England and Wales go their separate ways on social care law

The social care legislative fabric for England and Wales is starting to separate. In Wales, the Social Services & Well-Being (Wales) Bill is currently undergoing Welsh assembly scrutiny while the UK government is preparing to publish the Care and Support Bill for England, based on a draft bill that has been subject to pre-legislative scrutiny. In many respects the bills’ different approaches will lead to quite different practice in England and in Wales.

How are the bills similar?

The service user pathway is essentially the same under both bills. It all begins with an assessment, following which assessed needs are compared with the needs identified in an authority’s eligibility criteria. If they match, services to meet those needs must be supplied whether by a local authority itself, an independent provider, or by means of a direct payment. Both bills create powers to charge although the politically fraught issue of income and capital assessment, disregards and caps will be spelt out in regulations. They could well differ across England and Wales.

Children

The bill for England is about adults. The Welsh bill is about social care generally, including children. In fact, the Welsh Bill would repeal most of Part 3 of the Children Act 1989 in relation to Wales (local authority services for children).

In place of the Children Act provisions, the Welsh bill creates a decision-making structure for children’s services which mirrors that for adult social care. Therefore, there will be an express statutory assessment duty for children (something which is currently absent from the Children Act 1989 although it is provided for in guidance). Also, under the Welsh bill, express statutory eligibility criteria would be put in place for children’s services in Wales.

Safeguarding vulnerable adults

Both bills contain new legislation to better protect vulnerable adults. While both bills create a new local authority duty to make inquiries and decide if action needs to be taken to protect an at-risk adult, the Welsh bill creates a new legal tool for protecting adults, the “adult protection and support order”. Granted by a justice of the peace, these orders would permit entry onto private premises to investigate whether a person is an adult at risk.

The UK government is considering whether to include a similar provision in the English bill, having consulted on doing so last year, but may not do so having found opinion on the issue split across the sector.

Both bills provide for the establishment of local safeguarding adults boards, although the Welsh bill allows for Welsh ministers to order the amalgamation of an adults’ board with a children’s board to create a single safeguarding board. The Welsh bill also provides for a National Safeguarding Board with oversight of all local safeguarding boards in Wales.

Partnership working

Both bills contain provisions to promote the integration of services. However, the Welsh bill creates stronger powers for central government to intervene to enforce integration. It allows Welsh ministers to require local authorities and NHS bodies in Wales to enter into formal partnership arrangements, or even require different local authorities to enter into formal partnership arrangements with each other.

Since the devolution process began, social care legislation and guidance in Wales and England has been diverging. The current bills show that this process is accelerating. In social care terms, England and Wales are beginning to feel like different countries.

Ed Mitchell is a solicitor and general editor of the Journal of Community Care Law

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