29 April 2025
Research team: Dr Angela Paul, Northumbria University; Professor Joe Tomlinson, University of York; Dr Elizabeth Cook, City St George’s, University of London; Professor Simon Halliday, University of Strathclyde; Dr Richard Martin, London School of Economics and Political Science; Dr Jed Meers, University of York; Dr Ruth Weir, City St George’s, University of London.
- In the last three decades, there has been an increase in legislation whereby public officials have duties to protect vulnerable people, particularly in legislation passed by the Scottish Parliament.
- These duties generally encourage public officials to consider adjustments for people deemed vulnerable. However, they are applicable across a wide range of service settings and vary in nature.
- Legislative records reveal little about why this increase has occurred. More empirical evidence is required on the implementation and impact of these statutory duties as it is unknown what difference they make.
Summary
In recent decades, the concept of ‘vulnerability’ has gained increasing prominence in administrative law.
While much of the existing research has focused on how courts have engaged with this idea, our research explored how the increase of vulnerability as an administrative law concept has occurred through its use in legislation to impose duties on public officials.
Our research found that there has, across the last three decades, been an increase in legislation which imposes upon public officials duties to protect vulnerable people, particularly in legislation passed by the Scottish Parliament.
While these statutory provisions are a growing part of administrative law’s regulation of the relationship between public bodies and vulnerable people, there is little explanation for why this increase occurred. More empirical evidence on the implementation and impact of these statutory duties is also needed.
Background
As the idea of ‘vulnerability’ has become more central in social and political thinking, it has gained increasing prominence as a concept of administrative law.
Until recently, much of the debate about the use of the concept in this context has focused on its use in court judgments, particularly in human rights litigation. More recently, there has been an attempt to establish a broader conversation on the connection between administrative law and vulnerability.
Our research sought to develop this emerging debate by investigating a significant component of this trend, which has generally been understudied: the increase in legislation which imposes duties upon public officials to protect vulnerable people.
What we did
To explore the increase of ‘vulnerability’ as a public law concept within legislation, we undertook a review of primary and secondary legislation across the UK using the Westlaw database.
The first stage, completed in December 2023, was a search across the Westlaw database for references to ‘vulnerability’ (including the variations ‘vulnerabilities’ and ‘vulnerable’) in UK legislation, including secondary and devolved legislation. This led to an initial sample of over 8,000 pieces of legislation; after excluding duplicate entries, those pending amendments, laws that were not yet in force, and laws that have been repealed, this led to a final sample of 1,056 provisions.
The second stage was to analyse this final sample for references to ‘vulnerability’. Our key interest in this study was duties that apply to ‘frontline’ public services; we then screened the sample for those that impose duties on officials who directly interact with the public or provide public services. For instance, provisions dealing with the vulnerability of a place (such as the ‘nitrate vulnerability’ of land) or vulnerability in terms of safeguarding individuals during judicial proceedings (such as vulnerable witnesses) were excluded. This left a final sample of 84 individual provisions.
We then analysed these provisions in detail, including identifying relevant statutory guidance and any references in case law or academic and grey literature.
Key findings
Our research established that there has been a clear increase in statutory duties that are aimed at protecting vulnerable people in the wide range of settings in which they might interact with public bodies.
Figure 1 below shows the amount of provisions in the sample broken down by year. This shows a clear increase in the use of vulnerability provisions, in both primary and secondary legislation. The majority of the references to vulnerability occurred after 2005.
Figure 1: Number of duties relating to vulnerability in primary and secondary legislation
The table below breaks down the final sample between the devolved nations across the UK. Some of the references are applicable to all four nations in the UK, and this reflects 39% of the references in primary legislation and 23% of references in secondary legislation. For those provisions applicable only to one nation, the majority of these (14% of the total sample) are from Scotland. Scotland’s approach to legislation seems, therefore, to be an important part of this trend.
Table 1: Percentage breakdown of legislation references by region and type of legislation
These duties are applicable in a range of public service settings, including those relating to housing, domestic abuse, mental health, and asylum. For example, there are duties to protect domestic abuse victims that consider their vulnerabilities associated with fleeing from violence and their priority need for accommodation. Another example is the Health and Social Care Act 2008, which states that there is a need to protect and promote the rights of people who use health and social care services, including those detained under the Mental Health Act and/or deprived of their liberty under the Mental Capacity Act.
Of the 84 provisions included in the final sample, 43 provided definitions for a type of vulnerability or vulnerable individual (for instance a ‘vulnerable’ homeless person), while the other 41 used the term ‘vulnerability’, ‘vulnerable’ or ‘vulnerabilities’ without providing further a definition. This often leaves for public officials to decide how to interpret and operationalise the provisions.
Few answers are visible on the parliamentary record or supplementary legislative documents, such as impact assessments, about why this increase occurred. There have been points raised in Parliament about definitions being sufficient to cover all relevant people. On the other hand, there have also been debates about whether overly broad definitions of vulnerability could result in a lack of clarity and consistency in the execution of these duties. Other debates generally go to the implementation of duties to protect vulnerable people, such as whether public authorities have enough resources to effectively discharge duties.
Next steps
While we have established an important trend in legislation, more empirical evidence on the implementation and impact of these statutory duties is also needed. In simple terms, we need to know if they make a difference and, if so, what it is.
There is remarkably little available evidence in either direction. It is unclear whether statutory duties lead to better processes and outcomes for relevant groups. There are also additional complexities — not least the potential labelling effects of public authorities deeming certain people ‘vulnerable’. Such provisions may even have negative consequences — for instance, they might be used to ‘gatekeep’ access to certain processes or services, as has been argued in relation to homelessness decision making under Part VII of the Housing Act 1996.
We need much more research to deepen empirical understanding of how these increasing statutory duties are shaping the design, operation and impact of the many public services in which they are being adopted (and, indeed, if they are having any meaningful effects at all).
More broadly, this trend and its effects demand more nuanced consideration as policy debates continue to contemplate the introduction of more duties of this kind. For instance, the Work and Pensions Committee is currently investigating the safeguarding of vulnerable claimants in the benefits system, and is considering proposing that the Department of Work and Pensions be placed under a legal duty in this respect. In light of the present lack of evidence, if the Committee — or other policy actors — wishes to recommend introducing such a duty, then it might also be wise to consider requiring a meaningful periodic evaluation of its implementation and effects.
Contact
- Lead investigator and author: Professor Joe Tomlinson, joe.tomlinson@york.ac.uk.