Health and Social Care (Wales) Act 2025

Part 2 .Health Care

88. This Part contains provisions that amend the National Health Service (Wales) Act 2006 [“the 2006 Act”] which is the principal legislation governing the operation of the National Health Service (NHS) in Wales. The amendments allow the Welsh Ministers to make direct payments to individuals in lieu of the provision of services by or on behalf of the NHS to meet their needs (or to direct Local Health Boards to make such payments on their behalf using existing powers under the 2006 Act).

89. Direct payments within the context of social care are monetary amounts paid by local authorities in accordance with duties under the 2014 Act to individuals (or their representatives) to enable them to secure services to meet their eligible needs for care and support (or the needs of a carer). These payments are made in lieu of the local authority providing or arranging services to meet those needs and are made under provisions in and by virtue of Part 4 of the 2014 Act.(2)

90. It is intended that the new powers will be used to enable the Welsh Ministers to make direct payments (in appropriate cases) in lieu of the provision of services where an individual is eligible to receive NHS Continuing Health Care (“CHC”). CHC is a package of ongoing care that is arranged and funded solely by the NHS where the individual has been found to have a “primary health need” (as opposed to a need for local authority care and support). Such care is provided to an individual aged 18 or over, to meet needs that have arisen as a result of disability, accident or illness. In such cases, the NHS is responsible for providing for all of that individual’s assessed health and social care needs – including accommodation, if that is part of the overall need. Services for persons entitled to CHC can be provided in any setting outside hospital, such as in a person’s own home, in a care home or hospice. The 2006 Act does not currently allow direct payments to be made in lieu of services, to those eligible to receive CHC, or otherwise.

91. The Welsh Government’s 2021 Programme for Government set out a commitment to “improve the interface between continuing health care and direct payments”. Accordingly, in 2022 the Welsh Government consulted on the principle of introducing direct payments as an option within CHC. The consultation responses to the proposal conveyed a high level of support for the principle of introducing direct payments for CHC.

Section 23 – Overview of Part 2

92. This section provides an overview of the main provisions of Part 2 of the Act. It summarises the subjects covered in each subsequent section of the Part.

Section 24 – Direct payments for health care

93. This section inserts new provision into Part 1 of the 2006 Act in order to allow the Welsh Ministers to make direct payments to individuals in lieu of the provision of services to meet their assessed needs under the 2006 Act.

94. The Welsh Ministers have exercised power under section 12 of the 2006 Act to make regulations which direct Local Health Boards (LHBs) to exercise specified functions of the Welsh Ministers under the 2006 Act on their behalf. These powers may be exercised further to direct the LHBs to exercise the Welsh Ministers’ power to make direct payments in lieu of the provision of services.

95. Section 10B(6) contains a regulation-making power which, if exercised by the Welsh Ministers, would enable LHBs to make direct payments in discharge of the LHBs’ duty to provide after-care services under section 117 of the Mental Health Act 1983.

96. Where the Welsh Ministers use the power in section 10B(1) to make direct payments, they must make arrangements for the provision of information, advice or other support to the patient, their payee or other representative. Similarly, if the Welsh Ministers make regulations under section 10B(6) to enable LHBs to make direct payments in discharge of LHBs’ duties under section 117 of the Mental Health Act 1983, the regulations must make provision about information, advice or other support to be provided by LHBs.

97. The amendments also insert section 10C into the 2006 Act, which provides that the Welsh Ministers may make regulations which specify when and how direct payments may be made. Regulations made under this provision may provide that direct payments are to be offered only in specified circumstances, or may prevent such payments being made to specified persons.

98. The amendments also insert section 10D into the 2006 Act, which provides that the Welsh Ministers and LHBs may make arrangements with other organisations to provide assistance with direct payments.

99. Amendments are also made to section 203 of the 2006 Act, the effect of which is that the first set of regulations to be made under section 10B(6) of the 2006 Act will be subject to the draft affirmative procedure in the Senedd.

Section 25 – Direct payments for health care: minor and consequential amendments

100. This section introduces Schedule 2, which makes a number of minor and consequential amendments to other Acts as consequence of the new provision in Part 1 of the 2006 Act in relation to direct payments. The Schedule contains amendments to the Mental Health Act 1983 (c. 20), the Disabled Persons (Services, Consultation and Representation) Act 1986 (c. 33), the 2006 Act, the Safeguarding Vulnerable Groups Act 2006 (c. 47), and the Public Services Ombudsman (Wales) Act 2019 (anaw 3).

Section 26 – Provision of health services by local authorities

101. This section makes amendments to section 47 of the 2014 Act. These address an unintended consequence arising from the drafting of the 2014 Act, in order to incorporate the full statutory test which is intended to determine the limits of the powers of a local authority to provide health care services.

102. Section 47 of the 2014 Act establishes the limit of health services that a local authority may lawfully be expected to provide to meet health care needs. Subsections (1) and (2) contain the exceptions for the provision of health services by local authorities.

103. 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], and sometimes referred to as the “Coughlan test”, determines the limit of the powers of a local authority to provide health care services. It was intended that the provision made by section 47 of the 2014 Act would follow the Law Commission’s recommendations in its report into Adult Social Care (The Law Commission (LAW COM No. 326) Adult Social Care), including that the Coughlan test should be codified in statute. However, the Social Services and Well-being (Wales) Bill as introduced contained the first limb only of the Coughlan test which is now set out in section 47 of the 2014 Act.

104. The amendments made by section 26 therefore insert the second limb of the Coughlan test into section 47(1) and (2) of the 2014 Act, in order to give effect to the original policy intent.

2

See sections 50 to 53 of the 2014 Act and S.I. 2015/1815 (W. 260)Back [1]