The different legal status of all of the bits of advice and instruction that come down from the Department of Health to councils and health bodies needs to be appreciated by management within local and health authorities, for the purposes of advising Members and Boards as to the legal responsibilities of the organisation (as opposed to aspirations), and for ensuring that processes required by the legislative framework are properly translated into instructions for employees.
The law reports prove that unawareness of the legal significance of guidance in all its guises, results in inadvertent vulnerability to legal challenge, costs and embarrassment – see Judicial Review and the Health Service, and cases in the database brought up by searching for guidance and fetter!
Formal Directions issued under the authority of other statutes have to be followed, and constitute binding law. They are given this force in what is called the parent Act – for instance, the Local Authority Social Services Act lays down that a local authority shall comply with any directions ….. It can be guessed that there is no room for manoeuvre here.
Other parts of parent legislation may put it slightly differently: ie every local authority shall exercise their social services functions in accordance with such directions as may be given…. But this has the same effect. Directions are rules.
Examples are the Complaints Procedure Directions and the Choice of Accommodation Directions, and the NHS Nursing Care in Residential Accommodation Directions 2001 relating to Free Nursing Care for those who have self-funded their care packages in a nursing home, up until now.
Regulations have the same status – they count as secondary or subordinate legislation and therefore as law. They tend to be written in even more legalistic language than Directions, and the power to make them is always found in parent legislation of full statutory status. An example is found in the National Assistance (Assessment of Resources) Regulations which govern residential care charging.
Directions and Regulations give government the opportunity to legislate very quickly, should that be necessary, because these instruments don’t have to go through the usual long-drawn out legislative process in Parliament for proper statutes.
The Secretary of State has been given express powers to make Directions under the NHS and Community Care Act and the Health & Social Care Act and the Health Act for the purposes of steering the NHS.
Under s7A of LASSA, the Secretary of State for Health can make specific and general directions which are binding on local authorities. The parent provision lays down that every local authority shall exercise their social services functions (these are specified in a schedule to the Act) in accordance with such directions as may be given to them under this section by the Secretary of State. They may be given to a particular authority, or authorities of a particular class of authorities generally.
The only limitation on the contents of Regulations or Directions is that they cannot overturn the purpose of primary legislation or require action contrary to those provisions. However, they can be geared to shape how an authority exercises a discretion in discharging its function.
Sanctions for non-compliance with Directions
Beyond this power to give directions, there is also scope for a more interventionist sort of a direction, under s7D of LASSA. This power, rarely exercised, enables the Secretary of State to deem a particular authority to be in default of its mandatory functions. If the local authority fails, without reasonable excuse, to comply with any duty functions listed in the schedule to LASSA as social services functions, the Secretary of State can declare the authority to be in default and direct the authority to do whatever is thought fit within a specified time limit. This is a more draconian power than just issuing a specific direction to an authority because it carries with it the additional sanction of going to the High Court for an enforcement order. The threat of this step can be used to exert informal pressure on authorities to hire and fire senior management, re-order the budget situation, and bring in new brooms for change and improvement. These special orders are sometimes imposed after an SSI visit which finds serious problems, or a statutory inquiry.
The case law in this field suggests that this power is only likely to be able to be lawfully exercised by central government if there is evidence of abject failure to comply with duties, which no reasonable Secretary of State could view otherwise than as such. An interesting example which comes to mind is whether breach of the statutory duty to provide residential care, with respect to people already assessed but stuck on a waiting list, would be seen as having acted without reasonable excuse. Since the courts have said in Scotland (South Lanarkshire v MacGregor) that this duty has to be performed without regard to resources, (the necessary funds being vired out of some other discretionary budget by the liable local authority) we do not think that budget management would be a reasonable excuse, and hence we think that central government could be asked to act under s7D. If the wait was because of insufficient numbers of residential care places available in a given area (not merely the price), by reason of very poor market management on the part of the authority which had been trying to keep residential homes to an artificially low fee rate so that too many had gone to the wall, we think that the authority would be found to be in default for s7D purposes, if it provided nothing in place to meet the assessed needs. But it might be different if it provided more domiciliary care for those waiting for a space, in the meantime.
An example where we think there would not be a default order issued by the Secretary of State would be if someone was to complain that the charges that had previously been levied unlawfully under s117 Mental Health Act for aftercare had not yet been repaid. We think that a reasonable excuse for this is that there is an appeal pending to the House of Lords and if the monies were to be paid back now but the appeal was ultimately won, authorities would have to take recovery steps against hundreds of individuals. We think it is enough to ring-fence the money having done a review of the files to see how many clients are likely to have a claim, and plan to pay interest at a reasonable rate.
Next down the hierarchy of legal status comes policy guidance, under express authority of a statute. Guidance, unlike Directions or Regulations, must always admit of some exceptions, otherwise it could not be called guidance. Thus it is not binding on local authorities or health bodies, in the sense of it being mandatory to obey every word of it. However, it does have to be followed in the sense of taking its contents on board, and treating it as the ideal course to pursue, if the statute which provides for its existence appears to expect that level of deference to it. Ignoring it, not knowing about it or just disagreeing with it, are not options which are open, in law, to recipients of such guidance.
This is because Parliament has given central government the right in a parent statute to supervise the workings of both local authorities and health bodies, precisely through the vehicle of policy guidance. Guidance represents the best of both worlds for central government because it leaves maximum scope for innovation and flexibility locally (and also distancing from responsibility) whilst being sufficient to enable ministers to monitor and review progress towards national policy objectives.
Local authorities are not the delegates of central government; they are elected bodies with minds of their own and discretionary powers to achieve aims and outcomes which are only broadly laid down in legislation. However, in relation to social services, local authorities are required by Parliament to take account of central government guidance of a particular status. This obligation is found in s7A of the Local Authority Social Services Act about social services functions. Policy guidance issued under s7 of LASSA has the status that local authorities must act under it. This has been said by the courts to be a strong duty which requires sticking to the guidance in most cases, and only departing from it for good reason (Islington LBC ex p Rixon). But other cases have held that such guidance stops well short of an obligation to adopt an inflexible practice or approach in accordance with the contents (eg if its contents misstated the law, it would be better to depart from it than to follow it; another very good reason would be that the guidance did not deal with the specific situation in hand).
The Putting People First revised FACS guidance is an example of this virtually mandatory guidance for councils – here is the link to the DH’s page on this guidance:
It is issued under the auspices of s7 Local Authorities Social Services Act 1970 which compels Councils to act under the general guidance of the Secretary of State:
“71) Local authorities shall, in the exercise of their social services functions, includng the exercise of any discretion conferred any relevant enactment, act under the general guidance of the Secretary of State.”
Virtually mandatory, that is, because no guidance is absolutely binding; it would not be guidance, if it was – it would be LAW.
But this means that if a council’s decision makers (whoever they may be…)
– Don’t know about it
– Don’t appear to follow it, or
– Don’t explain why they are not going to follow it in a given case
…the council would be open to judicial review… and if it were to lose, the funding decision would be void, and would have to be taken again, properly, second time around.
It is often difficult to find out whether guidance has been issued under the s7 power, or not, because it often fails to say! Guidance takes the form of attachments to Directions, Dept. of Health letters, Local Authority Social Services Letters, Local Authority Circulars, and Chief Inspector’s letters.
If s7 guidance is not followed it can make the results of whatever process it was relevant to, unlawful – such as the completion of an assessment or care plan, or an eligibility decision regarding continuing care. It can also signal to the DH that specific directions may need to be issued to the specific authority.
At the same time it is important to realise that community care assessments do not have to do or be absolutely everything the old 1990 DoH guidance said that they should. The question for the courts would be whether in each case the thrust of guidance had been followed and the overall aims of the function achieved. Cases such as Islington LBC, ex p Rixon and Sutton LBC, ex p Tucker, suggest that the courts might look for a relatively close match between the local authority’s assessment/care plan and the content of the guidance. But equally, cases such as Lambeth LBC ex p A (CA), Cornwall CC ex p Goldsack and Barking & Dagenham ex p Lloyd suggest that the courts in some circumstances will not get too bothered if the assessment process is not as thorough as it could be. For instance, in the Lambeth case the Court of Appeal accepted, `there have been numerous assessments … It may be some are better than others. It may be that some do not explicitly state under what statute or statutes they have been made … The judge exercised his discretion properly … with eminent good sense, when he said that …. any correction of a lack of formal assessment in the past would simply be a bit of tidy-minded putting the files in order and would not assist solution of the real problem. In the Goldsack case, the court had difficulty making out what the assessment of need had been, and when it had been completed; but this did not stop the local authority winning the case. In Lloyd, the court went so far as to say that judicial review was not apt for requiring better practice in assessment and that the fact that an assessment of needs had a number of deficiencies did not necessarily make it unlawful as there could be more than one view which could properly be held among social workers as to proposals for meeting need.
In the light of the new guidance about single assessment, we think that an assessment which did not even guide the care manager to cover the relevant domains laid down in that guidance would be regarded as invalid in law.
Codes of Practice
Another more long term form of guidance given some weight by statute, is Codes of Practice – for instance, the Code of Practice under the Mental Health Act. The relevant provision in the parent legislation, s118, requires it to exist, and says it is for the guidance of various professionals. It has to be approved by Parliament, but it is not law. Failure to follow it could be referred to in evidence in legal proceedings, but professionals must not treat it as law. The effect of non-compliance will largely depend upon the bit which has not been followed: if it was itself questionable in terms of its statement of a legal principle, it would be good not to follow it.
The Housing legislation also provides for a Code of Practice with regard to homelessness and allocation of housing, and the status of that guidance is that authorities must have regard to such guidance. This guidance is not merely binding on housing authorities but to social services bodies as well because the legislation says it is for local authorities, not just housing authorities. It has been confirmed in court that the code is not a binding statute either, and can be departed from if the authority thinks fit.
The Care Programme Approach is a form of practice guidance regarding assessment and co-ordination between agencies involved in mental health work. It is not binding, but it is the government’s expectation that it be followed. It therefore behoves those affected by mental health provision to know where they can find it in order that it can be quoted to authorities which do not seem to be aware of it.
Health authorities are different types of bodies from local authorities; they are the appointed delegates of the Secretary of State for Health, required to discharge the functions given to that officer by Parliament under the National Health Service Act. As such, they must act as directed or advised, because they have no power under the NHS Act not to. In order to encourage local innovation and job satisfaction, the instructions in this area are sometimes worded in less than mandatory terms to allow for flexibility. It is noticeable that all the recent instructions, regarding free nursing care, continuing care and the single assessment process which have been sent to health bodies are firm in tone, with the threat of imposition of tools etc on authorities which do not make fast enough progress by a set time limit.
The Secretary of State makes his/her NHS policy and expectations clear in the form of Health Service Circulars documents (HSCs), which come in the form of letters from the NHS Executive to the chief executive, and other relevant parties.
Circulars are another less formal kind of evidence of government policy, so are helpful to a delegate of the Secretary of State when planning for the future discharge of their functions. But they cannot constrain a court to interpret legislation in a particular way. They can be used against the author too, in the sense that their contents may raise a legitimate expectation that entitlement will follow, if someone’s situation comes within the terms of the guidance. This will be relevant to the strength of a claim for free nursing care assessed under the centrally imposed RNCC criteria, once there is no money left in the health authority budget for that service.
Sometimes these circulars actually come with formal Directions and Approvals attached. LAC 93 10 is an example of that sort of instruction. It activated the discretions in s21 NAA, s29 NAA and s21 NHS Act (and schedule 8) regarding the provision of residential care, and spelled out some client groups and services in respect of which that discretion was (and is still) turned into a mandatory statutory duty.
Circulars will often contain Practice guidance from central government. This is just information as to good practice which the department expects to see followed (and is not issued under s7 LASSA auspices). The courts have said that it must be conscientiously taken account of, as a relevant consideration in the exercise of any discretion or other function. Practice guidance tends to concentrate on the how to aspect of new initiatives. Modern examples are the practice guidance for carers assessments under the Carers and Disabled Children Act 2000, and the new guidance for Direct Payments administration.
If government wants to impose more of an obligation rather than a suggestion as to good practice, it can always stipulate that the guidance is issued under s7 LASSA, so long as the function in question which is the subject of the guidance is covered by the scope of s7 itself.
The Single Assessment Process initiative will also illustrate this tension – nowhere in legislation is there an expectation of single assessment, but merely co-operation. The government is waving a stick over authorities – based more on holding the purse strings than anything else – to encourage them to bring in better co-ordinated processes, without changing a single statutory provision.
Other practice or professional codes
Health Authorities and Councils own (lawful) published policies, and practice guidance to their employees are also relevant considerations for public officers, since they are a manifestation of their employers requirements. Codes of conduct applicable to particular professionals such as nurses, social workers, OTs etc. are relevant too, since the law presumes that professionals will be employed by the bodies given the statutory functions of healthcare and social work. We do not think that it would be lawful for an authority to require action on the part of its care managers who are qualified social workers if that action was contrary to their professional ethic.
At the same time, authorities must not treat their own policies as rigidly (see the topic) fettering the discharge of their functions. This power to make exceptions is the only way in which the many different circumstances of persons affected by the authority’s decisions can be accommodated flexibly.
Where an authority does decide to depart from guidance, it should make it very clear why it has been thought necessary to do so, so as to ensure that exceptions are made on principled grounds, not merely as a knee jerk reaction to a sudden crisis. Good recording practice will maximise the prospects of being found to have made a human rights compliant decision. Executive Members or officers with delegated powers to make an exception need to appreciate that it will be their reasoning which will be scrutinised within legal proceedings if no exception is made, and a legal challenge ensues, and that it can be more of a public law wrong to refuse to consider making an exception, than it is to consider carefully and refuse to make one on the merits of the particular case.