A new legal framework for social care; the Law Commission reports

The Law Commission review of adult social care law has completed its work and has published proposals for comprehensive new social care legislation. It would be an understatement to call these proposals ‘long awaited’. The Law Commission has been working on them since 2008, but on a longer timescale it has been apparent for many years that community care law,  made up of over sixty years’ worth of legislation and case law, is a complete shambles. The Law Commission notes that ‘piecemeal’, ‘exceptionally tortuous’, ‘labyrinthine’, and ‘the worst drafted subordinate legislation ever encountered’ are just some of the descriptions that Judges have used in referring to various components of the legal system.

The brief of the Law Commission has been to consolidate, rather than radically reform the law. This was always going to be a challenge. Decisions have to be made about what to do where current law is confused, contradictory or fudged, and there are differing views of how social care law should develop in the future. Even basic definitions such as ‘social care’ and  ‘adults at risk of abuse’ can be hotly contested. On top of this, in the current political climate the very idea that the work of local authorities should be constrained by legislation is under challenge.

The Law Commission has taken the view that its role is not to take sides but to make recommendations for a new statute which will be robust and flexible enough to accommodate different policies. The Law Commission has not, as is usually the case with reviews of this kind, produced draft legislation, so the new report marks the conclusion of the review. This  is attributed mainly to the fact that, in response to a request from the government, the review has had to conclude a year earlier than expected. This is so that its conclusions can be brought together with those of the Dilnot Commission on long term care funding in order to inform a single parliamentary bill in 2012.

In practice the Law Commission is proposing some significant changes, so  the importance of the commission’s proposals  should not, be underestimated.

Really significant new proposals include;

  • The legislation would set out overall principles which should be used to interpret more detailed legislation
  • A national framework for eligibility would (unlike current guidance) ‘stipulate basic minimum entitlements to services’
  • Local Authorities would have a duty to asses the needs of carers and would have a duty (rather than, as at present, a power) to meet carers’ eligible needs.
  • People should be able to use direct payments to purchase residential care;
  • Local authorities will be able to delegate aspects of the assessment process to other organisations – but the local authority must ‘retain overall control of the process’
  • Local Authorities should be required to do more to enable people with care needs to move from one local authority to another
  • The role of social services in leading and co-ordinating safeguarding of adults who are at risk of abuse or neglect should be set out in legislation rather than, as at present, left to guidance

Perhaps as significant as the new legislation, however, would be measures to make existing rights and entitlements clearer. The overall structure of the law would be simpler, with different roles allocated to legislation, regulations and guidance. Guidance in particular would be simplified. At the moment, as the Commission points out, there is a ‘range of disparate and unconnected pieces of statutory and practice guidance’. These should ideally all be consolidated into a single document, and if multiple documents are issued they should at least be available in a single location and presented as a coherent whole. The Commission notes that at present there is considerable confusion about the status of guidance and of policy documents such as ‘Putting People First’. The purpose of guidance, the commission notes, should be ‘to guide social services authorities on the exercise of their functions under the statute’. Guidance should ‘not extend to policy exhortations or vague statements about the ‘direction of travel’ of social services functions’.

These changes to the way that the law is set out are potentially as important as changes to the actual content of the law. They could help people who use services and their families to make use of the law, greater clarity would make it easier to settle disputes at an early stage so would mean fewer unnecessary and expensive court cases, and local authorities would have no excuse for ignoring or failing to comply with legislation.

The path from here to the 2012 bill is therefore likely to be one of the most significant transitions in the history of social care.  Over the next few weeks I’ll be adding further blogs on more detailed aspects of the proposals.

2 thoughts on “A new legal framework for social care; the Law Commission reports”

  1. I’m interested in this development, particularly in the context of the current unravelling of FACS criteria. In my opinion the new principles could be of real value in extending the right of self-determination to those outside compulsory services (covered by the MCA and MHA), but where choice is effectively limited by budgetary constraints. It will be interesting to see if this government has any ambition to enact these recommendations, given their current attack on the benefits system that underpins independent living.

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