3.4 Understanding legal rules
We have seen that legislative bodies can change legal rules as policy makers initiate reforms, but this is not the only way in which legal rules develop. Courts also have a role in interpreting statutes according to legal principles, and their decisions (which are referred to as ‘case law’) must be taken into account before we can confidently state that a particular position is ‘the law’. Court decisions are also subject to appeal and review, so the law does not remain static. The fact that legal rules are not fixed can be frustrating for students who are seeking certainty and firm guidelines to underpin their practice. This dynamic quality of law, however, must be grasped if practitioners are to recognise its strengths and the importance of their ongoing engagement with its contents.
Social work students also express disappointment when they find that the law often fails to provide ready solutions to the dilemmas that they face in everyday practice. This can lead to a perception that law is irrelevant in the real world and only places bureaucratic restrictions in the way of their work. Again, such negative perceptions stem from the idea of law as a system of commands or instructions for action, which is to misunderstand the true nature of legal rules.
The following activity asks you to consider this further by looking at some legal duties which statute places on local authorities.
Activity 7: Rules and discretion
Read these short extracts from two statutes:
Section 12 of the Social Work (Scotland) Act 1968 says:
It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area and in that behalf to make arrangements and to provide or secure the provision of such facilities (including the provision or arranging for the provision of residential and other establishments) as they may consider suitable and adequate […]
Section 22 of the Children (Scotland) Act 1995 says:
22.–(I) A local authority shall –
(a) safeguard and promote the welfare of children in their area who are in need; and
(b) so far as is consistent with that duty, promote the upbringing of children by their families,
by providing a range and level of services appropriate to the children's needs.
Now answer these questions:
What are the key words in these sections which tell social workers what they must do?
How clear are the local authority's obligations? Do you think that they could be any more specific?
Can service users use these rules to demand the provision of particular services?
These extracts are just two examples of the statutory duties which are placed on local authorities to provide social work services. You will probably encounter many others, but reading these should be sufficient to indicate the open texture of legal rules and the importance of discretion to the social work task.
The word ‘shall’ indicates that there is a duty imposed on the local authority to carry out certain functions. In terms of section 12 it is mandatory that the local authority ‘promotes social welfare’ by making available advice, guidance and assistance. However, the section then goes on to say, ‘as may be appropriate for their area’. This means that there is discretion built into the Act and the local authority has the power to assess what services it may be appropriate to provide in their case. The drafters of the legislation, for example, could argue that what might be appropriate in Wick might not be so in a large city housing estate and thus the wording allows local authorities to be responsive to local needs. It would be very difficult for law to anticipate in advance all of the factors which might influence this choice, and therefore allowing for discretion in the exercise of this duty provides necessary flexibility and enables adaptation to changing circumstances.
The counter argument, however, is that such discretion can allow local authorities to avoid their responsibilities by wording obligations so loosely that citizens do not know exactly what their rights are. How do you argue that the provision of residential facilities is not adequate if the local authority can claim that according to its assessment the number of residential facilities is appropriate for the area? Or if you are a parent what rights do you have if you feel that the assessed services do not meet your child's needs? Discretion can lead to a sense of injustice, where the availability of services appears to be an arbitrary geographical lottery and where service users feel that their needs and preferences are not taken into account.
When working within the legislative framework, both choice and discretion are more often available to the social worker than to the individual service user. In the field of community care, for example, local authorities have discretion in determining eligibility criteria for services provided by them. The setting of these criteria is a matter for each local authority in the light of local circumstances, including the availability of resources. Authorities, however, must act reasonably in the exercise of their discretion, and the setting of eligibility criteria does not exempt them from meeting their statutory duties.
Law is not just a series of commands which dictate certain outcomes and impose obligations. It is also enabling and empowering, providing options for decision makers to exercise choice. This aspect of law is particularly relevant in the social work setting, which is characterised by the need to exercise professional discretion. Although agency policies and procedures may set the parameters within which choice is exercised, it is often individual workers who make the decision about which legal option to take. For example, the point at which social workers intervene in childcare situations will vary according to the individual worker's perception of the gravity of the circumstances. This choice will be influenced by a range of factors, including the knowledge and understanding of the social worker, his or her experience of similar situations, the viability of available options, and the social worker's values.
Thus while legislation may give the impression of being concrete and straightforward, this is not the case. In practice, the way in which … potentially contradictory objectives are managed on a day-to-day basis is delegated to welfare professionals who have to exercise considerable judgement on what to do, how to do it and how to interpret their legislative mandates and the various procedures and guidances that inform their practice. Decision-making and professional interventions cannot operate as if there were a ready-made formula that simply has to be operationalised and based upon the accumulation of hard evidence.
(Parton, 2001, p. 68)
Law's failure to give a simple answer should not be seen as a limitation from the practitioner's perspective. The existence of discretion within legal rules is a strength which enables both law and social work to adapt to uncertainty in social life and provides the necessary professional autonomy for social workers to do their job. If this is not fully recognised, it can lead to a narrow approach to rule-based practice, where individuals and agencies adopt policies designed to avoid the risk of litigation, leading to insensitive, inflexible and defensive interventions, rather than exploring the range of possibilities which exist within the law. In order to reach their full potential, therefore, social workers need to know when they are required by law to take action, when they have a choice and the scope of that discretion. In short they need to understand legal rules.