Law Commission bids to clear adult social care of legal anomalies

By Mithran Samuel on June 9, 2008 in Adult safeguarding, Adults, Legal

The Law Commission today launched a review of adult social care law with a view to drafting a single, overarching piece of legislation to clear up existing anomalies, contradictions and dated concepts.

The commission has identified a number of problems with the existing framework, which dates back to the 1948 National Assistance Act:

The use of outdated concepts. The core definition of disability in community care law is contained in the National Assistance Act, which makes references to “congenital deformity” and “handicapped”.
Existing statutes are confusing and make it difficult for service users and providers to understand whether and what services should be provided.
Statutes conflict. There are four different laws covering carers’ assessments, all of which differ in a number of ways.
This leads to inefficiency, due to difficulties in interpreting the law, and cost in terms of litigation.
The impact of recent legislation and developments, including the Human Rights Act 1998, the UN convention on the rights of persons with disabilities and the emergence of personal budgets.

‘Impossible to understand’

Tim Spencer-Lane, who has been seconded to the commission from the Law Society to work on the project, said: “Adult social care law is pretty well impossible for people to understand. Even the most knowledgeable lawyers find it difficult to understand rights to services, let alone service users and carers.”

The project, part of the commission’s 10th programme of law reform, will start with a scoping exercise, examining issues with the law. Should consensus be reached on these, an extensive consultation will follow and a bill potentially drafted by July 2012.

Spencer-Lane said such an overarching and unifying piece of legislation – along the lines of the Children Act 1989 – could include statutory principles for adult care services, a clearer definition of the health and social care divide and could also cover safeguarding.

Campaign for legislation on safeguarding

Campaign group Action on Elder Abuse and the Association of Directors of Adult Social Services, among others, have long been clamouring for legislation on safeguarding, which, unlike child protection, is currently governed by guidance. This could include a duty on councils and other agencies to investigate allegations.

Action on Elder Abuse chief executive Gary FitzGerald welcomed today’s announcement, saying: “We cannot continue to approach major issues of care provision, and the protection of very vulnerable people, in our current piecemeal fashion and we agree with the commission that the law needs to updated. Equally importantly, we need the protection of vulnerable adults put onto the same legal basis as the protection of our children.”

Spencer-Lane added: “We’ve got to make sure that we keep as many people on board as possible. It’s got to be something that’s accepted across government and stakeholders. There may be a change of government.”

It is unclear how the project will affect any legislation coming out of next year’s green paper on adult social care funding.