The Care Act 2014 sets out the local authority’s functions and responsibilities for care and support. Sometimes external organisations may 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. External organisations may also be able to provide additional capacity to carry out care and support functions.
The Care Act allows local authorities to delegate some, but not all, of their care and support functions to other parties. This power is intended to allow flexibility for local approaches to be developed in delivering care and support, 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. 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.
2. Local Authority Responsibility
When a local authority delegates any of its functions, it still retains ultimate responsibility for how the function is carried out.
The Care Act is clear that 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.
The power to delegate functions does not supersede the ability for NHS and local authorities to enter into partnership arrangements under the National Health Service Act 2006. This means that local authorities can enter into partnership arrangements with the NHS for the NHS to carry out the local authority’s ‘health related functions’. This effectively authorises NHS bodies to exercise those prescribed functions, including the safeguarding functions that local authorities are prohibited from delegating under the Care Act (see below).
All care and support functions under the Care Act can be included in such partnership arrangements except charging, carrying out financial assessments and debt recovery.
The local authority would still remain legally responsible for how its functions are carried out via partnership arrangements, as with delegated functions.
People using care and support will always have a means of redress (or complaint) 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 they may choose to take it up with the organisation in question. If this does not satisfy the adult, however, or if they simply choose 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 local authority version of the Data Security and Protection Toolkit, in particular ensuring that all formal contractual arrangements include compliance with information governance requirements.
The success of delegating functions to a third party will be determined to a large extent, by the strength and quality of the contracts that the local authorities make with the third party.
The local authority should ensure that contracts are drafted by staff with the necessary skills and competencies to do so and consider the findings of the Social Work Practice pilot scheme, which tested approaches to delegation, when considering how to develop contracts.
Through the terms of their contracts local authorities have the power to impose conditions on how delegated functions are carried out. For example, when delegating assessments the local authority 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, therefore the contract is the mechanism through which the local authority can ensure that delegated functions are carried out properly, and through which they may hold the contractor to account.
If the local authority delegates care and support functions to a third party, it should specify how long the authorisation lasts and make clear that it may revoke the authorisation at any time during that period.
Monitoring arrangements should be put in place by the local authority so that they can make sure that delegated functions are being out in an appropriate manner. This should involve building good working relationships with third parties to enable the local authority to guide third parties in carrying out delegated functions, and 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 of its legal obligations under the Human Rights Act 1998 or the Data Protection Act 2018 by the third party. Therefore the local authority must ensure that they draw up contracts so as to ensure that third parties carry out functions in a way that is compatible with all of the local authorities legal obligations.
Local authorities retain overall responsibility for how functions are carried out, but delegated organisations will be responsible for any criminal proceedings brought against them.
The local authority can choose the extent to which they delegate their functions. For example, they could authorise an external party to carry out all the elements of the function, including for example taking final decisions, or it can limit the steps the authorised organisation may take, leaving any final decisions to the local authority. Local authorities should make clear in its contracts with authorised parties, the extent to which the function is being delegated.
The fact that the local authority delegates its functions does not mean that it cannot also continue to exercise that function itself. So, for instance the local authority 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.
5. Functions which may not be delegated
The Care Act does not allow certain functions to be delegated.
- integration and cooperation: Local authorities must cooperate and integrate with local partners. Delegating these functions would not allow them to meet their duty to work together with other agencies. Local authorities, however, should take steps to ensure that authorised parties cooperate with other partners, work in a way which supports integration, and is consistent with their own responsibilities.
- 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;
- 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. For those functions which may not be delegated (as outlined above) and as well as other functions which may be delegated, local authorities may wish to use outside expertise to carry 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, as set out above local authorities may not delegate their functions relating to establishing Safeguarding Adult Boards, making safeguarding enquiries or arranging safeguarding reviews. The duty, however, is for local authorities to make enquiries or cause them to be made.
The local authority could make an arrangement for a third party to undertake the enquiries where necessary. But, 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.
There can be some uncertainty about the difference between:
- delegation of a statutory care and support function; and
- commissioning, arranging or outsourcing activities relating to the function.
Local authorities should seek legal advice about whether the activity it is seeking to commission another party to undertake is a legal function under Part 1 of the Care Act or not.