The Health and Social Care (Wales) Bill in focus

The Eliminate agenda - Looked-after children

The Bill seeks to eliminate private profit from the care of looked-after children, by ensuring that residential, secure accommodation and foster care for looked-after children can only be provided by not-for-profit organisations, such as those in the public sector or charitable organisations.

Section 75 of the Social Services and Well-being (Wales) Act 2014 (“the 2014 Act”) places a duty on local authorities to secure sufficient accommodation, so far as is reasonably practicable, to meet the needs of their looked after children population. The Bill will amend the section 75 duty to instead require it to secure sufficient accommodation provided by not-for-profit entities either within or near to its area. A not-for-profit entity will be defined as:

• (a) a charitable company limited by guarantee without a share capital;
• (b) a charitable incorporated organisation;
• (c) a charitable registered society; or
• (d) a community interest company limited by guarantee without a share capital.

Local authorities will also need to prepare an annual sufficiency plan setting out (amongst other things) how they will be taking steps towards reducing and eliminating dependence on for-profit providers.

The local authority duty to place a looked after child who cannot live with either or both parents in a children’s home or with foster parents is also to be amended. This means that where  such circumstances arise, the local authority must place the child in accommodation provided by a not-for-profit entity unless that is inconsistent with a child’s well-being.

If a local authority were to find that none of the available not-for-profit placements would be consistent with a certain child’s well-being, it would be able to place the child in a “supplementary” for-profit placement. However, this supplementary placement would need to be approved by the Welsh Ministers.

The intended timetable for these provisions is that:

• new providers registering with Care Inspectorate Wales (“CIW”) must be a not-for-profit entity (as set out in the Bill) from 1 April 2026; and
• any current for-profit providers will need to transition to a not-for-profit entity and register with the CIW as such, by 1 April 2027 unless benefitting from the transitional provisions set out in the Bill.

Direct Payments for NHS Continuing Healthcare

NHA Continuing Health Care (CHC) is provided when a person has a primary health need which outweighs their needs for other care and support, subject to regular reassessment. Such needs are paid for wholly by the NHS in accordance with duties under the NHS (Wales) Act 2006 (“the 2006 Act”), without any charge for the person receiving the care as, subject to limited exceptions, healthcare must be provided free at the point of delivery. Direct payments are not possible under the 2006 Act. For social care, legislation enabling a local authority to make direct payments is already in place. Over time, concerns were raised that some people with complex health conditions were refusing CHC assessment for reasons which included

• Not wanting to lose the voice and control they have through local authority direct payments and the further feeling of loss of independence
• Concern that there may be fluctuation in CHC eligibility that could interrupt their stable package of care
• Concern that they may have to let one or more trusted and familiar Personal Assistants go because traditionally commissioned CHC offers less flexibility and choice in terms of the care provider

The Bill seeks to address this by amending the 2006 Act to enable those determined to be eligible for CHC in Wales to access direct payments from Welsh Ministers. It is anticipated that tis payments will allow those individuals to have more choice and control about how their care is provided and how their care needs are met. For social care, legislation enabling a local authority to make direct payments is already in place.

This change will align the position in Wales to that which applies in England, where direct payments have been permissible under CHC, via Personal Health Budgets (PHBs), since 2014. Such PHBs can be used to meet a person’s needs as set out in their care plan and are available for adults’ and children’s CHC.

It is intended that the provisions relating to this element are to be implemented in spring 2026.

Amendments

The Bill will also make a number of important amendments to the Regulation and Inspection of Social Care (Wales) Act 2016 (“the 2016 Act”) and the 2014 Act[1], aimed to help the regulatory framework operate more effectively, and to assist CIW in fulfilling its regulatory responsibilities. These amendments cover a number of other key areas including:

• The duty to submit and publish annual returns
• Application for cancellation of a service provider’s registration: information to be provided
• Cancellation of a service provider’s registration without application
• Information and inspections – power to require information
• Extending the definition of social care workers for to include childcare workers
• Amendment to the powers held by Social Care Wales to review and extend interim orders
• Reconfiguring the provisions in Part 4 of the 2014 Act that enable the making of direct payments by local authorities in order to enable provision for a direct payment to be made to a third party nominated by an individual entitled to receive such a payment in cases where the individual person has mental capacity to make that decision
• Addressing issues arising from the drafting of the 2014 Act (section 47), so as to incorporate the full test[2] which determines the limit of the powers of a local authority to provide “health services”
• Making provision for a direct payment to be made to a third party i.e., a nominated individual or an organisation

For more information and advice about the Bill or health and care legislation in Wales, please contact Partner Eve Piffaretti and Legal Director Tina Whitman.

This article has been co-written by Eloise Knight, Eve Piffaretti and Tina Whitman.

[1] None of the miscellaneous amendments to the 2014 Act were consulted on

[2] The “quantity and quality” test, developed by the Court of Appeal as a result of the Coughlan case (R. v. North and East Devon Health Authority, ex parte Coughlan [1999 EWCA civ 1871], sometimes referred to as the “Coughlan test”