Model answers

In February 2010 the Law Commission published a consultation paper containing detailed proposals for the reform of adult social care law. On 14 September 2010, the government published its detailed response. Lee Parkhill and Dawn Braithwaite examine its approach.

In its White Paper Equity and Excellence: Liberating the NHS, the government cited its intention to bring together the Law Commission’s proposals on reforming adult social care law and proposals from the Commission on funding of long-term care, into a White Paper in 2011. The government’s response to the Law Commission’s proposals provides an indication as to how policy, and law, is likely to develop in this area when the 2011 White Paper is produced.

An interesting theme in the response was the government’s desire to change the language in this area; the term “community care services” was described as “outdated”. The response also stated that the term “social care needs” does not “reflect people’s experience nor encourage innovative responses” and suggested the term “needs for care and support” might be more appropriate term to adopt.

Although the government suggesting employing some new language, which the Law Commission had not proposed, the government and the Law Commission both agreed with the principle that the current legislative framework for social care is outdated and needs modernising. The government’s view is that expectations have changed and the social care system needs a legal framework that promotes personalised care, increases choice and control and can be used and understood by those that need to access support.

Set out below are the proposals on which the government agrees with the Law Commission, those in respect of which the government expressed reservations and those the government would like to consider in more detail before reaching a decision.

Proposals for changes to the overarching principles and processes which met with the government's approval

These included:

• Creating a set of defining statutory principles for adult social care law, to provide an overarching sense of the purpose and outcomes that social care should achieve
• Making assessments ‘need’ and ‘outcome’ focused rather than being focused on suitability for a particular service
• Using ‘co-produced’ self assessments as opposed to assessments being wholly created by professionals. However the government stated it does not currently see a role for pure self assessment
• Maintaining the current divide between health and social care, however the government stressed its desire to see greater integration between health and social care in service delivery, and this is evident in their response to some other key proposals, in particular in relation to the assessment process
• Retaining the current law which permits direct payments in social care
• Giving local authorities a power to request assistance from certain authorities, e.g. for assistance in assessing a service user or for assistance in providing services. The requested authority would be under a duty to give due consideration to the request. The government said it would like to give further consideration as to which bodies could be approached by the local authority, and whether the obligation on the other agency (‘to give due consideration to the request’) would change current practice.
• Establishing a legal duty to provide services for those ordinarily resident in a local authority’s area, and a power to provide services to those not ordinarily resident in the authority’s area. There would also be a duty to provide accommodation services needed urgently, regardless of ordinary residence
• Making clear that the responsibility for providing services to carers should rest with the local authority in which the cared for person lives
• Creating a power for local authorities to assess 16 and 17 year olds, to help improve transition between child and adult services, and
• Creating a statutory duty on local authorities to publish information on local services.

Proposed changes to specific services which met with the government's approval

These included:

• standardising the rules on determining which bodies are responsible for services under the Mental Health Act 1983, s. 117. The ‘ordinary residence’ test, which is relevant to most other services, does not currently apply under s. 117 but the government supports making ‘ordinary residence’ the applicable test
• Clarifying the roles of the NHS and local authorities under s. 117. The government is also, provisionally, in favour of splitting the duty so, for example, the NHS duty could be terminated while local authority s. 117 provision to an individual continues
• Extending the ‘Choice of Accommodation’ directions and the additional payment regulations to cover accommodation provided under s. 117 so individuals would get a legal framework to enable them to exercise choice over their accommodation provision, and would be able to pay a ‘top up’ for more expensive accommodation if they wish.

Proposals, or questions posed by the Law Commission, which the government expressed some hesitation about endorsing

These included:

• the proposal to enable portability of services by introducing (i) an enhanced duty to co-operate when service users move areas and (ii) creating a national portable needs assessment and national eligibility criteria. The government’s response acknowledged the problem here but added it is keen to consider the views of others before reaching a conclusion on the proposal
• the proposal to create a right to request an assessment. The government expressed concern that this could burden local authorities with vexatious requests, and also lead to a focus on the assessment process rather than delivery of services. The government is keen to consider responses from others on this issue
• the proposal to create a wider duty to assess carers (applicable not only to carers providing substantial care on a regular basis) and making the carer’s appearance of need the trigger for the assessment duty arising, as opposed to it being triggered by a request for assessment. The government was positive about this proposal’s focus on outcomes and the experience of the carer, as opposed to being focused on specific criteria. However the government said it would like to hear more about current practice, and would like to consider the resource implications for local authorities of the proposed changes.

Proposals where the government was undecided

These included:

• creating a mandatory national eligibility framework for carers services, which local authorities would have to use to decide whether or not to provide services to carers
• defining community care services by a short and broad list of services. The government expressed reservations about language, disliking the term ‘community care services’, and expressed a desire to avoid a list of services acting as a constraint to innovation in the type of services offered to meet needs. The government said it would prefer to see a list of activities which could achieve outcomes, but noted the difficulty of finding the right language to compose such a list
• placing a statutory duty on local authorities to produce a care plan for people who have assessed eligible needs. The government made a few suggestions about how this proposed duty could be altered including a suggestion that the duty should be in terms of ‘co-production’ with the individual. However the government recognized the legal complexity of establishing co-production given the need for a clear decision making processes, the need to determine legal entitlements and local authorities’ wider responsibilities to ensure consistency and fairness to all service users. The government also thinks this duty should reflect greater inter-agency working; the government said that other key agencies, such as the NHS, should play their full part in care planning to ensure that the resulting services are joined up from the outset. The response added it would be important to ensure that the duty does not lead to multiple care plans which would impede a multi-agency approach. The government is keen to discuss this proposal further with the Law Commission and is also keen to see the responses of others before reaching any firm conclusions.

Some of the proposals to abolish laws which met the government approval

These included proposals to:

• Abolish section 21, National Assistance Act 1948. This provision places a duty, and in some cases a power, to provide residential accommodation to people in need of care and attention. The Law Commission proposed that this be repealed, and that local authorities could use mainstream powers (under the proposed new legislation) to provide residential care. The important change would be, the Law Commission suggested, that eligibility would depend not on meeting the definition in s. 21 (being in need of care and attention not otherwise available) but on meeting the new general eligibility criteria. The government agreed in principle with this proposal but expressed concern to ensure that existing entitlement is not lost and suggested that further information be obtained, from ADASS, as to how s. 21 is currently used to ensure that current practice is not constrained and to ensure that any change does not overburden housing authorities.
• Abolish s. 47, National Assistance Act 1948. The government agreed in principle with the proposal to repeal this provision, which empowers local authorities to apply for a court order to authorise the removal people, who are living in insanitary conditions, who are in need of care and attention. The power is infrequently used and concern has been expressed that use of the provision be inconsistent with the Human Rights Act 1998.

Proposals on adult safeguarding and asylum seekers

The Law Commission’s proposals on adult safeguarding were, overall, received with less enthusiasm than other proposals. The proposal to retain a duty on local authorities to safeguard the property of people who are admitted to hospital or residential care was approved of, as too was the proposal to repeal of s. 47 of the National Assistance Act 1948 (see above). However three other significant proposals in the area of safeguarding were not endorsed at this stage, with the government indicating a desire to further consider policy on the issues. The three proposals were:

• a proposal the impose a duty on each social services authority to establish an adult safeguarding board, and to set out in law the functions and membership of the board, a legal requirement to share information and a duty to contribute to serious case reviews
• a proposal that an enhanced duty on relevant agencies to cooperate should include specific provision to promote co-operation in adult safeguarding investigations, and
• a proposal that ‘No Secrets’, or it successor, be linked clearly to a local authority’s statutory function to safeguard adults from abuse and neglect.

The government also signaled that further thought needed to be given on the issue which the Law Commission raised about services for asylum seekers. The government’s response states that it is considering the prohibition on people subject to immigration control accessing some adult social care services where they are solely destitute, or because of the physical or anticipated physical effects of destitution. This has been a high profile area, generating a great deal of litigation, so local authorities will be keen to hear the government’s further thoughts on this complex issue.

Conclusion

The law on adult social care law is extremely complex, with much of it being over 60 years old. The need for reform is clear, and the government is clearly committed to reform. The challenges involved in the task are considerable and they are unlikely to be eased by the sensitive policy issues associated with funding social care. Health and social care providers and commissioners will no doubt find the government’s response to be an interesting insight into current thinking, which we can expect the government to explain in more detail when the 2011 White Paper is published.

Lee Parkhill is a senior solicitor and Dawn Braithwaite is a partner at Mills & Reeve. Lee can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it. or on 0121 456 8420. Dawn can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it. or on 0121 456 8224.