Legislation and the real world

Another day, another consultation.

The First Minister's defence when his critics point to a lack of new legislation, one year on from the referendum that gave him the tools to do the job, is that his government is one which takes its time and gains a broad base of support for its proposals, rather than rushing to pass laws willy-nilly.

The gist of his argument is that legislation should be judged on its effect out there in the real world, rather than the number of printed pages and clauses a government can generate.

Not a bad argument, you might say. But you might also argue that the problem with that approach is that it can often appear to be more governing by cautious consultation and review, rather than bold action.

Today, the government announced its consultation on the Social Services (Wales) Bill which, on close inspection, is very far from cautious and will have a profound impact on the sector in the coming years.

Why? Well for starters, the proposed new law would confer exceptionally wide powers on Ministers to force organisations to pool their budgets, or even merge entire organisations.

They have some powers already via measures passed in the last Assembly but these currently only kick in when there are identifiably serious failings.

This time, things are very different. Welsh Ministers would have powers to pool budgets across organisations by force rather than agreement. This is big stick stuff. They could even compel partnerships between local authorities, within different departments in a local authority, or even between a local authority and a Local Health Board.

Critically, these powers can be exercised not just in the case of service failures but cases where the Minister judges they would improve outcomes for service users, improve access to services, avoid service fragmentation or improve the use of resources.

This isn't just setting the bar low for intervention - the bar is basically non-existent. It means a Minister could re-draw the boundaries of social services in Wales virtually at a stroke of the pen from their office in Cathays Park, if they so wished.

Would they?

The consultation document warns that "despite heavy investment" the take up of formal partnerships has been slower in Wales than is needed. That's a heavy hint that the new powers are explicitly designed to allow Ministers to make partnerships happen no matter what, once the Bill becomes law.

There is a great deal of work, much of it under the radar, across Wales' local authorities to bring social services departments closer together. Senior figures recognise the current model is very close to breaking already under the weight of the needs of an ageing population and will soon be completely bust.

The more radical vision from today's consultation is for Ministers to demand pooled budgets between social service departments and local health boards. There is only one example of this currently in operation, the Gwent Frailty Project, across five local authorities and their corresponding LHB. It's fair to say that this case is trotted out so often by ministers and officials when collaboration and partnership is mentioned that some journalists have been known to roll their eyes and put their pens down. That's not to say that it's a bad project at all - just that it sometimes sounds like the be all and end all of this sort of collaboration in Wales.

Which in this context it is - so far.

As an aside, should Ministers decide they're going to go further down the route of pooling social services and health budgets, then this is likely to throw up one interesting anomaly. At present, 87 per cent of social care services are commissioned from the private sector - and the consultation document envisages that figure will rise in future. Doesn't that seem to sit rather uncertainly with the Welsh Government's "no private sector" policy towards health services? Is it reasonable to wonder out loud whether it might, potentially, militate against the kind of joined up services that ministers and their advisers aspire to?

Another interesting aspect of today's consultation concerns the registration conditions for private social care providers. Changes brought about by the Bill would see a stronger assessment of the financial viability of would-be providers. The background to this is the Southern Cross debacle, where a heavily leveraged private company in effect ran out of money to pay its bills - leaving the thousands reliant on their care homes in the lurch.

The Welsh Government accepts that even with this new stipulation written into law, it would not have been able to compel Southern Cross to change its entire business model before it was allowed to do business in Wales. But it's an indication that the crisis has shaken Ministers into insisting that in future, companies will have to open their books before being allowed to enter the market here. There's also a possible plan for time-limited regulation in some areas, meaning firms would have to re-apply for registration every five years.

What all this amounts to is - and I liked this line so much I wrote it in the margin - "an increase in the visibility of provider responsibility". Might this put some providers off from offering services in Wales? That will remain to be seen.

So is there enough here to solve the social care sustainability timebomb? Maybe. On the one hand, it lays out a vision of a simpler social care system, accepting the current one is labyrinthine in its complexity and unequal in its outcomes. It's a vision of a system which, we're told, will put "the citizen at its heart". But it also places, in many case for the first time, a legal duty on providers to deliver recognised standards of care right across Wales.

While the simplification of the services could cut administrative costs, new rights to national standards of care and personal assessments could potentially add them. There's only so much legislation can do, after all - out there in the real world.