Backing reform

On 24 February 2010, the Law Commission published its consultation paper on adult social care, setting out over 80 detailed provisional proposals and questions for the reform of adult social care law. This was followed by a four-month public consultation, which ended on 1 July. Tim Spencer-Lane summarises some of the views expressed and insights gained from the consultation period.

The public consultation

At the Law Commission we believe in a robust consultation process. The proposals that we put in our consultation paper are provisional proposals – and as such, we were keen to debate them fully with all the main stakeholders by attending as many consultation events as possible.

During the public consultation period, the Law Commissioner, Frances Patterson QC and Law Commission staff attended over 70 events across England and Wales. These included meetings with service users, carers, local authorities, individual social workers, health staff, academics, safeguarding boards and regional networks, local authority lawyers, personalisation groups, service providers, legal bodies and charities and campaigning organisations. Members of the Law Commission travelled throughout the country to attend for example events in Southampton, Bristol, Peterborough, Liverpool, Leeds, Manchester and Newcastle, to name a very few.

We are very grateful indeed to the individuals and organisations who gave up their time and resources to organise and attend these events. At each of the events we were indebted to the audience not only for the expertise they shared with us, but also for the valuable insights that people gave us into how adult social care law is operating on the ground and how it should be changed.

We were particularly keen to ensure that our consultation reflected the views and experiences of those living and working in Wales. Approximately 15% of all the consultation events were held in Wales, with members of the Law Commission attending events in Cardiff, Newport, Llandrindod Wells, Colwyn Bay and Swansea. We were also very grateful to the Older Persons Commissioner for Wales and Age Cymru who organised a conference for more than 100 people in Cardiff including service users, carers, professionals and academics.

Key messages from the events

At each of the consultation events we received a wide range of views on various different aspects of our proposals. The following is intended merely as a general overview of some of the general trends that we observed, and does not attempt to do justice to the comprehensive and detailed range of views that were put to us. Furthermore, none of the discussion below should be read as indicating that we have come to any conclusions about what our final recommendations will be. All of our provisional proposals will be reviewed in the light of the evidence received at the consultation events and the formal responses to our consultation paper that we have received from individuals and organisations (see below).

At the consultation events, we were struck by the widespread positive support for our adult social care project and the need to reform this area of law as a matter of priority. Many people were keen to tell us about the difficulties they were experiencing as a result of the complexities of the law. For example, some individuals were confused or unaware of their basic legal entitlements, while others had been involved in long-standing disputes with their local authorities. Professionals from local authorities also expressed their frustration at the lack of clarity in the law and how this impeded their ability to provide appropriate levels of care and support.

At the events, there was widespread support for the majority of the proposals set out in the consultation paper. There are number of proposals which attracted almost unanimous support. These include:

• a clear assessment duty and a legal framework for the process of carrying out an assessment
• an eligibility framework for support services set out in legislation
• a single carers’ assessment process and the removal of the “substantial and regular” test and the request mechanism
• duties to co-operate
• a statutory Code of Practice
• powers to provide transitional services to 16 and 17 year olds, and
• a legal framework to ensure greater portability of service provision.

There were a number of areas where it is clear from the consultation that more work is needed, for example:

• defining the interface between health and social care in law
• rights to information, and ensuring that the appropriate information is provided to people in accessible formats and locations
• ensuring that local authorities have adequate powers to provide and develop the provision of prevention services, and
• duties to share information between agencies.

Some of our proposals have met with mixed responses. For example, our provisional proposal to abolish the disability register has been welcomed by many people, but others, such as groups representing people with sensory impairments, have put forward strong arguments for why they should be maintained by local authorities.

There was also a mixture of responses to our proposal to establish a clear legal framework for self-assessment. Many groups and individuals were supportive and argued that there was a need for a clear relationship between personalisation and the law, but others voiced strong concerns about self-assessment and did not want it promoted in legislation.

The issue of safeguarding adults from abuse and neglect produced a wide range of responses and some lively debate. Some key messages on safeguarding have included widespread support for the introduction of a duty to make inquiries in statute law, replacing the term “vulnerable adults” with “adults at risk”, and putting adult safeguarding boards on a statutory footing. However, many of those at consultation events raised concerns about our suggested definition of an “adult at risk” – including a concern that the threshold should be lower and set at “harm” rather than “significant harm” and that the definition did not reflect the multi-disciplinary nature of safeguarding services.

There were also mixed views about the wisdom of repealing the power to remove disabled and older people from their homes under section 47 of the National Assistance Act 1948. Some professionals argued that it is still a useful power in cases of extreme self-neglect and as a power of last resort and suggested therefore that it needed to be revised to be compliant with the Human Rights Act 1998 rather than abolished.

Formal consultation responses

We have received over 200 formal responses to our consultation paper from private individuals and organisations. We have been struck by the level of detail and expertise contained in these responses. Once again, we are very grateful indeed that people have given up their time to respond formally to our consultation. The Law Commission will be analysing and producing a report on the consultation responses which will be published alongside our final recommendations next year.

Next steps

As noted previously, one of the key messages from the consultation period was the strong support for reforming adult social care law. We are very pleased to note that the new coalition government has made a clear and positive commitment to our review.

The Department of Health has requested that the final report of our review of adult care law be brought forward from its original deadline of the summer of 2011 to the end of April 2011. The move is designed to help co-ordinate the Law Commission's work with that of the planned commission on the funding of long-term care.

As it announced in its recent NHS White Paper, “the government will bring together the conclusions of the Law Commission and the Commission on funding of long-term care, along with our vision, into a White Paper in 2011, with a view to introducing legislation in the second session of this Parliament to establish a sustainable legal and financial framework for adult social care”.

Tim Spencer-Lane is a lawyer in the Public Law Team at the Law Commission.