A statute modernising adult social care law that came into force this month could expose local authorities to greater litigation risks.
Richard Clayton QC, of 4-5 Gray’s Inn Square, said the Care Act 2014 was ‘likely to result in uncertainty. Having a new set of rules means that certain issues will be litigated about how those rules apply’.
For instance, the act created a wellbeing duty on local authorities to promote individual welfare, Clayton said. ‘It is slightly disturbing that welfare itself is not defined except by a checklist. Scope for challenging decisions will inevitably rise.’
Fenella Morris QC (pictured), of 39 Essex Chambers, said the act brought changes in relation to local government’s role in market shaping and market oversight, which she described as ‘extraordinarily massive tasks’.
Morris said the changes encouraged councils to do things that would ‘expose you to risk’, such as:
- Increase innovation and provision by grant funding (‘a risk area’);
- Where you believe there is a risk to the financial viability of a care provider, decide what to do to return them to viability (‘will the care act be a safety net for companies? Given you’re not feeling so flush yourself it’s a daunting prospect’);
- Take steps to encourage and support providers to promote the balance of provision;
- Think about market intervention, including issues such as being a guarantor, making grants and business support initiatives: ‘If you think about state aid principles, it all starts to look alarming. You’re going to be giving one company advantage over others, distorting the market.’
Morris said in-house teams needed to think early about the risks. ‘You do not want a monster rising up from the sea later on,’ she warned.