FAQs – The Covenant Legal Duty
Answers to Frequently Asked Questions about the Covenant Legal Duty are provided below, under the headings of:
- What the Legal Duty covers
- The Legal Duty in practice
- Resolving disputes
What the Legal Duty covers
1. Which organisations and functions are subject to the Legal Duty?
The organisations subject to the Legal Duty are certain specified public bodies responsible for providing local healthcare, education and housing services to the general population, such as local authorities, governing bodies of certain schools, various NHS bodies, and other organisations. They are subject to the Legal Duty when making decisions and policies relating to:
In healthcare, the following: (1) provision of NHS Primary Care, NHS Secondary Care, and local authority-delivered healthcare services to the general population; (2) planning and funding of these services; and (3) co-operation between bodies and professionals providing these services.
In education, the following, in the context of the compulsory education of children in the general population: (1) school admissions; (2) educational attainment and curriculum; (3) child wellbeing; (4) transport to/from school; (5) attendance at school; (6) additional needs support; and (7) the Service Pupil Premium (the Service Pupil Premium is England-only).
In housing, the following: (1) allocations policies and tenancy strategies for social housing for the general population; (2) homelessness in the general population; and (3) Disabled Facilities Grants for the general population.
Further detail about the organisations and functions subject to the Legal Duty can be found at Tables 1 & 2 of the statutory guidance.
2. Why aren’t these organisations subject to the Legal Duty in every area of their activity?
Covenant-related activity represents only a minority of these organisations’ broad range of activities, so requiring them to have due regard to the Covenant in every area of their activity would not be proportionate. For example, it would not be sensible to require local authorities to have due regard to the Covenant when making decisions about libraries, parks, or waste disposal.
3. Why are only three policy areas – healthcare, education and housing – covered by the Legal Duty?
Healthcare, education and housing comprise the foundation of successful lives. They are among the most commonly cited areas of concern when it comes to disadvantage experienced by the Armed Forces community in public-service provision. They also reflect three of the four areas covered by the prior Covenant legislation. (The fourth area relates to inquests.)
The Duty legislation sits alongside a range of other initiatives supporting the Armed Forces community across Government, including a revised Armed Forces Families’ Strategy, implementation of the Defence Holistic Transition Policy, and the Strategy for Our Veterans. The considerable number of successful initiatives, across many different policy areas, that we have seen through the Covenant to date, shows how the careful use of legislation can provide a firm basis and the flexibility for a much wider range of work to develop. We bore this model in mind in the development of the new Duty, in order to ensure it can provide a secure framework that allows scope for innovation, change and future growth.
To ensure the Duty can be adapted to meet the changing needs of the Armed Forces community, the legislation provides powers to broaden the scope to include other bodies and functions in future, subject to consultation, where there is evidence and support to suggest it would be beneficial. Find out about the process for Assessing Developments to the Duty (the ADD Process), and nominate an addition to the Legal Duty: Additions to the Legal Duty.
4. Why aren’t the UK Government and Devolved Administrations subject to the Legal Duty?
The Legal Duty is primarily about raising awareness of the Covenant and the impacts of Service life. The UK Government and Devolved Administrations are already aware of the Covenant and the impacts of Service life, and already work to implement the Covenant principles in policy development and decision making. The Covenant has existed in its current form since 2011, and each year since then, the UK Government has been statutorily required to present to Parliament a Covenant Annual Report, covering their progress in delivering the Covenant across all four home nations of the UK.
A review into whether central departments of the UK Government and the Devolved Administrations should be brought into scope of the Legal Duty is being conducted through 2023, and a report will be provided in the 2023 Covenant Annual Report.
5. Are dentists and GPs subject to the Legal Duty?
Individual dental practices and GP practices are not within scope of the Covenant Duty in the Armed Forces Act 2006.
However, the organisations commissioning NHS dental and NHS GP services are in scope of the Duty, and are legally responsible for ensuring that the Duty is complied with, in the decision-making processes they use which affect provision of NHS services by dentists and GPs. For example, NHS England commissions NHS dental services in England, and is legally responsible for ensuring the Duty is complied with in relation to the decisions it makes which affect the provision of NHS dental services in England.
While individual dental practices and GP practices are not obliged under the Armed Forces Act 2006 to comply with the Duty, they might be contractually obliged to do so if their contract with the NHS requires this.
Dental and GP practices may also voluntarily sign a Covenant pledge – in that case they have agreed to meet the Covenant principles. GP practices can also be awarded a ‘veteran-friendly accreditation’.
6. Who is part of the Armed Forces community for the purposes of the Legal Duty?
For the purposes of the Legal Duty, the Armed Forces community primarily consists of currently serving members of the UK Armed Forces (regular and reserve), veterans who reside in the UK, and family members, including bereaved family members. Further detail can be found at section 1J of the statutory guidance.
7. How do I decide if my situation is covered by the Legal Duty?
This flow diagram and example scenarios show how to decide if your situation is covered by the Legal Duty. Chapters 2, 3 & 4 of the statutory guidance also describe many relevant circumstances that are covered by the Duty.
The Legal Duty in practice
8. What does ‘due regard’ mean in practice?
When a specified body exercises a relevant function, it must have due regard to: the unique obligations of, and sacrifices made by, the Armed Forces; the principle that it is desirable to remove disadvantages arising for Service people from membership, or former membership, of the Armed Forces; and the principle that special provision for Service people may be justified by the effects on such people of membership, or former membership, of the Armed Forces.
‘Due regard’ means consciously considering the Covenant when developing, delivering and reviewing policies and decisions which may impact the Armed Forces community. It means placing appropriate weight on the Covenant principles when all relevant factors are considered. It does not mean that any particular conclusions have to be reached or specific public service delivery outcomes achieved. A further explanation can be found at section 1F of the statutory guidance.
9. Why doesn’t the Act that created the Legal Duty set standards in delivery of services to the Armed Forces to be met across the UK?
The Legal Duty is primarily about raising awareness of the Covenant and the impacts of Service life. It is deliberately flexible to ensure the organisations subject to it have access to this key information while retaining the ability to take decisions on service delivery that are right for their local context and circumstances.
If the Duty legislation imposed a UK-wide minimum standard that had to be provided to the Armed Forces community, in some places this would be lower than the local population already normally receives, and therefore would be of minimal benefit. In other places it would be higher, potentially resulting in the Armed Forces receiving a better service than members of the local general population with more need.
10. Why doesn’t the Ministry of Defence hold to account the organisations subject to the Legal Duty?
The Legal Duty is primarily about raising awareness of the Covenant and the impacts of Service life, and thereby seeking to reduce disadvantage to the Armed Forces community. We are not seeking to penalise or police public bodies. Unresolved disputes are best referred to the relevant ombudsmen, as they have been established for the purpose of investigating complaints about public bodies, and are independent. Therefore, the Act that created the Legal Duty does not provide the Ministry of Defence with the powers to adjudicate disputes or to set standards in service delivery, as this would duplicate the role of the ombudsmen.
11. How do we know if the Legal Duty will make any positive difference for the Armed Forces community?
The UK Government has committed to reviewing the effectiveness and impact of the Duty within five years of it coming into force. This will allow time for any impact to emerge. Reports from this review will be included in future Covenant Annual Reports.
12. Why aren’t in-scope bodies required to keep a publicly available record of their due regard consideration?
The benefit of record keeping has been added to section 1F of the statutory guidance to reinforce the importance of such actions. However, expecting public bodies to publish a publicly available record every time they have due regard to the Covenant is considered to be a disproportionate burden.
Resolving disputes
13. What can I do if I think an organisation isn’t fulfilling its obligations under the Legal Duty?
Concerns should initially be raised with the organisation concerned by following their standard complaints process. If the complaint remains unresolved, it can be referred to the relevant ombudsman. Further advice can be found at Appendix 4 of the statutory guidance.