‘Welsh social care law risks taking us back 20 years by providing bare minimum’

The emphasis on doing the minimum necessary to support adults and children through the Social Services and Well-being (Wales) Act 2014 is profoundly wrong, warns Luke Clements

By Luke Clements

The Social Services and Well-being (Wales) Act 2014 is due to come into force in April 2016.  The first tranche of draft regulations and guidance to the act were published at the end of 2014 and the next set is due in February 2015.

On the positive side, the timetable for the act’s implementation is sensible: it is the single largest piece of primary legislation enacted by the Welsh assembly since its creation. Unlike its English equivalent (the Care Act 2014) Wales has allowed adequate time for the drafting, consultation, training and major system changes that the act will require. This is essential since the Welsh act is wider ranging than the Care Act, with greater safeguarding powers and major reform to the law concerning ‘children in need’ (and consequent repeal to parts of the Children Act in Wales). The act will make Welsh social care and children’s legislation so distinct that before long Welsh social workers will have to undergo legal retraining if they wish to work in England and vice versa.

Sadly there is much about the act and its draft regulations and guidance that is far from positive. The partial repeal of the Children Act appears to have everything to do with creating a distinct Welsh legal regime and virtually nothing to do with improving provision and support for children. On this question, the Welsh Children’s Commissioner – when criticising the act’s lack of vision – questioned “how the replacement or restatement of parts of existing legislation relating to children will give greater effect to the best interests of the child”.

Silence about rights

The first tranche of draft regulations and guidance reinforce the perception that the government has lost its way with the reform: collectively the materials speak of austerity and of minimal entitlement. The draft code is silent about ‘rights’ and in almost every respect it compares badly to the English guidance on the Care Act.

The Welsh act contains no requirement to promote personal dignity; is silent on user choice and, unlike the English guidance, the draft Welsh code has nothing to say about the right to independent living.

The only ‘principle’ that the Welsh government appears to adhere to, is to “do the minimum necessary”. Speaking recently, the minister for health and social services, Mark Drakeford, stressed the importance of this principle – stating that it is “the way we think that we will be able to deal with providing services”.

One has to ask in which other branch of the public service would the ambition be to do the minimum necessary? This is an act that is supposed to address the needs of frail older and ill people; of disabled children and people with profound physical and mental impairments – and the government’s aspiration for such individuals is to “do the minimum necessary”.  This, on the face of it, is a Poor Law mentality and shows an almost complete disregard for the heavily gendered consequences of such a policy.

The draft of the proposed eligibility criteria appears to be inextricably linked to this new approach. It adopts what is known as the ‘can and can only’ test. Personalised support will only be available in Wales to individuals if it is established that they can, and can only achieve well-being, by receiving such a service. It will mean that individuals will only be eligible for personalised support if they can establish that the council’s generic services do not meet their needs. Services like direct payments will cease to be an entitlement in Wales: instead they will only be available to those who can prove that they have tried the services available in their ‘local offer’ and that these have not worked for them. This may not take us back to the Poor Law – but it certainly winds the clock back 20 years.

Retrenchment of support

Although the proposed English Care Act eligibility criteria do not adopt such an approach, the ‘can and can only’ test is something that both the Cardiff and Westminster Governments are warming to. In England it is evident in the approach taken by the Children and Families Act 2014 – where we see the rise of the ‘local offer’. This refers to generic services that the local authority claims to be available for children with special needs.  A child will only be able to have a education, health and care plan (formerly known as a statement) if they or their family can establish that the generic ‘local offer’ services do not meet their needs. The same is true with the English and Welsh Children’s NHS Continuing Care guidance, which makes NHS funding unavailable unless it can be established that the child’s needs cannot be met by existing, universal services.

We see here the retrenchment: from individually tailored packages to a standard fixed menu of take it or leave it services; services that have to be tried and proven to fail before the person can become eligible. In this Orwellian scheme “preventive services” mean services that prevent access to personalised support.

The English scheme is now fixed and to be implemented in April. There is still time in Wales: time that must be used to generate some vision, inject some rights-based thinking into the regulations and code, and completely rewrite the draft materials published so far. Children in need, older, ill and disabled people in Wales deserve more: they deserve a can-do government – and not one that ‘can and can only’ do the bare minimum.

Luke Clements is Cerebra Professor of Law at Cardiff Law School and a solicitor

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