Adult social care strategy and policy materials
England
2.5The Care Act 2014 contains a number of discrete duties to publish strategies and policies, but for an overarching duty one has to turn to sections 194–198 of the Health and Social Care Act 2012 and sections 116–116B of the Local Government and Public Involvement in Health Act 2007.
2.6Sections 194–198 of the Health and Social Care Act 2012 require local authorities to establish a Health and Wellbeing Board (‘HWB’) for their area comprised of at least one elected member, the director of adult social services, the director of children’s services, the director of public health, a local Healthwatch representative, a representative of every clinical commissioning group within its area and any other person considered appropriate (section 194). In addition, the NHS Commissioning Board must appoint a representative:
•when the HWB is preparing an assessment of needs or a strategy under sections 116 or 116A of the Local Government and Public Involvement in Health Act 2007 (as to which, see below); and
•when the HWB requests, to assist consideration of a matter that relates to the commissioning functions locally of the NHS Commissioning Board.
2.6.1The HWB must:
•for the purpose of advancing the health and wellbeing of people in its area, encourage persons who arrange for the provision of any health or social care services in that area to work in an integrated manner (section 195(1));
•in particular, provide such advice, assistance and other support as it considers appropriate for the purpose of encouraging arrangements under section 75 of the National Health Service Act 2006 in connection with the provision of health or social care services in the area (section 195(2)); and
•exercise the functions of the local authority and its partner clinical commissioning groups under sections 116 and 116A of the Local Government and Public Involvement in Health Act 2007 (as to which, see below)(section 196(1)).
2.6.2The HWB may:
•encourage persons who arrange for the provision of any health-related services in its area to work closely with it (section 195(3));
•encourage persons who arrange for the provision of any health or social care services in its area, and persons who arrange for the provision of any health-related services in its area, to work closely together (section 195(4));
•exercise any functions exercisable by the local authority that the local authority arranges for it to exercise (section 196(3)), other than those under section 244 of the National Health Service Act 2006 (the NHS review and scrutiny functions of local authorities)(section 196(4));
•and give the local authority its opinion on whether the local authority is discharging its duty under section 116B of the Local Government and Public Involvement in Health Act 2007 (as to which, see below)(section 196(3)).
2.6.3By virtue of section 198 of the Health and Social Care Act 2012, 2 or more HWB may make arrangements for:
•any of their functions to be exercised jointly;
•any of their functions to be exercised by a joint sub-committee of the HWBs;
•a joint sub-committee of the HWBs to advise them on any matter related to the exercise of their functions.
2.6.4Where two or more local authorities are considering joint arrangements they can in practice, without formality, arrange for a series of separate but concurrent meetings of their HWB, to familiarise themselves with each other’s practices and personnel. They can also, by virtue of section 198, increase the functions exercisable jointly, over time.2.6.1
2.6.5A HWB is a committee of the local authority that established it and is to be treated as if it were a committee established under section 102 of the Local Government Act 1972 (section 194(11)).
2.6.6When making arrangements for HWB under section 194 and ‘joint HWB’ under section 198, local authorities (and other participants) must also comply with their own constitutions and with the Local Government Act 1972 and the Local Government and Housing Act 1989, as modified by the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013.
2.6.7Sections 116–116B of the Local Government and Public Involvement in Health Act 2007 require joint social and health care planning, through the medium of the HWB (see above): section 116 imposes a duty on local authorities and clinical commissioning groups to assess local social care and health care needs (‘JSNA – joint strategic needs assessments’); section 116A requires them to prepare and publish a strategy for meeting the needs included in the assessment (‘JHWS – joint health and wellbeing strategies’), taking account the Secretary of State’s Mandate to the National Health Service Commissioning Board, published under section 13A of the National Health Service Act 2006, and any statutory guidance published by the Secretary of State. They are also required to consider increased joint working and closer integration;
•sections 116(8) and 116A(5) require local authorities and clinical commissioning groups to involve the Local Healthwatch organisation and also ‘the people who live or work in that area’ in the assessment and strategy;
•section 116B requires local authorities and clinical commissioning groups, and the National Health Service Commissioning Board, to have regard to these assessments and strategies when discharging their functions;
•by virtue of section 116A(8) of the 2007 Act and section 195 of the Health and Social Care Act 2012, these provisions apply to all local authority social services functions, as defined in the Local Authority Social Services Act 1970. Thus, for example, children’s services under the Children Act 1989 and Children Act 2004 are included.
2.7Sections 116–116B of the Local Government and Public Involvement in Health Act 2007 are as follows:
Health and social care: joint strategic needs assessments
116(1) An assessment of relevant needs must be prepared in relation to the area of each responsible local authority.
(2)A further assessment of relevant needs in relation to the area of a responsible local authority–
(a)must be prepared if the Secretary of State so directs; and
(b)may be prepared at any time.
(3)A direction under subsection (2)(a) may be revoked.
(4)It is for–
(a)the responsible local authority, and
(b)each of its partner clinical commissioning groups,
to prepare any assessment of relevant needs under this section in relation to the area of the responsible local authority.
(5)The responsible local authority must publish each assessment of relevant needs prepared under this section in relation to its area.
(6)For the purposes of this section, there is a relevant need in relation to so much of the area of a responsible local authority as falls within the area of a partner clinical commissioning group if there appears to the responsible local authority and the partner clinical commissioning group to be a need or to be likely to be a need to which subsection (7) applies.
(7)This subsection applies to a need–
(a)which–
(i)is capable of being met to a significant extent by the exercise by the responsible local authority of any of its functions; and(ii)could also be met, or could otherwise be affected, to a significant extent by the exercise by the partner clinical commissioning group or the National Health Service Commissioning Board of any of its functions; or
(b)which–
(i)is capable of being met to a significant extent by the exercise by the partner clinical commissioning group or the National Health Service Commissioning Board of any of its functions; and(ii)could also be met, or could otherwise be affected, to a significant extent by the exercise by the responsible local authority of any of its functions.
(8)In preparing an assessment under this section, the responsible local authority and each of its partner clinical commissioning groups must–
(a)co-operate with one another;
(b)have regard to any guidance issued by the Secretary of State;
(ba)involve the Local Healthwatch organisation for the area of the responsible local authority;
(bb)involve the people who live or work in that area; and
(c)if the responsible local authority is a county council, involve each relevant district council.
(8A) In preparing an assessment under this section, the responsible local authority or a partner clinical commissioning group may consult any person it thinks appropriate.
(9)In this section–
‘partner clinical commissioning group’, in relation to a responsible local authority, means any clinical commissioning group whose area coincides with or falls wholly or partly within the area of the authority;‘relevant district council’ means–(a)in relation to a responsible local authority, any district council which is a partner authority of it; and(b)in relation to a partner clinical commissioning group of a responsible local authority, any district council which is a partner authority of the responsible local authority and whose district falls wholly or partly within the area of the clinical commissioning group.
Health and social care: joint health and wellbeing strategies
116A(1) This section applies where an assessment of relevant needs is prepared under section 116 by a responsible local authority and each of its partner clinical commissioning groups.
(2)The responsible local authority and each of its partner clinical commissioning groups must prepare a strategy for meeting the needs included in the assessment by the exercise of functions of the authority, the National Health Service Commissioning Board or the clinical commissioning groups (‘a joint health and wellbeing strategy’).
(3)In preparing a strategy under this section, the responsible local authority and each of its partner clinical commissioning groups must, in particular, consider the extent to which the needs could be met more effectively by the making of arrangements under section 75 of the National Health Service Act 2006 (rather than in any other way).
(4)In preparing a strategy under this section, the responsible local authority and each of its partner clinical commissioning groups must have regard to–
(a)the mandate published by the Secretary of State under section 13A of the National Health Service Act 2006, and
(b)any guidance issued by the Secretary of State.
(5)In preparing a strategy under this section, the responsible local authority and each of its partner clinical commissioning groups must–
(a)involve the Local Healthwatch organisation for the area of the responsible local authority, and
(b)involve the people who live or work in that area.
(6)The responsible local authority must publish each strategy prepared by it under this section.
(7)The responsible local authority and each of its partner clinical commissioning groups may include in the strategy a statement of their views on how arrangements for the provision of health-related services in the area of the local authority could be more closely integrated with arrangements for the provision of health services and social care services in that area.
(8)In this section and section 116B–
(a)‘partner clinical commissioning group’, in relation to a responsible local authority, has the same meaning as in section 116, and
(b)‘health services’, ‘health-related services’ and ‘social care services’ have the same meaning as in section 195 of the Health and Social Care Act 2012.
Duty to have regard to assessments and strategies
116B(1) A responsible local authority and each of its partner clinical commissioning groups must, in exercising any functions, have regard to–
(a)any assessment of relevant needs prepared by the responsible local authority and each of its partner clinical commissioning groups under section 116 which is relevant to the exercise of the functions, and
(b)any joint health and wellbeing strategy prepared by them under section 116A which is so relevant.
(2)The National Health Service Commissioning Board must, in exercising any functions in arranging for the provision of health services in relation to the area of a responsible local authority, have regard to–
(a)any assessment of relevant needs prepared by the responsible local authority and each of its partner clinical commissioning groups under section 116 which is relevant to the exercise of the functions, and
(b)any joint health and wellbeing strategy prepared by them under section 116A which is so relevant.
As explained above, the functions of the local authority and its partner clinical commissioning groups, under section 116 and 116A of the Local Government and Public Involvement in Health Act 2007, are required to be discharged by the HWB (section 196(1) of the Health and Social Care Act 2012.
2.10Important though the Local Government and Public Involvement in Health Act 2007 is, the Care Act 2014 also imposes strategic and policy obligations. Such obligations arise from the terms of section 2 (the duty to prevent needs for care and support arising), section 4 (the duty to provide information and advice), section 5 (the duty to promote diversity and quality in the provision of services – ‘market shaping’) and section 6 (the duty to co-operate with ‘partners’). The need to devise and publish strategies and policies, arising out of these duties, is explained by the Care and Support Statutory Guidance (see chapter 4 below on Guidance).
Wales
2.11Whereas the duty on English local authorities, to prepare community care plans under section 46 of the National Health Service and Community Care Act 1990, has been a dead letter since the Care Plans (England) Directions 2003, it still applies in Wales. Thus, by virtue of section 46 of the National Health Service and Community Care Act 1990 and, also, section 40 of the National Health Service (Wales) Act 2006, local authorities and Local Health Boards in Wales are to produce Health, Social Care and Well-Being Strategies.
3The statutory guidance and associated materials are at http://gov.wales/topics/health/publications/health/strategies/strategies/?lang=en.The policy objective is to co-ordinate adult social care and health planning, together with Children and Young People’s Plans.
2.12In addition, by virtue of sections 14 and 14A of the Social Services and Well-Being (Wales) Act 2014, Welsh local authorities are required to publish their assessment, and a strategy, addressing local needs for care and support, help for carers and preventative services. This is to be undertaken jointly with Local Health Boards and provision is made for co-ordination with Children and Young People’s Plans:
Assessment of needs for care and support, support for carers and preventative services
14(1) A local authority and each Local Health Board any part of whose area lies within the area of the local authority must, in accordance with regulations, jointly assess–
(a)the extent to which there are people in the local authority’s area who need care and support;
(b)the extent to which there are carers in the local authority’s area who need support;
(c)the extent to which there are people in the local authority’s area whose needs for care and support (or, in the case of carers, support) are not being met (by the authority, the Board or otherwise);
(d)the range and level of services required to meet the care and support needs of people in the local authority’s area (including the support needs of carers);
(e)the range and level of services required to achieve the purposes in section 15(2) (preventative services) in the local authority’s area;
(f)the actions required to provide the range and level of services identified in accordance with paragraphs (d) and (e) through the medium of Welsh.
(2)Regulations under subsection (1) may, for example, provide for the timing and review of assessments.
(3)In section 40 of the National Health Service (Wales) Act 2006 (health and well-being strategies)–
(a)after subsection (2) insert–
‘(2A) The responsible bodies must take into account the most recent assessment under section 14 of the Social Services and Well-being (Wales) Act 2014 (assessment of needs for care and support, support for carers and preventative services) in the formulation or review of the strategy.(2B) The responsible bodies must jointly publish the strategy.(2C) The Local Health Board (or Boards) responsible for the strategy must submit to the Welsh Ministers any part of the strategy which relates to the health and well-being of carers (and if more than one Board is responsible for the strategy, they must do so jointly).’;
(b)in subsection (6), after paragraph (g) insert–
‘(h) the submission of the strategy or a part of the strategy, to the Welsh Ministers (including, for example, the form in which and the time by which the strategy or part is to be submitted).’;
(c)in subsection (9), insert in the appropriate place–
‘“carer” has the same meaning as in the Social Services and Well-being (Wales) Act 2014,’
(4)In section 26 of the Children Act 2004 (children and young people’s plans), after subsection (1A) insert–
‘(1AA) A local authority in Wales must take into account the most recent assessment under section 14 of the Social Services and Well-being (Wales) Act 2014 (assessment of needs for care and support, support for carers and preventative services) in the preparation and review of the plan.’
Plans following assessments of needs under section 14
14A(1) In this section, ’relevant body’ means a local authority or Local Health Board which has carried out a joint assessment under section 14(1).
(2)Each relevant body must prepare and publish a plan setting out–
(a)the range and level of services the body proposes to provide, or arrange to be provided, in response to the assessment of needs under paragraphs (a) to (c) of section 14(1);
(b)in the case of a local authority, the range and level of services the authority proposes to provide, or arrange to be provided, in seeking to achieve the purposes in section 15(2) (preventative services);
(c)in the case of a Local Health Board, anything the Board proposes to do in connection with its duty under section 15(5) (Local Health Boards to have regard to the importance of preventative action when exercising functions);
(d)how the services set out in the plan are to be provided, including the actions the body proposes to take to provide, or arrange to provide, the services through the medium of Welsh;
(e)any other action the body proposes to take in response to the assessment under section 14(1);
(f)the details of anything the body proposes to do in response to the assessment jointly with another relevant body;
(g)the resources to be deployed in doing the things set out in the plan.
(3)A relevant body’s plan may be published by including it within a local well-being plan published under section 39 or 44(5) of the Well-being of Future Generations (Wales) Act 2015 (the ‘2015 Act’) by a public services board of which the body is a member.
(4)A local authority and a Local Health Board who have carried out a joint assessment together under section 14(1) may jointly prepare and publish a plan under subsection (2).
(5)Two or more local authorities may jointly prepare and publish a plan under subsection (2); but such a joint plan may be published by including it within a local well-being plan only if each local authority is a member of the public services board (see sections 47 and 49 of the 2015 Act (merging of public services boards)).
(6)A relevant body must submit to the Welsh Ministers–
(a)any part of a plan it has prepared under subsection (2) which relates to the health and well-being of carers;
(b)any other part of such a plan as may be specified by regulations.
(7)Regulations may make provision about plans prepared and published under subsection (2), including provision–
(a)specifying when a plan is to be published;
(b)about reviewing a plan;
(c)about consulting persons when preparing or reviewing a plan;
(d)about the monitoring and evaluation of services and other action set out in a plan.