10 July 2015
Article by Amy Clifton, National Assembly for Wales Research Service
Assembly Members (AMs) will debate, and vote on, the Welsh Government’s proposals for a new national eligibility criteria for social services on Tuesday 14 June 2015. The new regulations and code of practice have been developed following the passage of the Social Services and Well-being (Wales) Act 2014.
For many people, eligibility is one of the most important elements of the legislation. The criteria will determine the point at which an individual has an enforceable right to care and support provided or arranged by the local authority through a care and support plan. In other words, it is the test used by local authorities to determine whether they have a legal duty to meet a person’s care and support needs or not.
The Assembly’s Health and Social Care Committee stated in its Stage 1 report on the 2014 Act (then Bill) that, ‘Eligibility is central to the success of the Bill’, and expressed a desire to scrutinise the eligibility regulations and code of practice when developed.
In November 2014 the Welsh Government published a consultation on the draft regulations and code of practice, which closed in February 2015. On 8 May 2015 the Welsh Government published the second draft of the regulations (PDF, 102KB), and code of practice (PDF, 707KB) for Members to scrutinise for a 60 days period under the Super Affirmative procedure (the highest possible level of scrutiny).
The Committee sought written and oral evidence from a number of stakeholders. Significant concerns were raised regarding a number of issues, and the Committee wrote to the Minister for Health and Social Services (PDF, 331KB), recommending amendments to the code of practice relating to eligibility (Part 4 of the Act).
What are the proposals?
The principle is that an assessment will look at the individual’s circumstances, and judge whether the person’s needs and wellbeing outcomes ‘can and can only’ be met by the delivery of a care and support plan provided or arranged by the local authority. Therefore if the assessment determines that the individual’s needs and wellbeing outcomes could be met by the person themselves, their family or carer, or anyone else; by services available in their community, or by any other means, then they would not be eligible for personalised statutory care and support.
Organisations representing users of social care services have expressed concerns about the proposals and highlighted risks that the ‘can and can only’ test will present barriers to accessing services.
The Welsh Government has stated its intention that the new approach to eligibility will reduce the number of people who require formal care and support services (and a care and support plan), as more people can be signposted to preventative services in the community.
Stakeholders raised concerns to the Committee about this intention, and questioned the adequacy and availability of such community services (particularly in times of austerity) to meet individuals’ personal care and support needs. The Wales Carers Alliance told the Committee that local authorities only have a general duty to plan for and provide community preventative services whereas these regulations deal with decisions relating to individual legal rights and entitlements. It believes there is a potential area for major dispute where local authorities may consider that a certain service or community activity is adequate to meet a person’s needs (and therefore deems them ‘in-eligible’) but that person disagrees.
‘Can and can only’ test
Stakeholders highlighted risks that the ‘can and can only’ test could lead to delays in an individual’s ability to access the care and support they need, and decisions being made that are not in the person’s best interest.
Stakeholders including the Wales Alliance for Citizen Directed Support are worried that the ‘can and can only’ test could be interpreted by some local authorities as meaning that people approaching them for help would be expected to ‘prove’ that they had made every attempt to overcome the barriers to them achieving their wellbeing outcomes within family and community resources before being listened to. Several organisations stated that if individuals were required to demonstrate they had exhausted all possible options for support before becoming eligible for statutory services, this would create unnecessary and harmful delays for individuals, and potentially a deterioration in their health and wellbeing. The Motor Neurone Disease Association said that the test could create ‘a serious risk that people with a rapidly progressive condition could face unnecessary delays in accessing services’.
The Committee agreed with the view expressed by stakeholders that individuals should not experience delays in accessing services or feel under unnecessary pressure to demonstrate that they are unable to meet their well-being outcomes without care and support arranged by the local authority. The Committee strongly believes that the code of practice should be clear that the responsibility for demonstrating that an individual’s needs and wellbeing outcomes can be met through community services should be placed on the local authority rather than on the individual. It recommends that the code of practice be amended to reflect this, and to firmly clarify local authorities’ responsibilities.
Impact on unpaid carers
Stakeholders including Age Cymru and Wales Carers Alliance raised concerns that the new framework could easily result in additional demand and expectation being placed on unpaid carers to meet the care and support needs of their loved ones and take on increased care tasks themselves.
The Committee told the Minister it would be very concerned if the new regulations resulted in increased pressure on unpaid carers to fulfil the care needs of their family and friends in place of local authority provided care. It recommends that the code of practice be amended to:
- make it clear that there should not be an over-reliance on voluntary caring arrangements; and
- include a requirement for the willingness and ability of a carer to provide care, at present and in the future, to be recorded as part of the eligibility criteria process.
Reviews of eligibility decisions
Unlike the English Care Act, the Welsh 2014 Act does not contain an appeals process for individuals to challenge the eligibility decisions reached by local authorities. Stakeholders told the Committee that it’s not clear what recourse, if any, a person has if they disagree with the local authority’s decision.
The Committee strongly believes that service users should feel confident in their ability to seek redress if they believe that the solution provided by the local authority does not – or will not – meet their needs and well-being outcomes. It also believes that, in requesting a re-assessment, service users should not have to demonstrate that their circumstances have changed significantly. It wants the code of practice to set out a prescribed mechanism that enables an individual to formally challenge eligibility decisions.
The Committee also agreed with stakeholders that access to independent advocacy should be available as a matter of course to all who need it, and therefore recommends that the advocacy provisions in the code of practice are strengthened.
Will the new system deliver the right level of access to care and support for those who need it? This is what AMs must decide in casting their vote on 14 June.