1 Promoting individual well-being
This clause provides for a set of legal principles, which frame how local authorities are to carry out their care and support functions for adults needing care and carers under this Part. The “well-being principle” in subsection (1) is directed at local authorities (and their officers) making decisions about adults throughout the Part. It is not intended to be directly enforceable as an individual right, but to carry indirect legal weight, where a local authority’s failure to follow the principle may be challenged through judicial review. “Well-being” is not defined precisely. However, subsection (2) lists outcomes which develop the concept of well-being. These outcomes are not a series of requirements, but serve as a description to aid understanding.
(1) The general duty of a local authority, in exercising a function under this Part in the case of an adult, is to promote that adult’s well-being.
(2) “Well-being”, in relation to an adult, means that adult’s well-being so far as relating to any of the following—
(a) physical and mental health and emotional well-being;
(b) protection from abuse and neglect;
(c) control by the adult over day-to-day life (including over the care and support provided to the adult and the way in which it is provided);
(d) participation in work, education, training or recreation;
(e) social and economic well-being;
(f) domestic, family and personal relationships;
(g) the adult’s contribution to society.
(3) In exercising a function under this Part in the case of an adult, a local authority must have regard to the following matters in particular—
(a) the importance of beginning with the assumption that the adult is bestplaced to judge the adult’s well-being;
(b) the adult’s views, wishes and feelings;
(c) the need to ensure that decisions about the adult are made having regard to all the adult’s circumstances (and are not based only on the adult’s age or appearance or any condition of the adult’s or aspect of the adult’s behaviour which might lead others to make unjustified assumptions about the adult’s well-being);
(d) the importance of the adult participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable the adult to participate;
(e) the importance of achieving a balance between the adult’s well-being and that of any friends or relatives who are involved in caring for the adult;
(f) the need to protect people from abuse and neglect;
(g) the need to ensure that any restriction on the adult’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.
(4) “Local authority” means—
(a) a county council in England,
(b) a district council for an area in England for which there is no county council,
(c) a London borough council, or
(d) the Common Council of the City of London.
(5) “Adult” means a person aged 18 or over.
Well-being is a vague term and relative term, 3a seems to accept that the individual can decide on the level of local government funding, this section seems to conflict with the decision in KM v Cambridgeshire that gave a clear steer on the local authorities duties and how limited resources should be taken into account, this para could give rise to much legal challenge to clarify how wide an intrepretation of “well-being” is required. This para would make it more unlikely that insurance products would be developed to meet people’s needs and so prevent any Dilnot solution. Sticking to needs might be less popular but it would be clear and reflect the compact between citizens, well-being risks disabilty resulting in a higher standard of living than provided by the welfare benefit system and undermining public support.
(1) The general duty of a local authority, in exercising a function under this Part in the case of an adult, is to promote that adult’s well-being.
View Notes On This Clause
“It is not intended to be directly enforceable as an individual right, but to carry indirect legal weight, where a local authority’s failure to follow the principle may be challenged through judicial review”
In 1 (1)d it would be good to add enterprise. It is also important that the total ability to contribute and the right to take up responsibility is included
2 (d) should include enterprise and contribution to society in the widest sense
David Roberts is right. Draft section 1 smacks more of an attempt to pass a religion than an Act of Parliament. Most of its cheesy rhetoric is already set down in the provisions of other legislation by way of ready-made statutory interpretation. From an administration that is beginning to see how the Human Rights Act has been turned on its head, this is a provision for positive civil rights that will in the end be either unenforceable or ignored by battle-hardened local authorities juggling with impossible budgets, and supported by cases such as Child B.
In North Lincolnshire,we get plenty of “Intent” and rhetoric from our local social services dept.In Practice,it boils down to if a manager can authorise additional spending from the amount allocated bt the RAS system for an individuals “well being” Unless the government/local authority have more money to spend on personal budgets,this bill is meaningless.
Carers’ well-being has for too long been neglected. There is a wealth of research to show the adverse effects that caring often has on the carer and these needs must be addressed if carers are not themselves to become in need of services.
Promoting well-being is very far removed from providing care for vulnerable, incapacitated people. What is your game? Do you have Intent to subvert Care in the community – or is that just a by-product of your scheming? Pretty disgusting and repulsive if it is. So what we have is RELEGATING Care in the community.
I agree that the term wellbeing is too vague. Also goes on too much about the obvious right to self determination that an adult has and seems to be straying into decison making areas for adults with mental health problems already provided by the Mental Capacity Act.
This is a general duty, and general duties are hard to enforce by individuals.
Given the consultation has not given a mandate for any radical change of the law, I don’t think it means that the adult is to be given the say-so over what their ‘well-being’ requires, or what would best meet it; the general duty is to take the person’s view into account, not let the issue of resource allocation be determined by it.
The prohibition on letting eg a person’s age pre-determine care planning would prevent assumptions that once a person is aged 65 then they are presumptively appropriately cared for in a care home, which would be good for the maintenance of independence of older people.
The impact of this general statement of appoach will depend on the structure of the Act as a whole, and the interaction of this and other parts and the more specific duties imposed on councils.
The need for the person to participate should be number on in the list.
Hooray to Margaret Whitlock who has remembered those of us that would rather not have people make broad reaching decisions for us, but for our ‘well being’ crave to be included in decisions about OUR care.
We support the inclusion of the well-being principle and the requirement to put the person in charge of their own care and support. It is essential that local authorities take account of how care and support is delivered to the person, as well as the outcomes that they wish to achieve. Action on Hearing Loss believes that this captures the important role that social care can play in enabling people to live their lives as fully as possible. It is positive that it lists a duty in relation to a broad definition of needs, including participation in work, social and economic well-being, relationships and contribution to society. Local authorities have focused increasingly on meeting personal care needs rather than social care needs and it is essential that they meet broader needs. In this way, as things currently stand, some people who need social services no longer get them; at the same time these changes will not bring about significant savings for local authorities in the medium to long-term. Similarly, the withdrawal of services from people may result in increased future costs to councils as these people require more acute services as their health may deteriorate more rapidly without intervention by social services.
Moreover, where such needs are not met, this can pose a serious risk to people’s well-being. For instance, people with hearing loss often need equipment such as flashing smoke alarms. Similarly, for some British Sign Language users, English is their second language and they have greater difficulty understanding written English; in such cases, they may require assistance with official correspondence such as bank statements. Without such assistance, they run the risk of accruing debts because they haven’t understood their finances.
I think Melissa puts over many good points.
Physical ailments can be assesed easily upto a point, and some help given.
But that should never be taken that it implies a sense of well-being.
To me I feel a sense of well-being comes when you feel wanted, and able to contribute to others in some way.
Just because some might not be capable of doing a paid job does not mean they should be written off. They might still be able to contribute in some way.
Carers too should be able to have some time off, as constant crareing for someone can be very demanding.
If someone finds that they can not lead a normal life for whatever reason through no fault of their own they should still be treated with dignity and respect.
If someone has a sense of well-being, they are more likely to be plesant to be with.
Some onus needs to be on each individual to play a part in their health and wellbeing. However, when one needs help then the support should be given.
I agree it is important for the Local Authority to listen to the person and their carer when support is being sought and not for the Local Authority to assume they know better.
Better training needs to be given to Professional who are responsible for the ‘red tape’ paperwork to be better listeners and know how to complete the appropriate forms competently. In my experience too many errors have been made due to not listening properly or assuming they know best rather than the service user or the carer.
We welcome the emphasis on the individual’s own views, wishes and feelings being paramount regarding their “well-being” and especially “the importance of the adult participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable the adult to participate”. My query is how the ‘support necessary’ will be provided. Our network supports over 250 advocates providing independent advocacy for people who would otherwise have great difficulty in participating in decisions or expressing views. A reference needs to be made regarding the provision of this kind of ‘support’.
It is not clear whether the wellbeing clause includes carers. If it doesn’t, it should, so that carers are on an equal footing to the person they care for.
What happens when the carer’s and cared for’s needs don’t match? Who takes priority?
The legislation relates primarily to adults, not children. This is a problem. Children’s wellbeing should be considered as well.
Wellbeing is a vague term.
Promoting individual well-being is a very vague statement, from a carers point of view, it should mean ensuring their relative is assessed and services delivered according to their needs. Carers should also be consulted.
The concept of “well being” is of course vague, although it is possible to work with someone to see what their own perception of well being is. The principle of well being – that society and Government should have as a principle “well being” is important, because it is a much wider definition of the role of Government and the state than could be considered. For example the state could say that its role is limited to being a safety net, or to defending the state in wars. The concept of the state existing to promote well being is important. It no doubt will open up some legal and other challenges when the action of local Governement and others appears to not be promoting well being, but at least it defines the responsibility.
Our LINk supports this general principle. We note that the skills and training of assessors will play a crucial role in ensuring that this is done in a meaningful way which understands people’s expectations of quality in relation to their personal wellbeing. We feel that effective monitoring will be required – not just in terms of ensuring a consistent approach is taken but also in terms of assessing whether or not the anticipated wellbeing outcomes have been met by the services and support accessed.
We also note that there may be a conflict between the wellbeing of someone with high levels support needs and their carer(s).
Cats Protection welcomes the broad reference to wellbeing and reference to mental and emotional wellbeing and the fact that ALL an adult’s circumstances can be taken into account. Companion animals are often an essential contributor to positive mental and emotional wellbeing through the companionship and unconditional love they offer. Recent research conducted by ourselves with the Mental Health Foundation (2011) showed that 87% of people who owned a cat felt it had a positive impact on their wellbeing, while 76% said they could cope with everyday life much better thanks to the company of their feline friends. Half of the cat owners felt that their cat’s presence and companionship was most helpful, followed by a third of respondents describing stroking a cat as a calming and helpful activity. The Bill must be broad enough in its definitions, applications of needs assessment and allocation of budgets to allow for spend related to retention of a pet cat or the possibility of obtaining a cat where an adult identifies that a cat is or would be beneficial to wellbeing.
We welcome the local authority duty to promote the wellbeing of the particular adult who is eligible for care services, with the wider focus on the whole person that this brings.
West Anglia Crossroads welcomes the duty to promote an adult’s well-being. It needs to be clearer that carers well-being is included and clearer guidance as to what this term means.
It is not apparent that parent carers and young carers will be afforded the same consideration. Parent carers especially should have access to any changes offered to carers of adults.
There may be a problem with reference to ‘well-being’ as there is also ‘wellbeing’ in studies, perhaps also legislation and insurances.
The ‘Key’ word used in proposed legislation ought to follow the usual standards for such Codification and relate to any existing ‘Key’ word used in this relation by law courts, local authorities, service providers and insurers.
Particularly re 1. (2) (d)
participation in work, education, training or recreation.
Suggest the words ‘…….if fit. ‘ be added to this clause.
It is vital that the Bill make a reference to independent advocacy in this initial clause. Advocacy by public employees, important though it can be, will not do the job, and nor will the operation of a local market (which may for example encourage the development of brokerage). Independent advocacy marries the responsibility of the state with the culture of civic society. It is a shame that this Bill does not set out to enact the dormant clauses of the Disabled Persons Act (1986), nor better still, to draw on the superior phrasing in the late lord Ashely’s Independent Living Bill. Failing that Clause 1 (3) d should be amended to read ‘… information and support, including independent advocacy…’
We have long felt that carers and family members should take ownership of the support mechanisms for the people they care for. It is only they who know what support is needed.
The assessment process is not fit for purpose any more and needs an overhaul. The “panel” should be consigned to scrap heap as it is so undemocratic I am surprised it has survived this long.
The social worker should be given the opportunity to carry out their job without being “leaned on” by thier manager. Having completed the “needs led” assessment the social worker should sit down with the family and see how the needs of the person can be addressed. What can Social Services do, what can the volutary sector do, what can the family do and what is available in local social activities.
We think this is a better way than at present with the local authority telling you what you can have, and that may not fit with what you need.
West Lancs Peer Support.
The concept of well-being correctly expands the meaning of care & support and reinforces the principle that provision must not be limited to personal care. While I have no particular wish to personalise feedback it is the easiest way to present examples. My deafblind daughter who has been in a wheelchair since she was 15 can do very little without support, yet if you could only see a video of her swimming and signing as she swims like a porpoise you simply would not believe the difference and outings take two members of staff and in this case one goes into the pool. And why should she have to be taken sailing with others as she can no longer get into the boat and has to just ‘be’.
I am pleased that protection from abuse and neglect is included in Clause 1. I am putting some general comments here that I hope you will ensure get passed onto the relevant people for consideration;
1. please can we have in the Guidance standard Safeguarding Adults procedures which apply nationally; individual Safeguarding Adults Board spend a lot of time drawing up their opwn procedures, reviewing them regularly and it would be much simpler if the same procedures applied country-wide.
2. Young people ages 16-18 often fall between Safeguarding Adults and Safeguarding Children procedures – could you ensure that 16-18year old can be included in Adult safeguarding?
3. Can you ensure that there is a ‘link-up’ between domestic violence and abuse and safeguarding? The is legislation about domestic abuse and we need to make sure the two ‘marry-up’
Wellbeing, reciprocity and relationships
1. JRF warmly welcomes the comprehensive definition of ‘wellbeing’ in the Draft Legislation, which local authorities have a duty to promote.
2. The inclusion of relationships, also contribution to society, and also control over day to day life is much-needed. We strongly suggest that these remain a central theme as the Legislation and White Paper are implemented.
3. The value and importance of using people’s skills and talents to build relationships, friendships and networks in communities, and the importance of inclusive communities, resonates with what disabled people and older people repeatedly identify as being important to their quality of life and desire to engage in reciprocal relationships to support one another (Centre for Policy on Ageing 2011; Bowers et al 2010, 2011; Branfield and Beresford 2010; Cattan and Giuntoli 2010).
4. The idea of time banking raised in the White Paper is one way people’s enthusiasm for mutualism can be captured, however there are many other ways to achieve this, including Home Share and mutual housing, Shared Lives (also mentioned in the White Paper), Circles of Support and peer mentoring, all of which should be looked in to as they will suit different communities and groups of care users (Bowers et al, 2011). A recent JRF report on how to make York a good city for people who live with dementia also highlights the ability of people with dementia to continue contributing to their communities (Crampton, Dean and Eley 2012).
5. The promotion of a more reciprocal and enabling approach to care, generating opportunities for older and disabled people to provide and receive support simultaneously, requires a shift in culture, not just process, to allow people to take risks, rely on non-professional support and become experts and commissioners of their own support. The same is true to achieve a person centred support (Berry 2011; Beresford, 2010 and Bereford and Andrews, 2012). JRF therefore welcomes the inclusion of “culture change” alongside skills development as part of the sector specific compact to improve “skills, competencies and behaviours”.
6. However, these and other positive proposals run the risk of having limited impact on people’s lives, if unaccompanied by clarity and certainty on paying for care and support. The opacity of care funding and variability of eligibility rules are important contributing factors explaining why people do not plan for their care and make poor choices related to their care in later life. We urge the government to think seriously about the need to prioritise social care funding.
(Research referenced above can be found at http://www.jrf.org.uk)
This is a step in the right direction but we need to be very clear in plain and simple English that cannot be misinterpreted by the relevant authorities. They have a tendancy to read the legislation to suit their needs and not the needs of the service user, even more so now we face severe financial constraints.
Secondly, I believe that all control of all care should be placed with Health. If this was the case then service user would have their care needs looked at when they contact their Doctor with potential medical issues.
Social care can’t take responsibility for people’s general well being, but where there is a responsibility for support to be provided, it must be a partnership with the person who needs support, and for disabled people, the model should always be the social model of disability. Age should not be a deciding fctor, there is currently huge age discrimination in social care, however, it is not acceptable for attitudes and funding decisions to default to the lowest common denominator.
The proposal for local authorities to promote adults’ wellbeing is welcome and the example of operationalising this by protection from abuse and neglect is further necessary to ensure that this subject has prominence. The term ‘protection’ has certain overtones and the Guidance will need to make it clear that this is not infantilising and that much adult safeguarding work is about minimising the risks of such harm. The Bill appears to echo the principles of the Mental Capacity Act 2005 which our research (funded by NIHR) has found to be widely appreciated by practitioners. However, this study reveals the importance of a systems wide approach to implementation of new legislation. While many staff working in social care need the opportunity to develop their skills around new legislation, other practitioners who are working with users of social care services also need to be informed about new legislative requirements and Guidance. Plans for this need to be underway.