Law Commission Report on Adult Social Care – some thoughts

I’ve not had much time to look through the Law Commission Report into the proposed changed in Adult Social Care Law but to say it’s been long needed is an understatement. Adult Social Care Law is a hotch-potch and a mess. A couple of weeks ago, I was talking to a student who asked for some help with her law revision and she put it very succintly to me when she said it was much harder to understand community care legislation because it was ‘all over the place’ as compared to legislation related to work with children or in the mental health fields.

Hopefully, there is an upcoming reassessment and improvement in the way that community care legislation and legal duties are delivered through a single Act. That was the purpose of the Law Commission Report.

There are 12 parts to the report and I’ll briefly look at each section and make no apology for summarising the bits that I, personally, will find useful and interesting. The report in full and in summary can be found here. Among all the links, there is also an audio version available.

Part 1 – Introduction

Unsurprisingly, this explains the background to the report namely that adult social care legislation is currently spread across disparate Acts of Parliament and there are some pieces of legislation that remain ‘on the statute book’ but are not currently in use/useable (s47 of the National Assistance Act!)

Usefully, this section does introduce an initial brief definition of ‘Adult Social Care’ as being

the care and support provided by local social services
authorities pursuant to their responsibilities towards adults who need extra support. This includes older people, people with learning disabilities, physically disabled people, people with mental health problems, drug and alcohol misusers and carers.

The introduction continues to explain the timetable for the change process and some of the policy developments (most notably ‘personalisation’ and the move towards personal budgets in social care) that are taking place in the context of this review.

Part 2 – Defining Adult Social Care

While a brief definition was given in the introduction, this second section explains the need for a more robust definition of what or rather, who, comes into the definition of ‘adult social care’ in legislation.  This ‘definition’ will go beyond who receives services from social services departments and will include those who are not eligible for services so as well as duties regarding assessment and provision of services, there is likely to be a duty around providing more general information and advice.  This comes from splitting into two the principles of provision of social care – the universal (where the advice, information and support would come in) and needs identified following an assessment.

Part 3 – Structure of the Reform

This talks about the need for a consolidation of social care legislation. Currently, the suggestion is that there will be one single ‘Adult Social Care’ Bill which will cover both England and Wales (although this depends on how far Wales may diverge post-election).

As for the details of legislative powers and guidance, there are going to be three ‘levels’

– Primary Legislation

– Statutory Instruments

– Statutory Guidance

This seems to make sense and is particularly uncontroversial but I was particularly pleased that there will be a Code of Practice introduced (the Statutory Guidance). Those of us use to working with the Mental Health Act and the Mental Capacity Act will have a good understanding of how Codes of Practice link to primary legislation and I think they have been enormously helpful in explaining the legal issues to laypeople and practitioners.  It is actually specifically mentioned that the role of this Code of Practice will be similar to that in the MHA and MCA.

Part 4 – Statutory Principles

These ‘principles’ are familiar to those of us who work with Mental Health (and Children’s) legislation whereby there will be some underlying guiding principles and ideas to pull through the whole legislative framework.

There is an interesting discussion in this section about the way that the content of these principles had been considered when open to consultation. One of the principles (and the ‘main’ one) will be about a general aim to promote and contribute ‘to the well-being of the individual’ but the Act will also encompass some of the ways that this can be done by ensuring the individual in question is included in the process.

There is also a principle (unsurprisingly) about safeguarding adults from abuse and neglect and using a ‘least restrictive’ principle which will be familiar from the Mental Capacity Act. I am interested in how a ‘least restrictive’ principle will work in the context of people who do not lack capacity but I expect the issues will become clearer in the passage of time.

Part 5 – Assessments

Ah, the Assessment – that ‘core legal right’ at the heart of the Act and what will be the ‘gateway’ to services however they are delivered. Firstly the term ‘community care assessment’ was criticised as being old-fashioned. To be honest, we don’t use the term in any context except a legal one anymore anyway.

It is agreed that the threshold for accessing an assessment should be low and and that the assessment itself could be seen as a ‘service’ in its own right – the comparison is made with having a GP check up.

The local authority would be able to flag up voluntary sector services for people who did not meet the eligibility criteria and would be a source for advice and information as well as services.  The paper also talks about clarifying the position of people who refuse assessments so they might be able to access information and advice without having to have an ‘assessment’ of any kind.

The threshold for a fuller assessment will be met when a person may have needs that could be met by service provision so there will be a change of language in the law however there is a (quite right) determination that the threshold will remain low – because you might not know  if the need could be met until you have assessed!

There are a number of more specific guidelines mentioned about the way assessments should be conducted and who might conduct the assessments and how they would be undertaken. Generally, there are likely to be statutory instruments covering some of these issues and the details will follow, no doubt. There will be some scope for specialist assessments to be requested in certain circumstances where the user might have specific needs.

There was some mention of this being a reserved task for social workers but that was dismissed quite summarily (because there wouldn’t be enough social workers, I presume) and will be a matter for the statutory instruments!

There will also be further specific guidance about the scope and place for self-assessments in the process.

Part 6 – Eligibility

This is quite a complex one but basically, the recommendations include codifying what is, in effect, current practice – namely that the social care needs identified through an assessment are measured against eligibility criteria and if the individual meets those criteria as determined, the local authority arranges or provides services to meet those needs.

There would be in indication in the Code of Practice regarding the levels of eligible need and how the councils would interpret them.

The law is not going to specify where the line should be drawn by the local authorities regarding setting the ‘thresholds’.

Interesting discussion in the document about duties under s21 of the National Assistance Act. I won’t go into details because I don’t have time but it looks like the duties will be recommended to be retained.

Part 7 – Carers Assessments and Eligibility

Unsurprisingly, there will be a consolidation of duties under various carers’ legislation to provide a carers’ assessment. I’m shocked when I hear of the number of people who are not being offered carers’ assessments when they should always be as a matter of course. Hopefully, this will be an imagining of a long distant past.

The ‘cared-for’ person needs to have at least some social care needs for the carers assessment to be ‘triggered’ and not only ‘medical’ needs. This is a bit of a blind spot in my view but the document recognises this and feels that any changes made in regard to this have to be done as a matter of policy by the government.

The requirement to provide a carers assessment will though apply to any care provided and not be limited to those providing ‘substantial’ care as it is as at the moment.

It is proposed that rather than the carer needing to request an assessment, the local authority will have a duty to provide which is far better as I see it.

Part 8 Provision of Services

There is an discussion in this section about whether or not to define what ‘services’ actually are in the context of that which can be provided. It was felt by the commission that there should be some kind of list involved and that there was also a need to specify preferred outcomes of the provision of services. The list will take the form of categories of support in the context of those which will provide the desired outcomes.

The recommendation which explains it far better than I can annotate, explains

Community care services (however named) should be
defined in the statute as any of the following provided in accordance with the
well-being principle:
(1)  residential accommodation;
(2)  community and home-based services;
(3)  advice, social work, counselling and advocacy services; or
(4)  financial or any other assistance.

The statute should set out the following list of outcomes to which the wellbeing principle must be directed:

(1)  health and emotional well-being;
(2)  protection from harm;
(3)  education, training and recreation;
(4)  the contribution made to society; and
(5)  securing rights and entitlements

I actually really like the idea of including the outcomes. I think it adds significant clarity to the position and scope of provision of services overall.

It’s also interesting that social work services are seen as a discreet ‘service’ as opposed to advice, counselling and advocacy. I wonder if that is a shoe-in for a different type of social work with adults in the future. We can but hope.

Carers’ services will follow similar guidance as above.

A care/support plan must also be provided in written form for the user and carer (if necessary) that should include assessed needs, eligible needs and desired outcomes. I see in my future more paperwork but actually, if it is going to be an improvement, I’ll welcome it with open arms!

Direct payments will be retained in their current form and interestingly there is a proposal to introduce them to allow for payment for residential services.  I am not necessarily opposed to this however I do think there are some practical issues that are a concern. I’ll have to come back to this though in a post of its own!

None of the existing provisions for services that are being provided free of charge (for example those subject to s117 aftercare) will be affected by this and they will continue to operate in the current form.

Part 9 Adult Protection

There will be a specific role for the local authority to lead on safeguarding processes regarding adults at risk of being abused. In fact, the term ‘vulnerable adult’ will be replaced by the term ‘adult at risk’.  The document states:-

We, therefore, proposed that an adult at risk should be defined as a person aged 18 or over and who:
(1) is eligible for or receives any adult social care service (including carers’
services) provided or arranged by a local authority; or

(2) receives direct payments in lieu of adult social care services; or

(3) funds their own care and has social care needs; or

(4) otherwise has social care needs that are low, moderate, substantial or
critical; or

(5) falls within any other categories prescribed by the Secretary of State or
Welsh Ministers; and

(6) is at risk of significant harm, where harm is defined as ill treatment or the
impairment of health or development or unlawful conduct which
appropriates or adversely affects property, rights or interests (for
example theft and fraud).

Quite a broad definition but contrary to be beliefs of some, does not include everyone over 65!

Harm will be defined as

(1)  ill treatment (including sexual abuse, exploitation and forms of ill
treatment which are not physical);

(2)  the impairment of health (physical or mental) or development (physical,
intellectual, emotional, social or behavioural);

(3)  self-harm and neglect; or

(4)  unlawful conduct which adversely affects property, rights or interests
(for example, financial abuse).

but significant harm will be a judgement process.

Section 47 of the National Assistance Act will be repealed which is unsurprisingly and there will be another commission to look specifically at what it should be replaced by. This is, perhaps, where compulsory powers of entry will come in.

Adult Safeguarding Boards will be put on a statutory footing and there is some additional guidance on how they will operate.

The qualification that Guardianship can only be used for people with learning disabilities when there is abnormally aggressive or seriously irresponsible conduct’ will be removed which I think will allow for better protection for people with learning disabilities in the longer run.

The other sections of the report, I’ll cover very briefly

Part 10 Ordinary Residence and Portability

There is some clarification on the rules about residency in a particular authority and the principle of being able to take the assessment between different local authorities is, quite rightly, introduced.

Part 11 Overlap Issues

This part clarifies some of the areas where there are different pieces of legislation and particularly where there would be a crossover between health and social care issues but also with housing issues, forensic services and with childrens’ services.  There is some guidance about clarity regarding continuing care guidelines and how direct payments might work if they are extended into healthcare (which is likely).

It also recommends that adult social care teams can assess 16 and 17 year olds .

Part 12 Other issues

This includes a look at the right to advocacy which the report says should be retained as far as it already exists but not extended.

The local authorities will retain their registers of people who are blind and partially sighted and have discretionary powers to maintain other ‘registers’.

There will be a continued review about a proposed definition of ‘a disabled person’.

So that’s all! Well, it’s been interesting to read through. Generally it seems like a substantially positive review and I think it will improve the way that services are delivered and at least make it clearer. There are parts of the review I’d like to explore in more detail – particularly the safeguarding arrangements and some of the items in the overlap issues like continuing care but I’ll have to come back to them.

I’d be interested to hear other thoughts about the process!