Canada: Local Authorities' General Power Of Competence Can Turn Into A Duty

Local authorities are creatures of statute and therefore may only carry out those functions that they are statutorily empowered to carry out.

With regard to the provision of adult social care, the functions of local authorities can be classified into duties, under which the local authority is obliged to provide the relevant service, and powers under which the local authority is permitted to provide the relevant service but does not have an obligation to do so.

In its recent judgment in R (on the application of GS) v London Borough of Camden, the High Court considered the scope of local authorities' general power of competence. This is the discretionary power under section 1 of the Localism Act 2011 which provides that, subject to certain limitations, a local authority is able to do anything that an individual generally may do.

In considering the scope of the power, the court concluded that the general power is, in certain cases - and on this occasion by virtue of the Human Rights Act 1998 - capable of being 'converted into a duty' on the local authority to provide a service.


The brief facts of the case are that GS (an EEA national) requested the London Borough of Camden (Camden) to provide her with accommodation on the basis that she had a need for care and support which Camden was required to provide to her under the Care Act 2014.

GS suffered from physical and mental health problems, and she claimed that the benefits income she received (the Personal Independence Payment - the only benefit to which she was entitled) was insufficient for her to secure accommodation. Accommodation, she argued, was a need for care and support, and accordingly Camden was required to provide it under the Care Act 2014.

Camden assessed GS' needs, initially under the National Assistance Act 1948 and again (in October 2015) under the newly-commenced Care Act 2014 (the successor to National Assistance Act 1948). It ultimately concluded that she did not have any need for care and support within the meaning of the latter.

In challenging this decision, GS argued that Camden:

  1. had made errors in the assessment and had therefore got the law wrong when assessing her needs and determining that she did not have an eligible need for care and support;
  2. had failed to provide advice and information as required under section 24 of the Care Act; and
  3. should, in any event, have exercised either its specific power under the Care Act 2014 or its general power of competence under the Localism Act 2011 to provide accommodation, since not to do so breached her rights under the European Convention of Human Rights (the Convention).

Is need for accommodation alone a need for care and support?

The first question the court considered was whether a need for accommodation alone amounts to a requirement for 'care and support' pursuant to the Care Act.

In this context, the court tested whether case law (M v Slough BC [2008] UKHL 52 and R (SL) v Westminster CC [2013] UKSC 27) decided under the National Assistance Act 1948 applied in respect of this case, given that the Act referred to 'care and assistance' while its successor, the Care Act 2014, referred to 'care and support'.

It concluded that the case law did apply (nothing turned on the change) and confirmed that a need for accommodation alone was not a need for 'care and support'. This was on the basis that the provision of care and support does not encompass a general power to provide housing (the relevant powers in this area are found in, and subject to, other parts of the local authority statutory framework).

Care and support means looking after, and involves doing something which the person cannot or should not be expected to do for themselves. None of the outcomes specified in the 'eligibility criteria' supported accommodation as being a need.

General power of competence

GS had argued that, even if Camden did not have a statutory duty to provide accommodation because she did not meet the eligibility criteria, it nonetheless had a general power to do so under the Localism Act 2011 and should therefore provide accommodation to her under that power. The court's treatment of this argument has potentially wider reaching implications.

Two questions arose in this respect:

  1. whether the general power of competence was applicable in the circumstances of the case; and
  2. if so, whether the power was converted into a duty such that it had to be exercised in order to avoid a breach of GS' rights under the Convention.

Was the general power of competence applicable?

The general power of competence in section 1 of the Localism Act 2011 is subject to some limitations. Potentially relevant to this case were the limitations that the general power does not enable Camden to do something which it is otherwise prevented from doing:

  • by a statutory provision in effect prior to the general power of competence coming into force (a "pre-commencement limitation");
  • by a statutory provision that comes into effect after the general power is in force but only if that latter statutory provision is expressed to apply to the general power - whether specifically, or because it applies to all of Camden's powers, but with exceptions that do not include the general power, (a "post-commencement limitation").

The parties were generally agreed that the Care Act 2014 did not contain a post-commencement limitation.

However, Camden contended that the court should nonetheless follow certain principles which were applied in an earlier case in respect of a pre-commencement limitation.

It argued that, although there was no express post-commencement limitation, the restrictions imposed on the scope of Camden's powers under the Care Act 2014 applied equally to the scope of the general power of competence. This was on the basis that:

  • the Care Act sets out the statutory scheme for meeting GS' care and support needs;
  • the statutory scheme excluded GS from being provided with the social care services sought;
  • the Localism Act could not be used to avoid the application of the provisions in the Care Act; and
  • the general power of competence did not therefore apply in the circumstances of the case.

The court disagreed.

It noted that the difference between the pre-commencement limitation and the post-commencement limitation is that Parliament must have intended that any post-commencement limitation on the general power of competence would be specifically stated.

The Care Act 2014 had come into force after the general power of competence and did not expressly include any prohibition, restriction, or limitation that applied to the general power of competence.

Had Parliament intended that the general power of competence could not be used to provide care and support services which were excluded under the Care Act 2014, it would have expressly provided for that limitation in the latter Act. That Parliament had not done so meant that Camden was wrong to say that the Care Act provided a comprehensive statutory scheme under which it was prevented from exercising the general power of competence for the purpose of providing the social care services sought by GS. The general power of competence was available to Camden.

Turning the power into a duty

Having decided that the general power of competence was available, the court went on to consider whether the power had been 'converted into a duty' and whether it was a matter of obligation to exercise that general power in order to avoid a breach of GS' rights under the Convention.

In this regard, because Camden considered that it had no power to provide the services sought by GS it had not, when making its original decision, considered the question of whether there would be any potential breaches of GS' Convention rights. Before the court Camden accepted that, if its failure to act caused a breach of the Convention rights, then it would have to act. However, it submitted that its failure to act did not have that effect because GS' income was sufficient to avoid any such breaches.

Taking into consideration the entirety of GS' circumstances (including her potential social isolation, physical disabilities, pain, mental health condition and physical difficulties), the court concluded that if GS became homeless there would be a breach of Article 3 of the Convention (that is, the homelessness would result in serious suffering and be inhuman and degrading). It also concluded that GS would become homeless because the income she received was, contrary to Camden's submissions, insufficient to fund available and suitable accommodation.

The court concluded, therefore, that in the circumstances of the case, the general power of competence had effectively been converted into a duty. That is, Camden had a duty to act to the extent it was necessary to avoid a breach of GS' Convention rights and had the capacity to act by way of exercising the general power of competence.

Camden's decision not to exercise the general power was therefore unlawful.


The judgment of the court serves as an important reminder to local authorities that a seemingly discretionary power may in certain circumstances, particularly where Convention rights could be in play, be a power that must be exercised.

In this respect, the decision will have particular significance on the role and responsibilities of local authorities in providing assistance to persons that would not otherwise be entitled to assistance under other specific statutory schemes such as the Care Act or the Housing Acts.

It also highlights the need for local authorities to consider all of the powers that are available to them when making decisions and reaching conclusions about the scope and extent of their functions.

To date, most local authorities will have considered the general power of competence broadly helpful because it provides the legal basis to do those things that they want to do and could not otherwise have done.

Going forward, this needs to be balanced by an understanding that it may also provide the legal basis for them to do things that they would otherwise not have wanted to do or considered doing. In accordance with the judgment in GS, the general power of competence may therefore prove to be a double-edged sword.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
14 Sep 2017, Seminar, Birmingham, UK

Has Cloud replaced traditional outsourcing models? We will compare cloud to outsourcing, consider whether they have effectively become the same thing for many solutions and assess some of the advantages and disadvantages of each model.

18 Sep 2017, Seminar, London, UK

Our annual event as part of the London Design Festival is now in its fifth year. We would be delighted if you are able to join us again.

21 Sep 2017, Seminar, London, UK

Has Cloud replaced traditional outsourcing models? We will compare cloud to outsourcing, consider whether they have effectively become the same thing for many solutions and assess some of the advantages and disadvantages of each model.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.