The Law Commission’s Tenth Programme of Law Reform includes a project to review adult social care law in England and Wales.
The overall aim of the project is to provide a clearer and more cohesive framework for adult social care. This would help to ensure that service users, carers, social care staff, health professionals and lawyers are clear about rights to services and which services are available. It will also aim to modernise the law to ensure that it is no longer based on out-dated principles.
The first stage of the project was to undertake a Scoping Report of adult social care law and to publish a report setting out the proposed agenda for the substantive project. This was published on 26 November 2008.
Findings and recommendations of the scoping report
The Scoping Report found that the law with regard to adult residential care, community care and support for carers is inadequate, often incomprehensible and dated.
Instead of a single, modern statute the law is composed of a number of different statutes (there are currently four different statutes covering carers' assessments) and also a great deal of "soft law" in the form of guidance and departmental circulars.
This leads to inefficiency in the system, which wastes both time and money. Difficult law may also stifle innovation.
The current law is also outdated because it reflects attitudes to disability at the time it was made. For example the National Assistance Act 1948, which is used in relation to adult residential care, uses outdated concepts such as “dumb and crippled persons”, “handicapped” and “suffer[ing] from congenital deformity”.
The report recommended that the review project should consider whether:
statutory principles, to direct and assist local authorities, the courts, services users, carers and others in carrying out their functions or understanding their entitlements, are desirable and how they should be applied.
the various legal duties to assess should be consolidated into a single duty.
the various duties regarding carers’ assessments should be consolidated into a central duty.
the notification and assessment procedures for hospital discharge cases, under the Community Care (Delayed Discharges etc.) Act 2003, could be refined or simplified.
the eligibility criteria for adult social care, under Fair Access to Care Services guidance in England and the Unified and Fair System for Assessment and Managing Care guidance in Wales, could be clarified or refined.
the legal regime for provision of services could be consolidated and simplified, including the interface between adult and children’s care services.
definitions of client groups or disability to delineate eligibility are necessary for the purposes of adult social care law.
the definition of ordinary residence, which serves to identify which local authority is primarily responsible for a person in need of services, needs to be clarified or simplified.
the legal framework for direct payments and individual budgets can be refined or simplified, taking into account any changes that are made by the consultation underway in this area.
the charging regime could be simplified, such as by rolling the different provisions on charging for services into a single legal provision.
there needs to be improvements to the interface between health and social services, and how this might be expressed in any future consolidated adult social care statute, including considerations of whether there should be a statutory duty to co-operate placed on local authorities and health authorities, as well as other bodies.
there needs to be improvements to the legal framework for safeguarding
adults, to the extent that it can helpfully add to the Government reviews currently underway, including consideration of powers to remove people from their homes under section 47 of the National Assistance Act 1948 and powers to enter premises.
the planning obligations on local authorities to ensure that social service departments meet the needs of the local population could be streamlined and reformed, such as by consolidating the various strategic plans and planning mechanisms into a single provision.
the requirement to compile and maintain a register of disabled people and a duty to provide information about available services should continue.
with regard to the mechanisms available for complaining about, or seeking redress for, failures in decision-making and service provision by local authorities, there is a case for establishing a community care tribunal.
The consultation
The Law Commission has now published a consultation paper. On completion of the consultation period this will be followed by a report containing final recommendations for reform.
Following these recommendations the Law Commission and Department of Health would then have the opportunity to decide whether to proceed to the final stage in the
project, which would be the drafting of a new adult social care bill.
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