Local and health authorities exist, and their staff only have powers, by virtue of legislation. Therefore, if decision making processes, in terms of who is calling the shots, are inconsistent with legislation, the authority will be acting unlawfully.
An example may be found in Kirklees Metropolitan Borough Council, ex parte Daykin in which staff who were not authorised by the local authority’s delegation policy to carry out an assessment under Section 47 of the NHS and Community Care Act 1990 and under Section 2 of the Chronically Sick and Disabled Persons Act in 1970, or decide about such service provision made certain recommendation which were not accepted. When the client tried to enforce those recommendations, the judge held that the authority had failed to carry out an assessment as required by statute. The provision of services was a “concern of the Council itself or of any Committee or officer to whom a specific power is delegated”.
Section 101 of the Local Government Act 1972 gives local authorities the power to delegate functions to their own officers and committees; sometimes to other authorities, but to nobody else. Hertsmere Borough Council, ex parte Woolgar illustrated that local authorities must retain control of decision making which is imposed on them by legislation. It was only lawful for the authority to transfer the “active and dominant” part of its investigations of a person’s homelessness status and eligibility for accommodation to a housing association, so long as the housing authority remained in control of decision making.
Where delegation down a line is thought desirable, it should be formally recorded in a delegation scheme so it can be proved that x had authority to decide something. It is common to give delegated authority to front line staff to spend up to £x a week on care packages, but above that amount, they have to have approval from a more senior member of staff. >Islington London Borough Council, ex parte Aldabbagh identified an unlawful decision where, in the case of a housing authority policy which stated that decisions in relation to rent arrears of over £50 should be delegated to and be decided by a neighbourhood manager, a decision (in relation to rent arrears of above £250) was taken by an officer at a lower level.
The Health Act empowers local and health authorities and other bodies to use partnership flexibilities to delegate functions to each other. This was a new departure which was legally necessary if joint working was ever going to be more than mere exhortation to ‘co-operation’.
The De-regulation and Contracting Out Act 1994 would allow complete contracting out of functions if the Secretary of State were to make an order to that effect. However, no such orders have been made in relation to health or community care functions.
The draft Care and Support Bill, expected to go through Parliament in 2013, would allow the wholesale delegation of social work functions, and not merely provision arrangements, to the private sector – via independent social work practices. Of course they will be only as independent as the purchaser is willing to allow them to be, but it is envisaged that this could re-professionalise the nature of the social work role, after 15 years of care management and ticking boxes.