The Law Should Follow the Person – Not the Organisational Boundary
The Prime Minister set out a new path to fix social care in his statement 29th July 2026. He also confirmed that he would bring forward the date for Baroness Casey’s commission to report back with a plan on how to deliver the National Care Service, to next summer.
The Casey Commission has launched the ‘Big Conversation on Care’
This is an important opportunity to ask what we want the future of care in England to look like. Rather than simply asking how we can improve the current system, perhaps we should ask a bigger question:
If we were designing health and care from scratch today, would we create the system we have now?
The Prime Minister has spoken about creating a National Care Service.
For decades, health and social care have been treated as two separate systems. The result is complexity, duplication, disputes over who pays and, most importantly, a system that is extremely difficult for individuals and families to navigate.
That raises a fundamental question:
As we already have a National Health Service, should we really create a separate National Care Service – or is this the opportunity to finally bring health and care together?
Instead of creating a National Care Service alongside the National Health Service, we should create a National Health & Care Service, supported by a single, modern legal framework.
The legal problem
The separation between health and social care is not simply funding and administrative. It is embedded in legislation.
Health and social care are governed by different laws, regulations, duties and eligibility frameworks. These include the National Health Service Act 2006, the Care Act 2014, the Health and Social Care Act 2012, the Mental Health Act 1983, the Mental Capacity Act 2005, and other legislation governing specific aspects of health, care, safeguarding, funding and individual rights.
These laws have developed at different times and for different purposes. The result is a legal framework that mirrors the organisational divide.
An individual may therefore have one set of rights and responsibilities when their needs are considered “health” needs and another when they are considered “social care” needs.
This contributes directly to disputes over responsibility and funding. We need to stop legislating around organisational boundaries.
A new legal framework for health and care
The creation of a National Health & Care Service should be accompanied by a new Health & Care Act.
Its purpose would be to create a single legal framework governing the assessment, funding, provision and oversight of health and care.
It should establish:
- a single national duty to assess health and care needs;
- a single national framework for determining entitlement;
- a single national funding system;
- a legal right to clear and independent advice;
- a legal right to emergency care where required;
- nationally consistent financial assessment rules;
- clear rights of appeal;
- common safeguarding duties;
- common information-sharing requirements;
- and a clear duty to consider the person’s needs as a whole.
Existing health and social care legislation should then be reviewed and consolidated wherever possible. This doesn’t mean that every aspect of healthcare and social care has to be identical. It means that the law should work together rather than against itself.
One legal duty: assess the person, not the organisation
Today, the system can effectively ask:
“Is this a health need or a social care need?”
The new legal framework should instead ask:
“What are this person’s needs, and what support is reasonably required?”
The assessment should consider the whole person, including:
- physical health
- mental health
- disability
- cognition
- personal care
- nursing needs
- medication
- mobility
- communication
- nutrition
- continence
- behaviour
- supervision
- rehabilitation
- and daily living
There should be no requirement to artificially separate these needs simply to determine which public body pays.
What happens to Continuing Healthcare?
Continuing Healthcare should be abolished, not reformed.
The current system exists largely because the law and funding arrangements require a boundary to be drawn between NHS and social care responsibility.
Under a unified legal and financial framework, that boundary would no longer determine an individual’s entitlement.
A person’s health and care needs would be assessed together and funded through a single national Health & Care Fund.
This would remove the need for families to argue whether a person’s needs are sufficiently “health” related to qualify for NHS Continuing Healthcare.
This could extend as far as welfare benefits for disabilities and carers…
One government agency
The new legal framework should establish a National Health & Care Agency responsible for the administration of the system.
It would provide:
- one national assessment
- one national funding system
- free independent advice
- emergency care arrangements
- financial assessments
- care funding
- national guidance
- and one appeals process
One financial resource
The current division of funding between NHS organisations and local authorities reinforces the legal divide.
A single national Health & Care Fund should therefore replace the fragmented financial responsibility.
Funding would follow the person’s assessed needs rather than the organisation attempting to establish responsibility for paying.
Long-term care could be funded through a combination of:
Government funding + insurance + individual contributions.
The system should provide clear national rules and protection against catastrophic care costs.
The opportunity
The proposed National Care Service presents an opportunity to do something much more significant than creating another organisation.
It provides an opportunity to ask whether the legal separation of health and care is still appropriate for the 21st century.
We should not create:
National Health Service + National Care Service
with two sets of laws, two funding systems and two sets of responsibilities.
We should create:
A National Health & Care Service
with:
One legal framework
One national agency
One assessment
One funding resource
One source of free advice
One appeals process
The NHS would remain free at the point of use for essential healthcare.
Long-term care would have a clear, transparent and nationally administered funding framework, supported by government, insurance and individual contributions.
Most importantly, the law would recognise the reality that health and care are not two separate experiences for the person who needs them.
The law should follow the person – not the organisational boundary.
The Big Conversation on Care should therefore consider not simply how we fund social care, but whether we need to fundamentally redesign the legal, financial and organisational relationship between health and care.
