Are Judicial Approaches to Adult Social Care at a Dead-End?
| Published date | 01 March 2012 |
| DOI | 10.1177/0964663911421948 |
| Author | Helen Carr,Caroline Hunter |
| Date | 01 March 2012 |
| Subject Matter | Articles |
Article
Are Judicial Approaches
to Adult Social Care
at a Dead-End?
Helen Carr
University of Kent, UK
Caroline Hunter
University of York, UK
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 vNational 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
adult social care, citizens, commodification, human rights, problem spaces, the market,
the state, welfare
Corresponding author:
Caroline Hunter, University of York, Heslington, York YO10 5DD, UK
Email: caroline.hunter@york.ac.uk
Social & Legal Studies
21(1) 73–92
ªThe Author(s) 2012
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DOI: 10.1177/0964663911421948
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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 vBirmingham City Council and oth-
ers [2007] UKHL 27 and the decision of the Care Standards Tribunal,
1
in Alternative
Futures vNational 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 problema-
tized. 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
74 Social & Legal Studies 21(1)
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