You can download this Explainer as a PDF here.

7 April 2021

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.

On 22 March 2021, the Welsh Government removed these changes to adult social care in Wales. The law in this area is back to where it was before the Coronavirus Act was passed.

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 dealt with the Social Services and Well-being (Wales) Act and allowed some changes to be made, but these changes were removed on 22 March 2021 by the Coronavirus Act 2020 (Suspension: Local Authority Care and Support) (Wales) Regulations 2021.

The goal of the changes to the Social Services and Well-being (Wales) Act was to help the care system manage pressures caused by the Covid-19 pandemic as more people needed support because carers are unwell or unable to reach them, and as care workers were having to self-isolate or unable to work for other reasons. They enabled local authorities to prioritise where necessary. The changes were time-limited and according to the statutory guidance, were “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 were in force on 1 April 2020 - 22 March 2021:

  • 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 made it 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 have been 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 continued to remain in place.

If a local authority decided to deploy one of these changes, they were required to review this decision fortnightly.

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

The changes impacted the thousands of people in Wales with care needs. Following the changes, local authorities only needed 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 have been a lower threshold that 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 always had a legal duty to protect, respect and fulfil human rights under the Human Rights Act.

However, the changes are no longer in place and cannot be brought in by local authorities. People accessing or trying to access care should have their needs assessed and met according to the law as it was before the Coronavirus Act.

Which Human Rights Are Involved?

The most important rights which were likely to be affected by these changes are 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 were in place from 1 April 2020 to 22 March 202. In that time, local authorities in Wales were able to decide to deploy them based on analysis of the situation in that local authority. However, these changes should only have been 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 were 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.

Importantly, public officials in Wales continued to have a legal duty to protect, respect and fulfil human rights under the Human Rights 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.

As the changes to adult social care laws in Wales have now been removed from the Coronavirus Act, local authorities have a duty to assess and meet care needs under the Social Services and Well-being (Wales) Act 2014 like they did before the Coronavirus Act was law.

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
  2. 7 April 2021