Historically, the Community Care system was legally complex, the legislation was piecemeal. The Law Commission recommended one statute with details contained in regulations and/or a code of practice.

The Welsh Government passed the Social Services and Wellbeing (Wales) Act 2014. The bulk of the Act came into force in April 2016. In England, the Welsh Act applies to children as well as adults.

The Act introduced “the Wellbeing duty”. This promotes physical, mental health and emotional wellbeing. A Local Authority has a duty to promote the wellbeing of people “in need” (and their carers).

Under Section 19 the Local Authority has a duty to assess when an adult appears to need care and support. This is irrespective of the Authority’s view of the individual’s need for care and support and the level of the adult’s financial resources. Similarly, an assessment must be made of a child’s needs, where a child appears to have some need for care and support. The child’s finances, or those of its parents, should not be taken into account. There is a presumption that disabled children will need additional care and support.

There is also a separate duty to assess a carer’s ability and willingness to carry out care.

The care need for an adult (regulation 3) will arise from their physical or mental ill health, age, disability, dependence on drugs or alcohol, or other similar circumstances. It is similar for a child (regulation 4). For a carer (regulation 5) the need arises as a result of providing care for an adult in need or a disabled child. The regulations give examples of the standard tasks that a person with a care need would find difficult for example, ability to carry out self care or domestic routines (self care includes; eating or drinking, maintaining personal hygiene, keeping their room clean, safe etc).

The Local Authority must meet the needs of an adult where he (or she) is ordinarily resident in the area and;

1.The needs meet the eligibility criteria, or

2.The Authority considers it necessary to prevent abuse and neglect. Similarly, the Authority has a duty to meet the needs of a child in their area. If those needs meet the eligibility criteria or where it is necessary to protect the child.

Conclusion

Community Care law in Wales is now found primarily in one Act (albeit with various explanatory regulations and guidance). It applies to adults and children. One only needs to appear to have a need to start the process and a person’s financial means are not relevant at the outset. If in doubt, approach the Local Authority, ask for an assessment to be made and carefully examine that assessment (by cross reference with the regulations).

Michael Imperato

Partner – Public Law

This article is for general information purposes only and does not constitute legal or professional advice. For more information contact Watkins & Gunn Solicitors on01633262122or visit to our website www.watkinsandgunn.co.uk