It's time to reform community care law

The Law Commission published its consultation paper on adult social care today. Tim Spencer-Lane, a lawyer in its public law team, explains the thinking behind the proposed overhaul.

In 2008 the Law Commission published its Tenth Programme of Law Reform which included a project to review adult social care in England and Wales. As set out in our scoping report, the legislative framework for adult social care is inadequate, often incomprehensible and outdated. On 24 February 2010, we published our consultation paper, with a consultation period lasting until 1 July. This article provides a brief outline of some of the key proposals contained in the consultation paper.

Statutory principles

Our proposed statute will begin with a statement of fundamental principles. Decision-makers, such as courts, social workers and directors of social services departments, will be required to consider these principles when making a decision or taking an action under the statute. We have put forward for discussion a number of general concepts that might form the basis of statutory principles. These are:

• Person-centred planning
• The need to consider 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

In our view, any statutory principle must be clear, precise and capable of operating as a proposition of law. As part of the consultation process we invite views on these principles and on whether there are any other principles that could be included in our statute.

Community care assessments

The community care assessment process is the gateway to the provision of services. The current legal duty to undertake an assessment is spread out 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 that there should be a single and explicit duty placed on a local authority to undertake a community care assessment. The focus of that assessment will be the outcomes that a person wishes to achieve and their needs.

We welcome views on whether our statute should make it clear that a co-produced self-assessment is a lawful form of assessment, and whether the statute should allow for pure self-assessments for certain people.

We propose that certain aspects of the assessment process should be set out clearly in law. This might include who should be consulted during the assessment, requirements for recording the results of the assessment and the areas that an assessment must cover.

Eligibility for services

Once a local authority has completed an assessment, it must decide whether or not to provide services. Under the current law, eligibility for services is determined by reference to statutory guidance (Fair Access to Care Services (DH 2002) and Health and Social Care for Adults (WAG 2002) and often-overlapping statute law, such as the National Assistance Act 1948 and the Chronically Sick and Disabled Person’s Act 1970. In our view this structure is complex and at times impenetrable.

We propose that an assessment of social care needs and the application of eligibility criteria should be the sole means by which a person’s eligibility for community care services is determined. In effect, there will be a single eligibility framework for all community care services. Local authorities 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 community care services (or a direct payment in lieu of services) to meet all eligible needs. The duty to meet eligible needs will be strong and individually enforceable. Our statute will 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 introducing personal budgets, it is important, in our view, that the law and personal budgets are more closely aligned. Our statute will enable the Secretary of State and Welsh Ministers to make regulations prescribing whether local authorities have a duty to allocate a personal budget, or whether it is optional.

Residential accommodation

Section 21 of the National Assistance Act 1948 places a strong duty on local authorities to provide residential accommodation. The effect of our proposals, as described above, would be to repeal almost all of the existing community care statutes, including section 21.

The aim of our review is not to remove any existing entitlements to services. In relation to section 21, we do not believe that repeal of this duty would weaken the existing entitlement to residential accommodation. However, if any groups did lose their entitlement to services, we believe that section 21 should be retained for those groups. We welcome further evidence on this point.

Community care services

We propose that community care services should be defined broadly by the following list of services, which would appear in the statute itself:

• residential accommodation
• assistance and facilities in the home
• social work service and support and advice
• centres or other facilities in the community, and
• social, leisure, communication, education and training activities.

The choice of accommodation directions would be placed in statute law and the existing direct payments provisions would be retained. We welcome views on whether to extend direct payments to cover residential accommodation.

Carers’ assessments

We propose that there 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 will be triggered where a carer appears to have, or does have, needs that could be met by the provision of carers’ services or by the provision of services to the cared-for person.

We propose that local authorities should be required to use a mandatory national eligibility framework in exercising their power to provide carer’s services. This will remove the current ambiguity about how decisions are made regarding the provision of services to carers, and will mean that a carer’s eligibility for support is assessed against the same framework throughout England and throughout Wales. It will mean that authorities will be required to specify which bands they will provide services to meet.

Statutory care plans

Our proposed statute will introduce a statutory duty on local authorities to produce a care plan for any person (including a carer) who has been assessed as having eligible needs. The duty will be reinforced by a duty placed on the Secretary of State and Welsh Ministers to make regulations concerning the form and content that the care plan must take.

Duties to co-operate

Under our proposed statute, there will be a general duty on each social services authority to make arrangements to promote co-operation between the authority and other relevant organisations. The legislation will provide a list of “relevant organisations”, such as local housing authorities, education authorities, health authorities and specified others.

There will be a specific duty of co-operation, where a local authority can request certain other authorities to assist in a number of circumstances, including when an assessment of a person is taking place and in providing services to the person. The other authorities could include another local authority, education authority, local housing authority and NHS body. In such cases, the requested authority will be under a duty to give due consideration to the request.

Safeguarding adults

Unlike in Scotland, there are no specific statutory provisions for adult protection; the legal framework is provided through a combination of the common law, local authority guidance and general statute law.

We propose that our statute should clarify the existing legal position and establish a duty to make enquiries and take appropriate action in adult protection cases. This duty would operate in conjunction with the community care assessment duty by enabling explicitly a formal process to be initiated in adult protection cases.

The introduction of a duty to investigate will 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 will 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 enquires will be triggered in cases where there is an “adult at risk”. This is defined as an adult who has social care needs (whether or not they fall within the local authority eligibility criteria) and is at risk of significant harm. 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). We welcome views on this definition.

Our statute will place adult safeguarding boards on a statutory footing. The compulsory removal power under section 47 of the National Assistance Act 1948 will be repealed.

Conclusion

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. We emphasise that the proposals in our consultation paper represent our initial view about how the law should be reformed. We will review our proposals on the basis of the responses received during the consultation period.  We are keen to ensure a wide ranging debate on these proposals and welcome the active involvement and responses from service users, carers and professionals.

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

REFERENCES

DH (2002) LAC(2002)13: Fair Access to Care Services: Guidance on Eligibility Criteria for Adult Social Care.

Law Commission (2008a)Tenth Programme of Law Reform, Law Com No 311.

Law Commission (2008b) Adult Social Care: Scoping Report. Available here.

Law Commission (2010) Adult Social Care: A Consultation Paper. Consultation Paper No 192. Available here.

WAG (2002) NAFWC 09A/2002, Health and Social Care for Adults: Creating a Unified and Fair System for Assessing and Managing Care.