Mental Health - April 2010

Reforming adult social care law

The Law Commission’s consultation on adult social care will run until 1 July. It comes amid growing calls for significant change.

The aim of any reform will be to streamline the currently complicated and fragmented legislation and guidance, making it easier to understand and apply. In its new consultation document, the Law Commission says this will in turn lead to efficiency savings, because less time and effort will have to be expended in training staff, seeking legal advice and dealing with disputes.

The document does not, however, contain a draft bill. Instead, the Commission sets out the existing legal framework for adult social care, explores a variety of alternatives (some of which are quite radical) and makes wide-reaching proposals for reform.

Some key aspects of the proposed reforms are:

Overarching principles to be enshrined in statute. Eight possibilities are suggested, reflecting current thinking about such matters as choice and control, person-centred planning, perceptions of need and promoting independence.
A single duty to assess community care needs. The Commission suggests that, rather than being service-led, any assessment should be focussed on social care needs and the outcomes a service-user wishes to achieve. It seeks views first, on whether entitlement should be defined by reference to user groups; and second, on what should be recognised as a community care service. The Commission also recommends that the assessment process be specified in regulations. It says pure self-assessment is currently unlawful, and it proposes that service-users and local authorities ‘co-produce’ assessments.
A statutory duty to all carers. This would extend beyond those who provide substantial and regular care, even to those engaged via direct payments (as the Commission believes their relationship with service-users is often not a purely professional one). The consultation invites views on aligning the community care assessment and the carer’s assessment.
The ‘ordinary residence’ rules should be simplified and made clearer.
The eligibility framework that is currently set out in the Fair Access to Care guidance might be set out in regulations. Indeed, there might be national eligibility criteria and a nationally-set eligibility threshold.
There might also be a statutory duty to produce a care plan, as well as regulations setting out what it should contain (furthermore, regulations might require local authorities to allocate a personal budget in meeting eligible needs).
Service-user choice of residential accommodation. The current responsibility, which is contained in mere directions, might be made statutory (and direct payments might be extended to include accommodation).
There should be a clearer distinction between child services and adult services, but with greater flexibility for 16 and 17 year olds moving from one to the other.
The existing distinction between health and social care should be maintained.
There might be a clear, statutory safeguarding duty to make enquiries where an adult is at risk.

The Commission presents its proposals as quite distinct from policy. It is apparent, however, that the consultation document supports key aspects of the current government’s policies, including personalisation and an increased emphasis on early intervention. Detailed thought will have to be given to the likely effect of the various reforms - for example, the application of any new legislation to people subject to immigration control (a subject that has already given rise to a significant body of case law).

The Law Commission will review its proposals in the light of the responses it receives, and it expects to make its final recommendations in 2011. More details about the consultation exercise may be found here.

Sallie Harrington, Associate
Weightmans LLP