Commentary on Sections 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.