Luke Clements

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

News: recent SWL in Wales developments

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National Population Assessment Report (2018)

The Welsh Government has published its first National Population Assessment. The report was commissioned by Government and delivered by Social Care Wales. Click here for a briefing on the report.

National outcomes framework results

The Welsh Government has published the results of its report on the state of ‘well-being’ in Wales: Measuring national well-being: A report on the national outcomes framework for people who need care and support, and carers who need support, 2016–17. Click here for a briefing on the report

State of Caring 2017 (Wales)

Carers UK carries out an annual survey of carers to understand the state of caring and uses the findings to inform the Governments of the four nations on the experiences of carers – click here for a briefing on the 2017 report.

Autism (Wales) Bill

The Consultation on proposal for an Autism Act in Wales has now closed.  Click here for the response submitted by Julie Burton Law, a firm of solicitors based in North Wales.

 

Austerity is no excuse  for a service led response to need[1]

The Public Services Ombudsman for Wales (PSO) upheld a complaint concerning Gwynedd Council.  Although the case predates the Social Services and Well-being (Wales) Act 2014 the findings are wholly relevant to practice under the Act at both strategic and operational level.  The final report by the PSO’s Office was published in January of 2017.

The PSO considered that the council’s failure to reassess an adult with learning difficulties prior to its decision to withdraw his support services was maladministration (indeed this was unlawful). It was also maladministration for the council’s not to consult with him about the changes it proposed: namely to replace his 9 hours per week one-to-one support worker package with group support for 7 hours every 2 weeks.  The council’s fault was that it had followed a service led response to his needs rather than a person centred response.

This case highlights a failure to comply with the statutory guidance:

  • the need to reassess before deciding to change a care plan;
  • the need to consult with people who are in receipt of social services provision; and
  • the need to focus on the individual and his/her needs and circumstances.

At a time of continuing austerity, with local authorities seeking to reduce their expenditure on adult social care, this PSO report serves as a salutary reminder to practitioners of the importance of legally compliant practice as a way of safeguarding the rights of people who are in need of care and support. It should be reminder too, to local authorities that the Social Services and Well-being (Wales) Act 2014 has at its heart established principles about the assessment and delivery of social care in Wales.

[1] Gwynedd Council Number 201503803 – Report issued in January 2017

 

The legal and administrative processes in adoption

Julie Doughty and her colleagues Sarah Meakings and Katherine Shelton at Cardiff University have published a new paper ‘The legal and administrative processes in adoption: views and experiences of newly formed adoptive families’. The paper reports on findings from the Wales Adoption Study on adoptive parents views and experiences of the legal and administrative processes of adoption.  A free copy of this paper can be accessed by clicking here.

Julie Doughty can be contacted at DoughtyJ@cardiff.ac.uk by anyone requiring further information on having difficulty in accessing the paper.

A new care homes’ fees case

For an analysis of the Court of Appeal Torbay judgment (including its implications in Wales) click here.

 

Track the Act

Carers Wales have published their second  Track the Act briefing. For the English language version click here and for the Welsh language version click here

This is a welcome publication as it relates to the experiences of Carers in Wales in the first year following implementation of the Social Services and Wellbeing (Wales) Act 2014.

Through the survey of Carers in Wales and Freedom of Information (FOI) requests to the twenty two Local Authorities, the Track the Act report identifies the obstacles facing carers in Wales a year after implementation of the Social Services and Wellbeing (Wales) Act 2014.

The English language version of the information provided to Carers Wales through their FOI requests can be found by clicking here and the Welsh language version can be found by clicking here.

This overview of the research and its recommendations to Welsh Government is timely and provides a significant lever to improve the experience of carers who are in need of support.

 

Deprivation of Liberty Safeguards in Wales

A briefing by Roger Laidlaw has been added to the Rhydian: ‘Court of Protection in Wales‘ pages.

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Adoption on Sibling Relationships

A new paper concerning The Influence of Adoption on Sibling Relationships by Sarah Meakings Amanda Coffey Katherine H Shelton has been published in the British Journal of Social Work: to access and to download click here.

The study was funded by Health and Care Research Wales, a Welsh government body that develops, in consultation with partners, strategy and policy for research in the NHS and social care in Wales (Grant reference: SC-12–04; co-investigators: Julie Doughty, Ph.D.; Sally Holland, Ph.D.; Heather Ottaway, Ph.D.).

 

Re A (A Child) [2016] EWFC B101 (25 August 2016)

This case has been brought to our attention by the Transparency Project whose primary aim is to make Family Law clearer. In the judgment His Honour Judge Gareth Jones rejects a local authority care plan for a child the subject of care proceedings.  The Project’s briefing on the case is accessible by clicking here.

This case is not an authority from a higher court but highlights the impact of the Social Services and Well-being (Wales) Act 2014 and its social care provisions for children in need of care and support and care proceeding in Wales under the Children Act 1989 – and has been published on the official court reporting service Bailii.

 

R (Luke Davey) v. Oxfordshire CC Court of Appeal 2017

People in Wales in receipt of the Independent Living Grant, the Welsh Government’s interim measure to soften the blow of the closure the Independent Living Fund (ILF) would have followed R (Luke Davey) v Oxfordshire CC and the subsequent appeal with interest in the hope that the Court of Appeal would overturn the earlier High Court decision.

The Welsh Government has confirmed that the Independent Living Grant will continue in Wales until March 2018 and in the subsequent year all those who previously received the ILF will be re- assessed and have their care and support provided for by their local authority.

It is likely that many former ILF recipients will see attempts to reduce their care and support funding in the same way as Luke Davey.

In this case we have seen the High Court loathed to strike down the Local Authority decision as being irrational and the Court of Appeal found no reason to interfere with the decision of the High Court.

One should take heart that Davey does not give local authorities a carte blanche – and it should most certainly not be taken as creating an open season to cut services. It decides that the well-being duty is a legally enforceable obligation and that once a support plan has been agreed local authorities must provide the funds to meet every aspect of that plan. It also states – in terms – that once there is evidence that a direct payment is insufficient to secure suitably qualified carers then the local authority must address this by increasing the amount paid.

Davey is a case ‘on its facts’: disheartening and quite possibly a personal tragedy for Luke Davey. Cases of this kind come along infrequently but they do not upend the social care legal order.

For us in Wales, the excellent Merton decision and the facts of the Davey case, provides the basis for disabled people to expect an assessment that gives primacy to their well-being outcomes identified by the person being assessed or their advocates. It highlights that Local Authorities need to provide a rational for any changes in provision that will stand up to the test of irrationality should it be challenged in the Courts.

The transition to local authority provision for previous recipients of the ILF is not an automatic signal for a reduction in care provision for the individual who is eligible for care and support.

 

Humanising Services & Building Communities (i.e.co-production –how the hell do you do it)

Jenny O’Hara Jakeway CEO of Credu-Connecting Carers

In this thought provoking and challenging paper, Jenny O’Hara Jakeway examines the opportunities afforded by the Social Services and Wellbeing (Wales) Act 2014 and the Future Generations Act 2015 to co-produce healthy, resilient and socially just communities but asks the pivotal question – How? In a time of austerity.

An Executive Summary can be accessed by clicking here and the Full Paper can be accessed by clicking here.

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Adult Social Care Social Enterprises and the Foundational Economy in Wales

Professor Ian Rees Jones Director of  WISERD

While population ageing, generational conflict and the crisis in social care appear to make regular newspaper headlines, it is striking that clear solutions to the financial and social consequences of care needs in later life remain as elusive as ever.  Researchers at WISERD in Cardiff University and Manchester University have drawn on the foundational economy approach to examine social care provision in the UK .  Their findings illustrate to the extent to which the crisis in care is framed in a particular way that hides the extent to which private equity is able to extract value from welfare funding sources. This is in the context of severe cuts in the funding of services since the financial crisis, increasing fragility within the care home industry and government ‘fast’ policies that ‘appear today and are gone tomorrow’.  Strategies for social care are mooted and appear in glossy documents but these have an existence that are separate to, and appear to disconnected from, a commitment to a universal insurance based system and a fundamental reorganisation of social care.  Despite this, there are some promising developments including experiments with integrated care, with housing based solutions as well as changes to the legislative framework.

In Wales, since 2014, this has included a provision for Local Authorities to promote social enterprises in areas of care and support.  Researchers at WISERD Cardiff University have examined the potential of social enterprises in the field of social care.  Their exploratory study finds that the new legal framework in Wales offers an important opportunity to foster a vibrant social enterprise sector in the field of adult social care that could potentially contribute in meaningful ways to the delivery of high quality user-oriented services that also entail a variety of social and local economic benefits.  However, evidence to support the claims made in support of social enterprise provision remains patchy.  Furthermore, changing the legislative framework is a necessary but not sufficient condition for improvements in services, and policy aspirations will remain just that without the resources to support service developments.

 

Parliamentary Review of Health and Social Care In Wales – Interim Report

An interim report has been published by the Independent Review of Health and Social Care in Wales, which was set up by the Cabinet Secretary for Health, Well-being and Sport in November 2016.

The Review Panel has been asked to make recommendations for a 5-10 year period on how to improve the health and well-being of people across Wales and measures to reduce health inerqualities. The context of the review is rising demand,financial sustainability, demographic changes and the Social Services and Well-being (Wales) Act 2014 and the seven goals the Well-being of Future Generations( Wales) Act 2015 underpin the context for this review.

The expert panel is due to publish its final findings and recommendations in December 2017.  It is seeking comments / feedback on the interim findings and specifically for views on how ’seamless’ health and care services can be delivered in Wales.

The feedback / response form can be accessed by clicking here.

 

Citizens Advice Cymru report on accessing and paying for social care in Wales

A 2017 report by the CAB has found that there is a general lack of awareness of how the social care system works in Wales and that people don’t know how to access care, felt confused about the process and didn’t feel able to challenge decisions. The research (undertaken between March and June 2015) revealed a ‘general lack of awareness of how the social care system works and people don’t know how to access care, felt confused about the process and didn’t feel able to challenge decisions concerning’.

For a copy of the full report, click here.

 

The Autism (Wales) Bill

Paul Davies AM proposes to introduce a Private Members’ Bill – The Autism (Wales) Bill – having won the Assembly ballot for such Bills. The intention is that the legislation will ensure (among other things) that in every locality:

  • there is a clear and consistent pathway to diagnosis of autism;
  • councils and health boards ensure that children and adults with autism get the support they need;
  • key staff working with people with autism have had autism training;

For details of the proposal and the consultation exercise click here.