The warning came after the Law Commission unveiled wide-ranging proposals to update what it describes as the “jumble” of social care law, much of which dates back 60 years.
In its report the statutory legal review body said it will look at whether current legislation is capable of properly dealing with the government’s plans to personalise social care.
A key area for reform is community care assessment. The commission said there were “at least three main [legal] duties to assess in adult social care, and arguably more”, and proposed consolidating the various existing laws into a single duty.
Anne McDonald, the Local Government Association’s programme director for community wellbeing, said replacing the overlapping assessment duties would reduce legal expenses and improve clarity.
“Most of the time there isn’t a problem with the existing mess of legislation, but when things go wrong and a question arises about what piece of legislation an assessment was carried out under, councils can get embroiled with a lot of legal work,” she said.
“If there was one duty to assess and it was clear, it would reduce the need to take legal advice and the expense.”
Amelia Cookson, who heads the centre for service transformation at the Local Government Information Unit, agreed with the commission’s separate proposals to introduce an overarching framework for social care law.
But she questioned the effectiveness of proposals to strengthen the duty to co-operate between councils and NHS bodies, asking which of the two could be held accountable for non co-operation.
Care services minister Phil Hope said it was vital that the next stage of the Law Commission’s work created “a clear, efficient and sustainable legal framework” for social care.