The legal framework for adult social care is widely recognised as inadequate, incomprehensible and outdated. It remains a confusing patchwork of often-conflicting statutes enacted over 60 years. There is no single, modern statute to which service users, carers and social care staff can look to understand whether services can or should be provided and, if so, what kinds of services.
Earlier this year, the Law Commission announced a review of adult social care law as part of its Tenth Law Reform Programme. The ultimate aim is to provide a coherent legal structure, preferably in the form of a single statute, for social care services.
The Law Commission has a successful record on law reform. More than two-thirds of its reports have been implemented in whole or in part, including its work on mental incapacity which informed the Mental Capacity Act 2005.
The piecemeal and ad hoc development of the law has prevented the development of coherent and consistent key values and principles underpinning adult social care. Starting with the post-war Labour government, adult social care legislation has reflected the particular philosophical, political and socio-economic concern of the government of the day. For example, the welfare state ideology that underpins the National Assistance Act 1948 sits uneasily alongside the managerial and consumerist principles of the NHS and Community Care Act 1990. Given the amount of legislation in this area, this makes for mixed messages about the principles and values underpinning service provision.
The language and concepts used in some of the older pieces of legislation are anachronistic, discriminatory and at odds with more modern definitions and understandings. For example, the core definition of disability in community care law, which is the starting point for determining whether community care services are provided, is contained in the National Assistance Act. That definition refers to people as being “dumb”, “crippled”, “handicapped” and congenitally deformed. This is not only out of date and offensive but also at odds with modern definitions of disability, such as that contained in the Disability Discrimination Act 1995.
A further problem is that the historical practice of introducing new acts which augment and work in parallel with previous legislation – rather than consolidating the acts and repealing the earlier version – often results in multiple statutes which overlap and sometimes contradict one another.
Carers’ assessments epitomise this problem. There are four statutes that regulate the circumstances in which an assessment must be undertaken and the type that must be carried out. Each of these acts builds on the earlier legislation but does not replace or repeal it, and each differs subtly.
Although negotiating this mass of law can be difficult in itself, the problem is exacerbated by the range of “soft law” that also needs to be considered, including local authority circulars and guidance issued by the Department of Health and other bodies. Some of this is binding, some of it isn’t, and much of it is hard to find.
Navigating this legal landscape can prove a daunting prospect not only for service users and clients, but also for social workers, the courts and lawyers. There is no single statute outlining whether services can or should be provided and there are no underlining principles to guide interpretation and understanding. Negotiating such a landscape takes time, costs money and leads to less certain outcomes.
The purpose of the Law Commission’s review is to provide a clearer and more cohesive legal framework for adult social care. A consolidated adult social care statute should provide for a greater degree of consistency in the regime, facilitating the introduction of uniform definitions and statutory principles.
This should, in turn, lead to more clarity and transparency on the impact and effect of adult social care law. Moreover, greater understanding of adult social care law should increase efficiency, as less time and money will need to be spent on negotiating complex and outdated concepts and on litigation.
The review will also provide a chance to modernise this area of law, so that it embodies and reflects modern understandings, particularly in relation to disability.
This major project has been split into three phases. The first will be the production of a scoping report this year. This will delineate the scope of the project and provide it with a detailed agenda for reform.
The second stage – which will require further approval by government – is the substantive project, which will involve formal consultation with acknowledged experts and interested parties. A consultation paper will be published, describing the present law and its shortcomings and setting out provisional proposals for reform.
The final stage will involve the production of a parliamentary bill, either by the Law Commission or the government.
Given its size and scope, the project requires a large and ongoing commitment from the Department of Health, as the sponsoring government department. We have been encouraged by the strength of the support given to us already by the DH.
We believe that the adult social care project gives us a chance to step back from short-term political concerns. To an extent, it gives us a blank sheet of paper to look at the legal structure of adult social care.
The areas of law that will be covered include the introduction of statutory principles, the simplification of the community care assessment process and how the law regulates service provision. The commission will also review the ordinary residency rules and the legal framework for safeguarding adults from neglect and abuse and consider whether a community care tribunal is needed to provide a merits-based review of service decisions.
This is no easy task. To the commission’s advantage, however, is the consensus that a review of adult social care law is overdue.
The commission believes that this project could achieve significant benefits for service users, carers, social workers and others who live under and use the law. Coming at a time when the government has launched a review on the future of care and support, it should also boost the profile of adult social care.
Lauren Jamieson and Tim Spencer-Lane are lawyers with the public law team at the Law Commission
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This article appeared in the 17 July issue of Community Care under the headline ‘Rewriting History’