Making adult care law fit for the future

May 26, 2011

The Law Commission has published its final report on reforming adult social care law. Tim Spencer-Lane, one of the lawyers working on the project, outlines some of the key proposals.

The legal framework for the provision of adult social care services dates back to 1948, and consists of a complex and confusing patchwork of legislation. The Law Commission’s review of adult social care law was announced in 2008 and followed by the publication of a scoping report (Law Commission (2008) Adult Social Care: Scoping Report); consultation paper (Law Commission (2010) Adult Social Care: A Consultation Paper. Consultation Paper No 192); and consultation analysis (Law Commission (2011) Adult Social Care Consultation Analysis).

We have now published our final report which sets out our recommendations for the reform of adult social care (Adult Social Care (2011) Law Com No 326). The following article provides a summary of some of the main recommendations.

Structure of law reform

In our view, the consolidation and simplification of the existing legal framework would be best achieved by establishing a unified adult social care statute. This could be achieved by separate statutes in England and in Wales or a single statute covering both countries. This issue has been settled in practice by the introduction of Part 4 of the Government of Wales Act 2006 which has given the National Assembly for Wales the power to legislate for all of adult social care. We have therefore recommended there should be single statutes for adult social care for each of England and Wales, and that in Wales this should be implemented by means of an Act of the National Assembly. We also recommend that each statute should be accompanied by a single Code of Practice for adult social care. The Government’s power to issue directions in this area should be repealed.

Statutory principles

We recommend that the new statute should establish a single over-arching statutory principle that adult social care must 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 by decision makers. Thus, wherever practical and appropriate the decision maker would be required to:

assume that a person with capacity is the best judge of their own well-being;
follow the individual’s views, wishes and feelings;
ensure that decisions are based upon individual circumstances and not blanket assumptions on the basis of age, appearance or condition;
give individuals the opportunity to be involved in decisions;
achieve a balance with the well-being of others;
safeguard adults from abuse and neglect; and
use the least restrictive solution.

Assessments

In our scheme there would be two levels at which adult social care services could be provided. The first is a universal level, with the provision of universal services to the wider community to help prevent or delay the need for more targeted social care interventions. Here local authorities would have a broader role to ensure the provision of information, advice and assistance to people who have not had or do not want an assessment, or who are not eligible for services.

The second level would be targeted social care services, provided following a community care assessment. 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 for an assessment which is triggered where it appears to a local authority that a person may have needs that could be met by community care services. So long as this threshold is met, the duty will be triggered even if the person does not consent to an assessment. However, under our scheme a local authority could accept a person’s refusal of an assessment as discharging its duty to assess unless there were safeguarding concerns or concerns about the person’s capacity.

Eligibility for services

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 statute would require the Secretary of State and Welsh Ministers to 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. However, our 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.

Carers’ assessments and eligibility

The new statute would set out a single and standalone duty, which requires local authorities to undertake a carer’s assessment. This duty would not depend on the cared-for person simultaneously receiving a community care assessment, but would require only that the cared-for person is someone for whom the local authority has a power to provide services. In effect, the duty to assess a carer will arise even if the cared-for person has refused an assessment or is not eligible for services.

The new duty to assess a carer would remove the existing requirement for the carer to be providing a substantial amount of care on a regular basis. Furthermore, a carer would no longer be required to make a formal request for an assessment in order to trigger the assessment duty.

Once a local authority has undertaken a carer’s assessment, it would need to decide whether to provide services to the carer. Under our scheme, both Governments would be required to prescribe the eligibility framework for carers’ services in regulations. Local authorities would be required to meet the eligible needs of carers, either by providing services to the cared-for person or to the carer.

Adult protection

As well as setting out the legal framework for the provision of care and support, our scheme would set out the duties and powers of local authorities to safeguard adults from abuse and neglect. The new statute would provide clearly that local social service authorities have the lead co-ordinating responsibility for safeguarding. As part of that responsibility, the statute would place a duty on local authorities to investigate adult protection cases or cause an investigation to be made by other agencies.

The duty to investigate would apply to an adult at risk, who would be defined through four elements:

The person must appear to have health or social care needs, including carers (irrespective of whether or not those needs are being met by services).
The person must appear to be at risk of harm (not significant harm as set out in the existing statutory guidance).
The person must appear to be unable to safeguard themselves from harm as a direct result of their health or social care needs.
The local authority must believe it is necessary to make enquiries. This may be the case because, for example, other less restrictive courses of action (such as a community care assessment) will not remove or reduce the harm and abuse.

Harm would be defined in the statute as including but not limited to:

Ill treatment (including sexual abuse, exploitation and forms of ill treatment which are not physical);
the impairment of health (physical or mental) or development (physical, intellectual, emotional, social or behavioural);
self-harm and neglect;
unlawful conduct which adversely affects property, rights or interests (for example, financial abuse).

The new statute would give local authorities the lead role in establishing and maintaining adult safeguarding boards. The statute would specify the following functions for these boards:

to keep under review the procedures and practices of public bodies which relate to safeguarding adults;
to give information or advice, or make proposals, to any public body on the exercise of functions which relate to safeguarding adults;
to improve the skills and knowledge of professionals who have responsibilities relating to safeguarding adults; and
to produce a report every two years on the exercise of the board’s functions.

The local authority, NHS and police would each be required to nominate a member to the board with appropriate knowledge and skills. The Care Quality Commission, the Care and Social Services Inspectorate Wales and the Healthcare Inspectorate Wales would have a power to nominate a representative. The adult safeguarding board would also be responsible for commissioning serious case reviews.

The new statute will not set out new compulsory and emergency powers for local authorities in adult protection cases, such as powers of entry or exclusion orders, unless either Government decided that such powers were needed. Furthermore, the existing power to remove a person from their home to suitable premises under section 47 of the National Assistance Act 1948 would be repealed, on the basis that it is incompatible with the European Convention on Human Rights, has several operational difficulties and is in practice obsolete.

Conclusion

The final report marks the completion of the Law Commission’s project on adult social care law. The Government has announced that it will introduce legislation in 2012 to implement the recommendations it accepts in our final report. The recommendations contained in our final report would establish a neutral legal framework that is not wedded to any particular policy and is capable of accommodating different policies and practices in the future. Underpinning this framework are the core entitlements and rights that are crucial to the existing legal framework. The recommendations set out in our final report create a clear modern and effective legal framework for both now and in the future.

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