Informal care and private law: Governance or a failure thereof?

The provision of care for elderly and disabled people is an issue of enormous public importance, particularly in the context of an ageing population. There 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 suffer significant financial 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. This paper asks whether private law remedies for carers, such as those remedies identified 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.