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Law Commission Recommends New Principles for Community Care


The Law Commission today produced their hotly anticipated recommendations for the reform of social care law. The review was initiated under New Labour in 2008, and intended to make recommendations about what could be used to replace the patchwork of legislation that underpins people's entitlement to support from Local Authorities. It was the National Assistance Act of 1948 that mapped the basic framework of Local Authorities' obligations within the Welfare State, but successive governments have chosen to amend the legislation rather than replace it. The result is a barely comprehensible muddle that seems to give inidividual local authorities the capacity to interpret entitlements very differently (see the ongoing debate around the FACS criteria)


An article in Community Care Magazine focuses on the implications for people who live in residential care, who would find it easier to access Direct Payments were the law to change. Currently Local Authorities are under no requirement to hand over control for this part of their expenditure as they are, for example, in the case of day care. Whilst some commentators are worried that this will take the cap off costs (because Local Authorities will no longer be able to negotiate 'block contracts' with providers), others are confident that market forces will eventually create a more level playing field between privately and publicly funded residents.


Of interest to Disability Rights Groups will be the new statutory principles that would underpin any decisions taken by Local Authorities. Seven are proposed, including 'assume that the person is the best judge of their own well-being, except in cases where they lack capacity to make the relevant decision' and 'use the least restrictive solution where it is necessary to interfere with the individual’s rights and freedom of action wherever that is practicable'. Although many of these principles are inherent in legislation such as the Mental Health Act 1983 and the Mental Capacity Act 2005, they are not compulsory for Local Authorities providing services to people who use them on a voluntary basis. It would be inteersting to see what difference this makes long-term.


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