Delegation of local authority functions

THE CARE ACT 2014

TRAINING FOR THE LONDON BOROUGH OF ISLINGTON

Bryan McGuire QC 23rd January 2015

Topics to be covered

• Ultimate responsibility for how LA functions are carried out

• Functions which cannot be delegated• Outsourcing• Contracts• Conflicts

KEY POINTS

1. The Care Act allows local authorities to delegate some, but not all, of their care and support functions to other parties. This power to delegate is intended to allow flexibility for local approaches to be developed in delivering care and support, and to allow local authorities to work more efficiently and innovatively, and provide better quality care and support to local populations.

2. Individual wellbeing should be central to any decision to delegate a function. Local authorities should not delegate its functions simply to gain efficiency where this is to the detriment of the wellbeing of people using care and support.

3. Local Authorities retain ultimate responsibility for how its functions are carried out. Delegation does not absolve the local authority of its legal responsibilities. Local Authorities retain ultimate responsibility for how its functions are carried out.

4. Delegation does not absolve the local authority of its legal responsibilities.

REDRESS

• A local authority might delegate needs assessments to another organisation, which has its own procedures for handling complaints. If the adult to whom the assessment relates has a complaint about the way in which it was carried out, the adult might choose to take it up with the organisation in question. However, if this does not satisfy the adult, or if the adult simply chooses to complain directly to the local authority, the local authority will remain responsible for addressing the complaint.

WHAT CANNOT BE DELEGATED?

• Integration and cooperation – local authorities must cooperate and integrate with local partners. Delegating these functions would not be compatible with meeting their duties to work together with other agencies.

WHAT CANNOT BE DELEGATED?

• Adult Safeguarding – the Care Act puts in place a legal framework for adult safeguarding, including the establishment of Safeguarding Adults Boards (SABs), carrying out safeguarding adult reviews and making safeguarding enquiries. Since the local authority must be one of the members of SABs, and it must take the lead role in adult safeguarding, it may not delegate these statutory functions to another party.

WHAT CANNOT BE DELEGATED?

• Power to charge – the Care Act gives local authorities the power to charge people for care and support in certain circumstances. Local policies relating to what can and cannot be charged for must remain a decision of the local authority, and therefore the Act does not permit local authorities to delegate this decision to outside parties.

Other related activities

Example

• Local authorities may not delegate its functions relating to establishing Safeguarding Adult Boards, making safeguarding enquiries or arranging safeguarding reviews. However, the enquiry duty is for local authorities to make enquiries or cause them to be made, so a local authority can still have arrangements whereby NHS or others are asked to undertake the enquiries where necessary. So while a local authority can ask others to carry out an actual enquiry, it cannot delegate its responsibility for ensuring that this happens and ensuring that, where necessary, any appropriate action is taken.

Other related activities

• An LA may decide to authorise an external agency to run a contact centre for people to report safeguarding incidents, and manage referrals to the local authority. It may be that the contact centre is not carrying out the local authority’s statutory functions (although its activities are related to the functions), and as such the local authority would not require any legal authority to outsource these activities, so may choose to do so.

Other related activities

• The Act does not allow delegation of this decision to other organisations. As such the local authority itself must decide its charging policies However, local authorities may commission an external agency to carry out the administration, billing and collection of fees for care and support on its behalf. These activities may not be classed as care and support functions under the Care Act, even though they are related to the charging function.

• Local authorities should consider whether the delegation of its functions could give rise to any potential conflict and should avoid delegating their functions where they deem that there would be an inappropriate conflict.

Example

• When the same external organisation carries out care and support planning, but also provides the resulting care and support that is set out in the plan.

How to avoid conflicts

• Conditions in contracts• Retention of decision making powers, or right

to sign off• Revocation powers to be retained• Particular issues in relation to direct

payments

THE CARE ACT 2014

TRAINING FOR THE LONDON BOROUGH OF ISLINGTONBryan McGuire QC 23rd January 2015