General and strategic duties
The Social Services and Well-being (Wales) Act 2014 (the 2014 Act) places a number of general and strategic duties on local authorities in Wales.
Promoting social enterprises, co-operatives, user led services and the third sector
Section 16 of the 2014 Act places a duty on local authorities to promote:
- the development of social enterprises and co-operative organisations, or arrangements, in their areas to provide care and support and preventative services;-
- the involvement of persons, for whom care and support or preventative services are to be provided, in the design and running of that provision; and
- the availability in their areas of care and support and preventative services from third sector organisations (whether or not they are social enterprises or co-operative organisations).
Section 15 of the 2014 Act places a general duty on local authorities to provide or arrange the provision of services (generally referred to as “preventative services”). The purposes that are to be achieved by the provision of preventative services are described in section 15(2) and include contributing towards preventing or delaying the development of people's needs for care and support and reducing the needs for care and support of people who have such needs. One of the other purposes described is the promotion of the upbringing of children by their families, where this is consistent with the well-being of children. This element of section 15 replaces provision formerly contained in section 17 of the Children Act 1989.
Local authorities also have to consider the importance of achieving these purposes when exercising their other functions. This means that it is the responsibility of the local authority as a whole, not just the social services department, to consider the kind of preventative services which could be provided.
In the same way, Local Health Boards (LHBs) also have to consider the importance of achieving these purposes when exercising their functions. Although this does not confer any new function on LHBs, it means that LHBs have to consider whether there are things they can provide or arrange under their existing functions which would achieve these purposes.
Population assessments and area plans
Section 14 of the 2014 Act requires local authorities and LHBs to jointly assess the extent of the needs for care and support (including the needs of carers for support) in the local authority's area and the extent to which those needs are not being met. These assessments are referred to as ‘population assessments’.
As part of the population assessment, local authorities and LHBs must also assess the range and level of services needed to meet the care and support needs that have been identified, and the range and level of services needed to prevent, delay or reduce needs for care and support and to achieve the other purposes set out in section 15 (preventative services). There is also a requirement to assess the actions required to provide this combined range and level of services through the medium of Welsh.
Section 14A of the 2014 Act was inserted by the Well-being of Future Generations (Wales) Act 2015 (the 2015 Act) and it requires local authorities to prepare and publish area plans in response to the joint population assessment, required under section 14 of the Act. LHBs have a similar responsibility and local authorities and the relevant LHBs can agree to prepare and publish a joint area plan.
Section 37 of the 2015 Act requires each public service board – membership of which includes local authorities and LHBs – to undertake an assessment of the economic, social, environmental and cultural well-being of its area. These assessments are referred to as assessments of local well-being.
In preparing assessments of local well-being, section 38 of the 2015 Act requires public service boards to take into account the most recent population assessment carried out by the local authority in conjunction with a LHB.
Each public service board must, under section 39 of the 2015 Act, prepare and then publish a local well-being plan which is required to set out how the board intends to improve the economic, social, environmental and cultural well-being of its area to achieve the 2015 Act “well-being goals”. The well-being goals can be found under section 4 of the 2015 Act.
Part 1 of the Children and Families (Wales) Measure 2010 (the 2010 Measure) requires each local authority to prepare and publish its strategy in respect of its contribution to the drive to eradicate child poverty in Wales.
Section 2 of the 2010 Measure imposes a duty upon local authorities (and other bodies) to prepare and publish a strategy for contributing to the eradication of child poverty in Wales. The strategy must set out objectives chosen by the local authority which relate to the broad aims which are relevant to, and which can pursued in, the exercise of its functions. The strategy must also contain the actions to be performed and functions to be exercised by the local authority for the purpose of achieving its objectives.
However, a local authority’s duty to publish a child poverty strategy under section 2 of the 2010 Measure is discharged on publication of a local well-being plan under sections 39 or 44(5) of the 2015 Act by the public services board of which the authority is a member, but only if the authority's strategy is an integral part of that plan.
Information, advice and assistance
Section 17 of the 2014 Act places a duty on local authorities to secure the provision of an information, advice and assistance service. The purpose of the service is to provide people with information and advice relating to care and support, including support for carers, and to provide assistance to them in accessing it. Information, advice and assistance must be provided in a manner that makes it accessible to the individual for whom it is intended.
Information and advice is to be made available to all people regardless of whether they have needs for care and support. Such persons could include carers or interested parties, for example.
The service must include information (including, but not limited to, financial information) and advice about the care and support system provided for under the 2014 Act, the types of care and support available in a local authority area and how to access it, and how to raise concerns about people who appear to have needs for care and support, or support.
LHBs and National Health Service (NHS) Trusts are under a duty to facilitate the service by providing the local authority with information about the care and support that they provide.
Two or more local authorities may jointly secure the provision of an information, advice and assistance service.
These requirements replace and expand the duties in section 1(2) of the Chronically Sick and Disabled Persons Act 1970 and paragraph 1(2) of Schedule 2 to the Children Act 1989.
Registers of sight-impaired, hearing-impaired and other disabled people
Section 18 of the 2014 Act requires local authorities to establish and maintain a register of people who are ordinarily resident in the local authority's area and who are sight-impaired, hearing-impaired or who suffer from sight and hearing impairments which, in combination, have a significant effect on their day to day lives. This requirement replaces the requirement in section 29(4)(g) of the National Assistance Act 1948.
The section does not provide definitions for “sight impairment”, “severe sight impairment”, “hearing impairment” or “severe hearing impairment”. However, there is a power to make regulations to describe what these terms mean for the purposes of the local authority's obligation to establish and maintain a register so that clinical staff and local authorities have a shared understanding of the terminology.
Local authorities are required to establish and maintain a register of children who are in their area and who are either disabled or who have a physical or mental impairment which may result in needs for social care services. This obligation replaces the requirement in paragraph 2 of Schedule 2 to the Children Act 1989.
Local authorities also have the power to establish and maintain registers of adults who are disabled and adults who are not disabled but, have a physical or mental impairment or otherwise have needs which the local authority considers may lead to a requirement for care and support in the future.
For the purposes of section 18, a person is “disabled” if the person has a disability for the purpose of the Equality Act 2010. Regulations under section 3(6) of the 2014 Act can provide that a person falling within a specified category is or is not to be treated as disabled for the purposes of the 2014 Act.
Such registers will assist a local authority in assessing future needs for care and support within its area by identifying persons who may be suffering from a degenerative condition who, whilst they may not need local authority assistance at the present time, may well do so in the future as their condition deteriorates.
Local authorities are not required to include any person in a register unless that person has applied to be included in it or an application to be included has been made on their behalf. A local authority must inform a person that they have been included in a register and, if requested by the person, or someone acting on their behalf, they must remove any personal data relating to that person (although they may retain the anonymised data).
Arrangements to promote co-operation; adults with needs for care and support and carers
Section 162 of the 2014 Act provides that a local authority must make arrangements to promote cooperation between the local authority, each of the authority's 'relevant partners' and other bodies who are engaged in activities relevant to adults in need of care and support and carers in need of support. The local authority must also make arrangements to promote co-operation between the officers of the authority. These arrangements are to be made with a view to improving the well-being of adults with needs for care and support and their respective carers. Arrangements also need to focus on improving the quality of care and support and protecting adults who are experiencing or at risk of abuse or neglect.
The agencies who are “relevant partners” of a local authority are specified in section 162(4) and include:
- the local policing body,
- any other local authority with which the authority agrees that it would be appropriate to co-operate under this section,
- young offender teams,
- probation services,
- a LHB for an area any part of which falls within the area of the authority,
- an NHS Trust providing services in the area of the authority,
- the Welsh Ministers to the extent that they are discharging functions under Part 2 of the Learning and Skills Act 2000, and
- any such person, or a person of such description, as regulations may specify.
All relevant partners may provide staff, goods, services, accommodation, establish and maintain a pooled fund and share information with one another. A 'pooled fund' is made up of contributions from the authority and the relevant partners out of which payments can be made in the discharge of functions. The local authority and its relevant partners must also have regard to any guidance given by the Welsh Ministers.
This provision for adults and carers mirrors the existing provisions of the Children Act 2004 in relation to children. Section 25 of the 2004 Act enables relevant partners as defined in that Act to establish and maintain a pooled fund or provide staff, goods and support to another partner for the purposes of the cooperation arrangements under that section.
An example where a pooled fund may be used to benefit adults could include the funding of additional health support workers to support people recovering from substance misuse or the development of an information and support service for carers.
Arrangements to promote co-operation: children
In 2004 the Welsh Government voluntarily adopted the United Nations Convention on the Rights of the Child as the basis of all its work for children and young people in Wales. The Rights of Children and Young Persons (Wales) Measure 2011 subsequently placed the Welsh Government under a duty to have due regard to the Convention when carrying out any of its functions.
The Convention rights had been translated into seven Core Aims, which the Welsh Government sought to implement, to ensure that all children and young people:
- have a flying start in life;
- have a comprehensive range of education and learning opportunities;
- enjoy the best possible health and are free from abuse, victimisation and exploitation;
- have access to play, leisure, sporting and cultural activities;
- are listened to, treated with respect, and have their race and cultural identity recognised;
- have a safe home and a community which supports physical and emotional wellbeing; and
- are not disadvantaged by poverty.
These aims are reflected in section 25 of the Children Act 2004 and together strengthen the arrangements for protecting and promoting the welfare of children and young people. For the first time it places a duty on all local authorities in Wales (referred to in the Act as children's services authorities) to make arrangements to promote co-operation with a view to improving the well-being of children in their area, in relation to:
- physical and mental health and emotional well-being;
- protection from harm and neglect;
- education, training and recreation;
- the contribution made by them to society; and
- social and economic well-being.
In fulfilling this duty a local authority is required to promote co-operation between itself and its “relevant partners”. The agencies who are “relevant partners” of the local authority are specified in section 25(4) of the 2004 Act and they include, the LHB for the area, and the Public Health Wales NHS Trust (if it is providing services in the area of the authority), the local police authority, probation services and young offender teams.
Section 163 of the 2014 Act amends section 25 of the 2004 Act to ensure the existing duty in the 2004 Act to make arrangements to promote co-operation to improve the well-being of children is aligned with the new duty in section 162 of the 2014 Act. In particular, the definition of “well-being” in section 2 of the 2014 Act is imported into section 25 of the 2004 Act in place of the current definition, together with a new definition of “care and support”.
Duty to co-operate and provide information in the exercise of social services functions
Section 164 of the 2014 Act provides that if the local authority requests the cooperation of, or information from, a relevant partner in exercising its social services functions, the relevant partner must do so unless it is incompatible with its own duties or would otherwise have an adverse effect on its own functions. The relevant partner refusing to co-operate or provide information must give written reasons to the local authority explaining its decision to refuse.
Section 27 of the Children Act 1989 places specific duties on agencies to cooperate in the interests of vulnerable children. Where it appears to a local authority that another public body could, by taking any specified action, help in the exercise of any of their functions under Part 3 of the 1989 Act, they may request the help of that other authority, specifying the action in question. A public body whose help is requested under this section has a duty to comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.
Section 27 of the 1989 Act has been amended by the Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016, so that it no longer applies to requests by local authorities in Wales to other public bodies in Wales. This is because it is, now covered by section 164 of the 2014 Act. However, section 27 will continue to apply to requests by local authorities in England to public bodies in both England and Wales.
Requests by local authorities in Wales to other public bodies in England which would formerly have been made under section 27 are now covered by section 164A of the 2014 Act. Section 164A mirrors the provisions of section 27, in so far as it requires certain public bodies in England to comply with requests to cooperate by local authorities in Wales in the exercise of certain of their functions in relation to children, namely:
- the local authority’s functions under section 14F of the Children Act 1989 (special guardianship support services);
- any of the local authority’s functions in relation to safeguarding and promoting the well-being of children and young persons, in particular those with needs for care and support, and their families and others;
- any of the local authority’s functions in relation to looked-after and accommodated children;
- any of the local authority’s functions in relation to young persons entitled to support under sections 105 to 115 of the 2014 (care leavers).
Section 47 of the Children Act 1989 also places a duty on:
- any local authority;
- any local education authority;
- any housing authority;
- any local health board, Special Health Authority or National Health Service Trust (or equivalent NHS bodies in England); and
- any person authorised by the Welsh Ministers,
to help a local authority with its enquiries in cases where there is reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm.
Section 189 of the 2014 Act imposes a new duty on a local authority in Wales to take action in the event a “service provider” registered to provide a regulated service under the Regulation and Inspection of Social Care (Wales) Act 2016 becomes unable to provide a service because of business failure.
In such circumstances, the local authority must, for so long as it considers necessary, meet the needs of the adults for whom the registered person was providing accommodation or services.
Part 1 of the Care Act 2014 also places a temporary duty on a local authority in Wales to take action to meet adults' needs for care and support (or support) in the event that a registered person becomes unable to provide accommodation or other services as a result of business failure, where those adults have been placed in the area of a Welsh local authority by:
- a local authority in England;
- a local authority in Scotland;
- a Health and Social Care Trust in Northern Ireland.
Accordingly, local authorities in Wales are placed under the same temporary duty in respect of persons within their area who are in accommodation or receiving services arranged by (or as a result of a direct payment provided by) local authorities in England or Scotland or by a Health and Social Care Trust in Northern Ireland.
The temporary duties imposed in the event of a business failure by this Act (and by the Care Act 2014) only apply in relation to services or accommodation provided for adults. A number of statutory safeguards are already in existence in the event of the failure of a provider which is meeting a child's needs for care and support (or support) by providing services or accommodation. For example provision is made under the Children Act 1989 and in secondary legislation which sets out the requirements for continuity in the provision of care and care settings.
The Welsh Ministers are required to make regulations to specify what is meant by “business failure” and “being unable to do something because of business failure”.
see the Care and Support (Business Failure) (Wales) Regulations 2015.