists.


One might think that it would have been helpful, if you were carrying out research into court experts in two disciplines, to have the same team carry out both assessments, but that would involve introducing common sense into the equation.  (Perhaps we have a third report in the wings on psychiatrists)


One might also think that if you were doing research into whether psychological assessments and ISW assessments were useful and fit for purpose that you might look at the outcome of that research before deciding that one group could have their hourly rates cut down to £30 per hour, whilst the other group get hourly rates of £130 per hour.


But heck, what’s wrong with Red Queen justice – sentence first, verdict later!




Pink Tape has done a very good article on this report, written by Noel Arnold  (getting in first, whilst I have been busy puppy-wrangling)  :-




I think the report does get some important stuff wrong – deciding that because a Local Authority is a joint party to the instruction of the ISW that means that they are supportive of the instruction is not necessarily right.  Being party to the instruction means that you were told you had to pay for a share of it. Sometimes that will mean the LA were champing at the bit to get an ISW involved, sometimes it will meant that they have bowed to the inevitable that it is better to have a report that won’t be accused of bias and prejudging the outcome, sometimes the ISW can do it quicker than the LA can do in-house and sometimes the LA will protest with varying degrees of success about instruction of another expert and the protest will fall on deaf ears.


So, it did slightly trouble me that the report considered that because the LA were involved in the instruction of the ISW in 65% of cases and were the sole instructing party in 15% that there is something to be drawn from that in terms of whether the LA was a driving force behind the assessment.


(Which is not to say that all LAs at all times oppose all ISW instructions – rather that sometimes they are the right thing on a case, and sometimes they are not)





So, what are the headlines?



Concern has been expressed that ISWs simply duplicate existing parenting assessments, that they cause delay and that there is a high use by parents seeking ‘second opinion’ evidence based solely on claims under Article 6 under the ECHR. Findings from this study do not support those concerns.


It was found that ISW reports mostly provided new evidence not already available to the court. This is already in line with recommendation 3.132 of the FJR.


In the absence of changes within cases and purposeful delay, ISW reports were almost always delivered to the date specified in the LOI. There was no evidence that reports delayed scheduled hearings.


There was no evidence of high use of ISWs by parents seeking second opinion evidence based solely on Article 6 claims under the ECHR – indeed as a ‘stand- alone’ application in this sample this was rare. Perhaps Article 6 is used in a ‘make weight’ argument but arguably it would be unlikely to succeed unless there were real weaknesses in an existing assessment or clear evidence of bias.


Findings indicate that courts would be severely hampered in the absence of access to the body of expertise and the evidence provided by ISWs – not least in case managing to meet the 6 month deadline for care cases recommended in the FJR90 and accepted in the Government’s response to it.91 Any legislative changes and adjustment to the Family Procedure Rules and Guidance would need to reflect an understanding of that finding.


Moreover as expert witnesses for the court the evaluation identified that ISWs have ‘added value’. They are able to engage with difficult and disaffected parents where, for whatever reason, relationships with the local authority are frequently at an impasse, where parents and children face a powerful state agency and where certain child welfare questions remain outstanding. While the independence and status afforded by the court process cannot be underestimated, that alone does not explain the ISW’s success in this regard.


Alongside considerable skills and experience in assessing vulnerable parents and children within care proceedings, other values follow from the ISW’s role and responsibilities as an expert for the court:


Independence (from all parties but with an overriding duty to the court to observe the paramountcy of the best interests of the child)

 Demonstration of ‘balance’ in reporting the outcome of the assessment process and key findings

 Ability to spend sufficient time with parents and engage in reflective practice

 Skills in observation, interpretation and analysis of information

 Clear specification of what is needed from parents and others to demonstrate capacity for change – and what they might have achieved so far

 Use of research in presenting issues and opinions

 Provision of a report which is evidence-based and forensic in method

 Ability to work to instructions posed by parties and by the court and for the most part, answering all the questions posed

 Ability to draw out key hypotheses in a list/hierarchy of questions posed

 Delivery of reports on time

 Provision of skills and expertise tailored to the specific needs of the case (e.g. in assessing parents with a learning disability, where there are allegations of sexual abuse, domestic abuse etc).


 There has been something of a misconception in the debate about independent social work practitioners in care proceedings: their work has been portrayed as simply doing what social workers do (i.e. fulfilling the welfare task). That is not correct: whilst they undertake a welfare task providing high quality welfare reports, they also have an additional role. It arises from their duties and responsibilities to the court as an expert witness and permits them to undertake tasks for the court which a social worker – as a professional witness for the local authority – cannot. Moreover the work of the ISW can move cases forward in a way not achievable by local authorities or children’s guardians.





Those all seem, at first blush, to be pretty positive conclusions  (so positive in fact that I spent time scouring the report to make sure it wasn’t just a PR-puff commissioned by a group of ISWs to promote their services) ; and not terribly in keeping with the twin attacks of the FJR  (ISWs are just telling us stuff we already know and should be frozen out) and the LSC  (ISWs aren’t as good as psychologists and should be starved out)


I think both the LSC and the FJR have fundamentally misunderstood how difficult it will be on the ground to run cases if Independent Social Workers disappeared from the landscape.


They are under the impression that they will have cut costs and cut out a tranche of experts and thus reduced delay and saved money. Hurrah!


They have fundamentally misunderstood that all they have achieved is greatly increasing the number of parents who will be seeking psychological assessments in care proceedings.  And those assessments already cost more, and take longer.  (I shall remain silent, if not neutral, on whether they are better or worse in quality).   That situation will not improve as the demand for them goes up.


If what you want to know, genuinely, is whether a parent has a psychological condition or barrier that is interfering with their ability to parent, and whether that can be overcome, and if so how and in what timescales, you want a psychologist.


If what you want to know is, genuinely, has the social work in this case been proper, rigorous and fair, and might there be another way forward in the case than that promoted by the Local Authority, then frankly, you want an Independent Social Worker  (or an old-school Guardian, but that’s an entirely different debate).


If what you want to know is, is there a rent-a-mouth expert who will give me something to fight with at a final hearing because I have a hopeless case, then perhaps you should consider moving into Civil law (and probably also getting a time machine back to the 1980s)


I hope that BASW and NAGALRO are going to mount the challenge to the LSC about fees that I have heard whispers of, since it seems to me that the different treatment meted out to two groups of professionals who both have degrees and both have professional expertise and experience is capricious and unreasonable.


I am encountering cases at present where I cannot get the ISWs I want to do cases, because they won’t get paid £63 per hour, so I will be ending up having psychologists to do the work at £130 per hour.  I am struggling to see the savings here.  I will have a report which is twice as expensive, takes months longer, and is less on point.


What we have is a situation akin to the NHS providing free smoking materials to all, and wanting to cut down on costs by deciding that you can’t get free cigarettes any more, but still letting everyone get free cigars.  We will all just smoke the free cigars, I’m afraid.