Councils must beware legal limits of contracting out

The law has a habit of lagging behind innovative ways of providing services for disabled people, writes Ed Mitchell

The law has a habit of lagging behind innovative ways of providing services for disabled people, writes Ed Mitchell 

Last year, the Right to Control pilot regulations were made to provide a legal basis for testing more personalised delivery of some services for disabled people.

The fact that they were considered necessary may have caused some councils to wonder what had been the legal basis for their personalisation activities. Now, a new initiative, independent adult social work practices, also has the benefit of underpinning enabling legislation.

The Contracting Out (Local Authorities Social Services Functions) (England) Order 2011 came into force on 1 August, some months after the government announced its intention to establish pilot adult social work practices.

Given the small number of councils participating in the Right to Control pilots and independent adult social work practices, it may be asked whether this pilot legislation is significant for other councils.

The answer is yes, but indirectly. It reveals that the existing law is unable to support all aspects of these novel schemes for delivering services. The pilot legislation acts as a warning, therefore, to authorities generally that they cannot lawfully do everything that the pilot authorities can.

On contracting out functions to adult social work practices, the key point is that the general law gives councils limited powers to contract out their functions.

In adult care, powers to contract out are generally limited to arranging for third parties to provide services rather than to make decisions about, for example, someone’s needs or entitlement to services.

Those limited powers would have hampered the Department of Health’s initiative to establish pilot “independent” social work practices announced in 2010. It mirrored pilot independent social work practices for children. But there was one significant legal difference.

For children’s practices, Part I of the Children & Young Persons Act 2008 established a legal framework for contracting out Children Act 1989 functions to independent practices. Nothing similar was in place to underpin the operation of independent adult practices.

The purpose of the new legislation is to plug these legal gaps for authorities participating in the adult social work practice pilots. But other authorities should note that the law does not allow them to transfer to a third party their decision-making responsibilities for the provision of adult care services. The only option is keeping it in-house.

Ed Mitchell is a solicitor and editor of Social Care Law Today

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This article is published in the 29 September 2011 edition of Community Care under the headline “Councils must beware limits of contracting out services”

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