The Recognition of Informal Care in English Private Law

Summary

INTRODUCTION

In the context of an ageing population, much care for elderly people in England is provided informally, i.e. in the absence of a contractual or other legal duty. There is no general duty to maintain or care for one‘s elderly parents in English law, and a large amount of informal care is provided by adult children. In light inter alia of the health and financial disadvantages often suffered by carers and the limitations of state support for them, this contribution concerns the extent to which informal care is recognised (as a factor justifying a remedy) in English private law. While this topic was considered at greater length in this author‘s earlier monograph (Informal Carers and Private Law) and elsewhere, in light of the overall theme of the present book, this contribution will focus on care provided by adult children in the current policy environment.

Section 2 seeks to analyse the social context in which informal care takes place and to justify a private law approach to informal care. Section 3 then outlines the recognition of informal care in a number of substantive private law areas. Much of the discussion is concerned with the scope for a claim by the carer against the care recipient or his estate, as a means of remunerating or compensating for the caring work. It will be seen, however, that private law can protect the care recipient who has chosen to provide such a remedy for his carer but it was procured by (for example) undue influence. Without suggesting that private law provides the sole or even the main solution to the proper support of informal care, this contribution argues that the role of private law in this arena is worthy of consideration, rationalisation and possible expansion.

THE SOCIAL CONTEXT OF INFORMAL CARE: JUSTIFYING A PRIVATE LAW APPROACH

The formal social care system in England, which‘supports people of all ages with certain physical, cognitive or age-related conditions in carrying out personal care or domestic routines’, is now largely governed by the Care Act 2014.