‘Social workers need power of entry to make a good piece of legislation better’

By Paul Burstow

The Care Bill is nearing the end of its parliamentary scrutiny. In the next few days the House of Commons will spend two days debating the bill before a final exchange with the House of Lords.
Although in its essentials it is recognisably the same bill published in draft in July 2012, it has been improved by the scrutiny.
Taken as a whole the bill constitutes a comprehensive overhaul of adult social care: the promotion of individual wellbeing becomes the statutory purpose of social care, carers are given parity of esteem in law for the first time, councils have a new duty to prevent and postpone the need for care and support, national eligibility, the Dilnot reforms of care funding, and portability and safeguards for continuity of care are just a few of the features of the new law.

Strengthening the bill

The bill has been strengthened. More than three-quarters of the recommendations in the report of the joint committee that scrutinised the draft Care and Support Bill have been included.

For example, the regulations and guidance issued by the government will now have to reflect the wellbeing principles of the bill. Because the bill was aimed at reforming adult social care law the new rights for adult carers had left young and parent carers with the limited rights granted in previous legislation. The joint committee recommended the Children and Families Bill should be amended. After much lobbying the government has acted.
So what is still outstanding?

Gap in safeguarding law

The bill puts adult safeguarding on a statutory basis and it places a duty on local authorities to make inquiries about abuse and neglect. But it leaves the law uncertain about what social workers can do to gain access to a person they have reason to believe is at risk of abuse or neglect when a third party – a family member or someone else – is refusing access.
After its consultation the Department of Health said it would not introduce a power of entry. This was despite the majority of organisations, adult safeguarding boards, charities and NHS bodies coming out in support. The argument for the status quo has been that the law is sufficient and all that is required is for practitioners to be better informed.
A careful examination of the powers available to the police and the courts leads me and many experts in the field to dispute the DH’s assertion. It calls into question why the DH ever bothered to consult in the first place if the problem was simply professional ignorance of the law!
I hope even at this stage ministers will keep an open mind and look at the growing evidence of a gap in the law. I have tabled a proposal that would give a circuit judge authorised by the Court of Protection the authority to grant a social worker, accompanied by a police constable, a power of entry. The power I am proposing is carefully crafted to protect the rights of the individual and is there as a backstop is those cases when negotiating skills and powers of persuasion are not enough.
Human rights have proved a hot topic in the bill’s passage. The joint committee report pointed out the inconsistent application of human rights law to care and support. We recommended a simple solution, extending the coverage of human rights to all services regulated by the Care Quality Commission.
Ministers have objected and, in the Commons, overturned a Lords’ amendment that gave effect to the committee’s recommendation. I am sure the Lords will not let the matter rest. At the very least there should be no ambiguity around care paid for and arranged by public bodies, for which the Human Rights Act should apply.

Unfinished business on funding 

Throughout the bill’s passage questions of funding have been part of the debate. Funding of social care has been a live issue for decades. Back in 2000, Gordon Brown commissioned Derek Wanless to examine the long-term demand for healthcare. The review led to a report in 2002 that paved the way for an increase in national insurance contributions to fund the NHS. What the report also recommended was a similar review of social care and for future long-term reviews to look at social care and health as a whole system. Sadly that did not happen. The case for it today is even stronger. There is no easy way of taking the politics out of the debate about funding but I believe an independent review every five years that takes a longer term view of the demand for care and support could provide the basis for decisions in future spending reviews.
That’s the case I will be making with an amendment to the Care Bill when it returns to the Commons shortly.

Paul Burstow MP was care services minister from 2010-12 and chaired the joint parliamentary committee on the Draft Care and Support Bill, which reported in March 2013.