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

Government claim that legislation will save social workers time by simplifying law is rejected by council chiefs

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.

Will the Care Act simplify or complicate the law?

Consultation has confirmed our view that the existing legal framework for adult social care urgently needs to be consolidated and simplified. The confusing and often incoherent patchwork of legislation makes interpretation and application of the law complex and time consuming. In our view, consolidation and simplification would be best achieved by establishing a unified adult social care statute.”

The Law Commission report on Adult Social Care, 2011

We assume that simplifying the law will reduce the administrative burden on social workers, as they will spend less time interpreting legal issues…Acknowledging that it is comparatively crude, the Law Commission assumed that social workers will save between 20 and 45 minutes a week on average.”

Department of Health impact assessment on Care Act draft regulations and guidance, May 2014

We do not agree with the assumption that ‘simplifying the law will reduce the administrative burden on social workers as they will spend less time interpreting legal issues’. It feels more likely – at least in the early years – that social workers will spend more time interpreting legal issues as the system beds down.”

Association of Directors of Adult Social Services and Local Government Association response to consultation on draft regulations and guidance, August 2014

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:

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.

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

  1. Alan August 14, 2014 at 11:59 am #

    DWP seem to ignore mental capacity act when appointing “appointees” been trying to get one removed for over a year but DWP insists only the appointee can remove the appointee. This particular appointee give grave concerns under safeguarding but the doesn’t seem to matter. MP now on the case. I know appointeeships can work well but why are they not required to be time limited with a reassessment requirement for thing can go wrong. When they do unable to remove the appointee brings up more safeguarding issues that don’t seem to apply to DWP