Duty to co-operate on social care proposed for NHS and councils

The final results of its two-and-a-half year project to streamline and clarify social care law, published today, recommends the establishment of a “duty on each social services authority to make arrangements to promote co-operation with specified bodies, including other authorities, the NHS and police”.

The Law Commission report adds: “It would also introduce an enhanced duty to cooperate to operate in particular circumstances, such as when a community care or carer’s assessment is taking place, when services are being provided, or during adult protection investigations.

“The requested agency would be required to give due consideration to the request, and provide written reasons if it refuses to cooperate. The duty would also require the social services authority to give consideration to requests to co-operate and give written reasons if it decides not to co-operate.”

Additionally the commission set out proposals to legally define minimum levels of social care provision and better aid the transfer of residents’ care packages between local authorities. It also recommends the provision of some universal care-related services to residents regardless of income and a duty to assess care needs from a “low qualifying threshold”.

Frances Patterson, the public law commissioner leading the review, said the report marked a significant step towards a “clearer and more coherent” legal framework for social care.

“Our recommendations will protect the strong rights that exist in adult social care law while, at the same time, ensuring that emerging policy objectives such as personalisation and self-directed support are recognised fully in statute law,” she said.

Stephen Lowe, social care policy adviser at Age UK, said he expected less litigation between local authorities to be one result of the Law Commission’s work.

“The advantage for local authorities is that there won’t need to be so many court cases because it will be clearer what the law means,” he said.

However, he said that defining minimum standards would not be an easy task.

Association of Directors of Adult Social Service vice president Sarah Pickup said the report’s focus on overall wellbeing was an important development and stressed that the purpose of the exercise had been to “correct and clarify” existing law, rather than to create new laws.

However, she said it was possible that new proposals for the assessment of carers could create additional work for local authorities and that the suggested relaxation of rules stopping direct payments being used to fund residential care would require further work.