Law Commission promises "clear and concise" rules for councils in adult care shake-up

Councils will be handed clear and concise rules governing when they must provide services in the biggest shake-up of adult care law for more than 60 years, the Law Commission has vowed.

Publishing its final report on adult care law reform today, the Commission claimed that a “single, clear, modern” statute and code of practice would pave the way for a coherent social care system. The government's law reform body pointed out that the current legal framework dated back to 1948 and consisted of a “complex and confusing patchwork of legislation”.

If implemented in full, the proposals would see more than 40 statutes repealed or amended and 1,000s of pages of guidance “consigned to history”.

The Law Commission’s recommendations also include:

Statutory principles

• Statutory principles would establish the overarching purpose of adult social care as to promote or contribute to the well-being of the individual. “In effect, individual well-being must be the basis for all decisions made and actions carried out under the statute”
• The statute would not provide a precise definition of well-being, but would set out a checklist of factors that must be considered before a decision is made in relation to an individual

New legal rights to services for carers

• There would be a single and standalone duty to undertake a carer’s assessment. It would not depend on the cared-for person simultaneously receiving a community care assessment, but would only require that the cared-for person is someone for whom the local authority has a power to provide services
• The “overly complex” existing requirement for the carer to be providing ‘a substantial amount of care on a regular basis’ would be removed. In addition, a carer would no longer be required to make a formal request for an assessment in order to trigger the assessment. Instead the duty to assess would be triggered where it appears to the local authority that the carer may have, or will have upon commencing the caring role, needs that could be met by the provision of carers’ services or services to the cared-for person
• A carer’s assessment, once triggered, would be required to focus on the carer’s ability to provide and to continue to provide care for the person cared for and also take into account whether the carer wishes to work or undertake education, training or any leisure activity
• Once a local authority has undertaken a carer’s assessment, it would need to decide whether to provide services to the care. The eligibility framework for carers’ services would be prescribed in regulations, and local authorities would use that framework to set their eligibility criteria. Local authorities would be required to meet the eligible needs of carers

Duties on councils and the NHS to work together

• Each social services authority would be under a duty to make arrangements to promote co-operation with specified bodies, including other authorities, the NHS and police
• There will also be an enhanced duty to co-operate in particular circumstances, such as when a community care or carer’s assessment is taking place, when services are being provided, or during adult protection investigations. The requested agency would be required to give due consideration to the request, and provide written reasons if it refuses to co-operate

A single, streamlined assessment and eligibility framework

• The new statute would set out a single, clear duty to assess a person. As under the existing law, there would be a low qualifying threshold. If this threshold is met, the duty will be triggered even if the person does not consent to an assessment. However, under the scheme a local authority would be able to accept refusal of an assessment as discharging its duty to assess unless there were safeguarding concerns or concerns about the person’s capacity
• To help prevent a service-led approach to assessment, the new statute would specify that an assessment must focus on the person’s care and support needs and the outcomes they wish to achieve. In undertaking assessments, local authorities would be required to consult with the individual and their carer, unless it was impossible to do so
• The Secretary of State and Welsh Ministers would be required to make regulations prescribing how an assessment should be carried out
• To encourage joined-up assessments, the new statute would make it clear that a local authority can carry out a community care assessment at the same time as any other assessment is carried out. A local authority would also be able to authorise others, such as a health professional, to undertake the assessment or parts of the assessment on its behalf, subject to the authority retaining overall control of the process. This means health and social care assessments could be carried out by the same person
• An assessment of need and the application of eligibility criteria will be the sole means by which a person’s eligibility for community care services (including residential care) is determined. Following an assessment, local authorities would be required to determine whether a person’s social care needs are eligible needs, using eligibility criteria, and to provide or arrange community care services to meet all eligible needs. The duty to meet eligible needs would be an individual duty, enforceable through judicial review
• The Health Secretary and Welsh Ministers would make regulations prescribing the eligibility framework for the provision of community care services, which local authorities would have to use to set their eligibility criteria. The code of practice would specify how local authorities should set their eligibility criteria, including the needs the authority must, at a minimum, provide services to meet. However, the Law Commission scheme would also allow the Governments to set eligibility criteria at a national level in England or in Wales, if either government wished to do so
• To ensure existing rights to services are maintained, the duty to provide residential accommodation under section 21 of the National Assistance Act 1948 would be retained in the new statute as a long-stop legal duty. This would provide a right to residential accommodation to those who fall below the local authority eligibility criteria but still have a need for care and attention which is not otherwise available to them

Protection for service users from abuse and neglect

• A new legal framework will be established setting out the duties and powers of local authorities to safeguard adults from abuse and neglect
• It would be made clear that local social services authorities have the lead co-ordinating responsibility for safeguarding and would be under a duty to investigate adult protection cases or cause an investigation to be made by other agencies, in individual cases
• To help facilitate multi-agency working, local authorities would have a power to request co-operation and assistance from certain bodies – such as health bodies and the police – during adult protection matters. The requested body would have to give due consideration to the request
• The duty to investigate will apply to an ‘adult at risk’ which would be defined. This definition includes that the adult appears to be at risk of harm, rather than significant harm as set out in the existing statutory guidance

Adult safeguarding boards

• Adult safeguarding boards would be put on a statutory footing for the first time. Local authorities would be given the lead role in establishing and maintaining them.
• The statute would set out the boards’ functions, namely to: keep under review the procedures and practices of public bodies which relate to safeguarding adults; give information or advice, or make proposals, to any public body on the exercise of functions which relate to safeguarding adults; improve the skills and knowledge of professionals who have responsibilities relating to safeguarding adults; and produce a report every two years on the exercise of the board’s functions.

The Final Report can be downloaded here.

The Law Commission said: “For the first time, older people, disabled people, those with mental health problems and carers will be clear about their legal rights to care and support services. Local councils across England and Wales will have clear and concise rules to govern when they must provide services.”

Frances Patterson QC, the Public Law Commissioner who led the review, added: “Today signals a significant step in moving us closer to a clearer and more coherent framework for adult social care. Our recommendations will bring much needed clarity and accessibility to this important area of the law, and have a major, beneficial impact on the lives of many of our most vulnerable citizens.

“Our recommendations will protect the strong rights that exist in adult social care law while, at the same time, ensuring that emerging policy objectives, such as personalisation and self-directed support, are recognised fully in statute law.”

The government has said it will introduce legislation in 2012 to implement the recommendations it accepts from the final report.

Care Services Minister Paul Burstow said: “The current law on adult social care lacks coherence, is hard to understand, and looks back to the Poor Law for its principles. We now have the opportunity to update the law for the 21st century, placing principles of personal control and independence at the heart of social care law.

“The Law Commission’s work provides us with a strong foundation upon which to build, as we develop legislative reforms. We will take this work together with the recommendations of the independent Commission on the Funding of Care and Support in the summer to set out a comprehensive reform in our Care and Support White Paper.”

Cllr David Rogers, chairman of the Local Government Association’s Community Wellbeing Board, said the Law Commission report signalled a much-needed move toward simplifying the confusing mix of laws which currently govern adult social care.

“It is clear that the current patchwork of legislation and guidance must be replaced with a clear legal basis for the gathering and sharing of people’s information between service providers to ensure more efficient assessment of need and service delivery,” he said. “We have consistently argued for the adoption of an approach to adult wellbeing which puts more faith in individuals to decide what support they need. This report takes us closer to that objective.”

Cllr Rogers said he hoped that the work of the Dilnot Commission on the funding of care and support for adults would lead to even further progress.

“’The ultimate aim is for local authorities, the NHS and other service providers to link up more effectively to ensure people receive the support they need at the optimum cost,” he said.

However, Cllr Rogers warned that it was vitally important in the context of cuts to council budgets and increasing demand for services that reform of adult social care did not lead to increased administration costs. "The Law Commission indicated from the outset that their proposals will be resource-neutral. We will be working as this report is translated into legislation to ensure that is the case.”

Philip Hoult