All councils have voluntarily signed the Armed Forces Covenant. The further enshrinement of the Covenant into law is an opportunity to build upon work councils are already leading to help serving personnel, reservists, veterans, and their families to have the same equality of access to public services as their civilian neighbours.
Introduction and purpose
This briefing covers:
- Background to the Armed Forces Act 2021 – “the Act”
- The implications of the Act for councils
- Practical steps councils can take to get ready for the Act
Background to the Armed Forces Act 2021
The Armed Forces Act 2021 further enshrines the Armed Forces Covenant into law to help prevent service personnel and veterans being disadvantaged when accessing public services. The Act also strengthens the Service Justice System, which is of less direct relevance to councils.
Clause 8 amends Part 16A of the Armed Forces Act 2006 to introduce a duty to have due regard to the principles of the Armed Forces Covenant, as follows:
- (a) the unique obligations of, and sacrifices made by, the armed forces
- (b) the principle that it is desirable to remove disadvantages arising for service people from membership, or former membership, of the armed forces
- (c) 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.
These principles are already set out in the existing duty on the Secretary of State to make an annual Armed Forces Covenant report (section 343A of the AFA 2006). The new duty will apply to specified persons or bodies, including councils, when exercising certain housing, education or healthcare functions (excluding social care). The private sector is not in scope. Given the devolved nature of those functions, this briefing concerns the implications of the Act for English councils.
The Act requires the Secretary of State for Defence to lay draft statutory guidance before Parliament, which will come into force at a date to be specified by the Secretary of State. The Ministry of Defence is developing the statutory guidance in consultation with colleagues from across central government, local government and the third sector. We understand that the Ministry of Defence intends to commence the due regard duty later in 2022 and that the final statutory guidance will be published ahead of that to give councils time to prepare for its implementation. This briefing will be updated as the timeframe is confirmed.
The Act also gives the Secretary of State the power to add bodies or functions to the scope of the due regard duty set out in Clause 8, subject to a consultation process.
Annex A details the bodies subject to the due regard duty where they are carrying out a relevant function.
Annex B details the relevant functions in scope across education, housing and healthcare.
The implications of the Act for councils
- All councils have voluntarily signed the Armed Forces Covenant. The further enshrinement of the Covenant into law is an opportunity to build upon work councils are already leading to help serving personnel, reservists, veterans, and their families to have the same equality of access to public services as their civilian neighbours. This includes the areas of focus in the Act – housing, education and healthcare. Many local Covenant projects go beyond this, for example to cover employment, public health, welfare, and transport. Councils play a key role in the provision or commissioning of these services with partners and joining-up support around the needs of an individual and their family.
- We are pleased the Government is working closely with local government at a local, regional and national level to develop the statutory guidance that will underpin the duty. This will help to ensure that the duty builds upon existing partnerships and good practice, allows local flexibility and supports innovative approaches.
- The forthcoming statutory guidance will enable in-scope bodies to fully understand what is required of them under the new duty including the interface with existing statutory guidance such as improving access to social housing for members of the Armed Forces, veterans and their families. As well as explaining many of the disadvantages the Armed Forces Community can face when seeking to access key services. We expect the guidance to contain advice and good practice examples about how bodies might comply with the duty.
- We have highlighted to the Ministry of Defence that the implications of the duty will vary between counties and regions and will also be affected by factors including local need, the local funding context and the availability of data about local veteran and serving populations. The design of the duty recognises the need for flexibility and does not mandate any one way which councils must follow in order to meet the duty. Whilst many councils are already leading comprehensive approaches to local Covenant delivery, and there is learning to draw upon from other similar duties, some councils may decide they need to modify policies, processes or procedures and/or how they record information to meet the due regard duty.
- There is no new Government funding attached to the Act. We have received feedback from councils that they will incur costs to get ready for and implement the new duty. We support the Ministry of Defence’s commitment to review potential new burdens costs for councils one year after the commencement of the duty. It is important that any new burdens costs that may arise from implementing the duty are kept under review and fully funded by government.
Practical steps councils can take to get ready for the Act
There are some practical steps that councils can take now to start to get ready for the anticipated commencement of the duty later this year:
- Raise awareness about the forthcoming due regard duty, and the anticipated implementation timeframe, with relevant council colleagues in housing, education and healthcare services, and with external partners from other in-scope organisations – see Annex A for details of in scope bodies
- Convene initial local discussions, pending the publication of the statutory guidance, about the potential impact of the due regard duty on relevant council functions to identify potential gaps / areas to strengthen in local policies, processes and procedures across housing, education and healthcare – see Annex B for details of in scope functions
- Identify potential training needs for frontline council staff working in housing, education and healthcare services – please note that the e-learning modules for councils developed by the Coventry, Solihull and Warwickshire Armed Forces Covenant partnership are being updated to take account of the duty. We will let councils know when the updated modules are available
- Speak to your Head of Information Governance or Data Protection Officer about any GDPR or data protection issues that may arise when collecting information about your local armed forces communities in relation to meeting the due regard duty
- Participate in regional discussions about getting ready for the due regard duty that may be happening at regional Armed Forces Covenant Partnerships
- Record costs that you may incur getting ready for the introduction of the duty and share these with the LGA to feed into the ongoing new burdens work
- Identify potential learning from the local introduction of other similar duties, such as the Public Sector Equality Duty
- Check that your council’s officer with lead responsibility for the Covenant is a member of the LGA’s Armed Forces Covenant Officer Network to hear latest updates from the Ministry of Defence, help shape the national statutory guidance and share learning with other councils. Email email@example.com for further details.
Annex A – specified persons and bodies (in England)
- (a) a local authority in England;
- (b) the governing body of a maintained school in England;
- (c) the proprietor of an Academy in England;
- (d) a non-maintained special school;
- (e) the governing body of an institution within the further education sector in England;
- (f) a special post-16 institution;
- (g) the National Health Service Commissioning Board;
- (h) a clinical commissioning group;
- (i) a National Health Service trust in England;
- (j) an NHS foundation trust.
Annex B – relevant functions under or by virtue of (in England):
- (a) Part 6 of the Housing Act 1996 (allocation of housing accommodation);
- (b) Part 7 of the Housing Act 1996 (homelessness: England);
- (c) Part 1 of the Housing Grants, Construction and Regeneration Act 1996 (grants, etc for renewal of private sector housing); (d) section 1 of the Homelessness Act 2002 (duty of local housing authority in England to formulate a homelessness strategy); (e) section 150 of the Localism Act 2011 (tenancy strategies);
- (f) regulation 3 of the Regulatory Reform (Housing Assistance) (England and Wales) Order 2002 (S.I. 2002/1860) (power of local housing authorities to provide assistance), so far as that regulation deals with the provision of financial assistance for a purpose corresponding to any purpose specified in section 23 of the Housing Grants, Construction and Regeneration Act 1996 (disabled facilities grants: purposes).
- Education a) the Education Act 1996; (b) Part 3 of the School Standards and Framework Act 1998 (school admissions); (c) section 175 of the Education Act 2002 (duties of local authorities and governing bodies in relation to welfare of children);
- (d) any provision of Part 3 of the Children and Families Act 2014, so far as it deals with special educational provision.
(a) the National Health Service Act 2006, or (b)any provision of Part 3 of the Children and Families Act 2014 (children and young people in England with special educational needs or disabilities), so far as it deals with health care provision.