1. The Reform of Adult Social Care Law Frances Patterson QC Public Law Commissioner The International Big Event 16 March 2010

2. Law Commissions Act 1965 “An Act to provide for the constitution of Commissions for the reform of the Law” It is the duty of the Law Commission to “take and keep under review all the law … with a view to its systematic development and reform …” (section 3).

3. Function of the Law Commission “… the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law …” (Law Commissions Act 1965, section 3)

4. Who we are Chairman (Lord Justice Munby) Four Commissioners Lawyers and Research Assistants Parliamentary Counsel Independent of Government Funded through Ministry of Justice

5. How we work Programmes of law reform – currently in Tenth Programme Criteria used to decide on new projects: –Importance –Suitability –Resources Stages of a typical law reform project

6. Our track record in law reform Since 1965, we have produced over 300 reports and 190 Consultation Papers Two thirds have been implemented in whole or in part

7. Adult social care project Project to review and reform the law for the provision of adult social care in England and Wales Announced in June 2008 and expected to run until 2012 Sponsored by the Department of Health and supported by the Welsh Assembly Government

8. What is adult social care? ADULT SOCIAL CARE Traditional services eg care homes, day centres, adaptations, meals, home care Adult protection procedures Assessments, personal budgets, direct payments Carers’ services Non-traditional services

9. Why adult social care? Piecemeal development of the law over past 60 years Overlapping and conflicting obligations Quantity and complexity Outdated language and concepts Human rights concerns Financial and other costs

10. Adult social care law National Assistance Act 1948 Health Services and Public Health Act 1968 Chronically Sick and Disabled Persons Act Disabled Persons Act 1986 NHS and Community Care Act 1990 NHS Acts 2006 Carers’ legislation

11. The structure of the adult social care project

12. Adult Social Care: A Consultation Paper Published 24 February 2010 Four month public consultation running until 1 July 2010 Our approach to consultation

13. Provisional Proposals (1): Statutory Principles There should be a statement of principles in our future statute The role of statutory principles What should they be? Possible statutory principles Choice and control Person- centred planning Broad range of needs Prevention services Independent living Assumption of home- based care Dignity in care Safeguarding adults

14. Provisional Proposals (2): Community Care Assessments A single and explicit duty to assess An assessment of social care needs and outcomes, and not services Regulations setting out how an assessment should be undertaken Should there be a right to an assessment on request? Should there be statutory recognition of self-assessment?

15. Provisional Proposals (3): Eligibility for Services Current legal framework – a confusing mixture of statutory guidance (eg Fair Access to Care Services) and statute (eg National Assistance Act) We propose a single eligibility process for all services: –The eligibility framework will be placed in regulations –Local authorities will be under a duty to use the framework to set their eligibility criteria, and to meet all eligible needs Regulations will specify whether or not a personal budget must be provided

16. Provisional Proposals (4): Carers’ Assessments Single duty to assess any carer who is providing or intend to provide care to another person – not just those providing substantial and regular care No need to request an assessment The introduction of a mandatory eligibility framework for carers’ services

17. Provisional Proposals (5): Safeguarding Adults A duty to investigate in adult protection cases An “adult at risk” defined as a person with social care needs and is at risk of significant harm Statutory adult protection boards Repeal of the compulsory removal power of older and disabled people under section 47 of the National Assistance Act Duties to co-operate in adult protection cases

18. Provisional Proposals (6): Other Key Proposals The introduction of a statutory care plan A single code of practice for adult social care A broad list of community care services Section 117 of the Mental Health Act 1983 more fully integrated into community care law Statutory duties to co- operate Should prisoners be provided with community care services?

19. How to respond: AddressSteel House 11 Tothill Street London SW1H 9LJ Emailadultsocialcare@lawcommission.gsi.gov.uk Websitehttp://www.lawcom.gov.uk/adult_social_care.htm Bloghttp://www.lawcom.org.uk/blog/