By Luke Clements
The Social Services and Well-being (Wales) Act 2014 has the potential to be a very good piece of law. It contains very many welcome provisions. It is not. however, ready to be implemented and serious thought should be given to delaying its implementation.
At the beginning of the month, the Welsh Government published a mass of codes and explanatory memoranda to the act, which will take a long time for even those with expertise to digest.
The codes are now subject to a 40-day approval period. Even if all goes well for the government, it will only be in December (just before the Christmas recess) that the codes become legally applicable. Then, and only then, can practitioners, providers, services users and carers be confident about the legal contours of the new regime. Only then can a detailed education programme commence. That leaves three months to implement the most fundamental change in social care law in Wales since Aneurin Bevan’s 1948 reforms.
Why the rush?
Objectively, local authorities, the independent and voluntary sectors cannot be ready by that date – and the idea that disabled people, carers and looked after children will have any idea about their legal rights by then, is even more fanciful. There is also a risk that problems with the statutory regime may emerge during this period and there will be insufficient time for them to be remedied. At first sight, there appear to be two already: the loss of the specific ‘short breaks’ provisions (for carers of disabled children) and the continuing ambiguity over the new eligibility criteria.
The Breaks for Carers of Disabled Children (Wales) Regulations 2012 were an enormously important initiative that required authorities to focus on this crucial support service – and to have specific and well-publicised statements that explain how families can access this support. It is troubling that these provisions appear to have been repealed in Wales – without obvious consultation or debate. Although the code dealing with ‘looked-after children’ (ie children accommodated / cared for by an authority) has mention of ‘short breaks’ (paragraphs 288 – 301) the vital importance of such support for disabled children living with their families does not appear to get a mention.
Earlier this year, the Welsh Government faced considerable criticism over its proposed eligibility criteria: the so called ‘can and can only’ test. This stated that individuals would only be able to access personalised services if it could be shown that their need was unlikely to be provided by services in the community to which they had access. The concern was that the onus would be on individuals to show that they had tried a generic service and then to demonstrate that this was not suitable. In July the government stated that it was ‘emphatically not the case’ that individuals would have to ‘demonstrate exhaustively that they have explored every other possible avenue of support before becoming eligible’.
Those waiting for a clear statement to this effect in the codes will be disappointed. The code (part 4 paragraphs 32 -33) is unhelpfully vague and leaves considerable room for confusion. It suggests that the onus may rest with the individual (to demonstrate that they have tried support services and these have not proved suitable) albeit that they won’t have to prove that they have ‘exhausted every other possible avenue’.
Comprehending the Welsh assembly legislative process is not for the faint hearted, but it appears that assembly members (AMs) can only accept or reject the codes: there is no scope for them to amend. Given the objectively unrealistic implementation period for the act, AMs would be well advised to challenge the codes, and to reset the clock. There is everything to be gained by allowing at least a further six months (ideally a year) before this enormous piece of legislation is brought into force.
Luke Clements is Cerebra professor of law at Cardiff University. In January 2016, he will take up a chair in law and social justice at Leeds University.