The Law Commission has launched a major consultation on adult social care law in England. Commission lawyer Tim Spencer-Lane outlines its key proposals
In 2008, the Law Commission published its Tenth Programme of Law Reform, which includes a project to review adult social care in England and Wales. The legislative framework for adult social care is inadequate, often incomprehensible and outdated.
This week, we have published our consultation paper, setting out detailed provisional proposals for law reform. This will be followed by a four-month public consultation.
Our goal is to create an effective legal framework that can accommodate current and future policies, while maintaining the core entitlements and obligations that have been established over the past 60 years.
The proposals are our initial view about how the law should be reformed and we will review them on the basis of responses. We urge everyone with an interest in adult social care to respond.
1 Eligibility: A single framework for all services
The current structure for determining eligibility is complex and, at times, impenetrable.
Once a local authority has completed an assessment, it must decide whether to provide services. Under the current law, eligibility is determined by reference to Fair Access to Care Services (and the Welsh equivalent) and statute law, such as the National Assistance Act 1948 and the Chronically Sick and Disabled Persons Act 1970.
Instead, we propose that an assessment of social care needs and the application of eligibility criteria should be the sole way to determine a person’s eligibility for services.
In effect, there would be a single eligibility framework for all community care services.
Councils would have a duty to use that framework to determine whether a person’s social care needs are eligible, and a duty to provide or arrange for the provision of services to meet all eligible needs.
The duty to meet eligible needs would be strong and individually enforceable. Our statute would also impose a duty on the secretary of state and Welsh ministers to make regulations prescribing the eligibility framework that must be used by local authorities.
Given the Department of Health’s commitment to personal budgets, it is important that the law and personal budgets are more closely aligned. Our statute would enable the secretary of state and Welsh ministers to make regulations prescribing whether councils have a duty to allocate a personal budget, or whether it is optional.
2 Community care assessment: a duty on local authorities
The community care assessment process is the gateway to the provision of services.
The current legal duty to undertake an assessment is spread over three pieces of legislation: the NHS and Community Care Act 1990, the Chronically Sick and Disabled Persons Act 1970 and the Disabled Persons (Services, Consultation and Representation) Act 1986. We propose there should be a single and explicit duty placed on a local authority to undertake a community care assessment.
This would provide that, where it appears to a local authority that any person for whom they may provide or arrange the provision of community care services (or a direct payment) may have social care needs that can be met by the provision of community care services (including a direct payment in lieu of services), the authority would be under a duty to carry out a community care assessment.
The focus of that assessment would be a person’s social care needs and the outcomes they wish to achieve.
Although we do not propose to put self-assessment on a statutory footing, we welcome views on whether we should make it clear that a “co-produced self-assessment” is a lawful form of assessment or should allow for a “pure self-assessment” for certain groups.
We also propose that some aspects of the assessment process – such as who should be consulted during the assessment – should be set out clearly in regulations.
3 Statutory principles: the need for clear interpretation
Unlike the Children Act 1989 and the Mental Capacity Act 2005, community care legislation contains no statement of fundamental principles. Instead, the principles must be understood by considering numerous sets of guidance and other supporting documents.
Our provisional view is that there is a compelling case for statutory principles on the face of our statute. The following general concepts might form the basis of these principles:
● Choice and control.
● Person-centred planning.
● Considering a wide range of needs.
● Prevention and early intervention.
● Independent living.
● An assumption of home-based care.
● Dignity in care.
● The need to consider safeguarding.
At this stage, we are not considering the precise wording of the statutory principles. But any statutory principle must be able to be interpreted clearly by the courts, lawyers and social workers.
4 Carers’ assessments: a duty to assess all carers
There should be a single duty to assess any carer who is providing or intending to provide care to another person, and not just those providing a substantial amount of care on a regular basis.
The assessment would be triggered where a carer appears to have, or will have, needs that could be met by the provision of carers’ services or by the provision of services to the cared-for person.
Local authorities should have to use a mandatory national eligibility framework in exercising their power to provide carers’ services.
This would remove the ambiguity about how decisions are made on the provision of services to carers, and would mean that a carer’s eligibility for support is assessed against the same framework throughout England and throughout Wales.
Authorities would also have to specify which bands they will provide services to meet.
5 Safeguarding adults: a duty to investigate
Unlike in Scotland, there are no specific statutory provisions for adult protection; the legal framework is provided through a combination of common law, local authority guidance and general statute law.
Our statute would clarify the existing legal position and establish a duty to make enquiries and take action in adult protection cases. This duty would operate with the community care assessment duty by explicitly enabling a formal process to be initiated in adult protection cases.
The introduction of a duty to investigate would be in the context of the existing powers and duties of local authorities to intervene in cases where adults are at risk of abuse and neglect.
The duty would be distinct from any responsibility the police may have to conduct a criminal investigation, though a joint approach may be appropriate in some circumstances.
The duty to make enquiries would be triggered in cases where there is an “adult at risk”.
This would be defined as an adult who has social care needs (whether or not they meet the local authority eligibility criteria) and is at risk of significant harm; where harm is defined as ill-treatment or the impairment of health or development or unlawful conduct which appropriates or adversely affects property, rights or interests (for example, theft, fraud, embezzlement or extortion).