Luke Clements

Luke Clements is the Cerebra Professor of Law at Leeds University and is a solicitor.

Basics: codes, principles & general obligations

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Briefing by Luke Clements ~ updated August 2017.  For corrections or suggested additions please contact anjames57@gmail.com
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The statutory codes and final regulations

The final regulations and the accompanying codes of guidance to the Act are most readily accessible at www.ccwales.org.uk/the-act/. The Act is divided into various chapters (referred to as ‘Parts’) and in general there is a code to each ‘Part’ of the Act.  These are issued under section 145 of the Act which requires authorities to ‘act in accordance with any relevant requirement contained in a code’ and in relation to all matters to ‘have regard to any relevant guidelines contained in it’.  There is no code for Part 7 of the Act (safeguarding): instead ‘statutory guidance’ issued under section 131 to which authorities are required to ‘have regard’.  The same approach has been taken in relation to the duty of local authorities and their partners to cooperate: statutory guidance has been issued on this duty.[5]

The final Codes are:

The Care Council for Wales web ‘hub’ is the most accessible site for finding the relevant materials – https://socialcare.wales/hub/sswbact.  It also has a link to the training materials commissioned by the Welsh Government for the implementation the Act – https://socialcare.wales/hub/resources

PowerPoints providing: (1) a basic over view of the Act; and (2) a detailed review of the Eligibility Criteria can be found at www.lukeclements.co.uk/resources/ .

 

Underpinning principles: ‘well-being’ (sections 2 and 5)

Local authorities are under a general duty (under section 5) to promote the well-being of people ‘in need’ and of carers. Well-being is defined widely in section 2, and in relation to adults it includes ‘control over day to day life’ and ‘participation in work’.  ‘Control’ is in many respects equivalent to ‘choice’ and the requirement to promote participation in work will be of especial importance to carers (both those caring for adults and those caring for disabled children).

Section 6 of the Act widens the duty on authorities to have regard to various factors (for example the individual’s views, wishes and feelings, and the importance of promoting dignity). Materially, section 6(3)(a) stresses ‘the importance of beginning with the presumption that the adult is best placed to judge’ their well-being.  This creates a default position (rather like the presumption of capacity in the MCA 2005) for which a local authority will have to produce evidence if it wishes to rebut.

In R (JF) Merton LBC (2017) – a case under the English Care Act 2014 – the High Court held that every aspect of the well-being duty was mandatory – and as James et al notes ‘there is little of substance distinguishing the principle (and detail) of the well- being duty in section 1 of the English Act and sections 2, 5 and 6 of the Welsh Act’.[6]

 

Independent living

Section 6(3)(b) stresses ‘the importance of promoting the adult’s independence where possible’.  This is amplified by para 56 of the Part 2 Code of Practice (General Functions) which states that the well-being duty ‘includes key aspects of independent living as expressed in the UN Convention on the Rights of Disabled People[7] [CRDP], in particular, Article 19.’  Article 19 recognises the right of disabled people to ‘full inclusion and participation in the community’; to choose where they live and with whom they live; and to have access to a range of community support services ‘to support living and inclusion in the community, and to prevent isolation or segregation from the community.’

Further reference to the CRDP is contained in Quality Standard 1 of the Code of practice in relation to measuring social services performance (considered below) which states that local authorities must ensure that all decisions they make in the exercise of their social services functions:

have regard to a person’s individual circumstances and the UN convention on the rights of children and the UN principles for older people and the UN convention on the rights of disabled people (p9)

Such express statements are of enormous value, particularly as the courts have shown a surprising willingness to have regard to the CRDP.[8]  It is to be hoped that the Welsh Government will follow this welcome recognition by considerably strengthening its unsatisfactory Framework for Action on Independent Living (2013) which purports to explain how it is fulfilling its obligations under the CRDP but which fails to include any commitment to change the law to protect the right to independent living as enshrined by Article 19.[9]  The Framework (2013) also fails to provide a definition of ‘independent living’ that accords with Article 19 of the Convention.  It mentions the importance of removing ‘barriers’ to inclusion facing disabled people – but not the equally important requirement that states ensure that disabled people ‘have access to a range of community support services’.

A potential problem with the Act’s treatment of ‘well-being’, stems from section 2(3) which states that it includes ‘welfare’ as interpreted in the Children Act 1989.  This could result in confusion / complexity – since the 1989 Act does not define ‘welfare’ in the context of local authorities’ duties and powers, although it does provide a checklist of considerations for the court. However, it has been suggested judicially that welfare and wellbeing are synonymous.[10]

 

Definitions: people ‘in need’ and their carers ~ section 3

The Act replaces the ‘medical model’ language of the previous community care legislation, which required need to derive from ‘age’, ‘illness’, being ‘disabled’ and so on.  In its place the Act speaks of ‘people who need care and support’ and of ‘carers who need support’.  It is therefore (in general) impairment neutral: focusing on the person’s need and not the cause of that need. This approach is also adopted, to a degree, by the eligibility criteria (see below).

 

Disabled person

People who care for a disabled child are however an exception to the ‘impairment neutral’ rule and for this reason ‘disabled’ has to be defined: this is done (in section 3(5)) by giving it the same meaning as in the Equality Act 2010.[11]  For the purposes of section 6 of the Equality Act 2010 a disabled person is someone who has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.

 

Carers

Section 3(4) defines a carer as a person who provides or intends to provide care for an adult or a disabled child (but paid care workers are excluded unless the local authority considers the nature of the relationship between the care worker and disabled person makes it appropriate to treat the person as a carer[12]). This is a major change to the previous definition – in that carers no longer have to establish that they are also ‘providing or intending to provide a substantial amount of care on a regular basis’.

 

Disabled children

The Equality Act definition of a disabled person is of little relevance to disabled children per se: the relevance is only to their carers.  All children in need are eligible for an assessment (section 21). During the assessment process the eligibility criteria merely require (as outlined below) that the need arises either from their physical or mental ill-health, age, disability, dependence on alcohol or drugs, or other similar circumstances; or that the need is one that if unmet is likely to have an adverse effect on the child’s development.  Importantly (as noted below), section 21(7) states that there is a presumption that disabled children have needs for such additional / substitute care and support.

 

Carers of disabled children

Section 24 of the Act imposes a duty on authorities to assess the needs of carers who are providing or intending to provide care for an adult or a disabled child.  It is in this context that ‘disabled child’ bears the Equality Act 2010 definition: a definition that may be shown to be problematic, unless augmented by regulations.[13]  The 2010 Act and its regulations[14] exclude from the definition people who misuse drugs and / or alcohol misusers as well as those with ‘a tendency to physical … abuse of other persons’.[15]  It is difficult to see the logic of excluding from support the parents of such children – and the likelihood is that any attempt to do so by a local authority will be subjected to significant scrutiny by the courts and ombudsman. Authorities will of course have a power to assess and provide support in such cases.

 

UN principles (section 7)

The Act requires that persons ‘exercising functions’ under the Act have due regard to the UN Principles for Older Persons (1991) and the UN Convention on the Rights of the Child.  The ‘due regard’ duty is an onerous one (considered much more demanding than merely ‘having regard’[16]) and this may well give rise to challenges to NHS and local authority policy changes (of the type that have characterised the obligations under the Equality Act 2010[17] where a similar ‘due regard’ duty exists).

While there is a certain logic to the Act prioritising the UN Convention on the Rights of the Child – since it has already been given status in Welsh legislation (ie the Rights of Children and Young Persons (Wales) Measure 2011) – it is less obvious why the UN Principles for Older Persons have been given more prominence than the UN Convention on the Rights of Disabled People (CRDP) – since the Welsh Government has policies on each.[18] As noted above, however, the Codes have made explicit reference to the CRDP.

 

Statement of outcomes / local populations needs (sections 8 & 14)

Section 8 requires the Welsh Ministers to issue a ‘statement of outcomes’, which they did in August 2016.[19]  This is intended to be a strategic planning tool that will be used to assess whether the lives of people ‘in need’ in Wales are being materially improved by the new legislative framework.  The Statement details eight outcomes and in respect of each, brief indicators as to what will be measured.  The eight outcomes being:  (1) Securing rights and entitlements: Also for adults: Control over day-to-day life; (2) Physical and mental health and emotional well-being: Also for children: Physical, intellectual, emotional, social and behavioural development; (3) Protection from abuse and neglect; (4) Education, training and recreation; (5) Domestic, family and personal relationships; (6) Contribution made to society; (7) Social and economic well-being: Also for adults: Participation in work; (8) Suitability of living accommodation.

The Code of practice in relation to measuring social services performance sets out six quality standards that local authorities ‘must’ achieve and on which their performance will be measured.[20] In summary these are:

  1. They must work with people who need care and support and carers who need support to define and co-produce personal well-being outcomes that people wish to achieve.
  2. They must work with people who need care and support and carers who need support and relevant partners to protect and promote people’s physical and mental health and emotional well-being.
  3. They must take appropriate steps to protect and safeguard people who need care and support and carers who need support from abuse and neglect or any other kinds of harm.
  4. They must actively encourage and support people who need care and support and carers who need support to learn and develop and participate in society.
  5. They must support people who need care and support and carers who need support to safely develop and maintain healthy domestic, family and personal relationships.
  6. They must work with and support people who need care and support and carers who need support to achieve greater economic wellbeing, have a social life and live in suitable accommodation that meets their needs.

Section 14 places a duty on local authorities and LHBs to assess: (1) the care and support needs of the local population; and (2) the consequent need for care and support services to meet those needs.   The process for measuring local authority performance in meeting outcomes has been described as ‘an absurd, methodologically flawed system that will measure nothing of value [and] distract social workers from important work’.[21]

 

Prevention (section 15)

The Act creates both a strategic and a practical duty in relation to preventative services.  At a strategic level, local authorities and LHBs are under a duty to assess the extent of need for a range and level of preventative services (section 14).  At the practical level, local authorities are required to provide / arrange for the provision of services that will contribute towards preventing / delaying / reducing the development of needs for care and support; minimising the effect on disabled people of their disabilities [sic]; helping to prevent people from suffering abuse or neglect and enabling people to live their lives as independently as possible.  In relation to children in need there are additional specific provisions – aimed at reducing the need for court proceedings of all kinds (section 15(2)(f)).

Generalised guidance on the obligations local authorities and LHBs have in relation to the development of preventative services is provided in the Part 2 Code of Practice (General Functions) pages 37 – 46.

While the development of preventative services is to be welcomed, two caveats should be added.  The first is a general one: that given the severe budget problems of most local authorities – and the lack of any significant ‘new’ money to accompany this legislation – it is difficult to see how (in the short term) this duty can be made to be more than cosmetic.  To invest in preventative services, without new money would require a local authority to disinvest in an existing area. For many local authorities this would require (in essence) disinvestment in crisis services and is not realistic.  The second caveat concerns the eligibility criteria to the Act.  Objectively the Welsh Government is attempting to divert people in need away from formal support provision – since this will only be available if it is the only way of ‘overcoming the barriers’ they face.  This might mean that a person would have to establish that preventative services had been tried (and had failed) before formal support is available (but see further discussion on this point in ‘eligibility criteria’ below).

 

Promoting social enterprises etc (section 16)

One of the most distinctive provisions in the Act concerns the requirement in section 16 that local authorities must promote both:

  • the development of social enterprises / co-ops / third sector organisations to provide care and support and preventative services;
  • care and support and preventative services that involve service users in the design and running of services;

 

Support for ‘not for profits’ is thought to be an imaginative idea – in that such enterprises are able to use all their income to develop a quality service without having to divert ‘profits’ to shareholders.

A cautious endorsement of the use of third sector organisations in social care was given by 2013 research which however identified not inconsiderable barriers to entry such organisations encountered.[22]   This note of caution remains, with 2017 research highlighting their need for (among other things) professional business support, accessible sources of financing and awareness by local authorities of how to develop commissioning arrangements.  The report notes that ‘without a clear evidence base and a solution to the basic funding question of social care then it is unwise to view social enterprises as a policy panacea’.[23]

The 2014 Act’s preferment of such businesses is in stark contrast to the English Act which is likely to result in a significant increase in the privatisation of social care provision (particularly assessments[24]).

Section 16 of the Act requires – in essence – that local authorities prioritise the support of ‘social enterprise’ care.  It defines a social enterprise organisation as one whose activities are carried on for the benefit of society.  The Social Services and Well-being (Wales) Act 2014 (Social Enterprise, Co-operative and Third Sector) (Wales) Regulations 2015 (reg 3) stipulate that this requires it to be ‘inclusive’, involving ‘people’ and ‘promoting well-being’. Regulation 4 defines inclusive as an activity for which regard has been had to the public sector equality duty (section 149 of the Equality Act 2010).

An uncritical promotion of social enterprise organisations could well have negative consequences – particularly if it marginalised the important role played by the public sector. This is especially so in rural areas where there may be no viable ‘business plan’ for a third sector enterprise and where the public sector is best placed to make provision and to offer choice. The fear must be that local authorities will see section 16 not so much as an opportunity to increase the range of service options for disabled people, but as a vehicle for offloading their in-house services.

Generalised guidance on the obligations on local authorities to promote the development of not for private profit organisations is provided in the Part 2 Code of Practice (General Functions) pages 47 – 61.  The guidance stresses the importance of local authority awareness about procurement opportunities – particularly those presented by the Public Contracts Regulations 2015[25] – regulation 77 of which, for example, enables local authorities to give preference to ‘not for profit’ organisations for certain contracts relating to administrative, social, educational, healthcare and cultural services.  As in the Code for Part 2, (para 282-283) the regulations include provisions designed to ensure that smaller suppliers and third sector organisations have a genuine opportunity to gain public contracts. Regulation 20 provides in particular for opportunities relating to organisations whose main aim is the social and professional integration of ‘disabled or disadvantaged persons’ and the regulations provide considerable flexibility where the procurement relates to an ‘innovative’ service that is not already available in the relevant market (reg 31).

 

Information (section 17)

Local authorities are under an enhanced duty to provide people in need and their carers with information about the care and support that is available in their area.  The duty includes information about how the local care system operates; the choice of types of care and support, and the choice of providers in the local authority’s area; how to access the care and support that is available; and how to raise concerns about safety / well-being of an adult who has needs for care and support. A 2016 report found that at least 7 Welsh local authority websites had no, or very limited detail regarding the assessment.[26]

While this enhanced duty is to be welcomed – there are problems, and these concern the role of the NHS in the provision of information.  The Act merely requires the relevant LHBs / NHS trusts to inform the local authority of the care and support they provide.  Presumably if the relevant body is providing nothing – then all it need do is tell the local authority this – ie the NHS is allowed to be passive in this process.

On a more positive note, section 14A of the Act requires[27] that local authorities and LHBs develop and publish a strategy to ensure that there is an adequate supply (in terms of range and level) of care and support services to meet the local demand.  The duty places responsibility on the LHB for the elements of the strategy which relate to the health and well-being of carers.   The Act (section 14(1)) provides for regulations to flesh out the scope of this duty and creates therefore the potential for a scheme very similar to that created by the Carers Strategies (Wales) Measure 2010 (which has been repealed by the 2014 Act).

Part 2 Code of Practice (General Functions) pages 62-79 give generalised guidance on the obligations on local authorities to provide information, advice and assistance.

 

Registers of disabled people (section 18)

The Act has downgraded the previous duty on local authorities to maintain a register of disabled people in their area[28] to a power – save only for sight impaired, hearing impaired and for disabled children for which the duty remains.   While many registers have been little used – there is considerable scope for their imaginative use: eg as databases to facilitate planning and as a means to target information appropriately to those who need it.

 

Human Rights Protection

The Act continues the human rights protection of certain people receiving social care.  The protection covers situations where care or support is arranged by a local authority for an adult or a carer, or is paid for (directly or indirectly in full or in part) by the authority and the care is provided by a registered care provider.  Unlike the situation under the previous legislative regime protection extend to people in their own homes as well as to people in a care home.  In such cases the care provider is deemed to be a public authority for the purposes of the Human Rights Act 1998.[29]

 

Government Default powers (sections 149 – 161)

The Act provides the Welsh Ministers with extensive powers to issue ‘Directions’ to local authorities and to intervene.  Given the current reality of fragmented and underfunded local authorities this is a power that may have to be used – and a failure by the Welsh Ministers to consider its use may open the Government to challenge (most obviously by way of a judicial review).

 

 

 
 
[1] Law Commission Adult Social Care Law Com No 326, HC 941 (Stationery Office 2011) para 3.2.
[2] The Act has many provisions that should – at best – appear in subordinate legislation – see for example the sections ss41 and 43 and the provisions concerning people who refuse – sections 20, 22-23, 25-27.
[3] General papers on the passage of the Bill through the Assembly can be accessed at www.senedd.assemblywales.org/ieIssueDetails.aspx?IId=5664&Opt=3
[4] The Social Services and Well-being (Wales) Act 2014 (Commencement No. 3, Savings and Transitional Provisions) Order 2016
[5] Under section 169 – see http://gov.wales/docs/dhss/publications/151218part9en.pdf
[6] A James and L Clements ‘Does the Judicial Review of a needs assessment under the Care Act 2014 matter in Wales?’ in Rhydian: Wales Social Welfare Law on-line (2017) 5-7.
[7] It appears that the UN has given states permission to use locally appropriate language when referring to the Convention.  Due to concerns in Wales that the title insufficiently reflected the principles of the ‘Social Model of Disability’ it has been agreed that it can referred to as the ‘Convention on the Rights of Disabled People’.
[8] See for example Burnip v. Birmingham City Council [2012] EWCA Civ 629 and R (Bracking and others) v. Secretary of State for Work and Pensions [2013] EWCA Civ 1345.
[9] Such a commitment is a requirement under Article 4 of the Convention and the CRPD Committee has stressed the need for states to ‘systematically revise; their domestic law ‘in order to bring it into line with the general principles and obligations contained in the Convention’ – see for example the Committee’s Concluding observations on the initial report of Costa Rica 12 May 2014 para 8.
[10] Re G [2012] EWCA Civ 1233 para 26. For an excellent analysis of this question see Dr Julie Doughty How do you define a child’s ‘welfare’ as opposed to ‘wellbeing’? (Community Care 2016).
[11] See Equality Act 2010 (Disability) Regulations 2010 (SI 2128) reg 3.
[12] Section 3(7) and (8).
[13] Which could provide for this – see section 3(6).
[14] See Equality Act 2010 (Disability) Regulations 2010 (SI 2128) reg 3.
[15] An exclusion that has been held to extend to children – see X v Government Body [2015] UKUT 0007 (AAC).
[16] See for example R (Meany, Glynn & Saunders) v Harlow DC [2009] EWHC.
[17] See for example, R (Brown) v Secretary of State for Work & Pensions (2008) [2008] EWHC 3158 (Admin) .
[18] See Welsh Government A Declaration of Rights for Older People in Wales (WG 2013) and Welsh Government Framework for Action on Independent Living (WG 2013).  For a mundane explanation see Helen Taylor ‘Welsh Government’s legislation needs more focus’ in ‘Click on Wales’ February 20th, 2014 : it appears that the Declaration of Rights for Older People in Wales was only included in the Act because of a mistaken abstention – an Assembly member pressed the wrong voting button.
[19] Welsh Government The Well-being statement for people who need care and support and carers who need support (2016).
[20] Each authority must have arrangements in place to collect and return the data on the statutory performance measures detailed in this code of practice to the Welsh Government from May 2017 onwards – see Code of practice in relation to measuring social services performance p.11
[21] See Luke Clements Keynote speech at BASW Cymru’s Annual Conference 2017: Social Services and Wellbeing (Wales) Act 2014: a critical overview (BASW Cymru 2017).
[22] R Millar, K Hall and R Miller ‘A story of strategic change: becoming a social enterprise in English health and social care’ in The Journal of social entrepreneurship, (2013) 4(1), 4-22.
[23] L Cowie and I Rees Jones Adult Social Care Social Enterprises and the Foundational Economy in Wales WISERD Research Reports Series WISERD/RRS/0  (WISERD 2017).
[24] The Care Act 2014, section 79 enables local authorities to delegate nearly all their functions to the private sector – including assessments – see L Clements Care Act 2014 overview p.6.
[25] SI 102.
[26] Citizens Advice Cymru Accessing and Paying for Social Care in Wales (2016) page 22.
[27] The genesis of section 14A is tortuous. In simple terms it was inserted by the Well-being of Future Generations (Wales) Act 2015 section 33.  The 2015 Act however repealed very similar provisions in the National Health Service (Wales) Act 2006, section 40(2A), (2B) and (2C) which had been inserted by section 14 of the 2014 Act.  These provisions were however repealed by the Well-being of Future Generations (Wales) Act 2015 (Schedule 4 para 19) which came into force immediately before the 2014 Act.  See also in relation to the development and publication of strategic plans sections 37 – 39 of the 2015 Act
[28] The National Assistance Act 1948 s29(4)(g) and LAC (93)10 appendix 2 para 2(2).
[29] This protection derives from the Care Act 2014 section 73(1)(b) because ‘human rights’ is not a devolution issue.  The protection only extends to adults, since the English Act (primarily) only addresses the needs of adults.