It would probably be fair to describe the current crisis in social care as cataclysmic. Local authorities throughout the country are proposing unprecedented cuts to services, along with tightening of eligibility criteria and increasing charges. On top of this two separate commissions are due to report back this year with proposals for wholesale change to the social care system. These are the ‘Dilnot’ Commission, set up to recommend new ways of paying for adult social care system, and the Law Commission review of Adult Social Care Law.
At first sight the Law Commission would seem to be the least radical of these forces for change. Its brief is to consolidate existing legislation rather than to change it, and the consultation proposals published last year were mainly about retaining the existing rights of people who need care and support. The proposals do however involve significant changes in order to ensure that the legislative framework supports personalisation. They also include a substantial section on the role of local authorities in safeguarding adults who are at risk of abuse – something which has hitherto been left mainly to guidance.
The Dilnot Commission, in contrast, has been told to explore all options and to come up with radical proposals. The commission will however be constrained in how radical it can be by the need to comply with the present legal framework. The Government could, of course, sweep the entire body of current legislation away, but at the moment the Department of Health appears to be broadly supportive of the Law Commission’s proposals.
So is the relationship between the two commissions one in which the radicalism of the Dilnot Commission will be limited by the Law Commission’s dogged defence of something like the status quo? Well, I don’t think so, for two reasons.
Firstly the problem facing the Dilnot commission is not that there is a shortage of possible options for funding social care. Whatever the commission comes up is likely to involve some combination of tax funded state provision, individuals and families taking care of their own needs, and the state promoting ways in which individuals can pool the risk of needing care in later life. This might be through compulsory or voluntary or even state backed insurance. There are plenty of alternatives. The problem is that whatever system is adopted, people have to trust it. If younger people are paying taxes to pay for the care of older people, they have to have confidence that state support will still be there for them if and when they need it. If people have to rely on insurance they need to be confident that companies will pay out. Unfortunately public confidence in either the state or in finance institutions such as banks and insurance companies is not currently at an all time high, to put it mildly.
Coming up with a long term funding settlement for social care in a climate where there is little confidence in any of the potential ways of pooling risk is a tall order. I’d go as far as to say it’s impossible. So what the Dilnot Commission needs to be looking at is how we can build public confidence in the institutions that are essential to any form of risk sharing.
The issues involved in creating confidence in, and getting people to buy into, long term care insurance are complex, but as far as the role of the state is concerned, this is where the Law Commission can make a contribution. Clarifying the legal framework within which the state provides care should make the role of the state more transparent, so that people know what they can expect in the future. It also ensures that there is a framework for resolving – and equally important avoiding – disputes.
Legislation also sends a signal that, at least for the present, Parliament is committed to the state continuing to have a defined role in ensuring that people obtain long term care. If the Law Commission’s proposed statute is based on continuity with the current system it suggests that there is a long term consensus in support of this system. By contrast if the Government decides to go down another route and to sweep away the entire body of post war legislation and substitute something else, there will be no reason to believe that the new settlement can be relied on any more than the old one.
The second reason that the Law Commission proposals could radically change the social care landscape is that, without actually changing the content of legislation, making it clearer and less confusing could make it easier to use and therefore a more powerful lever in influencing how the care and support system works in practice. So in this respect, even though the bill is only intended to consolidate existing rights and not to create new ones, it could still have a dramatic effect on how people behave.
My conclusion is that the work of the Dilnot Commission is not likely to secure a long term settlement unless the Commission can come up with ways to strengthen the social institutions that would make that settlement impossible – and by institutions I don’t just mean structures such as regulatory bodies or legislation, but shared cultural assumptions and values. The legislation that the Law Commission proposes should be one of those institutions. Far from being a limitation on the work of the Dilnot Commision, the work of the Law Commission should be seen as one of the building blocks which might make a long term settlement possible.