12.7 Delegation of Local Authority Functions

1. Introduction

The Care Act 2014 sets out the local authority’s functions and responsibilities for care and support. Sometimes external organisations might be better placed than the local authority to carry out some of these functions. For example, 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 would not benefit the wellbeing of people using care and support services.

The local authority retains ultimate responsibility for how its functions are carried out. Delegation does not remove 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, will 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 services 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 complaints procedure. If the adult to whom the assessment relates has a complaint about the way in which it was carried out, they can take it up with the organisation in question. However, if this does not satisfy the adult, or if they choose to complain directly to the local authority, the local authority will remain responsible for addressing the complaint.

2. Care Act Delegation Provisions

Section 79 of the Care Act 2014, provides the power for local authorities to authorise a third party to carry out certain care and support functions.

However, under Section 79(2) certain Care Act functions are excluded from this power to delegate:

• Section 3 – promoting integration with health services;
• section 7 – cooperating;
• section 14 – charges; and
• sections 42-47 – safeguarding adults of risk of abuse and neglect.

These functions therefore may not be delegated to a third party (see also Section 4, Care and Support Functions which must not be Delegated).

Section 79(4) (4) provides that that the local authority can determine the extent to which it delegates the function in any particular case. For example, a local authority may delegate the carrying out of all needs assessments to a third-party organisation, or it may choose to delegate assessments only for certain groups of people and still carry out other assessments itself. When delegating any function, the local authority can impose conditions on the way the third party exercises the function.

Section 79 (5) provides that any authorisation is only for the period specified, and the local authority may revoke the authorisation at any time during that period. Delegating the function does not prevent the local authority from being able to carry out the function itself.

Section 79 (6) sets out that any acts done (or failed to be done) by the third party in carrying out any function delegated to them are treated as done (or not done) by the local authority itself.

Section 79 (7) makes it clear that the third party cannot avoid liability for any criminal actions or for any disputes between it and the local authority arising out of any contractual relationship between them. The delegation of any function does not absolve the local authority of ultimate responsibility for ensuring the function is carried out properly and in accordance with all relevant statutory obligations.

Section 79 (8) provides for disclosure of information between the local authority and anyone to whom it has delegated a function where such disclosure is necessary for the exercise of that function. A third party may be given information by the local authority where it is necessary for the exercise of the delegated function, but the third party becomes subject to the same kind of confidentiality requirements in respect of that information as apply to the local authority.

3. Importance of Contracts

The success of a decision by a local authority to delegate its functions to a third party will be largely determined by the strength and quality of the contracts that it makes with the delegated third party.

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,  which means the local authority can ensure that its functions are carried out properly, and 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.

Monitoring arrangements should be put in place so the local authority can be assured that functions that have been delegated are being carried out in an appropriate manner.

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 will 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 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 can 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. For example, a specialist mental health organisation can be contracted to carry out care and support planning for people with specific mental health conditions, but the local authority 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

4. Care and Support Functions which must not be Delegated

As noted in Section 2, Care Act Delegation Provisions, certain functions must not be delegated. These are:

• 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 should be decided by 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.

5. The Difference between Delegating a Statutory Care and Support Function and Commissioning other related Activities

For those functions which may not be delegated (outlined in Section 4 Care and Support Functions which must not be Delegated), and 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.

For example, a local authority may not delegate its functions relating to establishing a Safeguarding Adults Board, 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 other organisations 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 gives 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 are not classed as care and support functions even though they are related to the charging function

6. Section 75 Agreements

These agreements are made under Section 75 of the National Health Services Act 2006 (‘the Act’) between partners, NHS bodies and local authorities in England. They often include arrangements for pooling resources and delegating certain NHS and local authority health-related functions to the other partner/s if it would lead to an improvement in the way those functions are carried out.

The Act enables NHS bodies and local authorities to enter into arrangements under secondary legislation. The NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000 sets out details of the permitted arrangements:

• NHS bodies can carry out local authorities’ health-related functions along with their NHS functions;
• local authorities can carry out NHS functions along with their local authority health-related functions;
• NHS bodies and local authorities can establish and run a pooled fund which is made up of contributions by the partners, and out of which payments may be made towards carrying out the functions that are within the scope of the arrangements;
• such arrangements can only be formed if it is likely to lead to an improvement in the way in which the functions are exercised;
• any partnership arrangements entered into under section 75 of the Act do not affect the liability and accountability of NHS bodies or local authorities for the exercise of any of their functions (s.75(5)).

6.1 Objective of the Section 75 partnership arrangements

Partnership arrangements made under Section 75 of the Act enable NHS statutory bodies (ICBs / NHS England or NHS trusts / foundation trusts) and local authorities to collaborate across a range of local authority health-related functions and NHS health functions, permitted within the regulations. It usually includes establishing a joint committee to manage the arrangement and pooling funds to cover relevant expenditure. The arrangements should have an integrated care strategy.

6.2 Main features of Section 75 partnership arrangements

Such arrangements:

• allow health and social care commissioners to take decisions in a collaborative way and ensure that both parties implement the decisions taken. These arrangements aim to ensure that timely decisions are taken and avoid bureaucracy;
• allow a range of NHS provider health functions to be exercised collaboratively with health-related local authority functions. The following NHS services are excluded from section 75 arrangements:
• surgery, radiotherapy, termination of pregnancies, endoscopy, the use of Class 4 laser treatments and other invasive treatments;
• Section 7A public health services;
• primary dental services;
• pharmaceutical services;
• primary ophthalmic services;
• emergency ambulance services.
• tend to be managed with lead commissioner or lead provider arrangements – but they can also support joint working;
• are documented in a written agreement that details the precise scope of the functions to be exercised; that is, by the lead organisation. Partners in the arrangement should provide regular assurance that each one has the appropriate capabilities and resources to carry out the function effectively;
• allow for the creation of a pooled fund.

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

Local authorities should consider imposing conditions in contracts with delegated parties to mitigate against the risk of any potential conflicts. For example, care and support planning could be delegated, but the local authority would retain the final decision making, including signing off the amount of the personal budget (see Care and Support Planning and Personal Budgets chapters).

8. Conflict of Interest relating to making Direct Payments

The local authority has number of functions relating to the provision of direct payments. These functions include deciding whether someone can manage 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 be delegated to that party (see Direct Payments).

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 the 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.

9. The Health and Care Act 2022

The Health and Care Act 2022 came into force in August 2024. It provides for the establishment of statutory integrated care boards and statutory integrated care partnerships.

Each integrated care board and a local authority partner are required to establish an integrated care partnership. The integrated care partnership will bring together health and social care, public health and representatives from other services, such as social care providers or housing providers.

The Health and Care Act aims:

a) to promote collaborative commissioning by removing barriers and bureaucracy which have hindered delivering high-quality care to people;

1. to make it easier for integrated care boards to commission services collaboratively with other integrated care boards and other system partners by permitting a wider set of arrangements for joint commissioning, pooling of budgets and delegation of functions;
2. To promote ‘working together to improve health and social care for all’. The ‘Triple Aim’ is to cooperatively pursue:
   • better care for everyone;
   • better health and wellbeing for everyone;
   • sustainable use of NHS resources. It should facilitate the tackling of inequalities in health and wellbeing.

The previous legislative framework often led organisations to work primarily in the best interest of their own organisations and the people they immediately work with, and did not support the delivery of integrated, person-centred care.

The new duties under the Health and Care Act are:

1. organisations must think about the interests of the wider system and provide common, system-wide goals that need to be achieved through collaboration;
2. a further duty for the organisations to cooperate – the Health and Care Act introduced a new power that allows the Secretary of State to issue guidance on cooperation between NHS bodies and between NHS bodies and local authorities;
3. the new guidance should give organisations greater clarity about what the duties to cooperate mean in practice, help to build on the present working relationships and positive behaviours that had been seen during the covid pandemic period.