Finding a new way forward

The Law Commission has put reform of community care law high on its agenda. Tim Spencer-Lane outlines what is involved.

The legal framework for adult social care is widely recognised as inadequate, incomprehensible and outdated.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 a period of 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.

In 2008, the Law Commission announced a review of adult social care law as part of its Tenth Law Reform Programme. This presents a timely and important opportunity to undertake a thorough review of the law under which residential care, community care, adult protection and support for carers is provided. The ultimate aim is to provide a coherent legal structure, preferably in the form of a single statute, for these services.

What is the Law Commission?

The Law Commission is a statutory body created in 1965 for the purpose of reforming the law to ensure that it is as simple, accessible, fair, modern and cost-effective as possible.

The Commission has a hugely successful track record in the field of law reform. Over two thirds of our law reform reports have been implemented in whole or in part. A notable recent example is the Law Commission’s report on Mental Incapacity, which was implemented in the Mental Capacity Act 2005.

Why adult social care?

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 the provision of services.

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 1948. That definition refers to people as being “dumb”, “crippled”, “handicapped” and congenitally deformed, which 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 Acts – rather than consolidating the Acts and repealing the earlier version – often means there are multiple statutes which over-lap and sometimes contradict one another.

Carer’s assessments epitomise this problem. There are four different statutes that regulate the circumstances in which a carer’s assessment must be undertaken and the type of assessment 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 from each other.

While negotiating this amount 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.

Trying to navigate a way through 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.

How long will it take?

This is a major project and has been split into three phases. The first phase was the publication of a scoping report in November 2008, which sets out our detailed agenda for reform.

The second stage is the substantive project, which will involve formal consultation with acknowledged experts and interested parties. A consultation paper will be published at the end of February 2010, followed by a formal public consultation lasting four months.

The final stage will involve the production of a Bill, either by the Law Commission or the Government.

Setting the reform agenda

We believe that the adult social care project gives us a chance to step back from short-term political concerns. To some 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 will include the introduction of statutory principles, the simplification of the community care assessment process and how the law regulates the provision of services. We will also be reviewing the ordinary residency rules and the legal framework for safeguarding adults from neglect and abuse. The review will also consider whether a community care tribunal is needed to provide a merits-based review of service decisions.

The Law Commission believes that this project could achieve real 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 give a much-needed boost to the profile of adult social care.

Tim Spencer-Lane is a lawyer in the Public Law Team at the Law Commission.

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