CARE ACT 2014
The Act provides a power for local authorities to authorise a third party to carry out certain care and support functions.
- 1. Introduction
- 2. Importance of Contracts
- 3. Which Care and Support Functions must not be Delegated?
- 4. What is the Difference between Delegating a Statutory Care and Support Function and Commissioning other related Activities?
- 5. Conflicts of Interest
- 6. Conflict of Interest relating to making Direct Payments
The Care Act sets out the local authority’s functions and responsibilities for care and support. Sometimes external organisations might be better placed than the local authority itself to carry out some of these functions. For instance, an outside organisation might specialise in carrying out assessments or care and support planning for certain disability groups, where the local authority does not have the in-house expertise.
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.
As with all care and support, individual wellbeing should be central to any decision to delegate a function. The local authority should not delegate its functions simply to gain efficiency where this is to the detriment of the wellbeing of people using care and support.
The local authority retains ultimate responsibility for how its functions are carried out. Delegation does not absolve it of its legal responsibilities. When a local authority delegates any of its functions, it retains ultimate responsibility for how the function is carried out. Anything done (or not done) by the third party in carrying out the function, is to be treated as if it has been done (or not done) by the local authority itself. This is a core principle of allowing delegation of care and support functions.
People using care and support will always have a means of redress against the local authority for how any of its functions are carried out. For example, 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.
In delegating care and support functions, local authorities should have regard to the Data Security and Protection Toolkit (following decommissioning of the Information Governance Toolkit in June 2019), in particular ensuring that all formal contractual arrangements include compliance with information governance requirements.
2. Importance of Contracts
The success of a policy by a local authority to delegate its functions to a third party will be determined to a large extent, by the strength and quality of the contracts that it makes with the delegated third party. The local authority should therefore ensure that contracts are drafted by staff with the necessary skills and competencies to do so. It should consider the findings of the Social Work Practice pilot scheme (SCIE), which tested approaches to delegation, when considering how to construct contracts.
Through the terms of its contracts with authorised third parties, the local authority has the power to impose conditions on how the function is carried out. For example, when delegating assessments it could choose to require that assessments must be carried out by people with a particular training or expertise, and that the training must be kept up to date.
The delegated organisation will be liable to the local authority for any breach of the contract, and as such this is the mechanism through which it is able to ensure that its functions are carried out properly, and through which it may hold the contractor to account.
Where a local authority uses its power to authorise another party to carry out its care and support functions, it should specify how long the authorisation lasts, and it should make clear that it may revoke the authorisation at any time during that period.
It should put in place monitoring arrangements so that it can assure itself that functions that have been delegated are being carried out in an appropriate manner. This should involve building good working relationships which allows the local authority to guide third parties about how it is exercising the functions, but equally for it to learn about innovations and knowledge that third parties may be able to provide.
Since care and support functions are public functions, they must be carried out in a way that is compatible with all of the local authority’s legal obligations. For example, the local authority would be liable for any breach by the delegated party of its legal obligations under the Human Rights Act or the Data Protection Act. The local authority should therefore draw up its contracts so as to ensure that third parties carry out functions in a way that is compatible with all of its legal obligations.
Although the local authority retains overall responsibility for how its functions are carried out, delegated organisations will be responsible for any criminal proceedings brought against them.
The local authority is able to choose the extent to which it delegates its functions. It should make clear in its contracts with authorised parties, the extent to which the function is being delegated.
The fact that a local authority delegates its functions does not mean that it cannot also continue to exercise that function itself. So, for instance it could ask a specialist mental health organisation to carry out care and support planning for people with specific mental health conditions, but it may choose to do care and support planning for people with other mental health conditions itself, or it may choose to offer people a choice between itself and the external organisation.
3. Which Care and Support Functions must not be Delegated?
Certain functions must not be delegated.
- Integration and cooperation: the local authority must cooperate and integrate with local partners. Delegating these functions would not be compatible with meeting its duties to work together with other agencies. However, the local authority should take steps to ensure that authorised parties cooperate with other partners, work in a way which supports integration, and is consistent with its own responsibilities.
- Adult safeguarding: there is a legal framework for adult safeguarding, including the establishment of a local Safeguarding Adults Board (SAB), carrying out safeguarding adults 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. However, it may commission or arrange for other parties to carry out certain related activities
- Power to charge: the Care Act gives the local authority the power to charge people for care and support in certain circumstances. Local policies relating to what can and cannot be charged for is the decision of the local authority, therefore it cannot delegate this decision to outside parties. However, it may commission or arrange for other parties to carry out related activities.
For those functions which may not be delegated (outlined in Section 3, Which care and support functions may not be delegated?), as well as other functions which may be delegated, the local authority may wish to use outside expertise to assist in carrying out practical activities to support it in discharging those functions, rather than fully or formally delegating the function itself to be carried out by another party.
There can be some uncertainty about the difference between delegation of a statutory care and support function and commissioning, arranging or outsourcing other procedural activities relating to a function. The local authority should seek legal advice about whether the activity it is seeking to commission another party to undertake is a legal function or not.
For example, as set out above local authorities may not delegate its functions relating to establishing Safeguarding Adults 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.
Another example is the local authority’s function which allows it discretion over charging people for care and support. The local authority itself must decide its charging policies. However, it 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 even though they are related to the charging function.
5. Conflicts of Interest
There might be instances where there is the potential for a conflict of interest when delegating functions. For 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. The local authority should consider whether the delegation of its functions could give rise to any potential conflict and should avoid delegating its functions where it deems there would be an inappropriate conflict.
The local authority should consider imposing conditions in its contracts with delegated parties to mitigate against the risk of any potential conflicts. For example, it may choose to delegate care and support planning, but retain the final decision making, including signing off the amount of the personal budget (see Care and Support Planning and Personal Budgets). The local authority should also consider including conditions that allow the contract to be revoked at any time, if having authorised an external party to exercise its functions, a conflict becomes apparent.
6. Conflict of Interest relating to making Direct Payments
The local authority has a number of functions relating to the provision of direct payments. These functions include determining whether someone is capable of managing a direct payment, being satisfied that the direct payment is being used in a way that is meeting the person’s needs, and monitoring this periodically. The local authority may choose to delegate these functions. For example, where an authorised external party is carrying out care and support planning, it may decide that the direct payment functions could also usefully be delegated to that party.
The local authority can also make direct payments to people, that is, paying them money to meet their care and support needs. This function may also be delegated to an external party. However, where the local authority delegates its functions relating to assessment of needs or calculation of personal budgets to an external party, it should not allow that same party to make direct payments. In these cases, the actual payment of money should be made directly from the local authority to the adult or carer. This is because it is not appropriate for an external party to determine both how public funds are to be spent, as well as handling and those funds. This is in line with standard anti-fraud practice.