Adult Social Care 2017 LocalGovernmentLawyer 12 The Local Government Lawyer/LexisNexis Social Care Survey (see p4) uncovered a number of areas of concern for social care lawyers and their employers and with this in mind, we convened a roundtable of experienced social care lawyers and other experts to analyse how some of the themes raised are affecting practice on the ground. Topics included the implementation of the Care Act, the issues encountered by local authorities when working with healthcare providers and the Law Commission’s proposed new scheme to replace the Deprivation of Liberty Safeguards (DoLS). The Care Act One of the main aims of The Care Act 2014 was to consolidate and rationalise the plethora of statutes and case law governing social care and – according to the roundtable – in this regard it has largely succeeded. “It seems to have bedded down quite well.” said one participant. “On the whole, I think the Care Act has been, certainly from the assessment and eligibility side, a real success.” Moreover, for all the legal risks for local authorities identified by the survey, much of this has yet to translate into a substantial number of actual challenges, in part – the roundtable noted - due to legal aid cuts and the recent judicial review pre- action protocol. There are, however, some exceptions to this rule. The level of support owed under the general duty for those who do not meet the eligibility threshold is a murky area for some clients and some of the lawyers in attendance were experiencing some pushback from clients when it comes to meeting their obligations under the Care Act. As one participant said: “There are some clients who will say that this is something that we don’t have resources to offer, we don’t do it and you have to push and push and push to persuade them otherwise”. In some cases, another added, only the threat of greater costs further down the line from legal challenges would focus clients’ minds on meeting their obligations. One of the drawbacks of the Care Act in this regard is that some of its drafting in place is, as one participant described it, “baggy”. The Act was designed to be less prescriptive about how social and health care providers could meet people’s needs, but in an era of austerity, its lack of specificity is sometimes proving to be a disadvantage for lawyers trying to persuade clients of their legal responsibilities. Tim Spencer-Lane of the Law Commission, whose report formed the basis of the Care Act, conceded that the Act had struggled to provide sufficient certainty in some areas. “We wanted to get away from the idea of a straitjacket over social care and we wanted to give local authorities greater flexibility, but the flip side of that is a lack of certainty in a lot of areas. We didn’t necessarily think it was a bad thing in legal terms but this may be causing problems for social workers in practice.” Another area where the Care Act has been notably less successful is its lack of clarity over the thorny issue of ordinary residence. Described as a “terrible disaster for local authorities” by one participant, it has led to some very expensive litigation between councils over who is responsible for the cost of social care where individuals have lived or been cared for in different authority areas. At a roundtable held to discuss the results of the Local Government Lawyer/LexisNexis social care survey, senior lawyers considered how local authorities can best deal with the challenges identified. Derek Bedlow reports. Social care in practice