Wales
Welsh law and policy: recent developments
In this series of articles, Huw Pritchard reports on the latest developments in Welsh case-law, legislation, and policy and practice.
About the author
Dr Huw Pritchard is a lecturer in devolved law and governance at Cardiff School of Law and Politics, and a member of the Wales Governance Centre at Cardiff University. He is currently working on the devolution of justice in Wales following his report, Justice in Wales: principles, progress and next steps, published in September 2016.
R (Forge Care Homes Ltd) and others v Cardiff and Vale University Health Board and others [2017] UKSC 56
This case involves the distinction between health care and social care when provided by a registered nurse providing care to patients that receive ‘funded nursing care’. Under such provisions, the patient will require some nursing care, but health care is not their primary need. The main issue in this case was whether ‘Funded Nursing Care’ should be the full responsibility of the Local Health Boards (LHBs), even when the registered nurse is conducting services which are not classified as nursing services, or should local authorities contribute to the cost of the social care tasks? (See Health and Social Care Act 2001 s49.)
The Court of Appeal overturned the High Court’s ruling (see [2015] EWHC 601 (Admin) and [2016] EWCA Civ 26 respectively). The appeal court held that a distinction was required between clinical services which required a registered nurse and services of a social or personal nature for the purposes of section 49, and so a ‘task-based ’ approach to determine which services are the responsibility of local LHBs was lawful (para 66).
The UKSC agreed, in part, with the Court of Appeal. Parliament had not intended to restrict the definition of ‘nursing care by a registered nurse’ to tasks which could only be performed by a registered nurse, but neither had it intended to prohibit local authorities from paying for anything done by a registered nurse (para 36). As a result, the UKSC agreed with the Court of Appeal that a task-based approach would be appropriate, and that local authorities would be required to fund some tasks but drew a different distinction to the Court of Appeal.
There had been a misinterpretation of section 49(2) by the LHBs: their decisions were quashed and should be retaken in the light of the judgment.
Abolition of the Right to Buy and Associated Rights (Wales) Bill
This bill intends to end all types of right to buy and right to acquire social housing in Wales. The Welsh Government’s objective is to safeguard the housing stock for people who are not able to acquire homes through the property market due to a high level of demand and a shortage of housing. The Welsh Government also states that it will incentivise the building of more social housing, with the knowledge that it will be available in the long term.
Currently, under the Housing (Wales) Measure 2011, local authorities are able to apply to suspend the right to buy in their area. This bill goes further by abolishing the following:
- the right to buy under Part 5 of the Housing Act (HA) 1985;
- the preserved right to buy under section 171A of the HA 1985;
- the right to acquire under section 16 of the HA 1996.
There will be a period of at least one year after the bill receives royal assent until the rights are abolished for existing social housing tenants. The abolition will apply to new tenants who move into social housing two months after the bill receives royal assent.
This bill introduces a new additional learning needs (ALN) statutory framework for supporting children and young people with additional learning needs, and brings provisions for 0–25 year olds under one framework and introduces a single individual development plan. Provisions in the bill will be supported by a statutory ALN code, which will have legally enforceable parameters for those subject to it.
It is envisaged that the child or young person will have more participation in the planning process, and have rights to receive more information about decisions being taken about them and to make their own decisions in certain circumstances. To support this, collaboration across services is required by a duty on health boards to appoint a designated education clinical lead officer. Maintained schools will be required to designate an additional learning needs co-ordinator.
The focus will be on resolving disputes at a local level. If this is not possible, children and parents will have a right to appeal to the Education Tribunal for Wales, which is currently known as the Special Educational Needs Tribunal for Wales. The bill extends the right of appeal to young people up to the age of 25, and allows the appointment of a ‘case friend’ for children who lack sufficient understanding.
Public Health (Minimum Price for Alcohol) (Wales) Bill
The bill provides for a minimum price for the sale and supply of alcohol in Wales by certain persons, and makes it an offence for alcohol to be sold or supplied below that price.
Regulation of Registered Social Landlords (Wales) Bill
The purpose of the bill is to amend or remove those powers which are deemed by the Office for National Statistics to demonstrate central and local government control over Registered Social Landlords.
The Welsh Government announced a Commission on Justice in Wales to be chaired by Lord Thomas, who recently retired as Lord Chief Justice of England and Wales.¹ Carwyn Jones, the First Minister, said that the commission will look at the unfinished business from the Silk Commission. The Commission on Justice is expected to report its findings and recommendations in 2019.
With the main provisions of the Wales Act 2017 coming into force in April 2018, the commission ensures that justice issues remain on the political agenda. The terms of reference focus on three areas:
- promoting better outcomes in terms of access to justice, reducing crime and promoting rehabilitation;
- ensuring that the jurisdictional arrangements and legal education address and reflect the role of justice in the governance and prosperity of Wales as well as distinct issues that arise in Wales; and
- promoting the strength and sustainability of the Welsh legal services sector and maximising its contribution to the prosperity of Wales.
Carwyn Jones said: ‘The commission will consider how we can do things differently in Wales and identify options to develop a distinct Welsh justice system, which improves people’s access to justice, reduces crime and promotes rehabilitation.’
Planning law in Wales
This Law Commission consultation seeks to simplify and consolidate planning law in Wales.² This follows from the commission’s report on the Form and accessibility of the law applicable in Wales (Law Comm No 366), where it was recommended that the Welsh Government should pursue a policy of codification.³ Planning law is the first area in this process.
First, the consultation seeks views on the intention to introduce a Planning Bill that will replace more than 30 Acts, and incorporate secondary legislation and government guidance. Second, the paper looks at technical reforms where improvements can be made to rationalise and streamline legislative drafting and the planning procedures. Third, it considers specific topics, including the development plan, planning permission, planning appeals, unauthorised development, and listed building and conservations areas. The consultation is open until 1 March 2018.
Yasmin Khan and Nazir Afzal have just been appointed as the new national advisors for violence against women, genderbased violence, domestic abuse and sexual violence. They will advise the Welsh Government on how most effectively to implement the Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015. They will also work with victims and survivors, and with other partners, to shape and inform improvements in the way services are planned, commissioned and delivered.
1 ‘First Minister establishes a Commission on Justice in Wales’, 18 September 2017, available at: https://tinyurl.com/yamjst8j and see ‘Written Statement - Update on the Commission on Justice in Wales’, 20 November 2017, available at: https://tinyurl.com/yb75xjfe
2 Available at: https://tinyurl.com/yb4gjjoa
3 Available at: https://tinyurl.com/ycjfo3s2