Exam Number 3981147

Social Work: Policy and Legal framework.

Seen Assessment

In what way is an understanding of law and policy, and the interface between
these and social work, necessary in order to be an effective social worker?

Word Count 1999

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Introduction.

An intricate understanding of law and policy is vital to be an effective social worker. Without legal

grounding the role of the social worker is dubious. Not only will the Social Worker be unclear about

the tasks and duties expected but also will be ill-equipped to protect vulnerable groups and

individuals from discrimination, neglect and abuse.

The interface between law and policy and practice is equally important to the role of the social

worker. In many cases there are clear guidelines on how to implement policy and legislation (Adams,

p91, 2009) though even these are open to interpretation, but there are also areas that lack such

clarity (Braye & Preston-Shoot, p52, 1997). It is important for Social Workers to understand how law

and policy affect actual outcomes and the different ways that legislation and policy can be

interpreted in order to inform value-based, ethical practice.

In many cases law can conflict with an ethical duty of care. Some legislation is not in line with social

work values. It is in these cases that the Social Worker may wish to challenge the law or practices

(Braye & Preston-Shoot, p26, 2006).

In order to demonstrate the necessity of law and policy in relation to Social Work practice I will

discuss the ways in which Social Workers use law and policy. I will examine the effectiveness and

limitations of current law including specific examples in current legislation. I will also debate the

often conflicting nature of law and ethical practice.

Importance of law to practice.

There are two contrasting views about the position of law and policy in Social Work practice. The

first is that law is the defining factor of practice and the other focuses on an “ethical duty of care”

(Braye &Preston-Shoot, p19, 2006). Regardless of which view one may take it is clear that the law

gives as a framework for social work practice (Munby, p458, 2007) and without an in depth

understanding of this framework the social worker will be ineffective.

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Social Work Law as opposed to social welfare law (Adams et al, p91, 2007) outlines the roles and

duties of a Social Worker. An understanding of legislation such as the Social Work (Scotland) Act

1968, which outlines a duty to ‘promote social welfare’ (Social Work (Scotland) Act 1968), is vital to

social work practice (Munby, p459, 2007). Social Work Law covers accountability, parameters for

intervention and sets out who it is that the legal duties of a Social Worker apply to (Adams et al, p91,

2007). Without an understanding of this legislation there would be a risk, or even a certainty that

certain groups of vulnerable people would be overlooked and people’s lives would be excessively or

unnecessarily interfered with.

Social Welfare Law pertains to the rights of all but in this context to the rights of the service users

that the Social Worker will work with. These laws do not necessarily require direct action from Social

Workers themselves but knowledge of them is necessary to protect and meet the needs of service

users (Adams et al, p91, 2007).

Key to a Social Worker’s knowledge of law is anti-oppressive and anti-discriminatory legislation.

There are many laws which relate to issues of discrimination. These include the Race Relations Act

1976, the Disability Discrimination Act 2005, the Equalities Act 2010 and the Human Rights Act 1998

(Munby, p460, 2007). Social Workers must have a good understanding of legislation such as those

mentioned above in order to protect individuals from discrimination (Munby, p460, 2007). Section

71 of the Race Relations Act is particularly important to Social Work Practice as it compels the local

authority to “eliminate unlawful direct and indirect discrimination” (Braye & Preston-Shoot, p171,

1997). However, there are shortfalls in this legislation such as the limited definitions of

discrimination within the statutory framework. For “discrimination to occur there must have been an

absence of equal treatment between the person being discriminated against and other persons”

(Munby, p461, 2007) which means that though discrimination may have occurred in a moral and

practical sense but if no comparison can be made it has not occurred in a legal sense (Munby, p461,

2007). Comprehension of the limitations of the legislation is vital for Social Workers to understand

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the “process by which individuals, groups and communities feel discriminated against by state

institutions – including local authority social workers” (Munby, p462, 2007).

Problems with Law.

Rather than rule enforcers, Social Workers take on the role of rule interpreters (Braye & Preston-

Shoot, p53-54, 1997). The reason for this is that in many areas of legislation there is a distinct lack of

clarity (Braye & Preston-Shoot, p51, 1997). One of the reasons for this lack of clarity is the multitude

of different legislation that may pertain to any individual case. Another reason is that legislation is

constantly being redrawn and amended (Braye & Preston-Shoot, p21, 2006), which makes it vital for

Social Workers to have an up to date knowledge of the wide range of legislation. This lack of clarity is

also highlighted when comparing different legislation. Much of legislation is clear and direct with

secondary legislation and guidance to support it (Adams et al, p91, 2009). However, other areas fail

to provide such clarity, examples include the fact that “The Mental Health Act 1983 does not define

mental illness” (Braye & Preston-Shoot, p52, 1997) and that “need is not defined at all in community

care law, despite being the springboard for a duty on local authorities to provide services” (Braye &

Preston Shoot, p54, 1997). The same lack of clarity can be found in the Mental Health (Scotland) Act

1984. It is important for Social Workers to be aware of these legislative shortcomings to be aware

how this lack of clarity may affect an individual in actual outcomes.

Alongside the above mentioned lack of clarity we can also see complete absences of legislation. For

example we can find a “clear definition of unlawful discrimination on the grounds of race” (Bray &

Preston-Shoot, p21, 2006) but discrimination on the grounds of sexuality, age or religion is not

prohibited by legislation (Braye & Preston-Shoot, p29, 1997). Another example of omissions of

legislation is the Disability Discrimination Act 1995 which protects disabled people from

discrimination in their workplace but only in “organisations employing more than twenty people”

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(Braye & Preston-Shoot, p29, 1997). Social Workers must have knowledge of these omissions to be

aware of when individuals and groups will face discrimination in order to protect them with other

law such as the Equalities Act 2010 (website).

Rather than an ethical view of seeking to promote equality in our society law tends to be reactionary

as was the case with the Race Relations Act 2000. This piece of legislation originated in the

Macpherson Inquiry which was conducted in response to the murder of Stephen Lawrence (Munby,

p462, 2007). Another example of reactionary legislation is the Children Act 2004 and the Children

(Scotland) Act 1995 which arose in response to a series of high profile child deaths including Jasmine

Beckford, Kimberly Carlisle, Tyra Henry and more recently Victoria Climbie (Braye & Preston-Shoot,

pp19-20, 2006). In the latter cases it tended to be the organisational management or professional

practice rather than the role of law that was blamed (Bray & Preston-Shoot, p20, 2006). A similar

argument could be made for the introduction of the Adult Support and Protection (Scotland) Act

2007 and the Offences (Aggravation by Prejudice) Scotland) Act 2009. A clear understanding of

legislation could help a Social Worker identify neglected areas of law that could result in the harm of

individuals in order to protect both the vulnerable individuals and their own position as employees.

This last point is highlighted by the requirement of social workers to be up to date with their

professional standards of practice (Munby, p462, 2007) which would further allow them to identify

areas of legislation which do not meet these professional standards.

Legislation versus Ethics and Values.

Often debated is the location of the core mandate for Social Work. Some go as far as claiming that

the legal mandate is the only mandate for Social Work. An opposing view is that social work’s core

mandate is an ethical duty of care (Braye & Preston-Shoot, p19, 2006). It is clear though that despite

improvements such as the Human Rights Act 1998, which gives a basis to challenge unjust law. It is

argued that, due to the interpreter role of the Social Worker, “law in practise is far from being a

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value free activity and cannot be negotiated by reference merely to technical knowledge” (Braye &

Preston-Shoot, p22, 1997).

It is often the case that Social Work values and the law are seen as oppositional (Braye et al, p553,

2005). It is vital that Social Workers have a detailed enough knowledge of legislation to predict the

potential it has to “oppress through curtailing liberty or restricting autonomy” (Braye et al, p553,

2005) and where it can “promote rights and social justice by challenging oppression” (Braye et al,

p553, 2005). It is also important to be aware that social work education tends to emphasise the

former and neglect the latter (Braye et al, p553, 2005) in order for the individual Social Worker to

compensate with private learning to inform value based practice.

One purpose that law fulfils that is in opposition to Social Work values is the preservation of power

structures (Adams et al, p91, 2007). The conflict between Social Work and the Law arises because

the law’s “principles reflect prevailing economic and political arrangements, thus preserving the

interests of powerful groups in society” (Braye & Preston-Shoot, p23, 1997). Knowledge of this is

important in order to recognise and challenge dubiously claimed benefits of certain legislation such

as the NHS and Community Care Act 1990 which promotes “the questionable benefits of choice,

flexibility, innovation and competition” (Braye & Preston-Shoot, p30, 1997).

One particular area of law that demonstrates limitations and conflict with social work values is

community care policy in reference to vulnerable adults (Preston-Shoot et al, p5, 2001). One

limitation in this area is, despite the aforementioned focus on the “benefits of choice” (Braye &

Preston-Shoot, p30, 1997) that this choice is often “curtailed by financial considerations” (Preston-

Shoot, p5, 2001). It is important for Social Workers to be aware of these limitations when assessing

and allocating services for individuals as it will dictate what is available for them.

Conclusion.

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We have seen how a depth and breadth of understanding of the law that directly guides the

behaviour of Social Workers and the law that applies to those that Social Workers will work with is

vital to the social work role (Adams, p90, 2007). We have also seen how knowledge of legislation can

help protect people from discrimination at an individual and an institutional level (Munby, p462,

2007) by challenging “unlawful and/or unethical practice within their agencies” (Braye & Preston-

Shoot, p21, 2006).

It is clear that there are potentially harmful limitations and omissions within legislation (Braye &

Preston-Shoot, p29, 1997). A Social Workers awareness of these factors can influence which groups

in what circumstances are in danger of falling outside the protection of the law in order to challenge

these limitations and omissions. Another examined limitation is law as reactionary in that it tends to

respond to high profile cases or public pressure. An understanding of this process can help identify

neglected legislation and help to protect the Social Worker’s position as an employee (Munby, p462,

2007).

A working knowledge of often oppositional position between Social Work values and the law is

necessary to protect neglected groups and heighten the ability to challenge oppressive laws and

practice.

The law provides a framework within which Social Workers can operate. The law is often open to

interpretation and it is important for Social Workers to be aware how different interpretations can

affect actual outcomes. Overall it is clear that without an in depth and broad understanding of Law it

would be impossible to practice Social Work effectively and ethically.

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Bibliography.

Teresa Munby, 2007, The Legal Perspective, The Blackwell Companion to Social Work, Oxford:
Blackwell.

Robert Adams, Lena Dominelli and Malcolm Payne, 2009, Social Work, Themes, Issues and Critical
Debates, Palgrave Macmillan.

Suzy Braye and Michael Preston-Shoot, 1997, Practising Social Work Law, Macmillan Press Ltd.

Michael Preston-Shoot, Gwyneth Roberts and Stuart Vernon, 2001, Values in social work law:
strained relations or sustaining relationships? Journal of Social Welfare and Family Law, Routledge.

Suzy Braye, Michael Preston-Shoot and Robert Johns, 2005, Law in Social Work Education: Reviewing
the Evidence on Teaching, Learning and Assessment, Social Work Education, Routledge.

Suzy Braye and Michael Preston-Shoot, 2006, The role of law in welfare reform: critical perspectives
on the relationship between law and social work practice, International Journal of Social Welfare,
Blackwell Publishing.

http://www.equalities.gov.uk/equality_act_2010.aspx