Local Government - February 2009

Adult social care law is in urgent need of reform

That, at least, is the conclusion of the Law Commission (LC), which is currently in the middle of a systematic review.

Around 2.5m people currently receive adult social care, which comprises such things as residential accommodation, day centres, meals and home care. For the last 60 years, it has been covered by a patchwork of laws, but now, according to the LC, it is “inadequate, often incomprehensible and outdated”. (Law Commission, 2008, Adult Social Care: Scoping Report, Summary, paragraph 1.3)

Complexity
One problem is complexity. “Given that the law has developed piecemeal since 1948,” the LC says, “it does not provide a clear and principled approach”. It consists of more than thirty statutes and a plethora of other regulations and guidance, some of which overlap or even duplicate each other. There are, for example, at least three statutes requiring local authorities to carry out community care assessments. The LC notes the words of Lord Justice Dyson, who in a case in 2001 expressed his “dismay at the complexity and labyrinthine nature of the relevant legislation and guidance, as well as (in some respects) its obscurity.”

For the LC, this complexity leads to inefficiency, because “too much time and money are spent on understanding the law and on litigation.” It might also stifle innovation and create arbitrary differences between service users.

Outdated concepts
Because many of the Acts that make up adult social care law were passed many years ago, they are based on concepts of disability that can seem inappropriate today. The LC suggests that there is, for example, a presumption in favour of institutional care for disabled and older people, which means that the community powers are much less certain. Language is also a problem. The key adult care provision is still the National Assistance Act 1948, but it speaks of “welfare arrangements for blind, deaf, dumb and crippled persons”. And then there is the question of whether medical language should ever be used to determine eligibility for social services. The LC wonders whether we should ask not “what is wrong with this person?” but “what is wrong for this person?”

Reform
The LC says that the legal framework for adult social care should be simplified and made more consistent, more transparent and more modern:

The various powers and duties concerning adult social care should be put into a single statute.
There could be overarching principles to help local authorities, the courts, service users and carers carry out their functions or understand their entitlements.
There could be a single, simple duty to assess patients’ and their carers’ needs in the community.
Guidance on access to NHS continuing care might be clarified or refined.
The rules that establish which local authority will be responsible for providing services could be reviewed, to address issues such as what ‘ordinary residence’ means and whether people face additional difficulties when moving from one area to another.
Where an individual must demonstrate that he falls within a particular category if he is to receive adult social care services, it might be possible to use the same classes throughout the legislation. And something could perhaps be done to update offensive and outdated terminology.
It might be possible to refine or simplify the rules concerning direct payments, which allow local authorities to give cash direct to service users, so that they can themselves purchase the services that will meet their needs.
It be possible – always providing it is desirable – to have a single, simplified provision obliging local authorities to recover payments for residential accommodation and giving them a discretion to do so for domiciliary and community care.
It might be possible to re-draw, or at least to clarify, the boundary between health services and care services. And consideration might be given as to whether health authorities and local authorities should be obliged to co-operate with each other.
Finally, the LC wants to consider whether the current adult protection framework should be put on a statutory footing; whether, and if so how, the definition of ‘vulnerable adult’ might be changed; whether local authorities should be obliged to investigate suspicions of abuse or neglect; and whether social workers and other professionals need wider powers to enter domestic premises where there are suspicions of abuse. In addition, the Commission proposes to review the power, contained in section 47 of the National Assistance Act 1948, to remove a person from his or her home to a place where he or she can be given the care and attention she needs and is lacking.

Few will disagree with its conclusions, but some might wonder whether the LC is best placed to do all the work it now wants to do. The adult protection framework and the direct payments system are already the subject of government reviews and a turf war would be terribly distracting. There will be little appetite for revisiting the continuing care system so soon after the government published what it hoped was comprehensive guidance. And the suggestion that health responsibilities and social care responsibilities might be divided up in a different way is likely to cause concern, not least within the NHS, which is widely thought – not least by the courts - to benefit greatly from the current arrangements.

David Hewitt
Weightmans LLP