Informal Care and Private Law: Goveranance or a Failure Thereof?
| Author | Brian Sloan |
| Position | College Lecturer and Fellow in Law, Robinson College, Cambridge |
| Pages | 275-291 |
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(2015) 1 CJCCL
Informal Care and Private Law:
Governance or a Failure ereof?
Brian Sloan*
e provision of care for elderly and disabled people is an issue of enormous public
importance, particularly in the context of an ageing population. ere is currently much
discussion, in light of the UK Government’s attempts to implement an approximation
of the Dilnot Commission’s recommendations on care funding, about the provision of
formal care for those who require it and how it should be funded. But care recipients,
and ultimately wider society, continue to rely heavily on care provided informally (i.e.
in the absence of a legal duty) in the home. Many of the people providing such care su er
signi cant nancial and health-related disadvantages as a result of their responsibilities,
though in principle some are able to seek (in addition to limited support from the state) a
form of ‘compensation’ from their care recipients via a private law claim.
is paper asks whether private law remedies for carers, such as those remedies
identi ed and to an extent advocated in the author’s recent monograph, Informal
Carers and Private Law, are inevitably related to an inadequacy of state support for
carers and care recipients and a failure to properly grapple with the issue of care on
the part of government and society. It evaluates the alternative proposition that such
remedies are normatively appropriate irrespective of the level of state provision of care
or state support for informal carers.
* College Lecturer and Fellow in Law, Robinson College, Cambridge.
An earlier version of this article was presented at a workshop on “Care,
Governance & Law” at Kent Law School in March 2013. I am grateful to
Nick Piska and Emilie Cloatre for inviting me to present at the workshop,
and to the attendees for their comments.
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I. I
II. T S P C I C E
III. J P L A I C
IV. C
I. Introduction
The world’s population is ageing.1 In Canada, for example, the number
of citizens who are aged 65 or over is expected to double between
2011 and 2036, and around 25 per cent of the population is expected to
be in that category by 2051.2 In the United Kingdom, similarly, 23 per
cent of the population is projected to be aged 65 or older by 2035, while
only 18 per cent will be under 16 by then.3 One of the most important
questions in social policy is therefore how to allocate the burdens of
funding and providing care for the increasing number of people who
will require it in the decades to come. In England, there is currently
much discussion about the Government’s attempts to implement an
approximation of the Dilnot Commission’s recommendations on the
Funding of Care and Support, which concern the provision of formal
social care for those who require it.
4 e funding question forms part of
1. See e.g. Axel Börsch-Supan, Karsten Hank & Hendrik Jürges, “A New
Comprehensive and International View on Ageing: Introducing the
‘Survey of Health, Ageing and Retirement in Europe’” in Peter A Kemp,
Karel Van den Bosch & Lindsey Smith, eds, Social Protection in an Ageing
Wor ld (Antwerp: Intersentia, 2008) 3.
2. Employment and Social Development Canada, “Canadians in Context –
Aging Population” (Ottawa: HRSDC, 2014), online: Employment and
Social Development Canada .uk/ons/dcp171778_235000.pdf>.
eng.jsp?iid=33>.
3. O ce for National Statistics, Older People’s Day 2011 (UK: O ce for
National Statistics, 2011) at 1, online: O ce for National Statistics
4. Commission on Funding of Care and Support, Fairer Care Funding
– e Report of the Commission on Funding of Care and Support
(UK: Commission on Funding of Care and Support, 2011), online:
Independent Living in Scotland les/
dilnott_report_the_future_of_funding_social_care_july_2011.pdf>.
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an overhaul of the whole system of adult social care,5 and the legislation
eventually known as the Care Act 2014
6 will bring about what has been
described as “the biggest change in the law governing the operation of
care and support in England since the National Assistance Act 1948.”7
e focus of this paper, however, is on the informal carer, who
provides care services in the absence of any contractual or other legal duty
to do so. In particular, it concerns the use of private law remedies, i.e. the
outcomes of a claim by the carer against the care recipient, or more likely
her estate, in order to support, compensate or reward the carer. It does not
discuss particular private law remedies in detail. Much of that work was
undertaken in my recent monograph, Informal Carers and Private Law,
8
in which I evaluated property law, family property law, succession law,
and unjust enrichment as potential sources of remedies for a carer from a
comparative common law perspective. Rather, the purpose of this article
is to consider the normative question of whether private law remedies for
the carer can be justi ed in general, with a particular concentration on
the English policy context but an awareness that private law approaches
to care have been taken in several other jurisdictions including Canada.
is article begins by sketching the social policy context in which
the informal carer operates in England.
9 It then examines the scope for
5. See e.g. Law Commission of England & Wales, Adult Social Care
(London: Stationery O ce, 2011), online: Law Commission
lawcommission.justice.gov.uk/docs/lc326_adult_social_care.pdf>.
6. (UK) c 23 [Care Act]; Bill 168, Care Bill [HL], 2013-2014 sess, 2013,
(3rd reading 11 March 2014). ( e Bill received its rst reading in the
House of Commons, having passed through the House of Lords, in
October 2013, which received royal assent on 14 May 2014).
7. House of Lords & House of Commons Joint Committee on the Draft
Care and Support Bill, Draft Care and Support Bill: Report (London:
Stationery O ce, 2013) at para 41, online: United Kingdom Parliament
jtcare/143/143.pdf>.
8. Brian Sloan, Informal Carers and Private Law (Oxford: Hart Publishing,
2013).
9. While England and Wales constitute a legal system for many purposes
(including relevant private law claims), social care is a devolved matter for
which the Welsh Assembly is responsible. See e.g. the Social Services and
Well-being (Wales) Act 2014 (UK), anaw 4 (which received royal assent on
1 May 2014).
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a private law approach to rewarding, supporting, or compensating the
informal carer. e aim is to consider whether the justi cation for such
remedies is dependent upon an absence of proper governance of the care
issue by the state. An alternative thesis, which I tentatively advance in this
article, is that private law remedies could be justi ed independently of the
quality of state provision for care or carers, and represent an aspect (albeit
a small one) of appropriate governance of the issue. It is not contended,
however, that it is legitimate for the state to rely solely on the availability
of private law remedies in order to abdicate its governance responsibilities
relating to the care conundrum. As Martha Fineman correctly argues,
a societal response to the plight of the carer is not merely a matter of
empathy or altruism, but of the preservation of society itself.
10
II. e Social Policy Context of Informal Care in
England
In broad contrast to health care provided under the National Health
Service, many care recipients in England have to pay for formal social
care on a means-tested basis.11 Social care vitally “supports people of all
ages with certain physical, cognitive or age-related conditions in carrying
out personal care or domestic routines.”12 As things stand before the full
implementation of the Care Act, those care recipients with assets worth
over £23,250 must fund their own social care and receive no nancial
state support in order to do so.13 e relevant assets can include a home
10. Martha A Fineman, e Autonomy Myth: A eory of Dependency (New
York: New Press, 2004) [Fineman, e Autonomy Myth]. See also e.g.
Jonathan Herring, Caring and the Law (Oxford: Hart Publishing, 2013)
[Herring, Caring and the Law].
11. See generally Commission on Funding of Care and Support, supra note
4. C.f. the duty contained in Care Act [HL], supra note 6, s 3(1) (which
would require a local authority to “exercise its functions under [the
relevant Part of the Act] with a view to ensuring the integration of care
and support provision with health provision and health-related provision”
in certain circumstances).
12. Commission on Funding of Care and Support, ibid at 4.
13. Ibid at 11. See e.g. National Assistance (Assessment of Resources) Regulations
1992, SI 1992/2977.
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if no dependant is living in it.14 Local authorities are placed under a duty
to recover payments covering residential care that they have provided
in certain circumstances,15 and they also have a power to charge for
non-residential services including personal care.16 A charge on the care
recipient’s home is one method by which a local authority can recover
its costs.17
e Dilnot Commission recommended that the maximum lifetime
contribution towards care expected of any one individual should be
capped at £35,000, and that “the asset threshold for those in residential
care beyond which no means-tested help is given should increase.”18
e Government has agreed with the principles espoused by the
Dilnot Commission, though clearly not the proposed gures. It has
been announced that a cap of £72,000 for those of state pension age
and over will be implemented in England in 2016.
19 e Government
has also made a commitment that, by virtue of a universal deferred
payment scheme, no-one will have to sell her home during her lifetime
in order to pay for care.20 While the currently anticipated cap is lower
than the £75,000 cap originally proposed by the Government (with the
di erence being funded partly by a freeze in inheritance tax thresholds),21
either cap would still be more than double that proposed by the Dilnot
Commission. e cap’s narrow focus on care itself also means that it
is not thought to include the cost of food or renting a room in a care
14. Commission on Funding of Care and Support, ibid at 11.
15. National Assistance Act, 1948 (UK), 11 & 12 Geo VI, c 29, s 22.
16. Health and Social Services and Social Security Adjudications Act 1983 (UK),
c 41, Part VII. See e.g. R v Somerset County Council, ex parte Harcombe,
(1997) 96 LGR 444 (QB).
17. See e.g. Campbell v Gri n, [2001] EWCA Civ 990.
18. Commission on Funding of Care and Support, supra note 4 at 5.
19. Department of Health, Caring for our Future: Consultation on Reforming
What and How People Pay for their Care and Support (UK: Department
of Health, 2013) at para 22, online: GOV.UK .uk/
government/consultations/caring-for-our-future-implementing-funding-
reform> [Department of Health, Caring for our Future].
20. Ibid at para 26.
21. “Social Care Cost Cap and Flat-Tier Pension Brought Forward”, BBC
News (17 March 2013) online: BBC News
uk-politics-21820719>.
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home,22 and many of the details will be left to statutory instruments
rather than being contained in the Care Act itself.23
Moreover, despite the Government’s intention to introduce a
national minimum eligibility threshold for care and support in England,
the actual level of provision of social care will remain considerably
subject to the discretion of local authorities,24 and again the details will
be contained in secondary legislation.25 Many such local authorities are
struggling to provide adequate services in the current economic climate.26
What is more, a close reading of private law cases suggests that the extent
to which some care recipients will resist state involvement in their a airs
should not be under-estimated,27 and many such recipients will want to
stay in their own homes at all costs, notwithstanding the extent of their
care needs.
It seems, therefore, that English society will continue to rely on the
vital work of the informal carer, even in the context of a reformed social
care system. e Government has accepted this, and given informal
carers the perhaps dubious compliment that the latter “embody the
spirit of the Big Society,”28 which has been described as “[a] society in
which power and responsibility have shifted: one in which … individuals
and communities have more aspiration, power and capacity to take
decisions and solve problems themselves, and where all of us take greater
22. Department of Health, Caring for our Future, supra note 19 at para 25.
23. Care Act, supra note 6, s 15. See Department of Health, “Closed
consultation: Updating our care and support system: draft regulations and
guidance” (UK: Department of Health, 2014), online: GOV.UK
www.gov.uk/government/consultations/updating-our-care-and-support-
system-draft-regulations-and-guidance>.
24. See e.g. House of Lords & House of Commons Joint Committee on the
Draft Care and Support Bill, supra note 7 at paras 189-91. Compare Care
Act, supra note 6, ss 18, 19.
25. Care Act, ibid, s 13.
26. See e.g. Age UK, Care in Crisis: What’s Next for Social Care? (UK: Age UK,
2012), online: Age UK .
Campaigns/care_in_crisis_2012_policy_report.pdf?dtrk=true>.
27. See e.g. Special Trustees for Great Ormond Street Hospital for Children v
Rushin, Re Morris, decd, [2000] EWHC J0419-21.
28. Department of Health, Recognised, Valued and Supported: Next Steps for the
Carers Strategy (UK: Department of Health, 2010) at 3, online: GOV.UK
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responsibility for ourselves, our communities and one another.”29 e
Organisation for Economic Co-operation and Development, for its part,
has said that informal care provided in the home is the most important
source of care from a global perspective.30
Before proceeding further, it is necessary to consider in more
detail what is meant by the phrase “informal carers.” De nitions are of
course fraught with di culties.31 One attempt is to say that “[a] carer
spends a signi cant proportion of their life providing unpaid support to
family or potentially friends. is could be caring for a relative, partner
or friend who is ill, frail, disabled or has mental health or substance
misuse problems.”32 Crucially, de nitions of “informal carer” are at least
intended to exclude carers for able-bodied children,33 and it is worth
noting that there have been interesting discussions about the status of
carers for disabled children and carers who are themselves children.34 e
2011 census data indicate that there are 5.8 million informal carers in
England and Wales,35 as compared to the 5.2 million recorded by the
2001 census.36 Meanwhile, the representative organisation, Carers UK,
estimates that 60 per cent of people will become a carer at some point
29. e Commission on Big Society, Powerful People, Responsible Society: e
Report of the Commission on Big Society (London: ACEVO, 2011) at para
1.4, online: ACEVO .org.uk/document.doc?id=1515>.
30. Organisation for Economic Co-operation and Development, Long-term
Care for Older People (Paris: OECD Publishing, 2005) at 15.
31. See e.g. Herring, Caring and the Law, supra note 10 at 13-26.
32. Department of Health, Carers at the Heart of 21st-Century Families and
Communities: “A Caring System on your Side. A Life of your Own” (UK:
Department of Health, 2008) at 19 [Department of Health, 21st–Century
Families and Communities].
33. C.f. Jonathan Herring, “Where are the Carers in Healthcare Law and
Ethics?” (2007) 27:1 LS 51 at 52.
34. House of Lords & House of Commons Joint Committee on the Draft
Care and Support Bill, supra note 7 at paras 245-56.
35. O ce for National Statistics, News Release, “More than 1 in 10
Providing Unpaid Care as Numbers Rise to 5.8 Million” (15 February
2013), online: O ce for National Statistics .uk/ons/
dcp29904_300542.pdf>.
36. O ce for National Statistics, “Focus on Health: 2004 Edition” (UK:
O ce for National Statistics, 2004) at 10, online: O ce for National
Statistics .uk/ons/rel/disability-and-health-
measurement/focus-on-health/2004-edition/index.html>.
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in their lives.37 e opportunity costs of caring can be very high: it has
been claimed that UK carers lose an average of £11,000 per year due to
their caring responsibilities,38 and signi cant health problems often arise
as a result of those same responsibilities.39 Conversely, informal care has
been described as the “invisible pillar” of the welfare state,40 and the total
amount of informal care provided in the UK has been valued at £87
billion per year.41
English law does make some attempt to provide state support for
carers themselves, as distinct from helping the care recipients for whom
they care.
42 For example, the Carers (Recognition and Services) Act 1995
43
granted carers the right to an assessment of their ability to provide care
when a local authority is ascertaining a care recipient’s need for more formal
community care. e Carers and Disabled Children Act 200044 made the
right to an assessment independent of the care recipient’s assessment, and
gave local authorities powers to provide services for carers, before the
Carers (Equal Opportunities) Act 200445 placed local authorities under
a duty to inform carers of their rights under the previous two Acts, and
37. Carers UK, “Facts about Carers 2012” (London: Carers UK, 2012) at
2, online: Carers UK
Facts_about_carers_Dec_2012.pdf>.
38. House of Commons Work and Pensions Committee, Valuing and
Supporting Carers: Fourth Report of Session 2007-08, Volume 1 (London:
Stationery O ce, 2008) at para 102, online: United Kingdom
Paarliament
cmselect/cmworpen/485/485i.pdf>.
39. Department of Health, 21st-Century Families and Communities, supra note
32 at 100-20; e Princess Royal Trust for Carers, Always On Call, Always
Concerned: A Survey of the Experiences of Older Carers (UK: Princess Royal
Trust for Carers, 2011), online: Carers Trust
sites/default/ les/always_on_call_always_concerned.pdf>.
40. Sophie Moullin, Care in a New Welfare Society: Unpaid Care, Welfare and
Employment (London: Institute for Public Policy Research, 2007) at 7.
41. Lisa Buckner & Sue Yeandle, Valuing Carers: Calculating the Value of
Unpaid Care (London: Carers UK, 2007).
42. See generally Luke Clements, Carers and their Rights: e Law Relating to
Carers, 5th ed (London: Carers UK, 2012) and see e.g. Herring, Caring
and the Law, supra note 10 at 122-27.
43. (UK), c 12.
44. (UK), c 16.
45. (UK), c 15.
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required consideration of the carer’s employment, training, and housing
needs as part of the assessment. Analogously with the provision of social
care itself, however, Jonathan Herring has criticised the fact that such
statutory provisions are “largely permissive, authorizing local authorities
to provide … services … rather than dictating that they must.”46
As well as rights relating to exible working and non-discrimination
extended to carers in the employment context,47 there is limited direct
nancial support available for carers in England.48 A carer’s allowance is a
limited bene t payable to a person who spends at least 35 hours per week
caring for someone who is herself in receipt of certain bene ts related to
illness or disability,49 though it has been criticised for its inadequacy.50
ere is also the possibility that a care recipient could use the Direct
Payments scheme to acquire the means to pay an informal carer in lieu
of social care provided by the local authority, e ectively transforming
the care into a “care worker.”51 A signi cant current limitation, however,
is that a Direct Payment recipient is often prohibited from purchasing
services from spouses, civil partners, or people living with the recipient as
such, or from close relatives living in the same household.52
e Department of Health has said that the Care Act is intended, inter
alia, to place carers on an equal footing with care recipients in regards to
its fundamental principle that the purpose of the social care system is the
well-being of the individual,53 even if the Explanatory Notes to the Act
46. Jonathan Herring, Older People in Law and Society (Oxford: Oxford
University Press, 2009) at 102 [Herring, Older People].
47. See e.g. Rachel Horton, “Care-giving and Reasonable Adjustment in the
UK” in Nicole Busby & Grace James, eds, Families, Care-Giving and Paid
Work: Challenging Labour Law in the 21st Century (Cheltenham: Edward
Elgar, 2011) 137; Herring, Caring and the Law, supra note 10 at 247-58.
48. Herring, Caring and the Law, ibid at 120-22.
49. “Carer’s Allowance”, online: GOV.UK .gov.uk/carers-
allowance>.
50. Herring, Older People, supra note 46 at 100-01.
51. Health and Social Care Act 2001 (UK), c 15, s 57. See e.g. Clare Ungerson,
“Whose Empowerment and Independence? A Cross-National Perspective
on ‘Cash for Care’ Schemes” (2004) 24:2 Ageing & Society 189.
52. Clements, supra note 42 at para 5.40.
53. House of Lords & House of Commons Joint Committee on the Draft
Care and Support Bill, supra note 7 at paras 78-79. See Care Act, supra
note 6, s 1.
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make clear that the principle “is not intended to be directly enforceable
as an individual right.”54 Speci c reforms aimed at carers include the
removal of the previous requirement that a carer either does or intends
to provide regular and substantial care before his needs can be assessed
by the local authority.55 As Herring points out, however, while “[t]here
is much to be welcomed” in the proposals embodied in the Act, “at the
end of the day it will be the levels of funding which are key, rather than
legislative structure.”56 Given this and the general fears expressed about
funding and care earlier in this section, the next section of the article
considers an alternative “private law” approach to supporting informal
care.
III. Justifying a Private Law Approach to Informal
Care
e previous section of the article has demonstrated that there is
currently some state support for informal carers in England, and they
should bene t both directly and indirectly from a reformed social care
system to an extent. But the important question for present purposes is
whether we can nevertheless justify a private law approach to supporting,
compensating, or rewarding the carer, perhaps as an attempt to redress
the nancial or health di culties that the carer has su ered due to the
responsibilities he has undertaken. For example, it could be asked whether
the carer should be able to claim a share of the care recipient’s estate. While
my monograph did grapple with this normative question,57 I ultimately
decided that because private law remedies for carers were in fact available
in limited circumstances on various bases including the equitable doctrine
of proprietary estoppel,58 the English Inheritance (Provision for Family
54. Care Act 2014: Explanatory Notes (London: Stationery O ce, 2014)
at para 57, online: Legislation.gov.uk .legislation.gov.uk/
ukpga/2014/23/pdfs/ukpgaen_20140023_en.pdf>.
55. Compare Carers (Recognition and Services) Act 1995, supra note 43, s 1(1)
(b), and Care Act, supra note 6, s 10(3).
56. Herring, Caring and the Law, supra note 10 at 143.
57. See e.g. Sloan, supra note 8 at 12-20.
58. See e.g. Jennings v Rice, [2002] EWCA Civ 159 and Sloan, supra note 8
at 30-90; c.f. ibid at 91-120 for an argument that a statutory solution
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and Dependants) Act 197559 and equivalent legislation elsewhere,60 the
cases in which this occurred were worthy of rationalisation and analysis
irrespective of the state support question.
Given that the system of state support in England is likely to remain
stretched for the foreseeable future, it may nevertheless become necessary
to use private law remedies in order to adequately support and encourage
informal care for elderly and disabled people where appropriate resources
exist on the part of care recipients. is is particularly true in light of
fears that the availability of informal care will be reduced in the years
to come.61 Mika Oldham therefore pragmatically advocates a system
of “successional priority” for informal carers, which would give them a
prioritised right of provision from the care recipient’s estate.62 It is telling
that when reviewing my monograph, Herring rather humbly contrasts my
own “modest” private law-oriented proposals that he considers “realisable
and carefully tailored to t within current legal approaches,”63 with the
“tendency for those writing in this area to insist we need nothing less
than a complete change in the way we see the world and organise law.”64
An unjust enrichment lawyer might say that the carer is a “risk-taker”
who has freely chosen to confer a bene t on the care recipient and should
not, for that reason alone, expect payment after the event.65 Indeed, the
modelled upon the New Zealand Law Reform (Testamentary Promises)
Act 1949, no 33 would be preferable to the uncertainty and controversy
caused by the judicially-developed estoppel doctrine in England.
59. (UK), c 63.
60. See e.g. Graham v Murphy, [1997] 1 FLR 860 (Ch) and Sloan, supra note
8 at 136-205.
61. See e.g. Caring Choices, e Future of Care Funding: Time for a Change
(London: King’s Fund, 2008) at 17, online: e King’s Fund
www.kingsfund.org.uk/publications/future-care-funding>.
62. Mika Oldham, “Financial Obligations within the Family – Aspects of
Intergenerational Maintenance and Succession in England and France”
(2001) 60:1 CLJ 128 at 173–77. See Sloan, supra note 8 at 14-20 for
discussion.
63. Jonathan Herring, “Informal Carers and Private Law” (2013) 35:4 J Soc
Wel & Fam L 503 at 503 [Herring, “Informal Carers”].
64. Ibid.
65. See e.g. Andrew S Burrows, “Free Acceptance and the Law of Restitution”
(1988) 104 LQR 576; Paul S Davies, “Risk in Unjust Enrichment”
(2012) 20 RLR 57; Sloan, supra note 8 at 124-25. See also Jeroen
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law of unjust enrichment has not yet proved fertile ground for claims
by carers (and other people in “domestic” relationships in England and
Wales).66 But the Canadian courts, tending to focus on the absence of
“juristic reasons” for an enrichment67 distinct from the English “unjust
factor” approach,68 have been prepared to uphold claims by carers
using that area of the law.69 Moreover, even if the care provided is by
de nition informal and not the subject of contractual remuneration in
a technical sense, Fineman has argued that the choice to care “occurs
within the constraints of social conditions, including history and
tradition.”70 Writing from a US perspective, she fails to see why most of
the costs of care should be borne by carers themselves rather than being
distributed amongst the true bene ciaries of care, whether institutional
or individual. If it is necessary to provide a private means of support for
carers who are genuinely in need of encouragement, it also seems unjust
to deny such private law remedies to those who do not require such an
inducement, but do su er disadvantages. Even in the context of entirely
altruistic friendship-based relationships, John Eekelaar is content that a
succession-based claim on the death of one of the parties would “ t in
with the values of friendship.”71
A further question that causes di culty, however, is whether any
Kortmann, Altruism in Private Law: Liability for Nonfeasance and
Negotiorum Gestio (Oxford: Oxford University Press, 2005) at ch 11 for
a general discussion of private law remedies for “good Samaritans” in
English Law.
66. See e.g. Cook v omas, [2010] EWCA Civ 227; Walsh v Singh, [2009]
EWHC 3219 (Ch); Sloan, supra note 8 at 121-39; Sarah Nield,
“Testamentary Promises: A Test Bed for Legal Frameworks of Unpaid
Caregiving” (2007) 58:3 NILQ 287 at 294-98.
67. See e.g. Kerr v Baranow, 2011 SCC 10 at paras 31-32, Cromwell J.
(Oxford: Clarendon Press, 2005).
69. See e.g. Clarkson v McCrossen, [1995] 6 WWR 28 (BCCA); c.f., e.g.
Brennan v Gardy Estate, 2011 BCSC 1337. For discussion, see Sloan,
supra note 8 at 129-34; Rosalyn Wells, “Testamentar y Promises and
Unjust Enrichment” (2007) 15 RLR 37.
70. Fineman, e Autonomy Myth, supra note 10 at 41.
71. John Eekelaar, Family Law and Personal Life (Oxford, Oxford University
Press, 2007) at 48.
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justi cation for a private law approach depends on the failure of the state
to provide adequate support for care and carers. It could be argued that in
a perfect society, the state would provide adequate support such that any
justi cation for private law remedies that previously existed immediately
falls away. It could also be said that, given the anxiety about the amount
that individuals should have to pay towards the cost of formal care, it
would be very di cult to justify imposing additional liability in respect
of informal care on care recipients.
But it is not clear that things are really as simple as that. Many scholars
are quite content to say that there should be some sort of redistribution of
property following the end of a marriage or civil partnership,72 in spite of
the potential availability of state bene ts for the parties to the relationship.73
Indeed, one of Lady Hale’s concerns about the greater enforceability of
pre-nuptial agreements in England, expressed in her dissenting speech in
Radmacher v Granatino,74 was that an economically stronger party could
use such an agreement to “cast the burden of supporting her husband
onto the state” rather than undertaking the burden herself.75 When
evaluating the English Law Commission’s proposals for an equivalent
redistributive scheme for unmarried cohabitants,76 Simone Wong has
argued that there is “no logical reason to limit access to the law to only
couple-based relationships,”77 even if she emphasised the distinctive
72. See e.g. Jonathan Herring, Family Law, 6th ed (Harlow: Pearson, 2013) at
212-19.
73. For an argument that nancial support should be a matter of public
liability rather than private law, see Kevin J Gray, Reallocation of Property
on Divorce (Abingdon, UK: Professional Books, 1977) at 302–34. See also
Lucinda Ferguson, “Family, Social Inequalities, and the Persuasive Force
of Interpersonal Obligation” (2008) 22:1 IJLPF 61 (for a useful discussion
of the appropriate respective roles of public and private law in this context
from a Canadian perspective).
74. [2010] UKSC 42.
75. Ibid at para 190.
76. Law Commission of England and Wales, Cohabitation: e Financial
Consequences of Relationship Breakdown (UK: Law Commision, 2007),
online: GOV.UK .uk/government/uploads/system/
uploads/attachment_data/ le/228881/7182.pdf>.
77. Simone Wong, “Caring and Sharing: Interdependence as a Basis for
Property Redistribution” in Anne Bottomley & Simone Wong, eds,
Changing Contours of Domestic Life, Family and Law: Caring and Sharing
288
Sloan, Informal Care and Private Law
nature of the commitment in such conjugal couple-based relationships in
later work,78 and even though a lot of informal care self-evidently takes
place within couple-based relationships.
Moreover, testamentary freedom is already limited in English law
through its allowing a wide range of individuals to claim discretionary
provision out of a deceased person’s estate under the Inheritance (Provision
for Family and Dependants) Act 1975,79 some of whom are carers,80 and
it might legitimately be asked why a carer for that person should not be
speci cally recognised as a potential family provision claimant in his own
right, particularly where a such a person has a need for future maintenance
comparable to that of other possible claimants as a result of his caring.
e speci c inclusion of caring relationships in such legislation is not
a fanciful suggestion, but already occurs in several parts of Australia,
for example.81 Analogously with the widely accepted view on divorce-
based claims, under the current law of family provision on death, English
courts are generally reluctant to attach a great deal of signi cance to the
availability of state support for an applicant when evaluating his claim.82
(Oxford: Hart Publishing, 2009) 49 at 54. C.f. the Commission’s own
conclusion in an earlier project that “[i]t is not possible … to devise a
statutory scheme for the ascertainment and quanti cation of bene cial
interests in the shared home which can operate fairly and evenly across the
diversity of domestic circumstances which are now to be encountered,”
see Law Commission of England and Wales, Sharing Homes: A Discussion
Paper (UK: Law Commission, 2002) at 85, online: Law Commission
Paper.pdf>, which led it to exclude non-conjugal caring relationships from
its cohabitation project, see Law Commission of England and Wales,
Cohabitation: e Financial Consequences of Relationship Breakdown: A
Consultation Paper (UK: Law Commision, 2006) at para 9.136, online:
Law Commission <http://lawcommission.justice.gov.uk/docs/cp179_
Cohabitation_Consultation.pdf>. See Sloan, supra note 8 at 206-08 for
discussion.
78. Simone Wong, “Shared Commitment, Interdependency and Property
Relations: A Socio-legal Project for Cohabitation” (2012) 24:1 CFLQ 60
at 74-75.
79. Supra note 59.
80. See e.g. Sloan, supra note 8 at 136-205.
81. See generally ibid; see also Adult Interdependent Relationships Act 2002, SA
c A-4.5 and Wills and Succession Act 2010, SA c W-12.2, ss 72(b)(ii), 88.
82. See e.g. Re E, E v E, [1966] 2 All ER 44 (Ch); Re Collins, decd, [1990]
289
(2015) 1 CJCCL
Perhaps it is possible to go as far as to say that private property
redistribution is more readily justi able in the case of a genuine caring
relationship rather than a marriage or couple-based relationship per se,
since a true caring relationship confers a vital bene t, by de nition.
In other words, a caring relationship is not necessarily a status-based
relationship like marriage or civil partnership, in relation to which the
English courts are to some extent content merely to assume that there is
a justi cation for a redistribution of property rights when a relationship
breaks down by virtue of a “partnership” model,83 but arguably
provides more bene ts to society per se than some of those status-based
relationships. Recognition of this notion would take us closer to the focus
on the “carer-dependant” paradigm that Fineman (at least at one time)
considered vital for family law84 and, in Maxine Eichner’s words, change
“the basis of entitlement … to desert.”85
Public opinion may jeopardise such principled thinking. ere is
at least some evidence that a signi cant portion of the population is
uncomfortable with the idea of linking care and private rewards,86 and
care must be taken that people are not allowed to fall unknowingly
into relationships generating rights and obligations without good
reason.87 ere is, moreover, a converse risk that the recognition of
para 75, Arden LJ.
24, concerning the use of the courts’ powers to redistribute property
under the Matrimonial Causes Act 1973 (UK), c18, Part II; and see e.g.
Lisa Glennon, “Obligations Between Adult Partners: Moving from Form
to Function?” (2008) 22:1 IJLPF 22 at 40.
84. See Shazia Choudhury & Jonathan Herring, European Human Rights
and Family Law (Oxford: Hart Publishing, 2010) at 426, and Herring,
Caring and the Law, supra note 10 at 187-233 for discussion. C.f. Martha
A Fineman, “ e Vulnerable Subject: Anchoring Equality in the Human
Condition” (2008) 20:1 Yale JL & Feminism 1.
85. Maxine Eichner, “Dependency and the Liberal Polity: on Martha
Fineman’s e Autonomy Myth” (2005) 93:4 Cal L Rev 1285 at 1291.
86. See e.g. Karen Rowlingson, “Attitudes to Inheritance: Focus Group
Report” (Bath: University of Bath, 2004), but c.f., e.g. Deirdre G Drake
& Jeanette A Lawrence, “Equality and Distributions of Inheritance in
Families” (2000) 13:3 Social Justice Research 271.
87. See e.g. Nicola Peart, “De Facto Relationships (or Maybe Not) in New
290
Sloan, Informal Care and Private Law
caring relationships facilitating property redistribution, inter alia, could
be manipulated to undermine equality-oriented legislation aimed at
conjugal same-sex couples.88 It is nevertheless signi cant that although
Fineman herself advocates for greater state support of the carer, she also
accepts that care recipients “owe an individual debt to their individual
caretakers,” which exists alongside a broader societal debt owed to those
carers.89
It is not my intention to argue here that private law should be the
predominant means of support for carers, that a claim should be available
in every situation, or that a carer should automatically be paid out of
the care recipient’s resources as though he had been providing formal
social care for her. Indeed, in many cases a claim will be impossible
simply because the care recipient has lived or died with insu cient
assets, particularly in light of the formal care costs considered above.90
Moreover, we should not seek to encourage the state to regard private law
as the major mode of governance in relation to care, and Susan Boyd and
Claire Young rightly express concern from a Canadian perspective that
the recognition of a variety of relationships can cause governments to
“o oad responsibility onto those private relationships, resulting in more
expectations being made of those relationships in terms of taking care of
‘their own.’”91
It is also legitimate to quibble about important details of any private
law claim by a carer, as I did in my monograph, and speci cally about
questions such as: should the claim be dependent on a promise made by
Zealand” (2008) IFL 113.
88. See e.g. Lisa Glennon, “Displacing the ‘Conjugal Family’ in Legal Policy
– A Progressive Move?” (2005) 17:2 CFLQ 141 (which includes analysis
of Canadian developments such as Law Commission of Canada, Beyond
Conjugality: Recognizing and Supporting Close Personal Adult Relationships
(2001) in this regard); Sloan, supra note 8 at 206-16. C.f. Herring,
“Informal Carers”, supra note 63 at 505.
89. Fineman, e Autonomy Myth, supra note 10 at 48.
90. See e.g. Lorna Fox O’Mahony, Home Equity and Ageing Owners: Between
Risk and Regulation (Oxford: Hart Publishing, 2012) at 32-37.
91. Susan B Boyd & Claire FL Young, “‘From Same-Sex to No Sex’?: Trends
Towards Recognition of (Same-Sex) Relationships in Canada” (2003) 1:3
Seattle Journal for Social Justice 757 at 784.
291
(2015) 1 CJCCL
the care recipient to the carer?;92 what should be the basis for relief?;93
how should the “carer” be precisely de ned?; should claims be actively
restricted to the time after the care recipient has died?;94 or how should
the carer’s claim be weighed against those of non-caring but dependent
family members?95 is article simply suggests that a normative
justi cation for supporting care using private law can be found, and that
it does not necessarily depend fully on inadequate state support for care
in the true sense.
IV. Conclusion
I hope I have provided some food for thought in this article. Of course,
whatever the lofty aims of the Care Act, it seems unlikely that we will
ever live in that perfect society where the state will provide fully adequate
support for carers and care recipients. In the imperfect context, private
law could well come increasingly to the fore, and the question posed
in this article may never really have to be posed by policymakers in an
undiluted form. While private law should never be used to allow the state
to abdicate its responsibility to ensure that care is supported, a normative
justi cation for a private law approach to the issue can nevertheless be
found. As a closing question, readers may wish to consider why society
might be more comfortable about private redistribution of property in
respect of some socially useful relationships than others.
92. See e.g. Sloan, supra note 8 at 21-23, 239-43.
93. See e.g. ibid at 24-25, 244-45.
94. Compare ibid at 136-205, 206-16.
95. See e.g. ibid at 206-16.
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