Glossary of terms

Administrative Law: A set of standards for the exercise of authority that have developed through judicial decision-making. The standards set out are as important as adherence to the powers and duties in primary legislation and associated regulations and statutory guidance. They are concerned not with whether the right decision was made, but whether the right decision-making approach was taken. The process of decision-making must abide by key principles:

• Lawfulness: performing statutory duties, abiding by regulations and statutory guidance, respecting human rights and equalities, not exceeding the limits of statutory authority and abiding by the principles of administrative law.
• Rationality and reasonableness: avoiding a decision so outrageous in its defiance of logic or accepted standards that no sensible person could have reached it, and avoiding a decision so extreme that no reasonable authority could have reached it. Decisions must also be fair.
• Timeliness: avoidance of unreasonable delay.
• Full examination of all relevant considerations: making detailed enquiries, considering all the facts, avoiding bias, weighing up all relevant factors.
• Not fettering discretion: ensuring that blanket policies do not restrain how discretion is exercised in an individual case, e.g. by prohibiting exceptions to the rule.
• Participation and information-giving: providing sufficient information to ensure meaningful participation in decision-making.
• Giving reasons for decisions: ensuring reasons are explained and can be justified with reference to the evidence on which they are based.

Care Quality Commission: Created by the Health and Social Care Act 2008, the Care Quality Commission (CQC) covers all adult social care services, alongside hospitals and care homes. It registers and inspects service providers and may take enforcement action if its standards are breached.

Common law: A term used to refer to legal rules that have been developed through court judgments rather than by Acts of Parliament and other statutory instruments.

Defensible decision: A decision that, if challenged, can be shown to be based on a clear rationale and reached by taking all reasonable steps. It will draw on relevant powers and duties, and be taken with regard to the principles of administrative law.

Duty: Something that the LA is legally obliged to do.

Duty of candour: A statutory duty to be open and honest with people when things have gone wrong with their treatment or care. Introduced by the Health & Social Care Act 2008 (Regulated Activities) Regulations 2014, it applies to all organisations registered with the Care Quality Commission.

Duty of Care: The state’s duty to protect its citizens from foreseeable harm, owed to anyone who may be affected by an action taken (or not taken) where injury might be foreseen.  Particularly high standards are expected of people with professional expertise. The duty of care encompasses the requirements both to protect from harm (Z v UK [2000] Application No. 29392/95; Keenan v UK [2001] ECHR 242) and to take positive action to promote human rights. It is an essential prerequisite in claims of negligence, which require the claimant to demonstrate that the duty existed and was breached and that damage ensued.

European Convention on Human Rights: Setting out civil and political rights, the Convention was drafted in 1950 by the newly formed Council of Europe in the aftermath of World War II, following the UN Universal Declaration of Human Rights in 1948. The Convention came into force on 3^rd September 1953 but UK citizens had to go to the European Court to claim the rights it enshrined. The Human Rights Act 1998, however, incorporated the Convention into domestic law, with the effect that public authorities must positively promote convention rights, and citizens can defend them in UK courts.

Fettered discretion: Practitioners must reach an independent judgement about what decisions and actions are appropriate based on a full assessment and analysis of the facts of the specific case. Their decision-making must not be restricted by blanket policies that prevent discretion being exercised in an individual case, e.g. by prohibiting exceptions to the rule.

Habitual residence: The country that the courts treat a person as usually living in. Only the courts in the country where a person is ‘habitually resident’ will have the power to make welfare decisions on their behalf.

Inherent jurisdiction: A power vested in the High Court to make decisions where no statute applies.

The Inherent Jurisdiction of the High Court: Practice Guide (2020) includes resources to support this area of practice.

Judicial review: High Court scrutiny of the lawfulness, reasonableness and rationality of decisions taken by public bodies, which can result in their decisions being quashed or case law being made.

Lawfulness: see administrative law.

The Local Government & Social Care Ombudsman: A quasi-judicial investigation of an individual complaint, which may be critical of local authority maladministration. Recommendations are not binding but should not be departed from without good reason. 

Maladministration: A term used to describe actions by a government body that cause injustice. Such actions can include:

• unreasonable delay
• failure to comply with legal requirements
• failure to investigate an issue
• failure to take appropriate action, or
• failure to provide adequate information or explanation.

The Local Government & Social Care Ombudsman investigates complaints about the actions of local authorities and Safeguarding Adults Boards. If maladministration is found, however, the Ombudsman has no power to enforce recommendations for actions to rectify the injustice.

Practice guidance: In England and Wales, this guidance is issued by central government departments. It does not have the same force as statutory guidance (policy guidance) but is, in essence, a code of good practice. It itemises what would ordinarily be expected of adult social care practitioners and managers. Recommendations are not binding but should not be departed from without good reason.

Policy guidance: See statutory guidance.

Powers: actions that may be taken, if the local authority chooses. Requiring the exercise of professional judgement to determine whether the situation meets the grounds on which a particular action may be carried out.

Primary legislation: Acts of Parliament that contain the basic framework of powers and duties given to local authorities.

Proportionality: The principle that, using lawful authority, public authorities should intervene only as much as is necessary to achieve a legitimate goal. 

Public Sector Equality Duty: The public sector equality duty (section 71, Equality Act 2010) requires public bodies to have due regard to the need to:

• eliminate discrimination, harassment, victimisation
• advance equality of opportunity between people who have a protected characteristic and those who do not
• foster good relations between people who have a relevant protected characteristic and those who do not.

Protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Rationality and reasonableness: avoiding a decision so outrageous in its defiance of logic or accepted standards that no sensible person could have reached it, and avoiding a decision so extreme that no reasonable authority could have reached it. Decisions must also be fair.

Safeguarding adults reviews: Safeguarding Adults Boards must commission a review when an adult with care and support needs has died or been seriously injured as a result of abuse or neglect and there is reasonable cause for concern about how the SAB, its members, or others with relevant functions worked together to safeguard them.  

Secondary legislation: Provision also known as Statutory Instruments or Regulations that contain powers or duties that elaborate how primary legislation is to be understood and implemented.

Statutory duty: any duty imposed by or under any Act of Parliament.

Statutory guidance: In England and Wales, this guidance, also known as policy guidance, is issued by central government departments under section 7, Local Authority Social Services Act 1970 and must be followed unless there are exceptional reasons to depart from it. An example of statutory guidance in adult social care is the Department of Health and Social Care guidance on the Care Act 2014. Codes of Practice could be, but are generally not, issued under section 7. It is advisable to check the status of any guidance document or code of practice to ensure its legal status is understood.

Timeliness: see administrative law.

Valid consent: for consent to be valid, the person consenting must have capacity to make an informed decision which has been voluntarily arrived at.

Vicarious liability: Other than when acting as an Approved Mental Health Professional, it is the employer that is accountable for the actions of employees. In these circumstances an individual practitioner can only be held personally accountable if they have acted in such an unreasonable way that there is no professional justification.