Question

What is the difference between a statutory duty and a statutory power?

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Answer

A duty is something a public body must do. A power is something it may do. The distinction determines whether you can compel action — and it is why so many complaints about councils and public bodies go nowhere.

How to spot which is which. Look at the verb in the legislation:

"Shall" or "must" — a duty.

"May" or "is empowered to" — a power, conferring discretion.

Courts read these carefully, and the choice of word is rarely accidental.

Types of duty:

An absolute duty must be performed regardless of resources.

A qualified duty applies subject to conditions — "so far as is reasonably practicable" is the classic formulation, and it imports a balancing exercise.

A target duty is expressed generally — a duty to promote or secure something across an area — and is notoriously hard to enforce in an individual case, because it is owed to the population rather than to you.

Why the distinction matters practically:

A duty can be enforced. If a body fails to perform a duty owed to you, judicial review may compel it — the court can issue a mandatory order.

A power generally cannot be compelled. You cannot force a council to exercise a discretion in your favour. What you can challenge is how the discretion was exercised: whether the body considered relevant matters and ignored irrelevant ones, whether it fettered its discretion by applying a rigid policy without considering individual cases, whether it acted rationally, and whether the process was fair.

The common misunderstanding. People assume a council that can do something is obliged to. The frequent answer — that the authority has a power it has chosen not to exercise, within a lawful policy — is genuinely correct, however unsatisfying.

Resources and duties. Whether a body can rely on lack of funds depends on how the duty is framed, and the case law is nuanced. For absolute duties, generally not.

Practical route: identify the actual statutory provision, then use the body's complaints process, then the relevant Ombudsman — Local Government and Social Care, Parliamentary and Health Service, or Housing — before considering judicial review, which has short time limits.

General information, not legal advice.

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