Government to "greatly reduce" social care law, bemoans money wasted on legal proceedings

The government has signalled its intention to “simplify and greatly reduce” the number of pieces of legislation and guidance that govern adult social care, arguing that its complexity and opaqueness leads to money being wasted on legal proceedings that could be avoided.

In its submission to the Law Commission’s consultation on potential reforms, the Department of Health agreed that the legislative framework for social care was outdated and needed modernising.

It said: “The current piecemeal state of the law leads to confusion and inefficiencies for users, carers and professionals. Trying to understand and use complex and outdated law takes longer and leads to uncertain outcomes.”

The Department added that with more than 30 pieces of legislation relating to adult social care “and many more pieces of guidance”, the law is “cumbersome, opaque, complex and susceptible to different, often unhelpful, interpretation”.

The DH described reform of the law underpinning adult social care as a key component – together with the Commission on the Funding of Care and Support – towards a new and sustainable settlement for the system.

The submission called for a legal framework that promotes personalised care, increases choice and control and can be used and understood by those that need access to support.

This would represent a move away from an existing regime that is “largely based on a time when policy makers and others viewed users of social care as unfortunate, passive recipients of ‘care’”.

The Department of Health insisted that any legislation to take forward reform would have to fit not just with the Commission’s recommendations but also the government’s localism agenda and its commitment to delivering greater local flexibilities.

It said one of the key strands of the government’s work was to remove barriers, which “also means supporting local authorities to deliver vital front line services in a way that suits their local needs by seeking to impose fewer duties on them”.

“The intention is to improve transparency and accountability in the system leading to a better experience for those using services,” the submission continued. “However, if the government concludes at any stage that a suggested duty for local authorities is appropriate, for example where it represents existing practice, this would not preclude the government from reviewing or removing such duties in future, in line with the government’s commitments.”

The DH insisted it would only use regulation where it was proportionate and where alternative approaches would not achieve satisfactory outcomes. It intends to work with the Law Commission to simplify the process and make information transparent and useful to those seeking to use services, their families, as well as professionals and small businesses.

The Department suggested that, in reforming social care, it would adhere to the government’s “One in, One out” approach to regulation. From 1 September, this requires ministers seeking to introduce new regulations which impose costs on business or the third sector also to identify current regulations with an equivalent value that can be removed.

The submission added: “This will make it easier for local authorities and their staff, and those in business and the third sector to understand their duties and responsibilities under the law. The new legal framework will need to ensure that a range of independent and voluntary sector providers can continue to provide innovative services in the field of care and support.”

The DH said the review represented “an unparalleled opportunity to bring coherence and transparency into the social care system and the law that governs it".

The government backed many of the Law Commission's specific proposals. It also said:

• It would be preferable to have separate statutes for England and Wales
• There is still a role for directions in the social care system under the general power in section 7A of the Local Authority Social Services Act 1970. Such directions have the force of law but are not subject to any Parliamentary procedure. Retaining the power would allow the Secretary of State to deal with issues arising in individual authorities and to enable binding instructions to be issued more generally on issues relating to the exercise of social services functions not covered by a regulation-making power
• A code of practice bringing together statutory guidance could be "unduly cumbersome"
• It supported the concept of defining statutory principles for a modern adult social care law, although the challenge will be to express them in a way that "provides coherence, legal certainty and purpose without being prescriptive". The purpose of the principles would be to assist decision-makers in exercising their functions, rather than to establish enforceable legal duties
• The Law Commission's proposal that the local authority in which the cared-for person lives should be given responsibility for providing carers' services is "a sensible approach". The government said the number of carers living at a distance but still providing essential support possibly could be on the increase. A duty to co-operate between local authorities might therefore be a "helpful addition" to the law where it is not practicable for the cared-for person's local authority to provide support to the carer
• It is important to preserve the existing law relating to the divide between health and social care service provision. However, the government has a wider aim to encourage further integration between health and social care "so any legal framework should not undermine this intention"
• A proposal that there should be a duty on local authorities to produce a care plan for people who have assessed eligible needs might focus too strongly on process rather than outcomes. "If we were to adopt this approach, it will be important to consider how any duty for a local authority to produce a care plan inter-relates with other agencies also providing services to the individual so that this legal duty does not lead to multiple care plans that impede a multi-agency approach"
• The government's proposed general power of competence for local authorities would impact on some of the proposals around specific duties on local authorities and/or changes to existing local authority powers and render them unnecessary. "This is something that needs to be kept under review"

The Law Commission is expected to publish its final report in April 2011.