The Autism Act 2009 (‘AA2009’) is a fantastic achievement for the whole UK autism movement and particularly the National Autistic Society who led the charge. It has the potential to transform the way in which adults with autism are supported to live ordinary lives in their communities.
AA2009 should also give us real hope that #LBBill* can be achieved. AA2009 resulted from the NAS ‘I Exist’ campaign and a Private Member’s Bill put forward by Cheryl Gillan MP which gained government support – a pattern which #LBBill could follow. However the potential of AA2009 has not yet been realised uniformly with implementation across England both patchy and inadequate, despite some shining examples of good practice. With the benefit of hindsight, my view is that the way AA2009 is structured is responsible for its partial impact. I hope we can learn lessons from this as we work up #LBBill and achieve something even more powerful.
So how does AA2009 work? It is a ‘framework’ Act – in that its create a legal framework for a strategy and guidance which are then issued under it by the Secretary of State. As such AA2009 itself imposes no duties on public bodies other than to follow the guidance. The NAS has produced a helpful podcast and a set of FAQs to explain AA2009 here. To explore it in a little more detail:
Section 1 of AA2009 places a duty on the Secretary of State (in this case the Secretary of State for Health as the lead Minister) to ‘prepare and publish a document setting out a strategy for meeting the needs of adults in England with autistic spectrum conditions by improving the provision of relevant services to such adults by local authorities, NHS bodies and NHS foundation trusts’.
This ‘autism strategy’ (now called ‘Think Autism’) sets the agenda for the changes which are intended to be achieved under AA2009. The Secretary of State has to consult affected people in preparing the strategy, must publish it and keep it under review – but section 1 does not impose any duties on anyone to actually do anything with the strategy.
Section 2 then requires the Secretary of State to issue guidance to Local Authorities and health bodies ‘for the purpose of securing the implementation of the autism strategy’. There are seven mandated areas which the guidance must cover – for example assessment and staff training. The guidance is entitled ‘Implementing Fulfilling and Rewarding Lives’ .
The clever bit then comes in section 3, which contains my favourite ever piece of legislative drafting trickery. The purpose of section 3 is to impose duties on public bodies to act under the guidance. The guidance is given the status of ‘section 7’, meaning guidance issued under section 7 of the Local Authority Social Services Act 1970 (‘LASSA 1970’), which requires Local Authorities to ‘act under’ certain central guidance documents. However LASSA 1970 applies only to Local Authorities, not to the NHS. So how do the drafters make the guidance apply to the NHS? They insert section 3(3); ‘for the purposes of guidance an NHS body is to be treated as if it were a local authority’. So CCGs are magically transmogrified into Local Authorities solely for the purpose of imposing the AA2009 guidance on them. Parliamentary sovereignty in action…
So to recap, AA2009 mandates the production of an autism strategy and guidance by the Secretary of State, and then requires public bodies to follow the guidance unless there is good reason not to do so (this is how the courts have interpreted the section 7 LASSA duty).
The strategy and guidance are both full of excellent initiatives which if implemented would be of enormous benefit to adults with autism. So what’s the problem? I would suggest there are at least two:
1. The lack of any headline duties in AA2009 other than the duty to follow the guidance meant it lost a lot of its symbolic force. Rather than every public body knowing it was required to do two or three things specified in the Act, those responsible for implementation were faced with yet another guidance document, which they would have been tempted to simply file alongside all the rest. This approach places a huge emphasis on local lobbying, with local organisations, people with autism and their families required to make implementation of the guidance a priority in each local area. A judicial review challenge could be brought if a local area is ignoring the guidance, but as far as I know there have been none to date (please correct me if you know this is wrong).
2. Most people don’t really understand the status of statutory guidance. Is it law, or simply best practice? What happens if you ignore it? What does ‘follow it unless you have good reason not to do so’ actually mean? Who decides what a ‘good reason’ is? All these questions have answers, but many of them are not immediately obvious. As such the force of the guidance is diluted by the confusion over its status.
As such I would suggest the main lesson from AA2009 for #LBBill is to make sure we get as much as possible into the primary legislation. At the very least we need some concrete substantive duties in the Bill, which can then be fleshed out if required by regulations and guidance.
There is always a tension for every Private Members Bill between pushing for the maximum impact and making sure that what you are asking for is realistic and achievable. However, I would not think we had made the most of the opportunity before us if we simply create another guidance document that will be followed by those who want to do the right thing and ignored by everyone else.
*There has been some debate about the title and presentation of the change in the law we are pushing for. I am going to continue to use the hashtag as a shorthand and I fervently hope that all individuals and organisations with an interest in disability issues will come together to work for this new law. It can have as many titles and shorthands as necessary in my view as long as we can all agree in the next few months what we are trying to achieve.