Law Commission Consultation on Adult Social Care Law


the following is not my work. its simply an email that was sent to me. But it looked important and i wanted people to know about it. Here goes:

9 March 2009
Law Commission consultation on adult social care law – briefing paper
1) Introduction
This is a briefing from Inclusion London to alert Deaf and Disabled People’s Organisations in London to an important consultation being undertaken by the Law Commission.
The Law Commission is undertaking a consultation on its proposals for reform of the law relating to adult social care. The Commission believes that the legislative framework for adult social care is ‘inadequate, often incomprehensible and outdated’ and says that the purpose of its proposals is to establish ‘a simple, consistent, transparent and modern framework for adult social care law’.
2) Timescale
The consultation documents were published on 24 February and the consultation runs until 1 July 2010. The Consultation stage will be followed by the development of a draft Bill.
3) The process and documents
Information on the consultation process along with the supporting documents, can be found at: http://www.lawcom.gov.uk/adult_social_care.htm
The main consultation document is 193 pages long. The summary document contains the questions and short explanations of each, and can be found at: http://www.lawcom.gov.uk/docs/cp192_summary.pdf
4) Context of the consultation and relationship to other developments
The consultation document notes that ‘law reform must operate within the broader context of Government policy’ and that the ‘policy environment for adult social care is in a state of development’ which is expected to continue to develop over the lifetime of the project.
The document notes a number of elements that it takes into account, including:
• Personalisation: ‘There has been an emphasis in recent years on promoting greater choice and control for service users over the services and support that are provided. The Department of Health refers to this policy as “personalisation”…’
• Prevention services: ‘Government policy has suggested the need for a retreat from the so-called traditional model of social care provision, whereby resources are concentrated on people with the highest levels of need, towards early intervention services to prevent the need for more intensive services’.
• The current debate about the future funding of adult social care, reflected in the 2009 Green Paper in England, Shaping the Future of Care Together, which put forward different options for how the adult social care system could be funded in the future. The Green Paper’s options did not include a fully state funded social care system – and this omission was widely questioned (including by Inclusion London) as were the pitfalls in some of the other funding options presented.
• Reviews of Government guidance, including the eligibility framework, policy for safeguarding adults from abuse and neglect, and the ordinary residence rules.
It states that ‘our final recommendations for law reform in this project will need to accommodate both existing and future policy developments and, in relation to England at least, this means taking into account personalisation.’
5) Personal Care at Home Bill
In addition to the elements highlighted by the Law Commission, the government also published, on 25 November 2009, the Personal Care at Home Bill. This enables regulations to be made requiring personal care to be provided free to people in their own homes for an indefinite period (as opposed to the current six week period for some services).
The November 2009 Queen’s Speech said that the purpose of the Bill was to ‘help around 400,000 people with care needs; offer for the first time free personal care at home for those with the highest needs, regardless of means; be the first step towards setting up a new National Care Service’.
Whether or not regulations were made to bring effect to this legislation would be a matter for the post-election government to decide.
6) Proposals
Key proposals or questions in the consultation document include ones to:
• Make the principles on which legislation is based clearer;
• Clarify and standardise eligibility, assessment and other criteria;
• Simplify and extend the carer’s assessment process;
• Place a duty on local authorities to determine a person’s social care need and eligibility and provide or arrange services;
• Set out in regulations the eligibility framework that local authorities would need to use in assessing eligibility for services;
• Change the law to allow regulations to require local authorities to allocate personal budgets;
• Introduce a mandatory eligibility framework for use in deciding whether or not to provide services to carers;
• Repeal a number of existing legal provisions including Section 21 of the National Assistance Act 1948, Section 2(1) of the Chronically Sick and Disabled Persons Act 1970, which places a duty on local authorities to provide residential accommodation;
• Reinforce the obligation on authorities to cooperate when service users move areas;
• Maintain the restrictions in providing services to people seeking asylum;
• Introduce a duty on local authorities to produce a care plan when a person is deemed to have eligible needs;
• Ask whether direct payments should cover residential accommodation;
• Allow future Secretaries of State a regulation-making power to require local authorities to charge for residential and non-residential services;
• Ask whether prisons should be included or excluded from adult social care;
• Repeal section 47 of the National Assistance Act 1948, which enables a local authority to apply to a magistrates court to remove a person from their home into a hospital or other ‘place of safety’;
• Abolish local authority disabled persons registers;
• Create a duty on local authorities to provide information about services available in their area.
The Law Commission explains that their aim 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’ and says that ‘It is our preliminary view that this would be best achieved by introducing a unified adult social care statute. This would mean that the existing provisions under which services are provided would be consolidated and reformed into a unified adult social care statute’.
7) Next steps
The proposals in the consultation document need to be carefully considered for the impact they may have on disabled people. The proposals would effectively replace many existing laws and regulations, and therefore it is important to consider carefully the proposals themselves, the framework they create, their practical impact and any possible unintended consequences.
It is important to consider:
• Are the new proposals effective and acceptable?
• Are any existing rights and duties removed deliberately or accidentally that should not be removed?
• Are there any other changes that are problematic?
• Are there issues that are not mentioned?
• Should the proposals be strengthened or otherwise changed, and if so, how?
This is a first briefing from Inclusion London on the Law Commission’s consultation, which we will aim to build on within the lifetime of the consultation. We would welcome views and information in the meantime from DDPOs on your views about the proposals.
For further information contact:
Anne Kane, Policy Manager
Inclusion London
Unit J410
Tower Bridge Business Complex
100 Clements Road
London SE16 4DG
Email: policy@inclusionlondon.co.uk
Telephone: 020 7237 3181
London Deaf and Disability Organisations CIC
Company registration no: 6729420

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