Care Act will increase legal burdens on social workers, warn directors

The Care Act 2014 will lead to social workers spending more time interpreting the law on adults’ services, contrary to government assumptions that the legislation will save practitioners’ time.

That was the warning from the Association of Directors of Adult Social Services and Local Government Association in their response to the Department of Health’s consultation on the act’s draft regulations and guidance.

One of the core purposes of the Care Act is to simplify the law on adult social care by bringing it all under one statute, replacing the multiple pieces of overlapping legislation that currently exist. The act was based on a three-year Law Commission project to bring forward proposals on how the law on adult care should be modernised and simplified, which reported in 2011.

Based on Law Commission assumptions, the government’s impact assessment on the Care Act draft regulations and guidance stated that simplifying the law would reduce the administrative burdens on social workers as they would spend less time interpreting legal issues.

But in their response to the consultation, Adass and the LGA voiced disagreement with this, stating that practitioners were likely to spend more time interpreting the law, at least in the first few years, as the legislation bedded in.

In their response, Adass and the LGA said there were a number of areas in the guidance and regulations where “language is a concern due to its subjectivity”. Specifically, it pointed to the following:

• A lack of clarity on eligibility – the associations voiced concerns from councils that the proposed national eligibility criteria were “too widely drawn”, “not defined clearly enough”, and required practitioners to interpret concepts with “inherently subjective definitions”, such as whether a person was “unable to achieve” particular outcomes and whether this had had a “significant impact on [their] wellbeing”.
• A lack of clarity over the boundary between health and social care – for example in respect of the draft regulations on eligibility, “accessing medical services” was listed as a need that might meet eligibility. Adass and the LGA said this should be removed on account of it not being a local government responsibility.
• The description of the circumstances in which someone would require an independent advocate to support them in the assessment process was “somewhat confusingly written”.

The concerns follow a series of pieces written for Community Care by legal trainer Belinda Schwehr that make significant criticisms about the quality and clarity of the draft statutory guidance under the act. Problems highlighted by Schwehr include that the guidance:

• fails to illustrate how the new duty on relevant individuals and agencies to share information with safeguarding adults board could be used or explain what would happen if someone refused to share information;
• short-changes social workers by failing to provide advice on when and how to take legal action in safeguarding cases;
• fails to explain the legal basis of its pronouncements on direct payments.

In addition, Luke Clements, co-author of key text on social care law, Community Care and the Law (Legal Action Group), has warned that the statutory guidance in its current form would erode the distinction between a free NHS and a means-tested social care system.

The consultation on the draft regulations and guidance concludes today. The government will publish the final regulations and guidance in October, six months ahead of the implementation of the first part of the act in April 2015.

Besides the Law Commission-inspired modernisation of the law, the Care Act also includes a reform of the social care funding system, based on proposals from the 2010-11 Dilnot commission. These will mostly come into force in April 2016, and the DH is due to due publish draft regulations and guidance for their implementation at the end of this year.

• To help practitioners and managers prepare for the implementation of the Care Act 2014, Community Care is holding a conference on the new law on 17 September in London. Register now for a discounted place.