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12 May 2011
On 11 May 2011 the Law Commission published Adult Social Care, which reviews adult social care law in England and Wales and contains recommendations for reform.
The Government has committed to consider the the conclusions of the report, with a view to introducing legislation in the second session of this Parliament.
The report recommnends a three level structure containing new:
The report recommends a unified adult social care statute for both England and Wales, through separate Acts passed by Parliament and the National Assembly.
The new statute should establish that the overarching purpose of adult social care is to promote or contribute to the well-being of the individual.
It would set out a single, clear duty to assess a person.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, though a person’s refusal of an assessment would discharge its duty to assess unless there were safeguarding concerns or concerns about the person’s capacity.
The statute would not provide a precise definition of well-being, but would set out a checklist of factors that must be considered before a decision is made in relation to an individual. A decision maker would be required to:
To help prevent a service-led approach to assessment, the new statute would specify that an assessment must focus on the person’s care and support needs and the outcomes they wish to achieve. In undertaking assessments, local authorities would be required to consult with the individual and their carer, unless it was impossible to do so.
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.
The eligibility criteria would be the sole means by which a person’s eligibility for community care services (including residential care) is determined.
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 regulations would require at minimum that assessors:
The code of practice would specify how local authorities should set their eligibility criteria, including the needs the authority must, at a minimum, provide services to meet. Governments would also be able to set eligibility criteria at a national level in England or in Wales, they wished to do so.
The new statute would place a duty on local authorities to ensure the production of a care and support plan for people with assessed eligible needs (including carers and self-funders). If a person falls below the eligibility criteria, then the authority would be required to put the reasons for that decision in writing and make a written record of the assessment available to the individual. The Secretary of State and Welsh Ministers would be required to prescribe the form and content of care and support plans in regulations.
There would be two levels at which adult social care could be provided. There would be a universal level where 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. Once a local authority has undertaken an assessment and decided that a person has needs that call for the provision of services, then the authority must make arrangements for those services to be provided. The range of care and support that can be provided to service users will be broadly the same as those available under the current community care system.
Under the scheme, local authorities would have a duty to provide services where the person is ordinarily resident in their area (subject to the application of the local authority eligibility criteria) and a power to provide services for people not ordinarily resident or of no settled residence.
To be eligible for adult services a person would normally have to be over 18 but provision might be made to assess 16 and 17 year olds under the scheme in certain circumstances.
The new scheme would give the Secretary of State and the Welsh Ministers powers to make regulations to require local authorities to allocate a personal budget to service users and carers and prescribe who is eligible for a personal budget.
The existing legal provisions regulating direct payments would be maintained in our scheme and extended to allow the purchase of long-term residential accommodation.
A regulation-making power would be introduced to enable the Secretary of State and Welsh Ministers to require or authorise local authorities to accommodate a person at the place of their choice within England and Wales and to allow for the making of additional payments.
Local authorities will also be given authorisation to charge for residential and non-residential services, or to establish a charging regime for services (as in Wales). The existing regulation-making power which enables services to be provided free of charge would be maintained, and as a minimum the existing services that must be provided free of charge would be included in the regulations.
The new statute would set out a single and standalone duty to undertake a carer’s assessment. This duty would not depend on the cared-for person simultaneously receiving a community care assessment, but would only
require that the cared-for person is someone for whom the local authority has a power to provide services. The duty to assess a carer will arise even if the cared-for person has refused an assessment or is not eligible for services.
Both Governments would be required to prescribe the eligibility framework for carers’ services in regulations. Local authorities would use that eligibility framework to set their eligibility criteria and would determine whether a carer’s needs are eligible by applying the criteria. 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.
A carer’s assessment, once triggered, would be required to focus on the carer’s ability to provide and to continue to provide care for the person cared for and also take into account whether the carer wishes to work or undertake education, training or any leisure activity.
A carer would no longer be required to make a formal request for an assessment in order to trigger the assessment duty. Instead, the duty to assess would be triggered where it appears to the local authority that the carer may have, or will have upon commencing the caring role, needs that could be met by the provision of carers’ services or services to the cared-for person.
The primary responsibility for providing carers’ services would remain with the local authority in which the cared-for person lives.
The scheme proposes to replace the existing duty on local authorities to maintain a register of all disabled people with a more discrete requirement to establish a register of blind and partially sighted people in their area. In other cases, local authorities would have a power to maintain registers, if they wished to do so.
The Law Commission’s Tenth Programme of Law Reform included a project to review adult social care law in England and Wales.
The overall aim of the project was 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 were clear about rights to services and which services are available. It also aimed 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.
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. It then set out the agenda for review.
Following the Scoping report the Law Commission published consultation paper No 192 - Adult Social Care. The consultation closed on 1 July 2010. The Law Commission received 231 written responses.
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