Legal update: the perils of ignoring best practice guidance in social care

Council practitioners should beware departing from non-statutory guidance in social care as a recent case demonstrates that there may be legal penalties for doing so, says Ed Mitchell.

The High Court. Photo: Andy Drysdale/Rex Features

Most councils would probably strive to reflect best practice in the provision of disability services. Traditionally, though, best practice has been viewed as legally weak, and so less incentivised, compared to statutory guidance. But in Ali v Newham LBC (October 2012), the High Court held that some non-statutory best practice guidance has a similar legal effect to statutory guidance.

About the case

This case was brought by Mr A, who was visually impaired. To get around safely, he relied on tactile paving. Mr A’s council decided not to lay paving at uncontrolled road crossings, only at controlled ones like pelican or zebra crossings. It set out its policy on paving in ‘local guidance’.

The local guidance conflicted with national guidance issued by the Department for Transport. The national guidance stated that, in cases where a kerb is absent, some device such as tactile paving should be used to alert visually-impaired people to a road crossing. Mr A brought a claim for judicial review of the local policy.

What was the legal status of the guidance?

The Department for Transport’s guidance was ‘non-statutory’, in that it was not issued under any express legislative authority. According to the High Court, that did not mean it could be ignored.

The High Court noted that the Department for Transport guidance followed extensive consultation with expert external organisations who really understood the street architecture needs of visually-impaired people. The court also took into account the considerable importance of standard national street architecture for visually-impaired people.

Relying on those factors, the High Court held that the guidance had a legal status indistinguishable from many types of statutory guidance. The council was “required to follow the national guidance unless it had good reasons to depart from it”. This, for example, is materially the same legal status as is accorded to the statutory homelessness Code of Guidance issued under the Housing Act 1996.

Mr A’s council had not shown a good reason for departing from the national guidance when failing to embed tactile paving at non-controlled crossing points. Further, the council had decided to install grey tactile paving at controlled crossings, rather than the recommended red. Again, it had not shown a good reason for that departure. The council’s local guidance was held unlawful and would be quashed.

Practical implications

This decision alerts councils to the possibility that some non-statutory guidance does not have a ‘take it or leave it’ status. Where such guidance is the product of extensive consideration by expert bodies, there is a real prospect that the courts will confer some legal force upon it. It needs, therefore, to be taken seriously.

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