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9 April (updated on 12 May)
Regulations have been made in Wales to bring into force provisions in the Coronavirus Act 2020, relating to local authority care and support, and the Mental Health Review Tribunal for Wales. They will have significant implications for people who need care and support, and for unpaid carers.
What the regulations do
Adult Social Care
The Welsh regulations amend the Social Services and Well-being (Wales) Act 2014 to relax duties on local authorities. The changes mean that local authorities no longer have to carry out needs assessments for adults and adult carers, and no longer have a duty to meet adults’ eligible care and support needs, nor adult carers needs for support.
There is also no longer a duty to carry out financial assessments. Previously, a means test was applied, and individuals would usually contribute to the costs of care. Without a financial assessment, charges cannot be imposed for services.
Where a local authority has not charged a person for their care during the pandemic, there are powers to apply charges retrospectively in certain circumstances (after a financial assessment). This is potentially controversial as an individual could be charged for services retrospectively, even if they were inappropriate and didn’t meet their needs (which is more likely if a needs assessment is not undertaken).
Duties to meet adults’ eligible care and support needs, and the support needs of adult carers, have been removed (effectively replaced with a power to meet needs), and local authorities will not have to prepare or review care and support plans. Local authorities now only have a duty to meet needs for care and support in the most serious cases, where they determine it is necessary in order to protect the person from abuse or neglect, or a risk of abuse or neglect.
The UK Government has made similar regulations, which it calls new ‘easements’ of the Care Act in England. The UK Government published detailed statutory guidance for local authorities in England on 1 April, setting out how to use the new easements, including guidance on decision making, prioritisation and reporting requirements.
There was a delay between the Welsh Government bringing the measures into force and publishing guidance for local authorities on when and how to implement them, which drew concerns from stakeholders. The British Association of Social Workers (BASW) Cymru noted at the time that (due to the lack of Welsh guidance) “social workers in Wales currently have no framework or guidance on which to base their practice and decision making”.
The Welsh Government published its statutory guidance to accompany the regulations on 30 April, which it calls ‘modifications’ to the Welsh legislation. The guidance states that the modifications are time-limited and there to be used as infrequently. It goes on to say:
The modifications should only be exercised as a last resort where this is essential in order to maintain the highest possible level of services. […]
The modifications within the 2020 Act do not give authority to block, restrict or withdraw whole services. They enable local authorities to make temporary, person-centred decisions about care and / or support during the pandemic. These decisions seek to ensure those with highest need are prioritised using the overarching principles and core values for social care.
The UK Government also published an ethical framework for adult social care, which applies to all of the UK (according to the Welsh Government). This framework is intended to serve as a guide for making decisions and “ensure that ample consideration is given to a series of ethical values and principles when organising and delivering social care for adults”.
Reactions to the regulations
Stakeholders expressed strong concerns about the implications of the social care changes on vulnerable people in need of care and support. There are also concerns about the burden that will be placed on unpaid carers, with additional demands and caring duties at the same time as having support services such as respite care potentially removed.
BASW Cymru says the changes to social care are “unprecedented and potentially have enormous implications in an already overstretched sector”.
The eligibility threshold for care and support was already regarded as high, Now this no longer applies, and there is only a duty to meet the needs of those at risk of abuse or neglect.
BASW Cymru also notes that the removal of the duty to offer a choice of care accommodation creates a risk that individuals are placed in unsuitable accommodation that may not meet their needs. BASW Cymru says there is anecdotal evidence to suggest that this is already happening given the urgent need to free space in hospitals.
Members of the Assembly’s Health, Social Care and Sport Committee previously raised concerns about unpaid carers with the Minister for Health and Social Services.
The fact that these regulations were made so quickly was met by a level of shock amongst stakeholders. Neither the Welsh Government nor UK Government has published an explanation of why they felt it was necessary to bring these provisions in the Act into force so soon.
The measures would only be activated ‘in circumstances where staff numbers were severely depleted’, and only on the basis of scientific advice.
An impact assessment has not been published in Wales. The UK Government’s impact assessment said the measures in the Bill would only be enacted if absolutely necessary. Its reasoning was that during the peak of the pandemic, adult social care services will face surging demand and reduced capacity arising from higher rates of staff absence. It went on to stress:
These provisions, which would only be brought into operation for the shortest possible time at the peak of the coronavirus outbreak, would allow [local authorities] to do this by temporarily releasing them from some of their duties. […]
The UK Government’s impact assessment also noted that the timing for triggering the clauses is key, and would be based on clinical and medical advice regarding the progress of the coronavirus outbreak.
BASW Cymru says the effect of the changes to social care means that it will be immensely difficult to challenge local authorities for failing to provide care and support.
Arguably, the greatest impact will be on those who are already severely disadvantaged and for whom recourse to challenge has been their only option. The result is that many individuals with needs for care and support and their carers, are likely to be left with no entitlement to care, at a time of crisis and isolation and when their care needs may have increased.
Stakeholders reason that the link between current failures to meet care needs and consequent pressure on all services is well-established.
BASW Cymru concludes, “it is hard to believe that these changes and the Welsh Government’s haste in implementing them, will not make the situation worse”.
The Coronavirus Act 2020 includes temporary measures to change the Mental Health Act 1983 (which need to be activated by secondary legislation). The UK and Welsh governments have given assurances that these provisions will only come into force if staff numbers are significantly reduced. They have also said that the provisions will be ‘switched on’ when necessary and ‘switched off’ when they are no longer required.
The Mental Health Tribunal for Wales has published a Practice Direction on Coronavirus, which sets out the different ways of working it will be taking to limit the spread of the virus and to manage the workload appropriately. The Practice Direction is issued for a period of 6 months.
The regulations commence sections of the Coronavirus Act which mean that the Mental Health Review Tribunal for Wales no longer has to comply with certain requirements.
There is no longer a requirement that there must be at least three members to constitute a tribunal, and in specified circumstances cases may be determined without a hearing where this may be impractical, or where it would be detrimental to the health of the patient. If the President of the Tribunal is temporarily unavailable the President of Welsh Tribunals may nominate another legal member to act as deputy.
The Mental Health Review Tribunal for Wales safeguards patients who have had their liberty restricted under the Mental Health Act, and review cases of patients who are subject to the Mental Health Act. Patients and their families may raise concerns through the mental health tribunal, which will be particularly important when inspectorates will not be going into units to carry out inspections.
The relaxation of the Tribunal requirements are less controversial than other changes to the Mental Act that have not yet been commenced, but nonetheless are important to monitor in terms of ensuring the safety and rights of people detained under the Mental Health Act.
Our Bill Summary provides further details of the provisions in the legislation, which include reducing the number of doctors required to detain an individual under the Mental Health Act for assessment and treatment; changes to how long individuals can be remanded to hospital for; and changes to police holding powers.
Mental health charities, such as Mind and Rethink Mental Illness have expressed concerns about how some of the other changes to powers under the Mental Health Act could impact on the rights and safety of people detained in hospital for mental health treatment.
Concerns have been raised that the changes could lead to vulnerable individuals being unnecessarily detained beyond their section because of workforce pressures. It could also mean that individuals could be released early without the appropriate medical treatment or support because of pressures on the workforce or the mental health estate.
What are the regulations?
The Coronavirus Act 2020 (Commencement No. 1) (Wales) Regulations 2020 were made on 26 March 2020. They commence the following provisions of the Coronavirus Act:
- Section 10, Part 1 of Section 8, and paragraphs 11, 12 and 13 of Schedule 8 relating to mental health (came into force 27 March 2020);
- Section 15, and Part 2 of Schedule 12 relating to local authority care and support (came into force 1 April 2020).
Powers to make these regulations were conferred by section 87(4) of the Coronavirus Act 2020. The regulations were not subject to any formal Assembly procedure and were not laid before the Assembly (as is usual for commencement regulations).
The Act includes similar measures for both England and Wales in these areas. The UK Government has laid similar regulations relating to social care in England, but as yet has not commenced the provisions in the Act relating to mental health.
NB: The Social Security (Coronavirus) (Further Measures) Regulations 2020 (made by the UK Government) are also of relevance for unpaid carers. Regulation 9 is to allow carers to retain their entitlement to carer’s allowance if they have a temporary break in caring as a result of isolation.
How long will the regulations last?
The Act is set to expire in two years (with some exceptions), but this can be extended by up to six months at a time, or ended earlier if required. Paragraphs 30, 33 and 35 of Schedule 12, which relate to charging for meeting needs during the emergency period, portability of care and support and Welsh Minister’s guidance, are not set to expire at the same time as the Act.
These regulations will remain in place until they are revoked by Welsh Ministers, or the Act is no longer in force. Section 88 of the Coronavirus Act (power to suspend and revive provisions of the Act) gives Ministers powers to switch on and off certain provisions in the Act, including most of the provisions commenced by these regulations.
As yet, the Welsh Government hasn’t made any statements to accompany the regulations.
Article by Amy Clifton, Senedd Research, Welsh Parliament
We’ve published a range of material on the coronavirus pandemic, including a post setting out the help and guidance available for people in Wales and a timeline of Welsh and UK governments’ response.
You can see all our coronavirus-related publications by clicking here. All are updated regularly.