From April 2016, local authorities have new duties to assess and meet the needs of adults and children for care and support and to assess and meet the needs of carers for support, including adult carers and child carers.
These duties are contained in Parts 3 and 4 of the Social Services and Well-being (Wales) Act 2014 (SSWA 2014).
Broadly, Part 3 (assessing needs) provides for the circumstances in which a local authority must assess a person’s needs for care and support or a carer’s needs for support and for how assessments must be carried out.
Part 4 (meeting needs) provides for the circumstances in which needs for care and support or support for carers may or must be met by local authorities and for how needs are to be met.
Section 19 of SSWA 2014 requires local authorities to assess whether an adult has needs for care and support and if so, what those needs are. The duty is triggered where it appears to a local authority that an adult may have such needs.
Section 21 makes similar provision in relation to the assessment of a child's needs to that which is made by section 19 in relation to the assessment of an adult's needs. Local authorities are required to assess whether a child has needs for care and support in addition to, or instead of, the care and support provided by the child's family and if so, what those needs are. The duty is triggered where it appears to a local authority that a child may have needs for care and support. A disabled child is presumed to need care and support in addition to, or instead of, the care and support provided by the child's family. This means that in most cases a local authority will be obliged to assess the needs of a disabled child.
Section 24 requires a local authority to carry out an assessment of a carer's needs for support.
The duty to assess is triggered if it appears to the local authority that a carer may have needs for support.
“Carer” is defined in section 3(4) of SSWA 2014 as a person who provides or intends to provide care for an adult or disabled child (disability being defined in section 3(5) by reference to the Equality Act 2010).
Regulations about carrying out needs assessments have been made. See the Care and Support (Assessment) (Wales) Regulations 2015 (S.I. 2015/1305).
SSWA 2014 is not prescriptive about how local authorities can meet needs but section 34 gives examples of the ways needs can be met, including by the local authority arranging for someone else to provide something or by providing something itself. Section 34 also gives examples of what may be provided or arranged to meet needs, including accommodation, care and support in the community and payments (including direct payments).
Duties to meet needs for care and support under Part 4 arise where it has been determined that the needs meet the eligibility criteria set out in the Care and Support (Eligibility) (Wales) Regulations 2015 or, if the needs do not meet the eligibility criteria, where it has been determined that it is nevertheless necessary to meet the needs in order to protect the person from abuse or neglect, or a risk of abuse or neglect (if the person is an adult) or abuse or neglect or a risk of abuse or neglect, or other harm or a risk of such harm (of the person is a child) (see section 32 of SSWA 2014).
There are some exceptions to the local authority’s powers and duties to meet needs under Part 4.
Section 46 of SSWA 2014 Act applies in relation to adults who are subject to immigration control within the meaning of section 115 of the Immigration and Asylum Act 1999. A local authority may not meet the care and support needs of such an adult which have arisen solely because the adult is destitute or because of the physical effects, anticipated or actual, of being destitute. It replaces the exclusions which were contained in sections 21(1A) and (1B) of the National Assistance Act 1948 and section 45(4A) Health Services and Public Health Act 1968.
Section 47 of SSWA 2014 sets out limitations on a local authority's powers to provide health services. The starting point is that a local authority is not permitted to meet a person's needs for care and support by providing health care services which are required to be provided under a health enactment. This prohibition also applies in relation to a local authority's powers to provide preventative services under section 15.
However, this prohibition does not apply to the provision of health care services which are “incidental or ancillary” to something else that the local authority is doing to meet to meet a person's needs under sections 35 to 45 or to the provision of other services under section 15. Local authorities can in certain circumstances allow staff with appropriate training, support and supervision to take on certain specified health related tasks whilst providing social care. An example of this is the provision of support with the administration of some medication.
Even where a local authority does have the power to provide health care services, they are still prohibited from meeting needs or providing preventative services by providing or arranging the provision of nursing care by a registered nurse. “Nursing care” is defined in section 47(10).
This prohibition on a local authority providing nursing care does not prevent it from arranging for the provision of accommodation in a nursing home, provided consent has been obtained from the relevant NHS body (specified in the Care and Support (Provision of Health Services) (Wales) Regulations 2015 (S.I. 2015/1919), or the case is an urgent one and consent is obtained as soon as possible after the arrangements are made. In these circumstances, the nursing care element will be funded by the NHS in accordance with arrangements for NHS funded nursing care.
Section 48 of SSWA 2014 Act provides for other restrictions on how local authorities can meet an adult's needs for care and support or provide preventative services under section 15. In particular they are prohibited from doing anything which a local authority would be required to do under the Housing Act 1996. This means, for example, that a local authority cannot meet needs for the purposes of SSWA 2014 Act by providing accommodation if they are required (or another local authority is required) to provide accommodation under its duties towards homeless people under the 1996 Act. This does not prevent local authorities, under SSWA 2014, from providing more specific services (such as housing adaptations), or from working jointly with housing authorities.
There are also restrictions on the ways in which a local authority can meet a person’s needs for care and support by making payments. These restrictions are set out in section 49 of SSWA 2014.
Section 34 (How to meet needs) provides that making payments is one of the ways that a local authority can meet an individual's needs for care and support and that this can include direct payments. Section 49 sets limits on the circumstances when payments can be made. Payments can be made under the scheme for direct payments as set out in sections 50 to 53. They can be made where, in the local authority's view, a person's needs are urgent and it would not be reasonably practicable to meet the needs in another way. Subsection (1)(c) allows a local authority to make payments in the course of contracting for the provision of services. Regulations may set out other circumstances when payments may be permitted.
Section 49 also sets limits on the extent to which payments can be used in the discharge of a local authority's duties to provide preventative services under section 15.
Where a local authority is required to meet a person’s needs for care and support under Part 4, it is also required to prepare and maintain a care and support plan (or a support plan in the case of a carer) in relation to that person.
The plan must be kept under review. Where a local authority is satisfied that the circumstances of the person to whom the plan relates have changed in way that affects the plan, the authority must carry out such assessments as it considers appropriate and revise the plan.
Regulations have been made about the preparation of plans under Part 4, the contents of plans and the review and revision of plans. See the Care and Support (Care Planning) (Wales) Regulations 2015 (S.I. 1335)
Requirements for care and support plans for looked after children are covered in Part 6 of SSWA 2014 (see section 83 and the Care Planning, Placement and Case Review (Wales) Regulations 2015 (S.I. 2015/1818).
Where an application is made on which a care order might be made with respect to a child, section 31A of the Children Act 1989 requires the appropriate local authority to prepare a plan (sometimes referred to as “a section 31A care plan”) for the future care of the child.
Portability of care and support
Section 56 of SSWA 2014 Act provides for what is to happen when a person who has needs for care and support that a local authority is required to meet moves from the area of one local authority to another.
The local authority (the 'sending authority') that is under a duty to meet the person's needs, must, when notified that the person intends to move to the area of another local authority in Wales, notify that other authority (the 'receiving authority') of the person's intention to move. It must also provide it with a copy of the person's care and support plan.
The 'sending authority' must also provide any other information about the person, together with information on the person's carer, if there is one (for example a copy of the carer's support plan) that the 'receiving authority' requests.
When the receiving authority is satisfied that the person is moving to its area, it must notify the sending authority of this and provide the person (and their carer if there is one) with appropriate information. If the person is a child, it must also provide appropriate information to any person with parental responsibility for the child.
The 'receiving authority' must assess the person, paying particular regard to any change in the person's care and support needs arising from the move. It must also have regard to the care and support plan forwarded by the sending authority.
On the day that the person moves to its area, if the receiving authority has not yet carried out an assessment, it must meet the care and support needs set out in the plan that was prepared by the 'sending authority'. It must do so until it completes its own assessment along with any other steps that need to be taken.
Codes of Practice
Codes of Practice have been issued under Part 3 (Assessment) and Part 4 (Meeting needs) of the Social Services and Well-being (Wales) Act 2014
(the 2014 Act)