You can download this Explainer as a PDF here.

In response to Covid-19, the UK government introduced a range of temporary changes health and care law via the Coronavirus Act 2020. The Coronavirus Act includes changes to health and care legislation in Wales as well as England, Scotland and Northern Ireland.

This included some changes to the Social Services and Well-being (Wales) Act 2014.

What is the Social Services and Well-being (Wales) Act?

The Social Services and Well-being (Wales) Act 2014 is a law which sets out the duties on local authorities (council), health boards and Welsh Ministers, requiring them to work to promote the well-being of those who need care and support, or carers who need support.

Why has the Social Services and Well-being (Wales) Act been changed?

In late March, the UK government presented the Coronavirus Bill to parliament, asking them to approve possible suspensions to several laws about people’s care and support during the Covid-19 pandemic. The Government said these changes may be necessary because many public services would face significant pressures due to Covid-19 and the effects the pandemic may have on staff and resources. Parliament passed this law, the Coronavirus Act on the 25 March 2020.

One part of the Coronavirus Act deals with the Social Services and Well-being (Wales) Act and allows some changes to be made. The goal of these changes is to help the care system manage pressures caused by the Covid-19 pandemic as more people need support because carers are unwell or unable to reach them, and as care workers are having to self-isolate or unable to work for other reasons. They enable local authorities to prioritise where necessary. The changes are time-limited and according to the statutory guidance, are “there to be used as infrequently as possible with the clear expectation that individuals’ care and/or support will return to their pre-modification arrangements at the earliest opportunity.” 

Which changes were introduced?

The following changes to the came into force on 1 April 2020:

  • Local authorities will not have to carry out detailed assessments of people’s care and support needs. However, they are still be expected to respond as soon as possible to requests for care and/or support, consider the needs and wishes of people needing care and their families and carers, and make an assessment of what care needs to be provided.
  • Local authorities will not have to carry out financial assessments. This doesn’t mean that any care and/or support they receive during this period is free as local authorities can charge people retrospectively, subject to giving reasonable information in advance about this, and a later financial assessment.
  • Local authorities will not have to prepare or review care and/or support plans, but they will still be expected to carry out proportionate, person-centred care-planning which provides sufficient information to all concerned, particularly those providing care and support often at short notice.

The statutory guidance makes clear that “local authorities are still expected to take all reasonable steps to continue to comply with their duties to assess and meet needs in line with the unmodified 2014 Act.” These changes should only be used to enable them to prioritise needs when it is no longer possible to do this. Likewise, local authorities’ duties to promote well-being as well as their general and specific over-arching duties under the Social Services and Well-being (Wales) Act 2014 and the associated Code of Practice remain in place.

When a local authority does decide to deploy one of these changes, they must review this decision fortnightly.

What does this mean for people who are accessing (or trying to access) care and those who carer for them?

These proposals impact the thousands of people in Wales who have care needs.

Following these changes, local authorities only need to meet needs in order to protect an adult or an adult carer from abuse or neglect or the risk of abuse or neglect. This seems to be a lesser threshold than the test in England where local authorities must assess needs when a failure to do so would amount to a breach of that person’s human rights. However, public officials in Wales still have a legal duty to protect, respect and fulfil human rights under the Human Rights Act.

The reality of the situation is that adults with care needs may see a reduction or even complete removal of the care they have been receiving so far. Likewise, those who are trying to access support for the first time may not be able to.

Which Human Rights Are Involved?

The most important rights here which are likely to be affected by these changes is the right to life (Article 2) right to not be subjected to inhuman and degrading treatment (Article 3) and the rights to respect for physical and mental wellbeing, autonomy, relationships, community participation and home (Article 8). The right not to be discriminated against in these rights (Article 14) is also very important.

Although the test is not a human rights test, as mentioned above, public officials in Wales still have a legal duty to protect, respect and fulfil human rights under the Human Rights Act. Therefore, human rights must always be a consideration when decision makers are making a decision that affects a person’s care and/or support.

What happens now?

The above changes are now in place and local authorities can decide to deploy them cased on analysis of the situation in that local authority. However, these changes should be used as infrequently as possible with the clear expectation that individuals’ care and/or support will return to their pre-modification arrangements at the earliest opportunity.” As far as possible local authorities are still expected to take all reasonable steps to continue to comply with their duties to assess and meet needs in line with the unmodified 2014 Act.

When a local authority does decide to deploy one of these changes, they must review this decision fortnightly. De-escalation and re-establishment of full duties and rights under the 2014 Act should be implemented as soon as is reasonably possible.

Importantly, public officials in Wales still have a legal duty to protect, respect and fulfil human rights under the Human Rights Act so, human rights must always be a consideration when decision makers are making a decision that affects a person’s care and/or support. This is still the case in local authorities where the decision has been made to deploy one or more of these changes.

Where can I find more information?

 

PLEASE NOTE: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.

You can download PDFs of our previous versions of this Adult Social Care in Wales Explainer series here:

1. First version