The Department is committed to ensuring that our guidance and advisory content is succinct, clearly labelled and clearly expressed. In order to further this aim, three distinct categories of content have been created. The three categories are:
Guidance is produced on powers and duties arising from statute. In the case of a duty recipients must do what the statute says. The statute will tell them what their powers and duties are. Guidance is produced to tell them how those powers and duties should be exercised. Where a recipient has an obligation to ‘have regard to’ guidance they should exercise the powers and duties which are the subject of the guidance in the way it says they should, unless they have a good reason not to. This is the case for the majority of guidance.
Very unusually, there are some forms of guidance which must be followed and which in themselves impose obligations, such as the Admissions Code. In these cases recipients must follow the guidance - with no exceptions. This distinction will be made clear.
Advice is produced in very specific cases: for example, to help recipients understand what complex or wide-ranging statutory provisions mean in practice and what needs to be done to comply with them, as well as advice on other duties or areas of responsibilities which are not set out in statute, including public law duties, for example.
The Department will only produce advice where we feel it would be unreasonable not to give it or where we know there is demand for it. There is no requirement in any statute for recipients to have regard to, or follow the advice.
Unlike ‘statutory guidance’ and ‘departmental advice’ documents will not be labelled as ‘supplementary content’ - this term is simply used to describe a wide range of information and helpful but optional content such as case studies, top tips and toolkits to illustrate good practice and evidence of ‘what works’, or to show how, for example, a school has implemented a particular duty.
The Department has abolished the category of non-statutory guidance. If something is labelled as guidance then by definition it is statutory and you must have regard to it. We will no longer use this term in new and revised documents, although it may still be found in old documents that are awaiting revision.