Pick and mix

In 2008, the Law Commission published its Tenth Programme of Law Reform which included a project to review adult social care in England and Wales. As set out in our scoping report, the legislative framework for adult social care is inadequate, often incomprehensible and outdated ('Adult Social Care: Scoping Report', available at: https://www. lawcom.gov.uk/adult_social_care.htm). On 24 February 2010, we published our consultation paper with a consultation period which lasts until 1 July ('Adult Social Care: A Consultation Paper'. Consultation Paper No 192, available at: https://www.lawcom.gov.uk/ adult_social_care.htm).

Community care assessments

The community care assessment process is the centrepiece of our proposed new legal structure. The current legal duty to undertake an assessment is spread out over three pieces of legislation: the NHS and Community Care Act 1990, the Chronically Sick and Disabled Persons Act 1970 and the Disabled Persons (Services, Consultation and Representation) Act 1986.

We propose that there should be a single and explicit duty placed on a local authority to undertake a community care assessment. This will apply where a person appears to have social care needs that can be met by the provision of community care services, including a direct payment in lieu of services.

There will be a low qualifying threshold for an assessment, which is not dependent on a request or on whether a person is likely to qualify for services. Once triggered, the focus of the assessment will be a person's social care needs and the outcomes they wish to achieve.

The current legal framework sets out details of the assessment process in multiple documents and in directions. We propose that this detail should be set out clearly in regulations. This might include who should be consulted, how assessments should be recorded and the areas that an assessment must cover.

Eligibility for services

Once the local authority has completed its assessment, it will be required to decide whether or not services will be provided to that individual. Under the current law, eligibility for services is determined by reference to the statutory guidance 'Fair Access to Care Services' (and the Welsh equivalent) and often-overlapping statute law, such as the National Assistance Act 1948 and the Chronically Sick and Disabled Person's Act 1970. This structure is complex and at times impenetrable.

We propose that an assessment of social care needs and the application of eligibility criteria should be the sole means by which a person's eligibility for community care services is determined. Local authorities will have a duty to use a single eligibility framework to determine whether a person's social care needs are eligible and a duty to provide or arrange for the provision of community care services (or a direct payment in lieu of services) to meet all eligible needs. The duty to meet eligible needs will be individually enforceable.

We believe that the clarity of the assessment process will be assisted by providing the following definition of community care services, which would appear in the statute itself:

• residential accommodation;
• assistance and facilities in the home;
• social work service and support and advice;
• centres or other facilities in the community; and
• social, leisure, communication, education and training activities.

Finally, our statute would place a duty on local authorities to produce a care plan for any person who has been assessed as having eligible needs, and specify the form and content of the plan. This would help to underline the importance of care plans to the community care assessment process.

Carers' assessments

Sitting alongside the community care assessment process would be a duty on a local authority to carry out a carers' assessment. This would apply to any carer who is providing or intending to provide care to another person, and not just those providing a substantial amount of care on a regular basis. We propose that local authorities should be required to use a mandatory national eligibility framework in exercising their power to provide carers' services. This would ensure clarity about how decisions are made regarding the provision of services to carers.

Safeguarding adults

Unlike in Scotland, there are no specific statutory provisions for adult protection; the legal framework is provided through a combination of the common law, local authority guidance and general statute law. We believe that our statute should clarify the existing legal position and establish a duty to make enquiries and take appropriate action in adult protection cases. This duty would operate in conjunction with the community care assessment duty by enabling explicitly a formal process to be initiated in adult protection cases.

Our goal is to create an effective legal framework that can accommodate current and future policies, while also maintaining the core entitlements and obligations that have been established over the past 60 years. We believe that our proposals will result in a clearer and simpler legal system which will bring considerable benefits to all who have to engage with the system as a result. The proposals in our consultation paper represent our initial view about how the law should be reformed and we will be reviewing these proposals on the basis of responses from the consultation exercise. We encourage active involvement in our review from all lawyers with an interest in social care.