An Act to make provision to reform the law relating to care and support for adults and the law relating to support for carers; to make provision about safeguarding adults from abuse or neglect; to make provision about care standards; to establish and make provision about Health Education England; to establish and make provision about the Health Research Authority; to make provision about integrating care and support with health services; and for connected purposes.

91. I think that the correct analysis of section 17(1) is that it sets out duties of a general character which are intended to be for the benefit of children in need in the local social services authority’s area in general. The other duties and the specific duties which then follow must be performed in each individual case by reference to the general duties which section 17(1) sets out. What the subsection does is to set out the duties owed to a section of the public in general by which the authority must be guided in the performance of those other duties …

As Mr Goudie for the defendants accepted, members of that section of the public have a sufficient interest to enforce those general duties by judicial review. But they are not particular duties owed to each member of that section of the public of the kind described by Lord Clyde in R v Gloucestershire County Council ex p Barry [1997] AC 584, 610 which give a correlative right to the individual which he can enforce in the event of a failure in its performance.

… where a statute does not by express words define the purposes for which the powers it confers are to be exercised, the decision-maker is bound nevertheless to ascertain and apply the aims intended, since no statute can be purposeless: and therefore unless the Act’s true purpose is correctly understood the decision-maker, who is Parliament’s delegate, is at risk of using powers to an end for which they were never given him. If he does so, he exceeds his authority as surely as if he transgresses the plainest statutory language …

1.7 Promoting wellbeing involves actively seeking improvements in the aspects of wellbeing set out above when carrying out a care and support function in relation to an individual at any stage of the process from the provision of information and advice to reviewing a care and support plan. Wellbeing covers an intentionally broad range of the aspects of a person’s life and will encompass a wide variety of specific considerations depending on the individual.

1.8 A local authority can promote a person’s wellbeing in many ways. How this happens will depend on the circumstances, including the person’s needs, goals and wishes, and how these impact on their wellbeing. There is no set approach – a local authority should consider each case on its own merits, consider what the person wants to achieve, and how the action which the local authority is taking may affect the wellbeing of the individual.

1.9 The Act therefore signifies a shift from existing duties on local authorities to provide particular services, to the concept of ‘meeting needs’ (set out in sections 8 and 18–20 of the Act). This is the core legal entitlement for adults to care and support, establishing one clear and consistent set of duties and power for all people who need care and support.

25. If then the welfare of the child is paramount, two obvious questions arise: first, what do we mean by welfare; and, second, by reference to what standard or yardstick is welfare to be assessed?

26. ‘Welfare’, which in this context is synonymous with ‘well-being’ and ‘interests’ (see Lord Hailsham LC in In re B (A Minor) (Wardship: Sterilisation) [1988] AC 199, 202), extends to and embraces everything that relates to the child’s development as a human being and to the child’s present and future life as a human being. The judge must consider the child’s welfare now, throughout the remainder of the child’s minority and into and through adulthood. The judge will bear in mind the observation of Sir Thomas Bingham MR in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that:

‘the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.’

That was said in the context of contact but it surely has a wider resonance. How far into the future the judge must peer – and with modern life expectancy a judge dealing with a young child today may be looking to the 22nd century – will depend upon the context and the nature of the issue. If the dispute is about whether the child should go on a school trip the judge will be concerned primarily with the present rather than the future. If the question is whether a teenager should be sterilised the judge will have to think a very long way ahead indeed.

27. In Re McGrath (Infants) [1893] 1 Ch 143, 148, Lindley LJ said:

‘The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.’

Those words are as true today as a century ago. Evaluating a child’s best interests involves a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, religious, cultural, emotional and welfare considerations. Everything that conduces to a child’s welfare and happiness or relates to the child’s development and present and future life as a human being, including the child’s familial, educational and social environment, and the child’s social, cultural, ethnic and religious community, is potentially relevant and has, where appropriate, to be taken into account. The judge must adopt a holistic approach. As Thorpe LJ once remarked (In re S (Adult Patient: Sterilisation) [2001] Fam 15, 30), ‘it would be undesirable and probably impossible to set bounds to what is relevant to a welfare determination.’

28. To this I would add two points.

29. I have referred to the child’s happiness. Very recently, Herring and Foster have argued persuasively (‘Welfare means rationality, virtue and altruism’, (2012) 32 Legal Studies 480), that behind a judicial determinations of welfare there lies an essentially Aristotelian notion of the ‘good life’. What then constitutes a ‘good life’? There is no need to pursue here that age-old question. I merely emphasise that happiness, in the sense in which I have used the word, is not pure hedonism. It can include such things as the cultivation of virtues and the achievement of worthwhile goals, and all the other aims which parents routinely seek to inculcate in their children.

30. I have also referred to the child’s familial, educational and social environment, and his or her social, cultural, ethnic and religious community. The well-being of a child cannot be assessed in isolation. Human beings live within a network of relationships. Men and women are sociable beings. As John Donne famously remarked, ‘No man is an Island …’ Blackstone observed that ‘Man was formed for society’. And long ago Aristotle said that ‘He who is unable to live in society, or who has no need because he is sufficient for himself, must be either a beast or a God’. As Herring and Foster comment, relationships are central to our sense and understanding of ourselves. Our characters and understandings of ourselves from the earliest days are charted by reference to our relationships with others. It is only by considering the child’s network of relationships that their well-being can be properly considered. So a child’s relationships, both within and without the family, are always relevant to the child’s interests; often they will be determinative.

31. I should add that there has been no suggestion in the present case that the interests of any of the five children with whom we are concerned are or may be in conflict with the interests of any of the others. We are therefore not concerned with the point about the application of section 1(a) of the 1989 Act in such a situation which, although raised before them, their Lordships avoided deciding in Birmingham City Council v H (A Minor) [1994] 2 AC 212 but which the lower courts have had to consider on a number of occasions: see Birmingham City Council v H (No 2) [1993] 1 FLR 883, Re T and E (Proceedings: Conflicting Interests) [1995] 1 FLR 581, In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147, and Re S (Relocation: Interests of Siblings) [2011] EWCA Civ 454, [2011] 2 FLR 678.

32. So much for welfare, how is it to be assessed? The answer was provided by Lord Upjohn in J v C [1970] AC 668, 722:

‘the law and practice in relation to infants … have developed, are developing and must, and no doubt will, continue to develop by reflecting and adopting the changing views, as the years go by, of reasonable men and women, the parents of children, on the proper treatment and methods of bringing up children; for after all that is the model which the judge must emulate for … he must act as the judicial reasonable parent.’

33. Lord Upjohn’s reference to changing views is crucial. The concept of welfare is, no doubt, the same today as it was in 1925, but conceptions of that concept, to adopt the terminology of Professor Ronald Dworkin, or the content of the concept, to adopt the corresponding terminology of Lord Hoffmann (see Birmingham City Council v Oakley [2001] 1 AC 617, 631), have changed and continue to change. A child’s welfare is to be judged today by the standards of reasonable men and women in 2012, not by the standards of their parents in 1970, and having regard to the ever changing nature of our world: changes in our understanding of the natural world, technological changes, changes in social standards and, perhaps most important of all, changes in social attitudes.

34. If the reasonable man or woman is receptive to change he or she is also broad-minded, tolerant, easy-going and slow to condemn. We live, or strive to live, in a tolerant society increasingly alive to the need to guard against the tyranny which majority opinion may impose on those who, for whatever reason, comprise a small, weak, unpopular or voiceless minority. Equality under the law, human rights and the protection of minorities, particularly small minorities, have to be more than what Brennan J in the High Court of Australia once memorably described as ‘the incantations of legal rhetoric’.

1.15 All of the matters listed above must be considered in relation to every individual, when a local authority carries out a function as described in this guidance. Considering these matters should lead to an approach that looks at a person’s life holistically, considering their needs in the context of their skills, ambitions, and priorities – as well as the other people in their life and how they can support the person in meeting the outcomes they want to achieve. The focus should be on supporting people to live as independently as possible for as long as possible.

1.16 As with promoting wellbeing, the factors above will vary in their relevance and application to individuals. For some people, spiritual or religious beliefs will be of great significance, and should be taken into particular account. Local authorities should consider how to apply these further principles on a case-by-case basis. This reflects the fact that every person is different and the matters of most importance to them will accordingly vary widely.

1.17 Neither these principles, nor the requirement to promote wellbeing, require the local authority to undertake any particular action. The steps a local authority should take will depend entirely on the circumstances. The principles as a whole are not intended to specify the activities which should take place. Instead, their purpose is to set common expectations for how local authorities should approach and engage with people.

It is for the courts … to decide what is a relevant consideration. If the decision maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the court will not interfere unless he has acted unreasonably in the Wednesbury sense.

90. Subject to these qualifications, how, in practice, does the public authority fulfil its duty to have ‘due regard’ to the identified goals that are set out in section 49A(1) of the 1995 Act? An examination of the cases to which we were referred suggests that the following general principles can be tentatively put forward. First, those in the public authority who have to take decisions that do or might affect disabled people must be made aware of their duty to have ‘due regard’ to the identified goals: compare, in a race relations context, R (Watkins-Singh) v Governing Body of Aberdare Girls’ High School [2008] 3 FCR 203, para 114, per Silber J. Thus, an incomplete or erroneous appreciation of the duties will mean that ‘due regard’ has not been given to them: see, in a race relations case, the remarks of Moses LJ in R (Kaur) v Ealing London Borough Council [2008] EWHC 2062 (Admin) at [45].

91. Secondly, the ‘due regard’ duty must be fulfilled before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question. It involves a conscious approach and state of mind. On this compare, in the context of race relations: the Elias case [2006] 1 WLR 3213, para 274, per Arden LJ. Attempts to justify a decision as being consistent with the exercise of the duty when it was not, in fact, considered before the decision, are not enough to discharge the duty: compare, in the race relations context, the remarks of Buxton LJ in C’s case [2009] 2 WLR 1039, para 49.

92. Thirdly, the duty must be exercised in substance, with rigour and with an open mind. The duty has to be integrated within the discharge of the public functions of the authority. It is not a question of ‘ticking boxes’. Compare, in a race relations case the remarks of Moses LJ in Kaur’s case, paras 24–25.

93. However, the fact that the public authority has not mentioned specifically section 49A(1) in carrying out the particular function where it has to have ‘due regard’ to the needs set out in the section is not determinative of whether the duty under the statute has been performed: see the judgment of Dyson LJ in Baker’s case [2009] PTSR 809, para 36. But it is good practice for the policy or decision maker to make reference to the provision and any code or other non-statutory guidance in all cases where section 49A(1) is in play. ‘In this way the [policy or] decision maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced’: Baker’s case, para 38.

94. Fourthly, the duty imposed on public authorities that are subject to the section 49A(1) duty is a non-delegable duty. The duty will always remain on the public authority charged with it. In practice another body may actually carry out practical steps to fulfil a policy stated by a public authority that is charged with the section 49A(1) duty. In those circumstances the duty to have ‘due regard’ to the needs identified will only be fulfilled by the relevant public authority if (i) it appoints a third party that is capable of fulfilling the ‘due regard’ duty and is willing to do so; and (ii) the public authority maintains a proper supervision over the third party to ensure it carries out its ‘due regard’ duty: compare the remarks of Dobbs J in R (Eisai Ltd) v National Institute for Health and Clinical Excellence [2007] EWHC 1941 (Admin) at [92] and [95].

95. Fifthly, and obviously, the duty is a continuing one.

96. Sixthly, it is good practice for those exercising public functions in public authorities to keep an adequate record showing that they had actually considered their disability equality duties and pondered relevant questions. Proper record-keeping encourages transparency and will discipline those carrying out the relevant function to undertake their disability equality duties conscientiously. If records are not kept it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled the duty imposed by section 49A(1): see the remarks of Stanley Burnton J in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (Admin) at [69]; those of Dobbs J in the Eisai case [2007] EWHC 1941 (Admin) at [92] and [94]; and those of Moses LJ in Kaur’s case, para 25.

2.1 It is critical to the vision in the Care Act that the care and support system works to actively promote wellbeing and independence, and does not just wait to respond when people reach a crisis point. To meet the challenges of the future, it will be vital that the care and support system intervenes early to support individuals, helps people retain or regain their skills and confidence, and prevents need or delays deterioration wherever possible.

6.31. Where local authorities identify that an adult is unable to effectively engage in the assessment process independently, it should seek to involve somebody who can assist the adult in engaging with the process and helping them to articulate their preferred outcomes and needs as early as possible. This will include some people with mental impairments who will nevertheless have capacity to engage in the assessment alongside the local authority. They may require assistance whereby the local authority provides an assessment, tailored to their circumstances, their needs and their ability to engage. They should be supported in understanding the assessment process and assisted to make decisions wherever possible.

6.32. Where there is concern about a person’s capacity to make a specific decision, for example as a result of a mental impairment such as dementia, acquired brain injury or learning disabilities, then an assessment of capacity should be carried out under the Mental Capacity Act 2005. Those who may lack capacity will need extra support to identify and communicate their needs and make subsequent decisions, and may need an Independent Mental Capacity Advocate. The more serious the needs, the more support people may need to identify their impact and the consequences. Professional qualified staff, such as social workers, can advise and support assessors when they are carrying out an assessment with a person who may lack capacity.

7.6 Local authorities must involve people in decisions made about them and their care and support or where there is to be a safeguarding enquiry or SAR. Involvement requires the local authority helping people to understand how they can be involved, how they can contribute and take part and sometimes lead or direct the process. People should be active partners in the key care and support processes of assessment, care and support and support planning, review and any enquiries in relation to abuse or neglect. No matter how complex a person’s needs, local authorities are required to involve people, to help them express their wishes and feelings, to support them to weigh up options, and to make their own decisions.

7.7 The duty to involve applies in all settings, including for those people living in the community, in care homes or, apart from safeguarding enquiries and SARs, in prisons, for example.

7.9 Many of the people who qualify for advocacy under the Care Act will also qualify for advocacy under the Mental Capacity Act 2005. The same advocate can provide support as an advocate under the Care Act and under the Mental Capacity Act. This is to enable the person to receive seamless advocacy and not to have to repeat their story to different advocates. Under whichever legislation the advocate providing support is acting, they should meet the appropriate requirements for an advocate under that legislation.

4.6 Market shaping means the local authority collaborating closely with other relevant partners, including people with care and support needs, carers and families, to facilitate the whole market in its area for care, support and related services. This includes services arranged and paid for by the state through the authority itself, those services paid by the state through direct payments, and those services arranged and paid for by individuals from whatever sources (sometimes called ‘self-funders’), and services paid for by a combination of these sources. Market shaping activity should stimulate a diverse range of appropriate high quality services (both in terms of the types, volumes and quality of services and the types of provider organisation), and ensure the market as a whole remains vibrant and sustainable.

4.7 The core activities of market shaping are to engage with stakeholders to develop understanding of supply and demand and articulate likely trends that reflect people’s evolving needs and aspirations, and based on evidence, to signal to the market the types of services needed now and in the future to meet them, encourage innovation, investment and continuous improvement. It also includes working to ensure that those who purchase their own services are empowered to be effective consumers, for example by helping people who want to take direct payments make informed decisions about employing personal assistants. A local authority’s own commissioning practices are likely to have a significant influence on the market to achieve the desired outcomes, but other interventions may be needed, for example, incentivising innovation by user-led or third sector providers, possibly through grant funding.

4.52 Commissioning and market shaping should be fundamental means for local authorities to facilitate effective services in their area and it is important that authorities develop evidence-based local strategies for how they exercise these functions, and align these with wider corporate planning. Local authorities should have in place published strategies that include plans that show how their legislative duties, corporate plans, analysis of local needs and requirements (integrated with the Joint Strategic Needs Assessment and Joint Health and Wellbeing Strategy), thorough engagement with people, carers and families, market and supply analysis, market structuring and interventions, resource allocations and procurement and contract management activities translate (now and in future) into appropriate high quality services that deliver identified outcomes for the people in their area and address any identified gaps.

4.53 Since 2007 there has been a duty on local authorities and latterly clinical commissioning groups, through health and wellbeing boards, to undertake Joint Strategic Needs Assessments (JSNA). JSNA is a process that assesses and maps the needs and demand for health and care and support, supports the development of joint Health and Wellbeing Strategies to address needs, understands community assets and informs commissioning of local health and care and support services that together with community assets meet needs.

4.54 Market shaping and commissioning intentions should be cross-referenced to JSNA, and should be informed by an understanding of the needs and aspirations of the population and how services will adapt to meet them. Strategies should be informed and emphasise preventative services that encourage independence and wellbeing, delaying or preventing the need for acute interventions. Statutory guidance on JSNA and Joint Health and Wellbeing Strategies was published in March 2013. The ambition is for market shaping and commissioning to be an integral part of understanding and delivering the whole health and care economy, and to reflect the range and diversity of communities and people with specific needs, in particular: