Abstract
This article examines the limits of law to resolve or transform the contemporary dilemmas provoked by the provision of social care to adults in the UK. It juxtaposes the judgments in two cases, each of which interrogates the legal consequences of the mixed economy of care: the majority and minority opinions of the House of Lords in YL v Birmingham City Council (2007) and the Care Standards Tribunal decision in Alternative Futures v National Care Standards Commission (2002). We read the opinions/decisions as narratives that tell a variety of stories reconciling the different roles of law, the state, the family and the individual in the provision of care. Drawing upon David Scott’s concern with ‘the conceptual problem of political presents and with how reconstructed pasts and anticipated futures are thought out in relation to them’ (2004: 1), we seek to examine legal responses to the contractions and mutations of social welfare.
Keywords
Introduction
This article examines the limits of law to resolve or transform the contemporary dilemmas provoked by the provision of care to adults in the UK who are unable to look after themselves. It does this by juxtaposing the judgments in two cases, each of which interrogates the legal consequences of the mixed economy of care. We read the majority and minority opinions of the House of Lords in YL v Birmingham City Council and others [2007] UKHL 27 and the decision of the Care Standards Tribunal, 1 in Alternative Futures v National Care Standards Commission [2002] 101–111 NC. Our focus is not the legal reasoning within the decisions. Indeed, such a focus would be very limited, as the legal significance of both decisions has proved to be transient. 2 Instead we read the opinions/decisions as narratives that tell a variety of stories reconciling the different roles of law, the state, the family and the individual in the provision of care with a view to identifying productive possibilities within those narratives. Our analysis draws upon David Scott’s concern with ‘the conceptual problem of political presents and with how reconstructed pasts and anticipated futures are thought out in relation to them’ (2004: 1). Whilst Scott’s work is a response to the ‘collapse of the social and political hopes that went into the anti-colonial imagining and postcolonial making of national sovereignties’ (2004: 1), it seems to us that his approach has something to offer those of us who are concerned to identify and avoid ‘dead-end’ responses to the contractions and mutations of social welfare so ably mapped out by Nicolas Rose and others (see e.g. Brown, 2006; Dean, 1999, 2007; Rose, 1996).
Scott’s argument is that dead-ends are in part a consequence of theorists’ failure to acknowledge the different temporalities that are implicit in contemporary ‘problem spaces’. For us, care is (like colonialism for Scott) paradigmatically a problem space. A problem space, is meant first of all to demarcate a discursive context, a context of language. But it is more than a cognitively intelligible arrangement of concepts, ideas, images, meanings, and so on – though it is certainly this. It is a context of argument and, therefore, one of intervention. A problem space, in other words, is an ensemble of questions and answers around which a horizon of identifiable stakes (conceptual as well as ideological-political stakes) hangs. (Scott, 2004: 4, emphasis in the original)
Problem spaces ‘alter historically because problems are not timeless and do not have everlasting shapes’ (Scott, 2004: 4). The notion of care as a problem space encapsulates the contested nature of care, undermining the progressive story of social welfare and reminding us of its temporal dimensions. This last feature is of particular importance. Scott points out that within problem spaces ‘the precise nature of the relation between pasts, presents and futures has rarely ever been specified and conceptually problematized. It has tended, rather to be assumed, to be taken for granted’ (Scott, 2004: 3). Significantly his critical emphasis is on the questions that narratives respond to. His claim is that ‘an adequate interrogation of the present … depends upon identifying the difference between the questions that animated former presents and those that animate our own’ (Scott, 2004: 3, emphasis in the original). Dead-ends arise because ‘In new historical conditions old questions may lose their salience, their bite, and so lead the range of old answers that once attached to them to appear lifeless, quaint, not so much wrong as irrelevant’ (Scott, 2004: 4). Our concern, therefore, when we read the legal texts as narrative, is to bear that observation in mind as we identify the questions which animate the narratives and decide whether those questions continue to be questions worth having answers to. If law’s narratives are productive only of dead-ends, then in Scott’s terms it is lifeless and irrelevant. Our conclusions, despite reservations about the transformative potential of law for the provision of social care, are not quite so pessimistic.
The article is structured as follows. It is substantively divided into three parts. Firstly, we consider the emergence of care as a problem space and illustrate how different questions about the provision of care permeate that space. Secondly, we explain the legal questions facing the House of Lords and the Care Standards Tribunal in two particular cases. Despite the technical differences, both cases in essence concern the legal meaning of a care home and the complex dividing lines between the public and the private, the home and the institution. Thirdly, we turn to the text of the legal decisions to consider the techniques which enable the tribunal to reject a neo-liberal consumerist approach to collective social responsibilities whilst the House of Lords makes a decision to the opposite effect. Our article begins, however, with some elaboration of our approach. We explain why we consider that the juxtaposition of a tribunal decision with the majority and minority opinions of the House of Lords is fruitful.
The Purpose of Our Juxtaposition
The decisions we compare and contrast are from quite distinct judicial spheres. In YL v Birmingham City Council and others, the House of Lords decided by a majority that an individual, whose care is funded by the state but provided by a private care home, does not have the benefit of rights under the European Convention on Human Rights. In Alternative Futures v National Care Standards Commission, the Care Standards Tribunal upheld the refusal of the National Care Standards Commission (NCSC) to deregister 11 care homes run by Alternative Futures Ltd, a not-for-profit company. YL is one of only 57 cases decided by the House of Lords in 2007. It has received extensive academic comment (Landau, 2007; Palmer, 2007, 2008) which have a focus on the more general implications of the meaning ascribed to ‘public body’ in the Human Rights Act 1998, rather than, as in this article, the understandings given by the judges to notions of ‘care’. In contrast, the decision of the Care Standards Tribunal (one of tens of thousands made by tribunals that year) has received very little academic attention (although it has practical significance to social care practitioners and social entrepreneurs). This is not surprising. Tribunals are the invisible workhorses of the administrative justice system, dealing largely with the mundane workings of welfare relationships between the citizen and the state. Their decisions, which do not bind even other tribunals, are of little interest in a common law jurisdiction where the seniority of the court dictates the significance of the decision. Moreover, the subject matter of tribunal cases is generally concerned with the interpretation of detailed statutory rules which are simultaneously both complex and banal, so that interest is presumed to be limited to technical specialists within particular social welfare jurisdictions rather the broader theoretically informed international audience to which scholarship aspires. The juxtaposition of the House of Lords and the Care Standards Tribunal in this article has therefore a further aim. Our claim is that limiting academic attention to the higher courts risks missing important data about the management of complexity. The process of refinement that takes place as cases are appealed and appealed again means that some of the conflicts are ‘disappeared’, the emotional rawness of the contested facts becomes distant and cases become more manageable.
Care as a Problem Space
Whilst our article suggests that the boundary between state provision and the private home or enterprise has a contemporary intensity, it is not a new problem. The cases are current manifestations of questions which have been salient within liberal government since the beginning of the 20th century – how to govern the provision of care so as to provide for the well-being and safety of the increasing numbers of frail elderly and other vulnerable groups without that provision being ‘unaffordable’ or ‘undignified’. The emergence of care as a problem space seems to us to coincide with the construction of the welfare state in the first half of the 20th century, to intensify with the dissolution of the post-war welfare consensus in the 1970s and 1980s and to acquire extraordinary complexity with the realization of human rights, the re-invigoration of the market as the ideal provider and the growth of a risk-averse culture.
The answer of state provision in the immediate post-war welfare state was in response to the question of how to ‘slay’ the well-documented poverty of the elderly and the indignities of old age in the recent past. As Thane puts it: Too many of the respectable labouring poor ended their lives in the workhouse or on outdoor relief – fifty per cent of those reaching the age of sixty according to Joseph Chamberlain in 1891. Others died in destitution for fear of the shame attached to a pauper funeral. (1996: 37)
Social policy and legislation developed as a response to the questions raised by Victorian New Poor Law and the stigma of the workhouse. For Fraser, ‘much of the social policy on the twentieth century road to a Welfare State has been concerned with removing categories of need from the remit of the Poor Law and providing socially more acceptable alternatives’ (1984: 134).
Local authorities rather than workhouses became the providers of accommodation for the elderly and infirm, fulfilling the duties and utilizing the powers given to them in Part III of the National Assistance Act 1948. However, state provision was qualified. Institutional care was limited to those whose needs were greatest and community care services for vulnerable groups were largely neglected in the legislative framework of the welfare state. Instead the state addressed the poverty of old age mainly through the provision of state pensions, and the family home was considered the centre of care, with direct state provision limited. Moreover, as Bland points out (1999: 534), ‘despite post-war aspirations, many former Poor Law buildings, standards and staff attitudes to residents were unchanged’. This meant that the question of how to provide humanely for those in need remained potent as the new provision was insufficiently distinct from the previous discredited answer.
New answers were proposed, stimulated by welfare activism, feminism and the crisis of affordability and effectiveness of state welfare following the end of the post-war boom in the 1970s. Scott’s observation, ‘that a problem space is very much a context of dispute, a context of rival views, a context, if you like, of knowledge and power’ (Scott, 2004: 4) seems a particularly apt description of the uncertainties surrounding the provision of care from the 1970s onwards.
Welfare activists articulated the demands of groups excluded from or differentially included within post-war welfare citizenship. As Williams explains, their claims were designed to expose, ‘the limitations of a “false” universalism, a limited egalitarianism and an exclusive rather than an inclusive citizenship inherent in the post-war welfare state’ (1999: 672). Activists wanted more than redistribution of goods; importantly they claimed for the welfare subject what Williams describes (1999: 673) as, ‘cultural respect, autonomy and dignity’ and sought to reconstitute ‘the welfare subject as an active citizen participating in the democratic organisation of welfare services’.
These positions challenged the marginalization of the needs of vulnerable service users via institutionalization and the paternalistic provision. This led to the first of two paradigm shifts in the provision of care, the decarceration of individuals from institutions to the community (for details, see e.g. Ungerson, 2000), a move which government sought to enhance through generous funding for the private provision of residential care. The result was, as Bland points out: The quantity and type of residential provision expanded and, theoretically at least, increased choice for older people … The less prosperous majority of older people had a brief opportunity to opt for residential care using social security funding, since eligibility was based solely on income rather than any defined ‘need for care’. The numbers of people entering homes increased dramatically. Whether this was due to older people themselves making the choice to move into residential care or to evidence of medical enthusiasm is not clear. (1999: 543–544)
Moreover the shift from institution to community was quickly overtaken and subsumed by a political crisis about the costs of welfare. As Hoyes and Means explain: Among the factors precipitating this were concerns about the growth in the numbers of ‘old old’, the explosion in social security payments to support residents in independent residential and nursing home care and the difficulties associated with the Government’s Care in the Community initiative to close down large mental handicap and psychiatric hospitals. (1993: 94)
This crisis powered the second paradigm shift which was given legal shape through the National Health Service and Community Care Act 1990. The driver of change was, as Ungerson (2000: 626) explains, the idea of a ‘mixed economy of welfare with the core notion of an internal market based on a purchaser/provider split’. The market, or the marketization of welfare, became the answer to the question of the humane and efficient provision of care. Le Grand and Bartlett summarize the aspirations of the government in transforming the provision of welfare. Generally … local social services departments were supposed to reduce their role as providers, becoming instead primarily purchasing or enabling authorities, buying community care services from independent provider units … It was envisaged that eventually budgets for purchasing care would be allocated to care-managers, who would be appointed for each client to construct a package of care for the client concerned. (1993: 5)
The changes were more than organizational. The aspirations of the state were changed and this was reflected in a new managerialist set of questions relating to quality, responsiveness and customer service (see Clarke and Newman, 1997). Part of the success of the government was that it harnessed a growing dissatisfaction with welfare bureaucracy. As Du Gay puts it (2000: 64), ‘If “entrepreneurial governance” has one overarching target – that which it most explicitly defines itself in opposition to – then it is the impersonal, procedural, hierarchical and technical organization of the classic Weberian public bureaucracy’.
The questions about the provision of care had, we suggest, subtly changed from the 1940s. No longer solely concerned with how the state could humanely provide a safety net for those in need of care, the emphasis was primarily on affordability and secondly on how providers could be regulated to ensure that an appropriate quality of service could be provided. Humanity was not guaranteed through the auspices of the state, instead humanity was to be achieved through the empowerment of the individual service user. However, that empowerment had a particular character. It was shaped by the market which constructs the individual as a consumer seeking to exercise choice. The election of New Labour in 1997 did not lead to any significant change in direction. As Clarke et al. put it: The New Labour Government elected in 1997 following eighteen years of Conservative rule, proved to be just as enthusiastic about the reconstruction of welfare as a major political task, seeing it as a means through which a distinctively ‘modern’ British people might be constructed. (2000: 1)
This quotation reveals another significant question to which welfare is an answer – the question of national identity. As Clarke argues: Welfare states seek to produce a nation – a People. They attempt to reinforce or enforce certain ‘ways of life’; they regulate forms of being and behaviour; they classify and categorise the population (and deal differently with its segments); and they manage the relationships between the public and private realms. (2005: 412)
The lashing together of welfare and who ‘we’ think we are, means that welfare is always vulnerable to the unexpected emergence of political issues, despite the increasingly technical nature of its regulation. So the frail elderly woman left in squalor has political potency; she can subvert the neo-liberal order which privileges affordability over dignity.
This potency became an opportunity for New Labour. Whilst it continued to support the mixed economy of care introduced by the Tories, it was concerned to distinguish its provision from what was perceived as the brutal institutionalism of old Labour and the lack of compassion which had been revealed by the Tory policy of care in the community. In what has been characterized as a softening of neo-liberalism (Peck and Tickell, 2004), New Labour has given a particular emphasis to the promotion of service users’ independence and the protection of their safety. Legislative interventions were designed to deliver what was described as personalization, for instance, enabling direct payments of benefits to service users so that they can exercise consumer choice about service provision. In addition, there has been an increased emphasis on the protection of the vulnerable through reform of the criminal law,
3
and the introduction of new, and a revamping of existing, regulatory protections. Potentially, however, the most dramatic intervention in the lives of vulnerable adults was the introduction of the Human Rights Act 1998. Rights are attractive to a state wishing to demonstrate compassion without increasing its direct responsibility for the provision of care. Two extracts from the then government’s intervention submissions
4
in the YL case illustrate the importance that the government attached to the notion of rights for care home residents: Residents of care homes are vulnerable adults who have little or no choice as to whether they are placed in private or local authority homes. They are reliant on the care home provider to meet their most basic human needs, and accordingly to vindicate and respect – in a very direct and immediate sense – their Convention rights … Thus, it is possible that a resident may be abused or subjected to inhuman treatment (in violation of his Convention rights) in a private care home in circumstances which might involve no cause of action under ordinary domestic law and no breach of any positive obligation under the ECHR owed by the local authority or regulatory body (e.g. if they were not on notice of the abuse).
The agreement published by the Conservative/Liberal coalition which took power in May 2010 did not suggest any substantial change in policy direction. The Coalition’s focus on deficit reduction, and in particular the massive reduction of financial resources to local authorities, the prime providers of adult social care services, indicated that affordability would continue to dominate the adult social care agenda.
It announced the Dilnott Commission on Funding of Care and Support would consider a range of options for the funding of care, and pledged to continue to progress personalization and direct payments. Its reiteration of New Labour’s commitment to dignity and respect in the provision of social care indicated that the Coalition, like New Labour, expected human rights to contribute substantially to the answer to the problem of how to care for the vulnerable adult. 5 Human rights therefore provide an important plank of the legal welfare which has supplanted the social welfare of the immediate post-war period. Judges are critical to the effectiveness of legal welfare. However, before we consider what their narratives tell us about their understanding of the problem space of care, we locate YL and Alternative Futures in that problem space.
Locating the Cases in the Problem Space of Care
Both cases arose as a result of the mixed economy of care because they concerned non-state actors which provide care to vulnerable adults. However, the scale and mode of operation of the providers of care in each of the cases are quite distinct. Alternative Futures Ltd is a ‘not-for-profit’ company limited by guarantee and a registered charity. It was established in 1992, primarily in response to the retraction of NHS institutional hospitals, to provide care in the community. According to its website, it currently employs around 2500 people. Southern Cross, the provider of accommodation to YL, is, in contrast to Alternative Futures Ltd, a major commercial operator. Its website explains that the company has expanded rapidly since 1997 through a series of acquisitions and new developments. It became a public listed company in 2006 and by March 2009 had a total of 734 care homes and approximately 37,600 available beds employing 41,000 people through three brands – Southern Cross Healthcare, Ashbourne Senior Living and Active Care Partnerships. It has recently suffered severe financial difficulties which we outline more fully below (Pratley, 2008; Silburn, 2010; Wachman, 2011; Wearden, 2011).
The second commonality between the cases is that each interrogated the limits of the state. In YL the issue was whether a private care home, the majority of whose residents were publicly funded, was a ‘public authority’ for the purposes of the Human Rights Act 1998; Alternative Futures concerned the limits of the intensive regulation imposed by the Care Standards Act 2000 on care homes, and in particular the boundary between what was a care home and what was a resident’s own home. Each provider was asserting its own autonomy from the state. So each case concerned ‘legal welfare’ – interventions designed to regulate the market.
Finally, each case had a significance way beyond the particular parties involved – YL because of its relevance to the meaning of the Human Rights Act 1998 and Alternative Futures also being significant as it was one of the first cases heard by the Care Standards Tribunal, and dealt with a difficult statutory boundary, the limits of the Care Standards Act 2000. It also served as a review of the decision-making procedures of the NCSC, at that time a new (although now superseded) regulatory body. The case therefore represented a significant test for two new state agencies which had to demonstrate not only their own credibility but also the robustness of the innovations associated with the reconfiguration of welfare.
Although the residents of care homes were not party to the tribunal case, for them, the boundary between a care home and your own home is of importance for two reasons. The first concerns the legal construction of identity; the law constructs your identity primarily as a passive recipient of services if you are the resident of a care home, whereas if you live in your own home, you are an autonomous decision maker. Secondly, the financial support available to someone differs depending upon whether they live in a care home, or their own home. If you live in your own home and are reliant on welfare benefits, you are entitled to Housing Benefit and therefore are likely to be considerably better off than if you are the resident of a care home where you are given a very limited personal allowance.
So there are both ideological and material reasons for users to prefer deregistration. For the state the boundary matters because it is crucial to its policy of de-institutionalization via care in the community and its simultaneous revitalization and retraction of welfare through the transformation of the welfare subject from dependency to active citizenship. However, the promise of state welfare includes the provision of security to the vulnerable, something prioritized by contemporary government and epitomized, for instance, through community safety policies. It is therefore crucial to the state that the boundary between protection and autonomy is correctly drawn. Therefore, what was at stake here was profound; the appropriate limit of welfare in the reconfigured state social project, the interface between state, provider and user and the ability of newly created bodies to mediate these processes effectively.
In the final section of this article we set the decisions alongside each other to see the extent to which they illuminate each other, and to reveal the salience of the questions to which they are a response. However, before we do this, we need to expand upon the legal dimensions of the questions being asked in each case.
The Legal Questions in the Cases
YL came to court because of the threat to exclude YL from the care home in which she was living, due to the behaviour of her husband and other family members. The care home, a specialist Elderly Mentally Infirm Unit within a nursing home was owned by Southern Cross. YL’s accommodation there was facilitated by a complex contractual arrangement involving YL herself, Southern Cross, Birmingham City Council and YL’s daughter. The eviction was resisted on the basis that it would potentially be a breach of Article 8 of the European Convention on Human Rights. However, the Convention would only be directly applicable if Southern Cross could be said to be a public authority under s. 6 of the Human Rights Act 1998. Section 6 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. On one level the question which confronted the courts from the High Court to the House of Lords was a simple one which turned on the definition within the section 6. This provides: (3) In this section ‘public authority’ includes: (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature … (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
Alternative Futures Ltd needed to respond to government policy changes and to maximize its income from the state. Originally Alternative Futures Ltd ran small registered residential homes, nursing homes, and supported living services for people who would previously have been institutionalized, and provided both housing and personal services for its residents. However, in March 2001 Alternative Housing was established as a separate not-for-profit company and was also registered as a charity. The reason for this was to allow the landlord role to be devolved to Alternative Housing; Alternative Futures was to provide only the necessary care services. This change was designed to enable Alternative Futures Ltd to change its model of operation, from the provision of care homes to supported or assisted living.
There were two strong incentives for Alternative Futures Ltd to change the categorization of its accommodation from care homes to supported housing. Firstly, care homes are subject to intensive regulation and surveillance by the state. A person’s own home, however extensive the care a person receives there, is not. There was an additional incentive for deregistration in 2002, which was that an extra stream of state funding, transitional housing benefit, was briefly available to providers of domiciliary care services as part of the reorganization of the financing of supported housing provision prior to the implementation of the Supporting People programme (see further, Carr, 2005). Alternative Futures Ltd was a social enterprise, trying to stay financially viable in a difficult environment. It is not surprising that it would attempt to maximize its income in response to financial incentives.
Deregistration as a care home is only possible following an application to deregister which must be accompanied by reasons, and the NCSC must approve the deregistration. In order to do so, it must form the view that the establishment no longer falls with the definition of a care home. A care home is defined under section 3(2) of the Care Standards Act 2000 as an establishment which ‘provides accommodation, together with nursing or personal care’. If an establishment is not a care home, then it is your own home, and your own home, the Department of Health guidance (DoH, 2002) makes clear, cannot be a care home. What is notable about this is that the scheme of regulation assumes a clear dividing line between residential care homes and private homes. That clear dividing line does not exist; instead there is a spectrum of care provision which, as a result of policies of decarceration combined with the retraction and refocusing of welfare, has become more complex. In particular, supported housing (where domiciliary care is provided in the client’s own home), and extra care housing (sometimes also referred to as ‘very sheltered housing’; see DoH, 2002: paras 20–26), both of which can involve the provision of intensive support including the most intimate personal care in specially designed accommodation, make the boundary very fuzzy. Moreover, no legal definition of these categories of housing exists.
Alternative Futures Ltd carried out a consultation exercise prior to the reorganization which was supported by a pack of documents including a detailed explanatory letter of the changes, copies of the proposed tenancy agreement (for the residents were going to be offered tenancies), copies of the Charter for Tenants and the Support Charter (both of which the Housing Corporation requires to be given to supported housing tenants), copies of a basic pictorial guide to the tenancy agreement designed to enable people with limited mental capacity to understand the tenancy agreement, a summary of Valuing People (DoH, 2001), the Department of Health policy paper explaining government policy on services for the learning disabled, an explanation of service users’ legal and civil rights and a list of frequently asked questions and answers. It applied to the NCSC in May 2002 for the voluntary cancellation of the registration of 11 care homes (seven in the Wirral, three in Stockport, and one in Knowsley) under regulation 15 of the National Care Standards Commission (Registration) Regulations 2001(SI 2001/17). The reason for the request for cancellation of registration in each case was ‘that the home is no longer functioning as a registered residential home and that the establishment is following requests by service users to establish a supported living model’ (Alternative Futures, para. 6). The NCSC rejected Alternative Futures’ request for the cancellation of registration. Alternative Futures appealed against the decision to the Care Standards Tribunal, which upheld the decision of the NCSC.
Juxtaposing the Cases
The House of Lords in YL
Traditional judicial techniques of legal interpretation were not helpful to the judges in YL because of the opaqueness of the relevant provision of the Human Rights Act 1998 and the novelty of the legal question raised. Neuberger makes this clear: Any reasoned decision as to the meaning of section 6(3)(b) risks falling foul of circularity, preconception and arbitrariness. The centrally relevant words, ‘functions of a public nature’, are so imprecise in their meaning that one searches for a policy as an aid to interpretation. The identification of the policy is almost inevitably governed, at least to some extent, by one’s notions of what the policy should be, and the policy so identified is then used to justify one’s conclusion. Further, given that the question of whether section 6(3)(b) applies may often turn on a combination of factors, the relative weight to be accorded to each factor in a particular case is inevitably a somewhat subjective decision. (para. 128)
The lack of technical law facilitates our distinct reading which draws out the broader narrative themes. The question that the majority decision in YL answers emerges from the traditional role of law in liberal democracies. The focus is on defining the appropriate boundary of state activity. The opinions of their Lordships prize the autonomy of the commercial provider, in particular its ability to contract on the terms it chooses. They choose not to extend the remit of the Human Rights Act and decide to maintain the traditional protections of the private realm. Lord Scott’s opinion exemplifies this: Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti-discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competition. (para. 26)
Lord Scott marks out the differences between the private operations of Southern Cross and the public sphere, which is a particular space simultaneously empowered by statute and funding and constrained by obligations to provide a public service. This apparently clear distinction overlooks the complexity of the public/private divide. Public subsidy is re-categorized as fees, making the local authority an ordinary consumer, and the impact of anti-discrimination legislation upon the private sector is marginalized.
McDermont (2010: 314) categorizes the reasoning of the majority in YL as ‘judicial economising’. In her view, ‘The court creates a zone of non-interference around bodies not thought to be state actors, immunising them from constitutional constraints’. What is also interesting is that ‘judicial economising’ privileges commercial autonomy and business interests whilst doing little to recognize individual dignity and human rights
For the majority, democratic accountability is only relevant to constrain the public sphere, as Lord Mance suggests: Democratic accountability, an obligation to act only in the public interest and (in most cases today) a statutory constitution exclude the sectional or personally motivated interests of privately owned, profit-earning enterprises. Public funding and the provision of a public service are most easily understood in a similar sense. (para. 105)
The dominant tone is of political neutrality. As McDermont points out, the majority opinions do not acknowledge the political significance of the public/private divide. Nonetheless there are some indications of the judicial attitude towards the private sector – the ‘socially useful’ tag given to Southern Cross’s business activities, for instance, and in an apparently throwaway remark, Mance (para. 105) makes a claim to moral values within the private sphere: ‘In a much looser sense, the self-interested endeavour of individuals usually works to the general benefit of society, as Adam Smith noted’.
Equality is given some importance, but not in a way which challenges inequitable bargaining positions. It does not jeopardize economic privilege but rather buttresses the commercial status quo. In my view the differences mentioned do not either justify or require a different approach to the application to the care home of the Convention as between privately and publicly funded residents in one and the same care home. Apart from any contractual arrangements, the care home should view and treat all such residents with equality. (Mance, para. 110)
The tendency of judicial reasoning to support economic logic is well known and is unlikely to surprise readers. But what David Scott’s approach reveals is that the majority are focused on answering outdated questions about separating the state from, and constraining its interference with, the commercial sphere. For us, this is a legal dead-end. Surely what is now required of our judges is something quite different, to answer new questions, ones provoked by the novel confluence of the Human Rights Act and neo-liberalism questions which acknowledge simultaneously the limits of welfare and how the public interest can survive the privatization of social provision. We now turn to the minority opinions to see if these provide evidence of a greater engagement with contemporary questions.
The minority opinions in YL, given by Hale and Bingham are animated by a quite different question, how can social progress be achieved? Lord Bingham makes it clear that the provision of state welfare is a progressive development. But for the past 60 years or so it has been recognised as the ultimate responsibility of the state to ensure that [the poor, the elderly and the incapable] are accommodated and looked after through the agency of the state and at its expense if no other source of accommodation and care and no other source of funding is available. (para. 15)
Baroness Hale expresses this in terms of the public interest: In a state which cares about the welfare of the most vulnerable members of the community, there is a strong public interest in having people who are unable to look after themselves, whether because of old age, infirmity, mental or physical disability or youth, looked after properly. (para. 67)
For Bingham, rights are the next step: Despite the intensive regulation to which care homes are subject, it is not unknown that senile and helpless residents of such homes are subjected to treatment which may threaten their survival, may amount to inhumane treatment, may deprive them unjustifiably of their liberty and may seriously and unnecessarily infringe their personal autonomy and family relationships. These risks would have been well understood by Parliament when it passed the 1998 Act. If, as may be confidently asserted, Parliament intended the Act to offer substantial protection of the important values expressed in the articles of the Convention given domestic effect by the 1998 Act, it can scarcely have supposed that residents of privately run care homes, placed in such homes pursuant to sections 21 and 26 of the 1948 Act, would be unprotected. (para. 19)
Hale (para. 59) exposes the utopianism of this in her own imitable way: Happily, there is now evidence in the literature that invoking human rights values in support of residents has produced change. The following example comes from Sonya Sceats ‘The Human Rights Act – Changing Lives’ (2007) (British Institute of Human Rights): A learning disabled man in a care home became very anxious about bathing after slipping in the bath and injuring himself. Afterwards, in order to reassure him and build his confidence once again, a carer, usually female, would sit in the room with him as he bathed. His female carers felt uncomfortable with the arrangement … A discussion of the human rights principle of dignity had served as a ‘trigger’ for [one carer] and together with co-workers she was able to develop solutions that would both protect the man’s dignity, whilst also providing him with the support he needed.
Although for some readers the commitment to the welfare state and Hale’s acknowledgement of the mundane physicality of caring may be worthwhile, for us the minority opinions are as flawed as those of the majority, as the questions they choose to answer are equally out-of-date. They reflect a particular welfare temporality and fail to acknowledge the limitations of the particular form of social progress that constituted the welfare state. The mentality seems to be that if law just tries harder, perhaps through the deployment of human rights, it can do its work.
Both the minority and the majority opinions feel irrelevant and lifeless; they inspire little hope in the law as a means to solve contemporary problems. In their conventionality and irrelevance they exemplify Scott’s observations: In such conditions the old paths between questions and answers do not necessarily disappear; their cognitive connections may remain visible and intelligible as the norm or the convention, but the paths now go nowhere because the stakes involved in walking them have dissolved. (2004: 4)
Our pessimism at this point is somewhat relieved by the reasoning of the Care Standards Tribunal in Alternative Futures. This at least acknowledges the current complexity of social provision.
The Tribunal Decision
The tribunal decision reflects the variety of influences and resistances which we tracked in our earlier analysis of care as a problem space. One of the dominant themes of the decision is its criticisms of the NCSC. This, despite being a New Labour creation, is perceived by the tribunal as representing old-fashioned welfare bureaucracy. The tribunal concentrates on the procedures of the NCSC in a way which emphasizes its paternalistic attitude to the issue of capacity and a procedurally flawed approach to deregistration. Whilst the lack of explicit information caused concern, the extent of the delay in making the decisions is described by the tribunal (para. 68) as ‘more worrying’. We have to say that we are alarmed by this letter and find it is totally inexcusable that the Director is conveying the result of an application to a third party [the Valuing People Support Team] before the applicant has been given the result of the application, and indeed when two days later the applicant is being told that his application is still being actively considered. Trust must operate both ways. (para. 69)
The tribunal was equally forthright about the procedures in relation to the Southport and Knowsley properties (para. 73): Mr Pearson … said in evidence before us that with the benefit of hindsight, there are a range of matters that could be improved, but that the decision making had to be viewed in the light of a new organisation applying new standards and new legislation. He said in cross-examination that he was satisfied that sound recommendations were made to him based on good professional principles. We do not entirely agree with this conclusion.
The tribunal then highlights a range of matters. Perhaps most importantly it criticizes the NCSC for basing its decision on what was in the best interests of the service users: The report on Linslade Crescent concludes, ‘The service users would not benefit from living in a home that is not registered’. Mrs Carragher in her evidence to us admitted that this conclusion was ‘too general’. Mr Pearson agreed that whether it is a ‘benefit’ or not to live in a care home or supported living was not a matter for the NCSC. However, he said that if the proposed change placed the service users at risk, then of course it would be a concern. There is no suggestion in any of the evidence that service users were at risk. Indeed he admitted that the residents were being looked after well and that he was satisfied with the level of care and there was no danger or concern. It is our view that ‘benefit’ or not is a matter for the service users and their families and advisers and also in many cases also the service commissioners. The conclusion was not only ‘too general’; it also applied the wrong test. (para. 74)
The question that appears to be answered by the tribunal is that of how law can ensure the competence of the welfare provider. There are clearly lessons to be learnt in relation to the decision making process, and both area managers left us with a view that training in this field had been less than perfect. The notes of the inspections taken by the inspectors, the reports that were subsequently written, and the description of the meetings to discuss the recommendations do not impress us … service providers do require consistency, and this appears to have been lacking between the two offices we have heard evidence about. (para. 78)
Yet despite demonstrating the traditional disciplinary role of the law, the tribunal upholds the decision of the NSCC. It achieves this through an extraordinary move. It deploys the language of choice: For us, the consultation exercise emphasising the choices available is of the utmost significance. It is necessary to have evidence that the service users should sign by themselves, or where appropriate by advocates or relatives, assured tenancy agreements following full consultation with each of them and their relatives and advocates. It is also necessary that the service users and/or their relatives and advocates should be consulted on the proposal to deregister and positively want their status to be changed to that of tenants in the new scheme. There should be a choice of care provider as part of the process of choice. (para. 106)
However, choice does not displace welfare. The appeals in these cases concern the complex dividing line between a care home and supported or assisted living. Put simplistically, whereas it may be that the emphasis in the former institution is on protection of the vulnerable, in contrast, the model of supported living, whilst not ignoring the need for protection, champions empowerment. (para. 18)
The tribunal was therefore answering a new and we would argue more relevant question; how can welfare and the marketization of social provision be reconciled? It simultaneously acknowledges the limits of welfare with its tendency to dependency and paternalism and the limits of the market which may fail to protect. There is much that is wrong with the decision; it is not very clear and leaves open many questions – not least, how can users of services exercise choice when they are mentally incapacitated? Nonetheless, for us, Judge Pearl provides the possibility of a more nuanced and complex approach, one which recognizes individual autonomy, vulnerability, dignity and choice. He emphasizes the need to protect, but provides some possibility for a more transformational approach to welfare. He recognizes choice but suggests that the meaningfulness of choice is a significant factor in law’s interface with social provision. It is this level of sophistication which is required to avoid law and legal reasoning being only a dead-end in solving the problems of adult social care.
Conclusion
David Scott’s analysis benefits from the richness of CLR James’ passionate account of the Haitian Revolution, The Black Jacobins. The book, published in 1938, has had a profound influence on academic understanding of colonialism, slavery and the Caribbean. Written by a black colonial intellectual in the middle of a life of incipient Trotskyist and anticolonial engagement in London in the interwar years of the 1930s it is an enduring work about a transforming moment in Caribbean and, indeed, world history: the Haitian Revolution of 1791–1804. (Scott, 2004: 9)
One particular fascination for Scott is that James’ work is shaped by that moment in which it was written – during the Spanish Civil War, and in anticipation of conflict with fascist Germany. This makes it more than ‘an allegory of redemption. It is also explicitly an exercise in writing a history of the present’ (Scott, 2004: 57). This is significant. Scott suggests that James’ allegory of emancipationist redemption was quickly exhausted. ‘It cannot enable us – as it enabled James and the generation of anti-colonials that succeeded him – to give point to the project of social and political change’ (Scott, 2004: 57). However, there is something more. There is enduring critical value in the way in which James at once invites us to see his work – the factual and conceptual content of it as well as the content of its form – in relation to the cognitive-political problem-space out of which it was conceived and written, and, much more importantly he directly challenges us to ask ourselves what kind of story might be best for the politicohistorical presents within which we now live and write. (Scott, 2004: 57)
Our project is more mundane. We have had to concede that judicial language and imagination are necessarily limited by the task in hand. More significantly, judges do not demonstrate self-awareness of their politicohistorical presents. Nonetheless, we think that useful insights about contemporary approaches to the problem space of care can be drawn from the decisions by sidestepping traditional legal readings and instead deploying Scott’s methods. What our juxtaposition reveals are the questions that judges choose to answer when reaching their decisions and the thematic concerns that animate their particular presents.
For us, the House of Lords in YL demonstrates that both the majority and minority opinions are concerned with out-of-date questions, producing texts which are dead-ends. This is a depressing conclusion, particularly when the Human Rights Act is held out as a beacon of hope for vulnerable adults. We have, however, identified more productive possibilities in the tribunal decision in Alternative Futures, a decision that acknowledges the contemporary complexity of the problem space of care and responds by reformulating the questions it asks to make them more relevant. We are particularly struck by the difference between the tribunal and the House of Lords, and think that the messy complexity of tribunal decision making provides fruitful forms of inquiry for future research, and that deploying Scott’s methods overcomes the problem of tribunals’ lack of legal gravitas.
We think, however, that there is much more that Scott’s work can do for us in our encounters with the problem space of care, a space that poses significant risks for the viability of current manifestations of the liberal social project. In particular, Scott’s emphasis on the tragedy rather than the romance of Enlightenment thinking may be productive. We have been struck by the romanticism inherent in YL; the majority are enticed by the allure of the market, and the minority have a romantic nostalgia for the welfare state and its promise of inevitable social progress. The contemporary discrediting of welfare is all too apparent. The financial crisis makes the frailties of the market equally visible. As noted, Southern Cross has faced extraordinary difficulties. From a share price of 606p in 2007 the shares fell to 17p by November 2010 (Silburn, 2010). During the boom years its private equity owners decided to sell the care home properties and then lease the sites on upwards-only rents. Following the financial collapse and the curtailing of fees which local authorities were willing and able to pay for residential care, a number of its homes have failed to meet regulatory standards. Moreover it has been unsuccessful in its attempts to renegotiate rent levels. On 11 July 2011 Southern Cross failed (Wearden, 2011), leaving 31,000 vulnerable adults and their families extremely anxious about their future. The Human Rights Act does nothing to provide them with security. Contrary to law’s promise, we can only conclude that the problem space of social care is potentially tragic.
Tragedy for Scott is provocative: [It] obliges us to rethink some of our cherished assumptions about political order, about justice, and about community as well as some of our conventional conceptions about agency, responsibility and freedom. This is because such a reading teaches an untimely lesson about the constitutive ambiguities of enlightenment, about the paradox of master and self-mastery enlightenment confronts us with. As it urges us to appreciate the yield of enlightened thinking in terms of insight and critical judgment, it also shows us the impoverishment into which we are led by the arrogance of a one-sided reason that seeks to disavow or disallow any space for contingency and chance, for the ineluctable ways in which the past lays claim upon the present. (Scott, 2004: 206)
If law could reconceptualize adult social care provision as a tragedy, this might provoke new and urgent questions for judges to resolve, and place the consequences of the political marginalization of vulnerable adults at the heart of critical engagement with the liberal enlightenment project.
Cases Cited
Alternative Futures v National Care Standards Commission [2002] 101–111 NC
YL v Birmingham City Council and others [2007] UKHL 27; [2008] 1 A.C. 95
Footnotes
Notes
The authors are grateful to the Feminist Judgment Project funded by the ESRC for the opportunity to consider the limitations of judicial approaches to care.