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Rt Hon Phil Hope is a former Labour Cooperative politician and was Minister of State at the Department of Health from 2008 to 2010 during which time he oversaw the Law Commission’s review of Adult Social Care which alongside other report and inquiries led to the introduction of the Care Act, and developed and oversaw the publication of the Social Care Green Paper, ‘Shaping the Future of Care’ in July 2009. Sir David Behan was Director General for Care Services during this period and was Chief Executive of CQC from 2012 - 2018.
It all started in 2008 with a request to the Department of Health from the Law Commission for us to support a review of all previous adult social care legislation. Their aim was to bring forward proposals for a new legal framework for the social care system in England and Wales that would replace all that had gone before.
At that time Phil had been appointed Minister of State for Care Services, advised and supported by David, then Director General for Care Services in the Department. The policy question was whether this was the right thing to do; whilst the political question was whether this was a potential pitfall to avoid. It was for David, a civil servant, to advise and for Phil, the minister, to make a policy decision that would shape the fundamental principles of social care that apply today.
The Law Commission’s original scoping report spelled out in detail the mish mash of laws, secondary legislation, statutory duties on local government, regulations and guidance relating to social care services that had grown up piece-meal over decades since the 1948 National Assistance Act.
As the scoping paper then noted: "Adult social care law remains a confusing patchwork of conflicting statutes enacted over a period of 60 years. Some of these statutes reflect the disparate and shifting philosophical, political and socio-economic concerns of various post- war governments. Other statutes were originally Private Members’ Bills and represent an altogether different agenda of civil rights for disabled people and their carers. The law has also developed with an inconsistent regard for previous legislation."
But the central issue for us both was the opportunity this presented to establish a new defining principle for the social care system. We knew there was an essentially administrative task to be done to consolidate previous legislation and guidance into a single, coherent framework.
But we wanted it to be more than this - the opportunity to embed in law a new rationale for social care based not on 20th century values but on 21st century values and principles about the relationship between the state and those in need of social care and support. In effect a new social contract.
Of course, many laws to improve social care had been passed over the years, but none had amended the original 1948 Act. This was the moment for the government – and the country - to make a fundamental shift in law from a social care system rooted in the Poor Law concept of the principle of ‘less eligibility’, an outdated concept of minimal support for older people and working age people with disabilities to survive. And to establish in law a social care system based on promoting the wellbeing and independence of people to live the life they choose to live whatever their care needs might be.
The Law Commission’s work would also provide us with a single coherent legal context for a number of our wider ambitious policy initiatives at the time including the 2008 Carers Strategy : ‘Carers at the heart of 21st century families and communities’ , the 2009 Green Paper on reform of the social care system ‘Shaping the Future Together’ , the 2009 ‘Living Well with Dementia a national dementia strategy’, the 2009 Autism Act and the 2010 white paper on social care reform ‘Building a National Care Service’.
16 years later through the 2014 Care Act, the legislative framework of our social care system has been transformed. Key concepts such as choice and control, personalisation, promotion of wellbeing, independent living, the voice of people with lived experience of care, safeguarding, and prevention are all now mainstream features of the commissioning and provision of services.
And perhaps the time has now come to build on that platform. To ensure the legal framework for social care not only embodies these features and innovations such as digital ways of working; but also reflects other elements such as citizens’ rights, genuine partnership working with the NHS, professionalisation of the workforce, and financial regulation of providers.
We know that continuing to develop the best legal framework is essential but it is not sufficient to ensure best practice in people’s experience and outcomes from social care services. The system in 2024 is in crisis, and more action not just updated law is needed to address the current challenges of an underpaid social care workforce, rising demands of an ageing population, financially unsustainable services, unaffordable costs for service users, and a postcode lottery of access to care.
Social care has always been overshadowed by the political priority given to the NHS by all governments.
But it appears now to have much greater recognition in the public’s mind from its crucial contribution during the coronavirus pandemic. And there is now increasing understanding that a better paid, fully staffed care workforce not only improves the lives of those who draw upon and deliver care services; it also creates a more efficient and productive NHS and social care system, and actively contributes to economic growth in some of the most deprived areas of the country.
In truth, supporting the Law Commission’s review in 2008 to be the basis for a new Social Care Act wasn’t a difficult decision to take. It was a policy decision that laid the foundation for successive Ministers and civil servants to take forward and establish the legal basis for a 21st century system of social care. The challenge now is to make that legal vision a reality in practice for all those who need it.
