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24.Feb.2010

The Law Commission has published its consultation document on proposals for a single statute for adult social care law to replace the 38 different pieces of legislation that currently govern the area.

Presenting the consultation paper, Frances Patterson QC, the law commissioner leading the project, said that the existing system caused confusion, delay and inconsistency and was time-consuming and expensive to operate. By consolidating legislation into a single statute, the Law Commission estimates that local authorities will save up to £15m in litigation costs and social worker time.

The provisional principles include:

• establishing a core set of overarching principles to guide social care decisions
• introducing a single and explicit duty to assess individuals’ needs
• a duty on local authorities to provide community services for all those eligible
• the introduction of a single duty to assess the needs of any carer, and
• a statutory duty on local authorities to investigate when they suspect that vulnerable adults are being abused or neglected.

The Commission was keen to emphasise that the aim of the new statute was not to impose new statutory duties on local authorities. “We are seeking to bring clarity to the system of social care. We are not seeking to change existing entitlements,” Patterson said.

While the Law Commission is also keen for the process to remain outside the present political debate on the funding of adult social care, Patterson conceded that, although the timing of the consultation was a coincidence, the controversy over the issue may provide the consultation with useful publicity. Unlike most Law Commission projects, the consultation does not contain a draft bill. The commission aims to elicit as wide a range of views as possible, including those of carers and the public, before making its recommendations.

The consultation closes on 1 July 2010, with the following report due in the summer of 2011. Patterson said that she was confident that the final proposals would receive government support, regardless of which party is in power in 2011. “It is an all-party issue,” she said.

For further details on the proposals, please see the Law Commission's Tim Spencer-Lane's article here.

The consultation document can be accessed by clicking here.

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24.Feb.2010

The Law Commission published its consultation paper on adult social care today. Tim Spencer-Lane, a lawyer in its public law team, explains the thinking behind the proposed overhaul.

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. On 24 February 2010, we published our consultation paper, with a consultation period lasting until 1 July. This article provides a brief outline of some of the key proposals contained in the consultation paper.

Statutory principles

Our proposed statute will begin with a statement of fundamental principles. Decision-makers, such as courts, social workers and directors of social services departments, will be required to consider these principles when making a decision or taking an action under the statute. We have put forward for discussion a number of general concepts that might form the basis of statutory principles. These are:

• Person-centred planning
• The need to consider a wide range of needs
• Prevention and early intervention
• Independent living
• An assumption of home based care
• Dignity in care
• The need to consider safeguarding

In our view, any statutory principle must be clear, precise and capable of operating as a proposition of law. As part of the consultation process we invite views on these principles and on whether there are any other principles that could be included in our statute.

Community care assessments

The community care assessment process is the gateway to the provision of services. 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. The focus of that assessment will be the outcomes that a person wishes to achieve and their needs.

We welcome views on whether our statute should make it clear that a co-produced self-assessment is a lawful form of assessment, and whether the statute should allow for pure self-assessments for certain people.

We propose that certain aspects of the assessment process should be set out clearly in law. This might include who should be consulted during the assessment, requirements for recording the results of the assessment and the areas that an assessment must cover.

Eligibility for services

Once a local authority has completed an assessment, it must decide whether or not to provide services. Under the current law, eligibility for services is determined by reference to statutory guidance (Fair Access to Care Services (DH 2002) and Health and Social Care for Adults (WAG 2002) and often-overlapping statute law, such as the National Assistance Act 1948 and the Chronically Sick and Disabled Person’s Act 1970. In our view 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. In effect, there will be a single eligibility framework for all community care services. Local authorities would have a duty to use that 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 strong and individually enforceable. Our statute will impose a duty on the Secretary of State and Welsh Ministers to make regulations prescribing the eligibility framework that must be used by local authorities.

Given the Department of Health’s commitment to introducing personal budgets, it is important, in our view, that the law and personal budgets are more closely aligned. Our statute will enable the Secretary of State and Welsh Ministers to make regulations prescribing whether local authorities have a duty to allocate a personal budget, or whether it is optional.

Residential accommodation

Section 21 of the National Assistance Act 1948 places a strong duty on local authorities to provide residential accommodation. The effect of our proposals, as described above, would be to repeal almost all of the existing community care statutes, including section 21.

The aim of our review is not to remove any existing entitlements to services. In relation to section 21, we do not believe that repeal of this duty would weaken the existing entitlement to residential accommodation. However, if any groups did lose their entitlement to services, we believe that section 21 should be retained for those groups. We welcome further evidence on this point.

Community care services

We propose that community care services should be defined broadly by the following list of 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.

The choice of accommodation directions would be placed in statute law and the existing direct payments provisions would be retained. We welcome views on whether to extend direct payments to cover residential accommodation.

Carers’ assessments

We propose that there be a single duty to assess 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. The assessment will be triggered where a carer appears to have, or does have, needs that could be met by the provision of carers’ services or by the provision of services to the cared-for person.

We propose that local authorities should be required to use a mandatory national eligibility framework in exercising their power to provide carer’s services. This will remove the current ambiguity about how decisions are made regarding the provision of services to carers, and will mean that a carer’s eligibility for support is assessed against the same framework throughout England and throughout Wales. It will mean that authorities will be required to specify which bands they will provide services to meet.

Statutory care plans

Our proposed statute will introduce a statutory duty on local authorities to produce a care plan for any person (including a carer) who has been assessed as having eligible needs. The duty will be reinforced by a duty placed on the Secretary of State and Welsh Ministers to make regulations concerning the form and content that the care plan must take.

Duties to co-operate

Under our proposed statute, there will be a general duty on each social services authority to make arrangements to promote co-operation between the authority and other relevant organisations. The legislation will provide a list of “relevant organisations”, such as local housing authorities, education authorities, health authorities and specified others.

There will be a specific duty of co-operation, where a local authority can request certain other authorities to assist in a number of circumstances, including when an assessment of a person is taking place and in providing services to the person. The other authorities could include another local authority, education authority, local housing authority and NHS body. In such cases, the requested authority will be under a duty to give due consideration to the request.

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 propose 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.

The introduction of a duty to investigate will be in the context of the existing powers and duties of local authorities to intervene in cases where adults are at risk of abuse and neglect. The duty will be distinct from any responsibility the police may have to conduct a criminal investigation, though a joint approach may be appropriate in some circumstances.

The duty to make enquires will be triggered in cases where there is an “adult at risk”. This is defined as an adult who has social care needs (whether or not they fall within the local authority eligibility criteria) and is at risk of significant harm. 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, fraud, embezzlement or extortion). We welcome views on this definition.

Our statute will place adult safeguarding boards on a statutory footing. The compulsory removal power under section 47 of the National Assistance Act 1948 will be repealed.

Conclusion

Our goal is to create an effective legal framework that can accommodate current and future policies, while maintaining the core entitlements and obligations that have been established over the past 60 years. We emphasise that the proposals in our consultation paper represent our initial view about how the law should be reformed. We will review our proposals on the basis of the responses received during the consultation period.  We are keen to ensure a wide ranging debate on these proposals and welcome the active involvement and responses from service users, carers and professionals.

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

REFERENCES

DH (2002) LAC(2002)13: Fair Access to Care Services: Guidance on Eligibility Criteria for Adult Social Care.

Law Commission (2008a)Tenth Programme of Law Reform, Law Com No 311.

Law Commission (2008b) Adult Social Care: Scoping Report. Available here.

Law Commission (2010) Adult Social Care: A Consultation Paper. Consultation Paper No 192. Available here.

WAG (2002) NAFWC 09A/2002, Health and Social Care for Adults: Creating a Unified and Fair System for Assessing and Managing Care.

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11.Feb.2010

The Local Government Ombudsman this week criticised Brighton & Hove City Council for operating a “flawed” bankruptcy procedure after it bankrupted a woman – ‘Ms Lowe’ (not her real name) – for unpaid council tax and parking fines even though she was already known to its adult social care department.

The Ombudsman, Tony Redmond, said: “I do not criticise the council’s general policy in this case. It included a requirement to check whether the person might be vulnerable. On balance, however, I would say that the absence of a requirement to check specifically with Adult Social Care meant that the application of the policy was flawed, and was a significant failure in the procedure.”

Ms Lowe had not responded to attempts by Brighton & Hove to contact her, whether by letter or calls in person to her home. The local authority’s procedure required it to consider whether a debtor was vulnerable, but not to check with its adult social care team.

The complainant had been in touch with adult social care, but no assessment had yet been carried out. She said that at the time she was mentally unwell and unable to deal with her affairs.

The Ombudsman suggested that had Brighton & Hove’s recovery officers discovered that Ms Lowe was known to their colleagues in adult social care, it is possible that they would not have pursued backruptcy. However, the Ombudsman could not decide that definitely would have been the case.

He therefore ruled that the council’s maladministration caused an injustice to Ms Lowe only in terms of the uncertainty as to whether the outcome might have been different. The Ombudsman called on Brighton & Hove to pay the complainant £250 compensation and apologise for the failure in its procedure.

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20.Jan.2010

As the public sector approaches an inevitable period of austerity, Peter Keith-Lucas and David Owens examine how local authorities and other organisations such as NHS trusts can maximise their revenues.

The financial challenge to be faced by all public sector bodies is how to maintain services, and in some instances even increase them to meet increased demand, on the same or less money. One obvious response to reductions (in real terms at least) in the grant from government, is to look for alternative sources of revenue. Leaving aside the politically unpalatable approach of raising the council tax, this means looking at what income the authority can generate from other sources, whether identifying additional areas where charges can be imposed or increased, or looking to outright trading.

At present, the language from HM Treasury includes lots of aspirational statements largely directed at central government. It gives the Department of Health and the Department for Communities and Local Government an excuse for cutting Block Grant further to take account of notional "efficiency savings" which HM Treasury believes that authorities should have been able to produce.

One area in which such potential savings have been identified is in shared services, in local authorities getting together to share anything from chief executives to trading standards officers, evening out the workflow, avoiding duplication and increasing productivity. Where there are real savings available, financial cutbacks may be sufficient to push authorities into shared service projects. What is interesting is the way that shared services has become part of the mantra, with the Welsh Assembly government having just given itself powers to direct individual local authorities to enter collaboration agreements for specified services, and DCLG being urged to follow suit.

But the practical experience of such shared services is one of fragility. In part, this is because local authority services are not standard, so each local authority will wish to secure the service level and delivery which it believes best suits its own area, requiring different provision for different authorities. So, unless central government is to over-ride local discretion to prescribe a universal service standard, such differences will remain. If this means that the promised savings are not delivered, shared services will continue to be vulnerable to local political differences.

Legal challenges and constraints

Ever since Parliament refused Charles the first the power to levy Ship Money without their approval, any form of charging or trading by a public authority has required express statutory authority. Such powers have been given only grudgingly, where Parliament has been persuaded that such charges are justified. The result is that both the NHS and local government have complex rules governing their ability to generate additional income.

For local authorities, the majority of core services such as domestic refuse collection must be provided free of charge. Individual statutes may have particular powers to charge, for example the power to charge for the use of council leisure facilities. Some specific powers state that charges must not exceed the cost of providing the service, some exhort the providing authority to ensure that charges exceed cost, others provide that the providing authority may not charge any individual more than he or she can reasonably afford. Where there are no such specific charging powers, and where the authority is not required to provide the service, the authority may offer to provide such a discretionary service at a charge to the recipient. As a result, some local authorities have sought to define the minimum basic standard of services which the law requires them to provide, and then offer a menu of additional services which a local resident may choose to pay extra to receive. In addition, local authorities now have a power to undertake pure "trading" activities for profit, but have to do so through a company, to ensure that any profit is subject to tax on the same basis as a private sector enterprise.

This approach of charging for anything over the statutory minimum service, which has been characterised as the "EasyJet" approach, is problematic where the legislation either fails to define the basic level of mandatory service or to define the authority's duty in relation to need (for example, the duty to provide a "comprehensive" library service or the duty to maintain a highway in a condition which is safe for the ordinary traffic which uses it). Many public protection services, such as trading standards, child care and road safety, are not amenable to such an approach. Less frequent refuse collection is directly reflected in increased fly-tipping. And where there can be genuine local choice, it can only be exercised collectively – for example, local communities may be prepared to pay for street lighting through the night, but cannot arrange that street lights are turned on as people approach them.

The NHS powers to charge are even more circumscribed, again arising only where Parliament expressly authorises such charges. Broadly speaking, all NHS bodies have a power to engage in commercial activities for the purpose of generating additional income, but not where it might get in the way of their core functions. There is a range of other specific constraints on what they can or cannot do for this purpose. NHS bodies do have the ability to form or invest in companies for the purposes of income generation, but will need specific DH consent to exercise the power (unless they are foundation trusts).

Foundation Trusts are subject to a "private patient income cap" - this means that they are constrained by the level of private patient income they received (as a percentage) in 2002/03. NHS bodies which have not yet become Foundation Trusts will still need to have regard to this cap. It is likely to be modified in the next Parliament, but it is not yet clear what constrains will remain. Conservative policy suggests a significantly greater freedom than would be available if the Labour Party were returned, and the Liberal Democrats seem to share the Labour party's more restrictive approach on this point. We can but hope that any change will address the uncertainty inherent in the current language around what is to be regarded as income derived from private patients. There is also some evidence that although the development of private patient work may give volume, NHS bodies are not good at the accounting to enable them to tell if the additional work actually produces a profit.

Accent on finding disposable assets

Public authorities, and particularly local authorities, are major landowners, frequently the largest landowners in their areas. So disposal of surplus property is seen as an easy means of generating extra cash. But the truth is that authorities have been selling off spare property for a couple of decades now, and only the difficult sites remain. Developers and chartered surveyors may jealously eye the fire station on Euston Road, and suggest that fire stations should be re-located to peripheral motorways and ringroads, but you cannot get the first fire appliance to a city centre incident in four minutes, and the second appliance in eight minutes if they start from the M25.

When government has previously tried to force local authorities to dispose of land, as when the old Welsh Office created the Development Commission, staffed by private developers and agents, to root through local authority land records and recommend land which the minister would order authorities to sell, it turned out that local authority land was either operational (i.e. covered in council houses and schools), commercial (i.e. business estates producing rents), useless (largely derelict land requiring expensive restoration) or bought for a specific purpose or project. The NHS has been through several similar exercises to limit the amount of unused estate it holds.

All public bodies should keep their land holdings under constant review, and seek to replace older, energy-hungry properties with newer facilities built to higher sustainability specifications, keeping pace with new residential and commercial development to provide services where services are required and accessible. Public access to services can be improved where local authorities, NHS bodies and central government services co-operate to provide shared facilities where service users can access a wider range of services, but such service improvements may come at a price, and should not be expected to produce huge cost savings.

Scrutiny Committees

There is a huge array of different public agencies which operate within each area, often providing services which overlap or impact on each other, and frequently with little contact or co-ordination. So, when the highway authority reduces street lighting, no-one calculates the extra cost to the police from increased crime, or to the NHS Trust from more road accidents. So there is a lot of sense in the idea of identifying and seeking to co-ordinate the activities of the various public agencies, and local authorities are best placed to undertake the function through their existing scrutiny function.

However, it does require a step-change in direction and resourcing, for councillors to develop a real competence in the services of these various agencies, if their advice and recommendations are to carry any weight. One particular inhibitor is that scrutiny committees were created to hold the local authority's executive to account, and so members of the executive are precluded from being members of the scrutiny committee. This means that the more experienced managerial councillors who form the executive are limited in the role that they can play in such scrutiny-based co-ordination of public agencies. But if such executive members were admitted as members of scrutiny committees, as was mooted in a recent consultation paper from DCLG, such committees would be disabled in holding their executives to account.

Private patient care

Foundation Trusts will either, therefore, want to structure their private income so that they are not caught by the cap – which is becoming more difficult at present, wait, or look to income generation outside healthcare. One possible area which has not generally been well developed in the NHS is the scope to harness the inventiveness and entrepreneurial spirit of some of the technical and clinical staff, often working in collaboration with the local university to joint venture technical innovation.

Commissioners have a different set of problems; leaving aside PCT provider arms – see below – they have few marketable skills, and in any event the impact of their external financing limit may constrain their ability to embark on significant income generation.

Provider arms may have the best opportunities in the sense that they are unlikely to be constrained by the private patient cap. (Community Foundation Trusts do not seem currently to be the flavour of the month!) Whilst there are potential issues around the market for their skills there may well be possibilities in co-operation with the LA sector using the "Essex model", a company formed to sell services in the market for domiciliary care where patients have individual budgets.

The other income generation activity which the NHS can exploit is the back office services market where the NHS is already relatively advanced in shared services. Most operate on a co-operative basis but they are increasingly looking to bid for work outside their core area on a straight commercial basis.  For the NHS, the local authority market may be attractive, but they may also want to do this as a joint venture with a relevant local authority.

One final issue for NHS bodies is the extent to which charitable funds can be used for funding services or facilities. The scale of charitable donations to hospitals is very considerable, but the Charity Commission is keen to preserve the distinction between charitable and Treasury-funded activity. Any attempt to divert charitable funds to mainstream service provision is likely to reduce the level of charitable donations. But it is worth reminding charitable funds committees that such funds are given to be applied for individual charity rather than just to be accumulated.

Peter Keith-Lucas and David Owens are partners at Bevan Brittan.

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19.Jan.2010

The government is to draw up legislation requiring every local area to put in place a Safeguarding Adults Board.

The boards – made up of local authority social services, the police and the NHS – are designed to ensure that vulnerable adults who suffer abuse have quick and easy access to the people who can help.

The government promised a programme of work to support agencies in a bid to ensure all those involved in the care of vulnerable adults have appropriate skills. There will also be a cross-government ministerial group to oversee safeguarding, set priorities, develop new policy and provide national leadership.

Care services minister Phil Hope said: “We are going to make it law that every local area must have a safeguarding adults board to look after the most vulnerable people. Some areas already do this and they do it well, but I want it to be mandatory and effective for everyone.”

The government said the legislation putting the boards on a statutory footing will be drafted “as soon as Parliamentary time allows”.

Paul Farmer, chief executive of leading mental health charity Mind, welcomed the move. He said: “We have seen that when agencies work together with people with mental health problems, they can prevent abuse from occurring and can ensure that justice is done. By giving priority to this issue the government is helping to reduce the risk of abuse.

“Mind has heard many examples where people have been exploited by those tasked with supporting them, such as the woman whose neighbour did her weekly grocery shop but also helped herself to £14,000 of her money and yet her care workers did not notice. We look forward to working with the government to produce new guidance that will better safeguard the rights of people in vulnerable circumstances.”

Kathryn Stone, chief executive of learning disabilities charity Voice UK, added: “Today’s announcement builds on previous measures which include making every independent care home subject to the Human Rights Act and giving the Care Quality Commission tough powers to penalise or close down care providers who offer substandard care.

“The government is also working with the General Social Care Council on a system of registration for home care workers. This will strengthen protection of vulnerable people, raise the quality of care provided and help prevent abuse.”

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19.Jan.2010

The London borough of Hammersmith & Fulham failed to deal properly with a homeless pregnant woman and was guilty of maladministration, the Local Government Ombudsman has ruled.

Tony Redmond said the woman concerned – Ms Kenza (not her real name) – had “suffered some injustice because she was not provided with the level of support and assistance she could reasonably expect as a person who was homeless and in priority need.” The council did not put her in temporary accommodation while the council investigated the circumstances that led to her homelessness.

However, Redmond rejected Ms Kenza’s claims of racial and sexual discrimination by council officers.

Ms Kenza, who was eight months’ pregnant at the time, complained that the council failed to give her adequate advice and assistance when she became homeless after she left her private rented accommodation following an incident of domestic violence.

Housing officers had suggested she find accommodation in the private sector through the Direct Lettings Scheme and failed to explain that she could make a homelessness application. Ms Kenza was not provided with emergency accommodation when she became homeless, although this was provided later by the council’s out-of-hours service. She said she spent four nights sleeping rough in the park as a result.

The Ombudsman said the standard of record-keeping by housing officers in the case “was so poor that it hindered the Ombudsman’s investigation of the complaint and fell so far below acceptable standards that it amounts to maladministration”.

He added: “It has not been possible to resolve some conflicts of evidence because of the absence of detailed contemporaneous notes recording housing officers’ contact with Ms Kenza, voluntary caseworkers and other professionals.”

Redmond said the council had applied too strict a test when deciding whether to provide Ms Kenza with temporary accommodation “by insisting she provide proof of homelessness first”. It also failed to follow its own procedures for referring victims of domestic violence to a specialist domestic violence housing advocate. Liaison between officers in different departments of the council was also labelled “ineffective”.

The LGO made a number of recommendations to the council including that it should apologise to Ms Kenza and pay her compensation of £750. It also called for Hammersmith & Fulham to:

• Remind all housing officers of the need to maintain accurate and detailed records of their contacts with services users, their advisers and advocates
• Review its systems for sharing information between children’s services and housing services in relation to vulnerable users
• Ensure that the established procedure for referring service users to the domestic violence housing advocate are followed
• Ensure that all forms used by the housing service are dated and ensure that records of service users placed in emergency accommodation by the out-of-hours service are copied to the housing officer responsible for the case.