The Trustees of PAVAUK have welcomed the invitation to make contributions to recent considerations to Law Reform on Social Care. Our response led by Solicitor board member, Caroline Coats follows:-
Adult Social Care Consultation Response
Caroline Coats
for Board of PAVAUK
30th June 2010
(Agreed and contributed to by Board Members)
PART 1: INTRODUCTION
14.2 There are no provisional proposals made in this Part.
PART 2: OUR APPROACH TO LAW REFORM
14.3 Provisional Proposal 2-1: We provisionally propose that there should be a
single adult social care statute for England and Wales, unless policy in Wales
diverges enough to require separate statutes for England and Wales.
This appears to be a sensible starting point. Separate statutes would need to address portability between the two countries, perpetuating the existing post code lottery by transforming it into jurisdiction shopping.
14.4 Question 2-1: Is our proposed three-level structure for the regulation of adult
social care law (consisting of primary legislation, statutory instruments and
guidance) appropriate?
This would appear to be an appropriate way to tackle the aim of simplification of the current situation. It would also be simpler to refer to for implementation purposes.
14.5 Question 2-2: Should there be a duty on the Secretary of State and Welsh
Ministers to prepare a code of practice to bring together statutory guidance?
Yes.
14.6 Question 2-3: Is our process-driven approach to adult social care (a prescribed
assessment and eligibility process, with support from prohibitions, a broad list of
services, care plans and statutory principles) sufficient to determine the scope of
adult social care, or is further definition required?
The argument for a process-driven approach is well put. However, legal definitions will still be required and should not be entirely dismissed as not adding anything to the process.
PART 3: STATUTORY PRINCIPLES
14.7 Provisional Proposal 3-1: We provisionally propose that our future adult social
care statute should include a statement of principles.
Agreed. The benefit is clearly demonstrated by the principle in the Mental Capacity Act (MCA) that individuals may make unwise decisions, and many still have difficulty with the practical application of this principle. The inclusion of a clear statement of principles in the MCA has been beneficial however and consideration should be given to including principles at the start in the same way.
14.8 Question 3-1: Should there be a principle in our proposed adult social care
statute which provides that decision-makers must maximise the choice and
control of service users?
Yes, definitely. It must also be clear that previously expressed wishes should be adhered to when, for instance, an individual subsequently lacks capacity. At present this does not always happen.
14.9 Question 3-2: Should there be a principle in our proposed adult social care
statute based on person-centred planning – or should this be incorporated into
other provisions of the legislation?
Yes. However, terminology changes over time which may make a principle inadequate so may not work well as a principle for that reason, so then it should be incorporated into other provisions
14.10 Question 3-3: Should there be a principle in our future adult social care statute
which provides that a person’s needs should be viewed broadly?
Structuring such a principle would be difficult and the aim may therefore be more successfully achieved where it may be dealt with in more detail. A principle that is too loosely worded may end up achieving very little or be open to wide interpretation which may even be contrary to that intended.
14.11 Question 3-4: Should there be a principle in our proposed adult social care
statute based on the need to remove or reduce future need?
Yes, provided that it is also able to recognise that this cannot apply to everyone. It is also important to recognise that maintaining the status quo may be appropriate, particularly if the individual doesn’t want support/assistance or even an assessment.
14.12 Question 3-5: Should there be a principle in our proposed adult social care
statute based on the concept of independent living?
Yes. But only if it is compatible with the individual’s choice – see 3-1. It also needs the resource issues for Local Authorities; this could set them up to fail.
14.13 Question 3-6: Should there be a principle in our proposed adult social care
statute based on an assumption of home-based living?
Absolutely yes. There is too often an assumption that residential care is ‘the only option’ at the moment. This is best addressed by making this a requirement for the majority – with the option of the individual themselves overriding it – otherwise moving into a care home will continue to be seen as the easiest or cheapest option for social services.
14.14 Question 3-7: Should there be a principle in our proposed adult social care
statute based on dignity in care?
In principle this would be welcome. However, it may be better achieved by describing what is intended using other words rather than the word dignity. At present there is a tendency for the word dignity to be given an interpretation that best suits the person using it and not the person whose dignity is in question.
14.15 Question 3-8: Should there be a principle in our proposed adult social care
statute based on the need to safeguard adults at risk from abuse and neglect?
Yes. Provided it is compatible with the MCA and the right to make unwise decisions.
14.16 Question 3-9: Should any one principle in adult social care be given primacy
over all other principles?
No. They are all guiding principles that may be applied to a greater or lesser extent depending upon capacity of the individual and previously, or not, expressed wishes. In order to make any have primacy it would need to be a principle that is applicable in every case.
PART 4: COMMUNITY CARE ASSESSMENTS
14.17 Provisional Proposal 4-1: We provisionally propose that there should be a duty
to undertake a community care assessment in our future adult social care statute,
triggered where a person appears to the local authority to have social care needs
that can be met by the provision of community care services (including a direct
payment in lieu of services) and where a local authority has a legal power to
provide or arrange for the provision of community care services (or a direct
payment) to the person.
If the Local Authority were to have a duty would this override the individual’s right to refuse an assessment?
14.18 Question 4-1: Should our proposed adult social care statute include a right to
have an assessment on request?
Absolutely yes. This is one way of preventing people being refused assistance because there is no obvious need for services so an assessment is not carried out. Also, as highlighted, self-funders often struggle to get assessments, and are often not even aware that an assessment is possible or may assist them.
14.19 Provisional Proposal 4-2: We provisionally propose that the focus of the
community care assessment duty should be an assessment of a person’s social
care needs and the outcomes they wish to achieve, and should not focus on the
person's suitability for a particular service.
Agreed. Consideration may need to be given to circumstances where the individual wishes to request an assessment for a specific service, on the grounds that is all they want.
14.20 Question 4-2: Should our proposed adult social care statute recognise coproduced
self-assessments as a lawful form of assessment?
Yes.
14.21 Question 4-3: Should our proposed adult social care statute allow for a pure self-assessment for certain people or groups of people?
Yes, provided they are overseen by the local authority..
14.22 Provisional Proposal 4-3: We provisionally propose that our future adult social
care statute should place a duty on the Secretary of State and Welsh Ministers to
make regulations which prescribe details of the assessment process. The statute
should specify the areas which these regulations must cover.
Agreed provided the areas specified in the statute are sufficiently detailed and consideration given to including in the statute details of particular importance that would always be required.
14.23 Provisional Proposal 4-4: We provisionally propose that local authorities should
retain the ability to provide temporary services in urgent cases.
Agreed but should be a duty rather than a power.
PART 5: CARERS’ ASSESSMENTS
14.24 Provisional Proposal 5-1: We provisionally propose that there should be a duty
to undertake a carer’s assessment in our future adult social care statute.
Yes, but should be a duty to offer an assessment, so that the carer may refuse?.
14.25 Provisional Proposal 5-2: We provisionally propose that the duty to assess a
carer should apply to all carers who are providing or intend to provide care to
another person, not just those providing a substantial amount of care on a regular
basis.
Definitely yes.
14.26 Provisional Proposal 5-3: We provisionally propose that the duty to assess a
carer should not be triggered by the carer making a request, but should be
triggered where a carer appears to have, or will have upon commencing the
caring role, needs that could be met either by the provision of carers’ services or
by the provision of services to the cared-for person.
This is agreed. As discussed, assessment on request may in itself be an indication of need but this should be made clear by including it in the statute. Consideration should also be given to self assessment by carers too.
14.27 Provisional Proposal 5-4: We provisionally propose that our future adult social
care statute provides that the following carers are not excluded from the definition
of a carer for the purposes of a carer’s assessment: (1) a previously unpaid carer
who now receives payment for their services through direct payments received by
the cared-for person; (2) a carer who is paid for some but not all of the care they
provide; and (3) a carer where the local authority believes the caring relationship
is not principally a commercial one.
Absolutely agreed.
14.28 Question 5-1: Should our proposed adult social care statute encourage a more
unified assessment process for carers and cared-for people?
On the face of it this appears to be a good proposal. Without it there would remain the possibility that carers would go un-assessed. However, the potential for conflict of interests probably arises more often than is commonly thought. For that reason this probably should not go in the statute but be dealt with by regulations and code of practice.
14.29 Question 5-2: Do you think the carers’ assessment duty should be merged with
the community care assessment duty in our proposed adult social care statute?
No.
PART 6: ELIGIBILITY FOR SERVICES
14.30 Provisional Proposal 6-1: We provisionally propose that our future adult social
care statute should place a duty on local authorities to: (1) determine whether a
person’s social care needs are eligible needs, using eligibility criteria; and (2)
provide or arrange community care services (including a direct payment in lieu of
services) to meet all eligible needs.
Agreed.
14.31 Provisional Proposal 6-2: We provisionally propose that our future adult social
care statute should place a duty on the Secretary of State and Welsh Ministers to
make regulations prescribing the risks to independence that will call for the
provision of services and the objectives that are to be achieved by the provision
of services.
These are sufficiently broad in nature to be included in the statute.
14.32 Provisional Proposal 6-3: If a right to re-ablement services is introduced, we
provisionally propose this should be accommodated in our future adult social care
statute.
Whilst this is a very useful way of preventing greater long term care needs, it is also in some cases encouraging earlier entry into a care home. There are some who would be able to remain at home with such re-ablement services but who have them provided in a care home instead. Re-ablement services should therefore be weighted towards provision in the individuals own home.
14.33 Provisional Proposal 6-4: If the eligibility criteria are to be set at a national level
in England and in Wales, we provisionally propose that the eligibility criteria
should be prescribed in regulations issued by the Secretary of State and Welsh
Ministers respectively.
National criteria are to be welcomed. These may be changed more readily in Regulations to reflect current thinking from time to time, but may also be set at a very high level thereby withdrawing services from many who currently receive them (care needs to be taken therefore in the level at which these are set). This would also need funding to be ring-fenced for the purpose.
14.34 Provisional Proposal 6-5: We provisionally propose that our future adult social
care statute should prescribe that the Secretary of State or Welsh Ministers may
by regulations require that a local authority must allocate a personal budget in
fulfilling the duty to meet all needs that are eligible.
Such clarification is needed and welcome.
14.35 Provisional Proposal 6-6: We provisionally propose that there be a mandatory
national eligibility framework which local authorities must use to decide whether
or not to provide services to carers, and a duty to meet the eligible needs of
carers.
The argument in favour of this is well put, and agreed. There is no logical reason why Carers should not have the same consistency of information and assessment as everyone else.
PART 7: SECTION 21 OF THE NATIONAL ASSISTANCE ACT 1948 AND
SECTION 2(1) OF THE CHRONICALLY SICK AND DISABLED PERSONS ACT
1970
14.36 Provisional Proposal 7-1: We provisionally propose that section 21 of the
National Assistance Act 1948 should be repealed and that the Government
should ensure a proper scheme for the provision of residential accommodation to
those people who might lose their entitlement.
Agreed.
14.37 Provisional Proposal 7-2: If the Government does not introduce a proper
scheme for residential accommodation, we propose that section 21 should be
retained but only in relation to those people who would otherwise lose their
entitlement.
Not agreed. If the government does not introduce an alternative then it should be assumed that government policy is that the affected groups are no longer to be entitled to such residential accommodation provision.
14.38 Question 7-1: If section 21 of the National Assistance Act 1948 were repealed,
do you think that any groups would lose their entitlement to accommodation
under our proposed structure?
Not known, but many would be likely to qualify under other existing legislation.
14.39 Provisional Proposal 7-3: We provisionally propose that section 2(1) of the
Chronically Sick and Disabled Persons Act 1970 should be removed from adult
social care legislation.
Agreed.
PART 8: ORDINARY RESIDENCE AND PORTABILITY
14.40 Provisional Proposal 8-1: We provisionally propose that the local authority be
placed under a duty to provide services for people ordinarily resident in their area
and have the power to provide services for people who are not ordinarily resident
in their area. In cases of urgent need of residential accommodation, there should
be a duty to provide accommodation to those people not ordinarily resident in the
authority’s area. Assessments of need and the provision of temporary urgent
services should not be limited by the ordinary residence rules.
This is agreed but consideration will need to be given to defining ‘urgent’ need.
14.41 Provisional Proposal 8-2: We provisionally propose that the local authority in
which the cared-for person lives should be given responsibility for providing
carers’ services.
Agreed.
14.42 Provisional Proposal 8-3: We provisionally propose that our future adult social
care statute should enable the portability of services by the introduction of: (1) an
enhanced duty to co-operate when service users move areas; and (2) if these
policies are implemented, a national portable needs assessment and national
eligibility criteria.
Agreed.
PART 9: SCOPE OF ADULT SOCIAL CARE SERVICES
14.43 Provisional Proposal 9-1: We provisionally propose that community care
services should be defined by a short and broad list of services.
Agreed if provision is made for a more detailed list to be provided from time to by regulations.
14.44 Provisional Proposal 9-2: We provisionally propose that the list of community
care services should be set out on the face of our future adult social care statute.
Agreed if provision is made for a more detailed list to be provided from time to by regulations.
14.45 Question 9-1: Do you think that community care services should be undefined in
our future adult social care statute?
No.
14.46 Provisional Proposal 9-3: Provisionally, we do not propose that our future adult
social care statute should include a central definition of a disabled person or
service user.
Agreed, but it should therefore state clearly that anyone eligible qualifies for provision of services.
14.47 Provisional Proposal 9-4: We provisionally propose that carers’ services should
remain undefined in our future adult social care statute.
Agreed.
14.48 Provisional Proposal 9-5: We provisionally propose that our future adult social
care statute should allow for regulations to be issued that are capable of defining
Shared Lives schemes as being non-residential services in all cases.
Agreed.
14.49 Provisional Proposal 9-6: We provisionally propose that the existing divide
between health and social care service provision should be maintained in our
future adult social care statute. This would mean that local authorities would be
prohibited from providing residential accommodation, if this is authorised or
required to be provided under the NHS Acts 2006; any non-residential services
that are required to be provided under the NHS Acts 2006; and nursing care
which is required to be provided by a registered nurse.
Would it not be possible for local authorities to provide these things and be reimbursed by the NHS?
14.50 Provisional Proposal 9-7: We provisionally propose that social services
authorities should continue to be prohibited from providing ordinary housing and
connected services, if these services are authorised or required to be provided by
or under other legislation.
Agreed.
14.51 Question 9-2: If Government policy towards asylum seekers continues, what are
the likely consequences of retaining the prohibition on adult social care services
to those subject to immigration control solely because they are destitute or
because of the physical or anticipated physical effects of being destitute?
Not known.
PART 10: DELIVERY OF SERVICES
14.52 Provisional Proposal 10-1: We provisionally propose that our future adult social
care statute should place a duty on local authorities to produce a care plan for
people who have assessed eligible needs. This would be supported 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.
Agreed but would like to see a broad outline of what a care plan should contain also included in the statute, with the detail provided in regulations and code of practice.
14.53 Question 10-1: Should direct payments be extended to cover residential
accommodation?
Yes.
14.54 Provisional Proposal 10-2: We provisionally propose that the choice of
accommodation directions should be placed in statute law and that the additional
payments regulations should be retained in secondary legislation.
Agreed.
14.55 Provisional Proposal 10-3: We provisionally propose that the direct payment
provisions should be retained in their existing form in our future adult social care
statute.
Agreed.
14.56 Provisional Proposal 10-4: We provisionally propose that our future adult social
care statute should include a regulation-making power to enable the Secretary of
State or Welsh Ministers to require or authorise local authorities to charge for
residential and non-residential services.
Agreed.
14.57 Provisional Proposal 10-5: We provisionally propose that the existing
regulation-making power, which enables certain community care services to be
provided free of charge, should be retained. All services that must be provided for
free should be listed in the regulations.
Definitely agreed.
PART 11: JOINT WORKING
14.58 Provisional Proposal 11-1: We provisionally propose that our future adult social
care statute should apply to those aged 18 and above, and the Children Act 1989
(and the CSDPA 1970) should apply to those aged 17 and below.
Agreed.
14.59 Provisional Proposal 11-2: We provisionally propose that local authorities
should have a power to assess 16 and 17 year olds under our proposed adult
social care statute and young people aged 16 and 17 (and their parents on their
behalf) would have a right to request such an assessment.
Agreed.
14.60 Provisional Proposal 11-3: We provisionally propose that the C(RS)A 1995 and
the CDCA 2000 should be retained and amended so that they only apply to
young carers.
Agreed.
14.61 Provisional Proposal 11-4: We provisionally propose that parent carers should
continue to be eligible for a carer’s assessment under the C(RS)A 1995 and the
CDCA 2000. We also propose that where a young person aged 16 and 17 is
being assessed under our proposed adult social care statute, parent carers
should also be given a carer’s assessment under this statute.
Agreed.
14.62 Question 11-1: We welcome further comments on how the well-being power is
being or should be used in practice.
14.63 Provisional Proposal 11-5: We provisionally propose that the delayed discharge
provisions should be retained in their existing form in our proposed adult social
care statute.
Agreed. Although one effect of these provisions is harassment of family members to agree to arrangements that are not entirely suitable because they are presented as the only option when in fact, most of the time they are not.
14.64 Question 11-2: We welcome comments about whether prisons should be
included or excluded from adult social care.
Prisons should be included but it would be necessary to specify whether each aspect applies generally, in a restricted way, or not at all.
14.65 Provisional Proposal 11-6: We provisionally propose that the choice of
accommodation directions should cover residential accommodation provided
under section 117 of the Mental Health Act 1983.
Agreed.
14.66 Provisional Proposal 11-7: We provisionally propose that the additional
payments regulations should cover residential accommodation provided under
section 117 of the Mental Health Act 1983.
This is difficult to agree although the argument is well put. Should this occur it would almost certainly result in some people paying when they do not do so at present. This is because local authorities would lose sight of s117 and simply treat them the same as everyone else, which in practice is to expect third party top-ups. S117 is there for a reason and should not be lost sight of, so this proposal is not agreed.
14.67 Provisional Proposal 11-8: We provisionally propose that the concept of
ordinary residence should be extended to apply to after-care services provided
under section 117 of the Mental Health Act 1983.
Agreed.
14.68 Provisional Proposal 11-9: We provisionally propose that section 117 should be
amended to clarify that the duty falls on health authorities to provide health care
after-care, and on social services authorities to provide social care after-care. We
also propose that section 117 should be amended to clarify that health and social
services authorities can commission after-care services.
This would make unnecessary much of the existing partnership working and by separating the roles in this way send the opposite message to these arrangements which should in fact be encouraged. This is not agreed as presently proposed, but may be acceptable if this related to funding rather than provision.
14.69 Question 11-3: If the section 117 duty should be split between health and social
services authorities, should the termination of the duty also be split so that, for
example, social care after-care ceases when the social services authority is
satisfied that the person no longer needs social care after-care; or should both
authorities be involved in the decision?
Both should be involved as termination of social care may have health implications (and vice versa).
14.70 Question 11-4: Should section 117 be recast from a free-standing duty to a
gateway provision?
No.
14.71 Provisional Proposal 11-10: We provisionally propose that our future adult
social care statute should place a general duty on each social services authority
to make arrangements to promote co-operation between the local authority and
specified relevant organisations.
Agreed.
14.72 Provisional Proposal 11-11: We provisionally propose that our future adult
social care statute should specify that a local authority can request certain
authorities to assist in a number of circumstances, including when an assessment
of a service user or carer is taking place and in providing services to a service
user or a carer. In such cases, the requested authority would be under a duty to
give due consideration to the request.
Agreed, and would be welcomed.
PART 12: SAFEGUARDING ADULTS AT RISK
14.73 Provisional Proposal 12-1: We provisionally propose that our future adult social
care statute should place a duty on local authorities to make, or cause to be
made, such enquiries as it considers necessary where it has reasonable cause to
suspect that a person appears to be an adult at risk and consider whether there
is a need to provide services or take any other action within its powers in order to
safeguard that person from harm.
Agreed, may also need to include a requirement for other agencies to co-operate.
14.74 Provisional Proposal 12-2: We provisionally propose that the term vulnerable
adult should be replaced by adult at risk for the purposes of the duty to make
enquiries.
Agreed.
14.75 Provisional Proposal 12-3: We provisionally propose that an adult at risk should
be defined in our statute as anyone with social care needs who is or may be at
risk of significant harm.
Agreed.
14.76 Provisional Proposal 12-4: We provisionally propose that if the Government in
England or the Welsh Assembly Government decides to introduce new
compulsory or emergency powers to safeguard adults from abuse and neglect
then these will be included in our future adult social care statute.
Agreed.
14.77 Provisional Proposal 12-5: We provisionally propose that section 47 of the
National Assistance Act 1948 should be repealed.
Agreed.
14.78 Provisional Proposal 12-6: We provisionally propose that a local authority
should continue to be under a duty to prevent the loss or damage of a person’s
property when they have been admitted to hospital or provided with residential
accommodation.
Agreed.
14.79 Provisional Proposal 12-7: We provisionally propose that our future statute
should place a duty on each social services authority to establish an adult
safeguarding board and should specify the functions and membership of the
board, the requirement to share information and a duty to contribute to serious
case reviews.
Agreed and would suggest that membership should be as wide as possible and include those that represent abused adults, such as solicitors in private practice. This may be easier if enabled to differentiate between forms of membership – for example service users to be involved in the work of the Board without having to attend meetings.
14.80 Provisional Proposal 12-8: We provisionally propose that the enhanced duty to
co-operate, as proposed in Part 11 of this consultation paper, should include
specific provision to promote co-operation between the organisations in
safeguarding adults from abuse and neglect.
Agreed. This should be emphasised/highlighted in the code of practice (and elsewhere)
14.81 Provisional Proposal 12-9: We provisionally propose that No Secrets and In
Safe Hands, or their successors, are linked clearly to a local authority’s statutory
functions to safeguard adults from abuse and neglect, as set out in our future
adult social care statute.
Agreed, and linked to other agencies having similar statutory functions and responsibilities.
PART 13: STRATEGIC PLANNING
14.82 Provisional Proposal 13-1: We provisionally propose that the disabled persons
register should be abolished.
Agreed.
14.83 Provisional Proposal 13-2: Provisionally, we do not propose to include any
strategic planning provisions in our future adult social care statute.
This is disappointing as to do so may lead the way for other local authority services and provide a requirement of other statutory agencies eg health.
.
14.84 Provisional Proposal 13-3: We provisionally propose that our future adult social
care statute should place a duty on a local social services authority to provide
information about services available in the local area.
This would be very welcome and is badly needed.
