Is
it illegal to act unlawfully?
How many times
have we all been frustrated by someone behaving like a petty bureaucrat
and
telling us that they are “not allowed” to do
something, when we can conceive of
no logical reason why they should not be allowed to do so? Surely as
social
workers, it should be ingrained in us not to behave like that? As
social
workers we should at the very least be questioning what we have been
told we
are “not allowed” to do. We should know who exactly
is not allowing us to do something,
and what authority they have to forbid us. We may be surprised how
often the
only proper and professional course of action is to challenge that
authority.
We are subject
to many forms of authority. This article explores the dilemmas that
arise when
there is conflict between them, looking in particular at authority
deriving
from:
Unlawful
and illegal
If we bother to
use the terms at all, many of us will use the terms unlawful and
illegal
interchangeably. Lawyers, however, would tend to make a simple
distinction:
something is illegal if it is proscribed by the criminal law, an
offence
against the state for which you can be prosecuted and receive a
criminal conviction.
However, most of
the things that people go to court about are civil wrongs. We are
asserting
that the actions of another person have prejudiced our interests, and
we ask
the court to give a restorative judgement that puts things right. Many
civil
wrongs are unlawful but not illegal, hence the answer to the question
posed by
the title is “no, not always.”
People can get
away with acting unlawfully with impunity. In the employment
relationship, the
power of an employer over an employee who needs their job “to
pay the mortgage”
is hard to exaggerate. Many employers use that power so frequently that
employees assume that they are acting lawfully, when the truth is that
they are
merely acting unlawfully with impunity.
The principle
can be turned to the advantage of service users. For example, a service
user
facing overwhelming debt will be acting unlawfully when they prioritise
and
reschedule those debts, in breach of their contractual obligations. But
it is
not improper to advise them to do exactly this, in the knowledge that
any court
adjudicating a dispute will itself effectively re-write the terms of
the
contract to do justice between the parties.
But it can also
be turned to service users’ disadvantage. And how!
Tragically, all too often
social workers in their relationships with service users act unlawfully
and get
away with it. And much like the employment relationship, it happens so
often
and so unthinkingly that everyone thinks it must be lawful.
The
National Assistance Act
In my previous
article, I drew attention to some of the ethical dilemmas arising out
of the
application of section 21 of the National Assistance Act, and its
application
to people subject to immigration control. I continue to use that
section for
illustration.
A reminder: a
provision that was originally used to provide institutional
accommodation to
vulnerable groups has been held by the courts to be sufficiently broad
to allow
the provision of ordinary accommodation to people faced with
destitution or the
anticipated physical effects of destitution. It has become a
significant part
of the work of social services to assess for and make such provision,
and many
authorities have specialist teams to do so. Meanwhile, there has been a
series
of court decisions and legislative amendments, as the government and
the courts
seek respectively to limit or to clarify the powers of social workers
to
provide such accommodation to certain groups based on their immigration
status.
In the table
below, I set out the current state of the law, alongside some common
misapplications of the law by social workers working in this field.
|
The law |
Unlawful variants |
|
A person who is not
subject to immigration control can be assisted under section
21 based solely on their needs arising from destitution or its
anticipated physical effects.1 |
A requirement that anyone
seeking section 21 assistance shows that their need arising from
destitution is made more acute by some other circumstance. This has
been coined the “destitution plus” test, and some
authorities routinely and wrongly apply it to all destitute people. |
|
A person subject
to immigration control and seeking assistance under section
21 needs to show that their need for care and attention arising from
their destitution is made more acute by some (any) other circumstance.2 |
A requirement that a
person subject to immigration control demonstrates that they have a need for care and attention of a kind for which
local authorities normally provide service, additionally to
their being destitute. Some authorities assess against standard
criteria e.g. Fair Access to Care Services eligibility bandings, or
even the Care Programme Approach for people with mental health problems. |
|
A person who meets
the threshold for section 21 assistance is the responsibility of the
local authority, not the National Asylum Support Service (NASS), hard
case support etc.3 |
A requirement that an
application is made to NASS to “exhaust”
alternative sources of support. Wrong practices in this area include
making section 21 support conditional upon such an application or even
its outcome. |
|
An asylum seeker who
claimed asylum at the time and port of entry and was granted
“temporary admission” is not unlawfully present
when their claim fails and therefore is not ineligible for section 21
support.4 |
A decision from local
authorities that they are prohibited from helping such a failed asylum
seeker, subject only to any human rights legislation. Some authorities
do not even add the human rights caveat; the correct position is that
there is no prohibition at all. |
The common
characteristic of the misapplications of the law identified is that
social
workers place barriers or hurdles in the way of destitute people, that
do not
have legal authority, and that result in destitute people being denied
the most
basic means of subsistence.
Employee
and professional obligations
When I wrote
previously about human rights, I suggested as a profession we were
being
restrictive and unimaginative in our approach. I am going much further
here. I
am saying the practices in the second column are unlawful (as are
practices in
many other areas of social work practice), so the local authorities
that
practice them are acting unlawfully.
Having
established that it may not be criminal to act unlawfully, what
constraints are
there that mean that a social worker should not act unlawfully? The
question
has particular relevance when social workers are acting on instructions
from
their line manager and through their manager from their employer. After
all, in
the situations described, the resulting decisions are legally decisions
of the
authority, and for which the authority takes responsibility, rather
than the
individual social worker.
I suggest there
are both general and specific professional standards that prohibit us
from
acting unlawfully.
In general
terms, the standards expected of a professional are higher standards
than those
of the criminal or even the civil law. There is something about the
label
“professional” that says that it is not enough that
our conduct is legal, or
even that it is lawful, it must be consistent with yet higher standards
imposed
by our professional code. For social workers, that code, and the GSCC
as our
regulator are still relatively new, and conduct cases are only just
beginning
to be heard, but I confidently expect a developing body of decisions
from the Council
affirming this. Certainly, one can point to a number of decisions in
relation
to other professions that affirm exactly this point.5
In specific
terms, it is part of our professional role and obligation to help
people secure
their rights – and collaborating in the denial of those
rights for unlawful
reasons is the very antithesis of that obligation. In particular, our
Codes of
Practice say we should be [my emphasis]:
“6.1
Meeting relevant
standards of practice and working in a lawful,
safe and effective
way; and
3.1
Promoting
the independence of service users and assisting them
to
understand and exercise their rights.”
But
my employer says otherwise!
BASW’s
Code of Ethics makes our professional priorities clear: social workers
should “strive
to carry out the stated aims of their
employing organisation, provided
that they are consistent with this
Code of Ethics” and “uphold the
ethical principles and responsibilities
of this Code, even
though employers' policies or instructions may not be compatible
with its provisions.”
There are a
range of protections for us as professional social workers, in addition
to our
unions, if we have the courage to seek to challenge unlawful practice.
Make no
mistake, the protections can seem illusory or weak on occasions, but
they are
there:
In a final
article, I address the ultimate dilemma, when social workers are
required to
act in a way that is lawful but ultimately unjust.
Allan Norman is a social worker, a solicitor, and a member of BASW’s Standards and Ethics Board. He recently founded Celtic Knot (www.celticknot.org.uk) as a combined law firm and social work consultancy. He also works for the specialist community care charity B-Mag (www.b-mag.org.uk).
Footnotes: