Thursday, 13 February 2014

Social Services & Well-being Bill clears major hurdle

I haven't exactly been looking forward to this.

The most complicated law laid before the Assembly since the 2011 referendum passed Stage 3 of the legislative process on Tuesday, following around 10 hours of debate spread over two weeks. It's taken just over a year to get this far – longer if you include the pre-legislative consultation – and has been troubled at numerous occasions.

The joys continue as its final passing will be dependent on a Report Stage – more details from the Assembly Research Service here (pdf).

It isn't "historic" like the Human Transplantation Act 2013, but it's massive by current Welsh law standards, with the current Bill coming in at over 160 pages. It's significant enough to force me to try and outline what the future Act will mean, and slim it down for brevity's sake.

I strongly suggest if you're really interested in this, or have some sort of professional responsibility in the area, you go through the Assembly Research Service publications.

Ultimately, the goal is to "streamline" current legislation and regulations relating to social services and social care, and it's perhaps the biggest set of reforms to Welsh social services in a generation.

What will the (final) Social Services & Well-being Act do?

Dependent upon the Report Stage outcome and Bet Windsor's autograph :

New Statutory Duties – Including more consideration of the individual's wishes in care, respect for dignity, placing duties on local and health authorities to both monitor the social service needs of their populations and provide preventative measures. It also includes promoting the delivery of some social services through social enterprises.

Assessment Rights – Grants new rights to children and adults to have an assessment for what levels of social care they need. Local authorities will also have a duty to carry out an assessment of the needs of young carers/children who care for parents. There's also a right to someone to refuse an assessment - unless they're at risk of abuse or neglect.

Meeting Needs - The law outlines the eligibility criteria (for receiving assistance) for adults and children, as well as a simplification of the eligibility criteria for carers. It outlines the direct payments system local authorities will have to apply if they need to pay towards the costs of care. People receiving care will also be able to move within Wales with any obligations to provide care transferring with them to their new local authority.

Financial Assessments – Local authorities will be able to charge to provide certain services, but they will no longer have to charge for residential accommodation. It also outlines how local authorities can recover charges.

Looked-after children – Some of this is an update to the Children Act 1989. Other parts include duties towards children in local authority care; such as accommodation, health services, education, family visits etc.

Safeguarding – Safeguarding means "protecting people who might be in a vulnerable situation" and will apply equally to adults and children for the first time (it previously just applied to children). It will give social services the power to make enquiries if they suspect mistreatment, and also power of entry to see if a cared-for adult is making decisions freely. "Relevant partners" will also have a duty to report any suspected mistreatment to social services. A new National Independent Safeguarding Board will be established to advise ministers on national issues, as well as local Safeguarding Children and Safeguarding Adults Boards.

Social Service Functions – The Bill replaces and updates social service functions in the Local Authority Social Services Act 1970. Welsh Ministers will have the power to state the job requirements for social service directors, who will in turn have new functions. A new code of practice for social service governance will be included, as will the power for Welsh Ministers to intervene on certain grounds.

Partnership Working - Local authorities will have a duty to co-operate with partner organisations and other local authorities to ensure well-being of those in their care. This includes giving Welsh Ministers the power to force local authorities into joint arrangements to provide adoption services.

Complaints – There'll be a completely new framework for complaints, meaning complaints relating to children's services will be on a par with complaints relating to other social services. Powers will also be given to the Public Services Ombudsman to investigate complaints about privately-run care homes and palliative care services – powers which until now have only covered publicly-run services. It'll be the responsibility for Welsh Ministers to provide an independent advocacy service to cover these sorts of complaints.

What major changes were proposed or passed?

Most of the amendments were corrections of drafting errors, and there were quite a few of them. In terms of other major amendments tabled :
  • Amendment 1 – William Graham AM (Con, South Wales East), supported by Kirsty Williams AM (Lib Dem, Brecon & Radnor) – Extends the time a person can stay in foster care from aged 16-18 to 22. (Not passed)
  • Amendment 75 - Gwenda Thomas AM (Lab, Neath) – Places a duty on local authorities to consider if looked-after children reaching the age of 18 can continue to live with foster carers. (Passed)
  • Amendment 84 – William Graham AM – Extends whistle blower protections to anyone exercising functions under the Act. (Withdrawn, with a commitment from the Deputy Minister to include whistle blowing protections in future legislation)
  • Amendment 131 – Gwenda Thomas AM  – Protects the rights of disabled children by presuming they'll always have need for care and support beyond that provided by their families. (Passed)
  • Amendment 292 – Darren Millar AM (Con, Clwyd West) – Places a duty on anyone undertaking functions in relation to the Act to have due regard for the UN Principles for Older Persons when working with anyone over the age of 60. (Passed due to an accidental abstention from Julie James AM [Lab, Swansea West])
  • Amendment 293 – Kirsty Williams AM  – To place "statutory principles on the face of the Bill", which was a recommendation of the Health and Social Care Committee so anyone reading the Bill would understand what it was trying to do. (Not passed)
  • Amendment 295 – Kirsty Williams AM – Provision that information on social care services should be available in "a range of accessible formats" (i.e the visually impaired). (Not passed)
  • Amendment 300 – Elin Jones AM (Plaid, Ceredigion) – Places a duty on local authorities to take the needs of Welsh-speakers into consideration when providing social care. (Not passed – effectively included as part of Amendment 122)
  • Amendments 308 & 309 – Elin Jones AM – Extends direct payments into health care and gives the power to Welsh Ministers to enact regulations for such payments. (Not Passed)
  • Amendment 310 – Elin Jones AM – Places a duty on Local Health Boards to create a pooled fund with local authority social services to help integrate health and social care. (Not passed)
  • Amendments 322 & 333 – Jocelyn Davies AM (Plaid, South Wales East) – Bans the use of "zero hour contracts" in provision of care services either by local authorities or companies to which services are contracted out, subject to Welsh Government regulations. (Not passed)
  • Amendments 325-330 – Angela Burns AM (Con, Carms W. & S. Pembs.), supported by Simon Thomas AM (Plaid, Mid & West Wales) – Creates a National Adoptions Board as recommended by the Children & Young People's Committee. (Not passed)

The (Attempted) Smacking Ban

An amendment which would've, in practice, criminalised smacking fell.

(Pic :
  • Amendment 98 – Lindsay Whittle AM (Plaid, South Wales East), supported by Kirsty Williams AM and Simon Thomas AM – Removes a "reasonable punishment" defence from the Children Act 2004 when battery is committed against a child in Wales. (Not passed)

This is the headline-grabbing issue that's dogged the Bill from the time it first went into committee; the so-called "smacking ban amendment".

As Peter Black AM (Lib Dem, South Wales West) said on Tuesday, it's wouldn't have been a direct ban, but an indirect ban by removing the main legal defence for hitting a child – doing so as a form of punishment. Parents and guardians could've still done it, but if they were brought to court one of their main legal defences would've gone and the likelihood of prosecution would've increased.

It's quite likely the Welsh Government opposed including the smacking ban because they simply didn't want one of their flagship laws dragged into the Supreme Court over arguments whether the Assembly has the power to introduce a ban (more at Giving devolution a smack), and Gwenda Thomas said something to that effect during the debate.

Instead, the Welsh Government have offered another vote on the issue as part of a different piece of legislation to be introduced sometime during the rest of the Assembly term. I would've though that would be the proposed domestic violence law, which is due to be introduced this summer.

So the Welsh Government's opposition (remember that several Labour AMs support a ban too) was for convenience, not because they oppose a ban in principle.

The rights and wrongs of a ban are still very much open to debate though.

Question marks over the legislative process?

I don't know if it would've been worth splitting this up into separate laws or not, but this is perhaps – sadly – the first case of a Bill having serious difficulties at the drafting stage.

Questions should be asked due to the sheer number of technical amendments. I guess that would be for the Constitutional and Legislative Affairs Committee to look into, and it could be worth a general inquiry into how lawmaking has developed since the 2011 referendum.

There haven't been any other problems to this scale in any other law, but lessons from this experience will need to be learned quickly as there are other weighty laws coming down the line – like the proposed Planning and Future Generations Bills. The Housing Bill will almost certainly end up troubled at points too.

Welsh Liberal Democrat leader, Kirsty Williams, has raised worries – not only about the number of technical amendments, but about the number of measures that will be decided by regulations alone. This includes things like : preferences for accommodation, the things local authorities will be able to charge for and financial assessments for care. It's dry, but important stuff on the ground.

The minister in charge, Deputy Minister for Social Services & Children, Gwenda Thomas, deserves credit for even managing to get the Bill this far. It's quite an achievement for one of the understated members of the Welsh Government and - speculation abound – could well be amongst her last big contributions to Welsh politics before 2016.


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