Who cares, wins
Existing social care laws are too complex and reform is to be welcomed, says Linda Convery, partner at Lewis Silkin
The Law Commission’s report on the reform of social care legislation is long overdue and welcome. It is just a pity that it has already taken three years for the commission to conclude that the existing social care laws are a ‘complex and confusing patchwork of legislation’. The report recommends simplifying the law by consolidating the existing laws into one unified statute, supported by regulation and a code of practice.
In theory, what the Law Commission is recommending makes a lot of sense. But it will need the government to back the proposals with sufficient funding to meet the overarching purpose of the new law, which is to promote and contribute to the well-being of the individual.
The commission suggests that local authorities should continue to assess a person to establish whether they need adult social care. This is nothing new - it happens already under section 47 of the Care in the Community Act 1990. What is new, however, is that if someone refuses an assessment, then the duty of the local authority to assess is discharged. If funding constraints continue, it is unlikely that councils will follow up refusals if they don’t have to.
The report also recommends that government, rather than councils, should set the criteria to determine a person’s eligibility for services. However, this may be resisted by local authorities unless they are assured increased funding.
The new structure extends the use of direct payments to individuals to allow them to be used for long-term residential accommodation. On the one hand, this is positive, because it supports personalisation. Yet at the same time, the amount of the direct payment may not reflect the true cost of care and that will be a problem for providers left with a shortfall.
Despite guidance from government, in practice, those who have their social care paid for by a local authority can find it difficult to secure continuing services when they move area.This is particularly so if they move from a residential scheme into independent living with care and support.
The new law would seek to address this by imposing a duty on the receiving council to carry out an assessment and justify any service changes.
Until the assessment has happened, the new authority would have to continue supplying the services provided.
The new statute will set out the duties and powers of local authorities to safeguard adults from abuse and neglect. The idea is that local authorities should have the lead co-ordinating responsibility for safeguarding. Hopefully this will give providers greater clarity. If local authorities should wrongfully take action over safeguarding, which can be unnecessary intrusion, those providers affected could seek judicial relief.