Thirty years ago, I wrote a piece for Legal Action on what was then the little-known legal galaxy containing the key statutes regulating the rights of disabled, elderly and ill people to social care and support services (‘Duties of social services departments’, September 1992 Legal Action 15).

It was little known because – I think – few people involved in the delivery of care and support services conceptualised what they were doing in legal terms. In saying this, I don’t suggest it was a golden age where every need was addressed by a generous welfare system – but it was an era when the system could (in my experience) resolve most challenges without the need to have access to advisers who understood the underpinning law. But this was changing, as was the language of social care. The National Health Service and Community Care Act 1990 was about to come into force and its roll-out was accompanied by classic progressive neoliberal marketing: talking the talk of anti-paternalism and new rights while (to quote Nancy Fraser1Nancy Fraser, ‘From progressive neoliberalism to Trump – and beyond’, American Affairs, Winter 2017 1(4), 46–64.) ‘preparing to walk the walk of Goldman Sachs’. And we have certainly been treading that path ever since.

The 1990 Act effectively privatised social care provision – sweating the labour by driving down care workers’ terms and conditions. For the wealthy, this is now an extortionate, financialised system based on offshoring and debt-leveraging, and for self-funders with meagre assets, it is simply unaffordable. For those reliant on state support, the ‘system’ is utterly broken (if, indeed, it can be dignified as being a ‘system’).

Neoliberalism brings with it the language of ‘personalisation’: the reification of a particular type of ‘autonomy’ – the ‘me me me’ kind – not the relational autonomy that almost all of us experience, where we make decisions based on how they will affect others, as well as ourselves. Personalisation can mean many things (like ‘community care’). It sounds soft and cuddly, but it has been used as a mechanism for closing social and community-based approaches to meeting needs (and providing nothing tangible in their place), and has arguably exacerbated the epidemic of loneliness that ravages the lives of so many disabled and older people.

Terminological change started with the Department of Health 1989 white paper, Caring for people: community care in the next decade and beyond (Cm 849), with words such as ‘packages’, ‘providers’, ‘consumers’, ‘care managers’, ‘targets’ and much else. ‘Packages’ chimed with the fad for package tours – consumerist, compartmentalised and commodified – but how can we talk of ‘care’ in these terms: of an activity that is priceless, that is fundamental to all human life and one that suffuses every aspect of our being? ‘Providers’ (as in the ‘purchaser/provider split’) entrenched the transactional, binary nature of the new model. Public bodies purchased and private bodies provided. Disabled, elderly and ill people were simply consumers choosing packages in the community care supermarket. Social care became a business: of care managers managing the care market and of assessors working within a command-and-control system – a system based on rigid assessment scripts, targets, tortuous eligibility criteria and where all decision-making power now rests with a funding panel whose members have almost certainly never met the individual. And the one word we should most rage against is ‘budgets’. People no longer have a right to decent care and support – their right is to a ‘budget’; their need is defined as a need for ‘budget’ and when things go wrong, the problem is articulated as a budgetary problem.

In place of paternalism, we have ‘responsibilisation’: instead of assessing what disabled, elderly and ill people need to live independent lives, assessors are now inculcated with the idea of ‘strength-based’ assessments – predicated on the idea that people should be encouraged to sort out their own care and ‘big up’ their abilities. It’s like requiring personal independence payment applicants to only say what they can do and rejecting as ‘defeatist nonsense’ suggestions that they can’t galvanise their ‘networks’ to ensure their needs are met: for ‘networks’ read ‘women’.

And then we have the language of choice. In place of decent care and support services provided by properly-paid care workers, we have choice: a choice between a bad and a dreadful service is a choice – and in the process this transfers risk from the state to the individual for the consequences of their choices. It was, therefore, hardly surprising that governments of a neoliberal bent found time to enact direct payments legislation – and then seek to make direct payments the default position for care and support: commodification, responsibilisation, privatisation and personalisation all rolled up into one dream ticket. This is not to knock the idea that direct payments as a mechanism can be transformative for some people – but they are not a panacea.

A mere 17 years have passed since my first ‘Community care law update’ article for Legal Action (see left).3At that time co-authored with Jean Gould, who had previously written the updates with David Wolfe. Simon Garlick replaced Jean, writing from 2010 to 2019. The current writing team brings together barristers from 39 Essex Chambers and Doughty Street Chambers, and solicitors from Rook Irwin Sweeney and Simpson Millar – see page 25 of this issue. The first case report in that article, R (Heffernan) v Sheffield City Council [2004] EWHC 1377 (Admin), told the story of the Administrative Court shoring up the minimum social care eligibility guarantee.4The eligibility framework was then found in statutory guidance, Fair access to care services: guidance on eligibility criteria for adult social care (LAC (2002) 13). The gatekeeping to social care resources which lay behind the flawed decision in that case (restricting the hours of care support to be provided to a severely disabled man) will be only too familiar to community care practitioners. What is becoming increasingly unfamiliar is a reported judicial review (JR). This certainly cannot be attributed to some golden age of generous social care funding that has swept away the misery of review decisions slashing care packages in half. The underfunding of local authorities, tasked with the enforceable duty to meet all eligible needs, has reached desperate levels in the wake of a decade of austerity-driven economics.5The ADASS Spring Survey of 2021 found that 24 per cent of directors were less than confident that budgets would enable them to meet eligible needs in 2021/22 and that increased to 33 per cent for 2022/23 (see page 21 of the final report). So, what lies behind the mystery of the vanishing JR?

The answer is hidden in plain-ish sight. While there are horrendous legal aid deserts plaguing community care practice,6In June 2022, 68 per cent of the population, or over 40m people, did not have access to a community care legal aid provider. the number of providers with legal aid contracts in the field has, in fact, remained fairly constant.7House of Commons Written Question by Karen Buck MP, UIN 50605, 16 September 2021; answered by James Cartlidge MP on 21 September 2021. What has fallen off the edge of a cliff is the number of legal help matter starts in the community care category: a decline of 77 per cent between the first quarter of 2011 and the first quarter of 2021.8Karen Ashton, Lainey Gough, Vicky Ling and Emily Sherratt, Community care legal career pathways. Research report April 2022, Access Social Care, page 14. Before we reach for that oddly comforting explanation of a temporary COVID-related blip, let’s look at the Ministry of Justice’s (MoJ’s) own, pre-COVID, account in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) review published in February 2019. It found a 63 per cent reduction over the shorter period of six years since the implementation of the LASPO reforms in April 2013.9Post-implementation review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), MoJ, CP 37, February 2019, para 138.

This cannot be explained by changes in what is covered by legal aid. Although swathes of case types were removed from scope by LASPO in other categories, community care emerged from that bonfire unscathed. Nor can we point to some kind of post-LASPO public misunderstanding that legal aid had been withdrawn across the board causing demand, if not need, to fade away. The reduction in use of legal help matter starts experienced in community care is unique. There are two other categories of legal aid casework where LASPO left scope untouched: mental health and public law. The change in the rate of legal help matter starts across the same 10-year period in mental health was negligible (one per cent) and public law saw an increase in usage.10See footnote 8.

But there is a twist in this sorry tale. Although the MoJ, in its assessment of the impact of LASPO, predicted no change in the use of certificated legal aid in community care (because there had been no change in scope), the LASPO review reported an increase of 75 per cent in volume with an associated increase in the cost of that work of £4m (138 per cent).11See footnote 9, Figure 4, page 32. Although the MoJ expressed puzzlement at these figures, when speculating on possible related factors it mentioned an increase in the number of deprivation of liberty cases.12See footnote 9, para 138. The investigation undertaken by Access Social Care (in which I declare an interest as one of the co-authors),13See footnote 8. concluded that there is a direct link between the increase in the volume and cost of certificated work and the decline in legal help work. It’s all about practitioners keeping going when the sums don’t add up: