Section 5 of the SSWA 2014 requires persons exercising functions under the Act to promote the well-being of people who need care and support and that of carers who need support. This overarching well-being duty applies to all persons and bodies exercising functions under the SSWA 2014, including the Welsh Ministers, local authorities, Local Health Boards (LHBs) and other statutory agencies( ).
Section 2 of the SSWA 2014 defines “well-being”, in relation to a person, as meaning well-being in relation to any of the following—
(a) physical and mental health and emotional well-being;
(b) protection from abuse and neglect;
(c) education, training and recreation;
(d) domestic, family and personal relationships;
(e) contribution made to society;
(f) securing rights and entitlements;
(g) social and economic well-being;
(h) suitability of living accommodation.
In relation to a child, “well-being” also includes—
(a) physical, intellectual, emotional, social and behavioural development;
(b) “welfare” as that word is interpreted for the purposes of the Children Act 1989( ).
In relation to an adult, “well-being” also includes—
(a) control over day to day life;
(b) participation in work.
Other overarching duties
Section 6 of the SSWA 2014 gives effect to certain key principles by setting out the matters to which a person must have regard when exercising functions under SSWA 2014 in relation to individuals who are specified in subsection (1) of that section. The duty to have regard to these matters applies at the point when a person is being assessed as to whether they have needs for care and support (or needs for support in the case of carer), as well as when it has been determined that the person has such needs. The duty to have regard to these matters also applies where a person is exercising functions under Part 6 of the SSWA 2014 which contains provision about the functions which are exercisable in relation to a looked after child( ) or in relation to other children and young people, for example care leavers.
Section 6 sets out matters to which a person must have regard when exercising the specified functions under the SSWA 2014 in relation to any individual (adult or child). These include a duty to ascertain and have regard to the individual’s views, wishes and feelings, in so far as is reasonably practicable; a duty to have regard to the importance of promoting and respecting the dignity of the individual; a duty to have regard to the characteristics, culture and beliefs of the individual (including, for example, language; a duty to have regard to the importance of providing appropriate support to enable the individual to participate in decisions that affect him or her to the extent that is appropriate in the circumstances, particularly where the individual's ability to communicate is limited for any reason.
Section 6 also sets out the additional matters to which a person must have regard when exercising the specified functions under the SSWA 2014 in relation to adults and children respectively. In relation to an adult, this includes a duty to have regard to the importance of beginning with the presumption that the adult is best placed to judge the adult’s well-being and a duty to have regard to the importance of promoting the adult’s independence where possible. In relation to a child, this includes a duty to have regard to the importance of promoting the upbringing of the child by the child’s family, in so far as doing so is consistent with promoting the well-being of the child. Where the child is under the age of 16, there is also a duty to ascertain and have regard to the views, wishes and feelings of the persons with parental responsibility for the child, in so far as doing so is consistent with the well-being of child and is reasonably practicable.
UN Principles and Convention
Section 7 of the SSWA 2014 contains two duties. The first is a duty upon persons carrying out functions under the Act in relation to adults with needs for care and support, or carers with needs for support. The duty, in this case, is to have due regard to the United Nations Principles for Older Persons (as adopted by the General Assembly of the United Nations on 16th December 1991( )).
The second is a duty upon persons carrying out functions under the SSWA 2014 in relation to children with needs for care and support, child carers with needs for support and persons in respect of whom functions are carried out under Part 6 of the Act (looked after and accommodated children). The duty, in this case, is to have due regard to Part 1 of the United Nations Convention on the Rights of the Child as adopted by the General Assembly on 20 November 1989( ).
Section 6(3) of the SSWA 2014 specifies that the United Nations Convention on the Rights of the Child is to be treated as having effect in the form set out in Part 1 of the Schedule to the Rights of Children and Young Persons (Wales) Measure 2011( ) and subject to any declaration or reservation as set out for the time being in Part 3 of that Schedule. The Welsh Ministers are already subject to a duty to have regard to the United Nations Convention on the Rights of the Child, including its Optional Protocols, when exercising their functions: this duty is imposed by the Rights of Children and Young Persons (Wales) Measure 2011.
Meaning of have regard
In the context of the overarching duties contained in Part 2 of the SSWA 2014 a requirement to “have regard” to a particular matter is similar to a requirement to consider or to take that matter into account.