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.