Social care - what is devolved?
Senedd Cymru has power to pass laws in relation to social welfare including social services subject to the reservations set out in Schedule 7A to the Government of Wales Act 2006. The key reservations are for social security schemes (paragraph 130), the subject matter of the Mental Capacity Act 2005 (paragraph 169), parenthood, parental responsibility, child arrangements and adoption (paragraph 177) and proceedings and orders under Part 4 or 5 of the Children Act 1989 or otherwise relating to the care or supervision of children (paragraph 178). However these reservations must be interpreted carefully and are themselves subject to exceptions.
Between 2007 and 2011, the National Assembly for Wales (as it was then) could legislate by passing Measures, where the specific power to legislate on a topic was conferred by Order in Council made under the Government of Wales Act 2006 (known as legislative competence orders or LCOs). A number of LCOs and Measures relating to social care were made.
• Children and Families (Wales) Measure 2010
• Social Care Charges (Wales) Measure 2010 (repealed by the Social Services and Well-being (Wales) Act 2014)
• Carers Strategies (Wales) Measure 2010 (repealed by the Social Services and Well-being (Wales) Act 2014)
On the coming into force of the Government of Wales Act 1998 on 1 July 1999, the power to make regulations and the other powers of the Secretary of State under the principal statutes relating to social services were transferred to the National Assembly for Wales. On the coming into force of the Government of Wales Act 2006, most of the powers were further transferred to the Welsh Ministers. Power to make new subordinate legislation and power to revise existing subordinate legislation under those statutes lies with the Welsh Ministers.
As a result the social care statutes enacted by the UK Parliament prior to the commencement of GoWA 2006, and which are still in force in relation to Wales, should be read with care. References to ‘the Secretary of State’ will in most, but not all, cases now mean ‘the Welsh Ministers’ in relation to Wales as a result of transfer of functions orders made under the Government of Wales Act 1998 and the further transfer of functions made by Schedule 11 to GoWA 2006. The main transfer of functions order made under the Government of Wales Act 1998 is the National Assembly for Wales (Transfer of Functions) Order 1999. Also, where functions were conferred on the (then) National Assembly expressly in Acts of the UK Parliament between 1999 and 2007, the provisions enacting those functions should be read as referring to ‘the Welsh Ministers’ by virtue of the transfer of functions by Schedule 11 to the Government of Wales Act 2006.
In addition, the function of providing a welfare advice service to the family courts was devolved to Wales by sections 35 to 43 of the Children Act 2004. This function is performed in Wales by the Children and Family Court Advisory and Support Service (CAFCASS) Cymru, an arm of the Welsh Government. The law which governs how the functions of providing welfare advice and providing representation for children in the family courts are to be carried out is contained in England and Wales family law statutes and rules of court. The principal family law statutes are the Children Act 1989 and the Adoption and Children Act 2002.