DPRR/13-14/02
DELEGATED POWERS MEMORANDUM
CARE BILL
1.
This memorandum describes the purpose and content of the Care Bill,
identifies the provisions of the Bill that confer powers to make
delegated legislation, and explains in each case why the power has
been taken and the nature of, and reasons for, the procedure selected.
Purpose
2.
The Bill contains provisions relating to care and support for adults and
a number of provisions relating to care standards and to health. Part 1
of the Bill deals with “care and support”. This covers different types of
help – financial, practical and emotional – that people need to manage
day-to-day living. The Bill follows the Government’s White Paper,
Caring for our future: reforming care and support (July 2012) which
sets out a long term programme to reform care and support. The
intention is to create a modern system which promotes well-being by
enabling people to prevent and postpone the need for care and
support. The Bill takes forward the recommendations of the Law
Commission report on adult social care (LawCom 326, HC941). In May
2012, following a three year review, the Commission concluded that
existing care and support legislation is outdated and confusing, and
recommended wholesale reform of the law. Part 1 of the Bill therefore
provides a new basis for the provision of adult social care in England.
3.
Part 2 includes measures relating to care standards. In particular the
Bill contains provisions relating to the creation of a single failure regime
for quality, financial and governance failures of NHS trusts and NHS
foundation trusts so that the Care Quality Commission (“CQC”) and
Monitor (who regulates foundation trusts) can take decisive action over
quality failures. In addition the Bill enables ratings of hospitals and
other providers of health or social care by the CQC. The Bill also
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provides for a new criminal offence applicable to providers of health or
social care who supply, publish or otherwise make available certain
types of information which is false or misleading. The provisions will
enable regulations to specify both the type of information, e.g.
management or performance information, and the types of organisation
covered by the offence. This Part also deals with a lacuna in section 19
of the Health and Social Care Act 2008 which means that a registered
provider of health or social care is able to avoid enforcement action by
the CQC by applying to vary or remove a condition attached to their
registration which has the same effect as a proposal to vary or remove
a condition already made by the CQC.
4.
There are two health measures in Part 3 to (i) establish Health
Education England as a non-Departmental public body to provide the
necessary independence and stability to empower local healthcare
providers and professionals to take responsibility for planning and
commissioning education and training; and to (ii) establish the Health
Research Authority (HRA) as a non-Departmental public body
to
strengthen its ability to protect and promote the interests of patients
and the public in health and social care research, in addition to
providing assurance that the HRA will continue streamlining the
research approvals process and encouraging investment in research.
Provisions for delegated legislation
5.
The Bill is not in general an enabling or framework Bill. There is a
large amount of core legislation on the face of the Bill.
6.
In deciding whether matters should be specified on the face of the Bill
or dealt with in delegated legislation, the Department has carefully
considered the need:

to avoid too much technical and administrative detail on the face of
the Bill;
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
to provide flexibility for responding to changing circumstances, so
that requirements can be adjusted without the need for further
primary legislation;

to allow detailed administrative arrangements to be set up and kept
up to date within basic structures and principles that are set out in
primary legislation, subject to Parliament’s right to challenge
inappropriate use of powers; and

in relation to Part 1 of the Bill to respect the recommendation of the
Law Commission to establish a clear, three level structure of
statute, regulation and guidance.
7.
In deciding what procedure is appropriate for the exercise of the
powers in the Bill, the Department has carefully considered in
particular:

whether the provisions amend primary legislation; and

the importance of the matter to be addressed.
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PART 1
CARE AND SUPPORT
General Responsibilities of Local Authorities
Clause 2: Preventing needs for care and support
8.
This clause imposes a new general duty on local authorities to provide
services which contribute to the prevention or delay of the development
of needs for care and support. As a result, such prevention services
are provided universally to all persons regardless of any level of needs,
including those who may not have care and support needs; so the duty
operates outside the main provisions of the Bill which require the
assessment of needs and application of eligibility criteria. Accordingly,
subsections (3) and (4) provide a regulation-making power to specify
when local authorities may charge for taking steps to prevent, reduce
or delay needs for care and support. Any charge made under these
regulations can cover only the cost to the local authority of providing or
arranging the service. Subsection 3(b) allows regulations to prohibit
charging where regulations made under subsection (3)(a) would
otherwise allow this.
Any such regulations will be subject to the
negative procedure.
Subsection (3) and (4)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
Reason for delegating the power
9.
Delegating the power would allow detailed provisions to set out where
charging is, or is not, appropriate. It would provide flexibility to set out
the circumstances and conditions, and to deal with new services or
changes to services where charging may, or may not, be appropriate.
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Reason for the selected procedure
10.
The negative resolution procedure provides the appropriate level of
scrutiny. Regulations can only impose charges for the provision of
services, facilities or resources, or for taking steps which meet the
requirements of subsection (1). Subsection (5) provides that charges
imposed may cover only the cost incurred in providing or arranging for
the provision of the service, facility or resource. Other powers in the Bill
which enable charging of a service user are also subject to the
negative resolution procedure (for example, see clause 14).
Assessing needs
Clause 6: Co-operating generally
11.
This clause imposes a new general duty on local authorities to cooperate with certain other relevant public bodies when exercising their
respective functions relating to carers and adults with needs for care
and support.
The other relevant bodies are listed at section (6).
Subsection (6)(g) provides a regulation-making power by which other
persons may be added to the list of relevant partners with whom the
local authority is required to co-operate. This will be subject to the
negative procedure.
Subsection (6)(g)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
Reason for delegating the power
12.
Delegating the power provides flexibility to include other bodies within
the scope of the duty to cooperate. This is considered necessary in
light of the on-going developments in adult social care and health care
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where new bodies may be established. Delegating the power provides
requisite flexibility while also ensuring appropriate Parliamentary
accountability to ensure that any such new bodies also fall within the
scope of the co-operation duty.
Reason for the selected procedure
13.
The negative resolution procedure is considered appropriate as it is
only intended to add to the list of specified bodies, new bodies which
have relevant functions relating to adults with needs for care and
support as and when such bodies are established.
Clause 12: Assessments under sections 9 and 10: further provision
14.
This clause provides further detail about assessments of needs for
care and support and carers’ assessments, provided for respectively
under clauses 9 and 10.
Subsections (1) and (2)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
15.
Subsection (1) imposes a duty on the Secretary of State to make
regulations about the process of carrying out needs assessments and
carers’ assessments.
16.
The regulations may in particular make provision about matters that a
local authority must consider when carrying out an assessment, and
about the assessment process, to ensure that it is carried out in an
appropriate and proportionate manner. The local authority may be
required to have regard to the family needs of the person being
assessed.
Regulations may specify who may carry out an
assessment, including allowing for self-assessment, joint assessments,
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and for a third party to carry out the assessment on behalf of the local
authority. They may also specify when a local authority should refer a
person for assessment by the NHS when they believe that the person
has NHS continuing healthcare needs.
17.
Where an assessment is carried out by a person of a specified
description, or jointly carried out with such a person or with the person
to whom the assessment relates, the regulations may provide for the
sharing of information, and for access to resources and facilities with
such a person (subsection (2)).
Reason for delegating the power
18.
Provision about needs assessments1 is currently made by directions
(the Community Care Assessment Directions 2004). It is an objective
of Part 1 of this Bill, in line with the Law Commission’s
recommendations to end the use of directions relating to adult care and
support and, to replace them with provision either on the face of the
Bill, or in regulations, as the case may be. In the case of assessments,
this regulation-making power will enable provision to be made setting
out the detail of procedural and related matters, which it is not
appropriate or necessary to set out on the face of the Bill. The power
also implements recommendations 12 and, in respect of carers, 23 to
25, of the Law Commission Report on Adult Social Care.
Reason for the selected procedure
19.
These are essentially procedural obligations, and it is considered that
the negative resolution procedure will provide the appropriate degree of
Parliamentary scrutiny.
Current provision is made in directions to
which no parliamentary procedure applies.
1
There are no directions in respect of carers’ assessments.
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Clause 13: The eligibility criteria
20.
This clause makes provision, where a local authority has carried out an
assessment of the needs of an adult needing care, or of a carer, and
considers that the person has needs for care and support, or for
support, as the case may be, for the local authority to determine
whether those needs meet the eligibility criteria.
Subsections (6) to (8)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Affirmative
21.
Regulations under subsection (6) may set out how a local authority
must go about determining whether an adult’s needs meet the eligibility
criteria.
22.
Subsections (7) and (8) provide power for the needs which meet the
eligibility criteria to be specified in regulations. The power will enable
regulations to describe the needs or combination of needs which meet
the eligibility criteria, and also to provide that needs may be described
by reference to the effect that they have on the adult, or by reference to
the adult’s circumstances (subsection (8)).
23.
This will enable provision to be made for certain cases, where needs
are currently met by the provision of residential accommodation under
section 21(1)(a) National Assistance Act 1948, to ensure that specified
cases where an adult’s needs for care and support would not normally
be sufficient to meet the eligibility criteria may nevertheless meet the
criteria where the adult also has needs arising from other specified
factors or circumstances.
24.
An example of such a case could be a homeless person with needs for
care and support but whose care and support needs alone may be
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insufficient to meet the eligibility criteria, whose condition will continue
to deteriorate unless appropriate care and support is provided. Under
the current law, that person could be considered to be in need of care
and attention which is not otherwise available to him or her, and if so,
the
local
authority
may
have
a
duty
to
provide
residential
accommodation. This power would enable such cases to be provided
for within the framework of the eligibility criteria.
Reason for delegating the power
25.
Provision about eligibility is currently made in statutory guidance issued
under section 7(1) Local Authority Social Services Act 1970 (Prioritising
need in the context of Putting People First: A whole system approach
to eligibility for social care, DH, 2010).
26.
It is not feasible to set out the criteria on the face of the Bill in primary
legislation, because a degree of flexibility is needed to enable
adjustments to the criteria to be made over time, for example to
respond to changing situations or court decisions.
27.
Given the central importance of the eligibility criteria, the government,
like the Law Commission, considers it appropriate that the criteria are
established in regulations, rather than in guidance.
28.
Careful consideration was given to retaining section 21 National
Assistance Act 1948 in primary legislation as a residual “long stop legal
duty”, as suggested by the Law Commission.2 However, the
Government believes that that incorporating such cases within the
eligibility criteria through regulations is a better means to the same end.
Recommendation 18, which reads “Section 21 of the National Assistance Act 1948 should
be retained in our scheme and, if it is possible to do so, be located in the adult social care
statute and not as a separate standalone provision in the 1948 Act. Moreover, it should be
retained with only such amendment that will have no consequences on its effect.
The residual section 21 duty should be retained as a long-stop legal duty, available only to
those who fall below the local authority eligibility criteria.”
2
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It would be challenging in drafting terms to revise section 21 to ensure
that it was both “retained only with such amendment that will have no
consequences on its effect” and “available only to those who fall below
the local authority’s eligibility criteria”. Providing for all such cases
within the single eligibility framework is also more consistent with the
objective of establishing a single modern framework for adult social
care, and will enable the various types of case to be properly provided
for.
Reason for the selected procedure
29.
These regulations will be of considerable interest to the public and to
Parliamentarians, and it is appropriate that they should be subject to
the scrutiny of both Houses of Parliament under the affirmative
procedure.
Imposing charges and assessing financial resource
Clause 14: Power of local authority to charge
30.
This clause provides a local authority with a power to charge where it is
meeting needs.
Subsections (5), (6) and (7)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
31.
Subsection (5) provides that the Secretary of State may make
regulations concerning the power of a local authority to charge where it
is meeting the needs of a person. The regulations may, for example,
restrict the amount of the charge where a local authority puts
arrangements in place to meet a person’s needs or require, for
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example, that a local authority cannot charge for the assessment
process.
32.
Subsection (6) provides the Secretary of State with a power to make
regulations requiring that a local authority meeting needs under
clauses 18 to 20 must do so free of charge in certain circumstances.
Free provision may be where the care and support is of a specified
type, where it is provided in specified circumstances, where it is
provided to an adult of a certain description or where needs are being
met for a specified period.
33.
Subsection (7) provides that a local authority may not charge where the
imposition of the charge would leave the individual’s income below an
amount specified in regulations.
Reason for delegating the power
34.
Giving the Secretary of State power to limit charging in certain
circumstances or to limit the amount allows flexibility and the ability to
adapt to changing circumstances. Delegating the power allows the
necessary flexibility to cater for new types of care and support which
might or might not be chargeable without having to amend primary
legislation.
35.
The power to set a person’s minimum weekly income in relation to care
home accommodation, is currently set out in regulations under section
22(4) of the National Assistance Act 1948. Equally, provision for certain
services to be provided free of charge is currently in regulations
pursuant to section 15 of the Community Care (Delayed Discharges
etc.) Act 2003. Exercising the power in regulations will allow for a
person’s minimum income amount to be regularly uprated and will
allow adaptability in terms of changing standards and affordability when
deciding what provision should be made without charge.
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Reason for the selected procedure
36.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny. Similar provisions to
subsections (6) and (7) in current legislation are also subject to the
negative resolution procedure.
Clause 15: Cap on care costs
37.
This clause provides that a local authority may not charge an adult for
meeting the adult’s eligible needs if the amount of the adult’s accrued
care costs exceeds the costs cap. The adult’s accrued costs do not
include “daily living costs” (subsection (6)), and a local authority can
continue to charge for the daily living costs element of an adult’s care
after the cap has been reached (subsection (7)).
Sub-section (4):
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Affirmative, except for annual adjustments in
accordance with clause 16.
38.
Regulations under subsection (4) will specify the amount of the costs
cap. Subsection (4) enables the regulations to set different levels of
the cap for different age groups and to specify the amount of the cap
as zero for persons of a specified description. It is intended to set the
cap at zero for people who had care and support needs at the age of
18; this means that such a person will reach the cap immediately when
they turn 18.
Reason for delegating the power
39.
The cap is to be set in regulations as it will need to be adjusted from
time to time. The Secretary of State must make adjustments annually
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to take into account inflation (under clause 16), and it may be
considered necessary to alter the level of the cap in other
circumstances, for example following the Secretary of State’s fiveyearly review under clause 66.
Reason for the selected procedure
40.
The regulations setting the level of the cap will be of considerable
interest to the public and Parliamentarians, and it is appropriate that
they should be subject to the scrutiny of both Houses of Parliament
under the affirmative procedure.
The exception to this will be the
annual adjustments made in accordance with clause 16.
Sub-section (8):
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: First set of regulations: affirmative; remainder:
negative
41.
Regulations under subsection (8) will specify the amount attributable to
daily living costs. This amount will be excluded from the costs cap
where the costs of meeting a person’s care needs includes an element
of daily living costs (eg food and heating provided when a person
resides in a care home). It is intended that the specified amount will
generally be a notional flat rate, but the amount may vary for different
classes of case.
Reason for delegating the power
42.
Delegating the power provides the flexibility to adjust the amount from
time to time, and to provide different provision for different cases as the
Secretary of State considers necessary.
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Reason for the selected procedure
43.
The regulations setting the initial level of daily living costs will be of
considerable interest to the public and Parliamentarians, and it is
appropriate that they should be subject to the scrutiny of both Houses
of Parliament under the affirmative procedure.
For subsequent
adjustments it is considered that the negative resolution procedure will
provide the appropriate degree of Parliamentary scrutiny.
Clause 16: Cap on care costs: annual adjustment
44.
This clause provides that the Secretary of State must make regulations
adjusting the level of the costs cap under clause 15(4) in line with
changes to the level of average earnings.
Sub-section (1):
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
45.
Subsection (1) specifies that where it appears to the Secretary of State
that the level of average earnings has changed over a 12 month review
period, regulations under clause 15(4) must adjust the level of the
costs cap accordingly.
Reason for delegating the power
46.
Delegating the power provides the flexibility to adjust the amount of the
cap from time to time, as required by subsection (1).
Reason for the selected procedure
47.
This will be a routine annual adjustment in accordance with the
parameters specified in the clause; it is therefore considered that the
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negative resolution procedure will provide an appropriate level of
scrutiny.
Clause 17: Assessment of financial resources
48.
This clause provides that where an adult might be charged for meeting
needs, a local authority must carry out an assessment of the adult’s
financial resources.
Subsections (7), (8), (9), (10) (11) and (12)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
49.
Regulations under subsection (7) will set out how a local authority is to
carry out the financial assessment. Subsections (8) and (9) provides
that regulations must set a “financial limit” above which a local authority
will not pay towards the cost of providing care and support. Subsection
(11) provides that the regulations must cover how to calculate a
person’s income and capital and subsection (12) provides that
regulations may make provision for deeming amounts as income or as
capital and furthermore cases or circumstances where an adult is to be
treated as having financial resources at or above a specified level.
Reason for delegating the power
50.
Under the current system resources are assessed in accordance with
the National Assistance (Assessment of Resources) Regulations 1992,
as amended, which are made pursuant to section 22(5) of the National
Assistance Act 1948. These regulations make substantial reference to
the Income Support (General) Regulations 1987, as amended.
Appropriate amounts for income and capital are regularly uprated as
are benefit amounts and provision of the rules for financial assessment
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in regulations allows for flexibility without the need to amend primary
legislation each time.
Reason for the selected procedure
51.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny. As above, current
provisions dealing with financial assessment are contained in
secondary legislation subject to this procedure.
Duties and powers to meet needs
Clause 22: Exception for provision of health services
52.
This clause is an “anti-overlap provision” which sets out the legal
boundary between a local authority’s duties to provide care and
support under Part 1 of the Bill on the one hand and those matters
which are not part of the local authority’s social care functions but are
matters for the National Health Service. Clarity on this boundary
enables local authorities to understand the limits of their powers and
obligations. It is essential to the consistent and lawful application of the
assessment framework that has been developed for assessing
eligibility for NHS continuing healthcare, which is a package of
healthcare arranged and funded solely by the NHS.
Subsections (2), (4)(a) and (6)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
53.
The “boundary” is set by subsection (1) which provides that a local
authority may not meet needs under clauses 18, 19 and 20 of Part 1 by
providing or arranging the provision of some service or facility that is in
fact required to be provided under the NHS – unless providing that
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service or facility is simply incidental to or ancillary to something the
local authority is properly doing to meet needs under clauses 18 - 20
and is something of a nature a local authority could be expected to
provide.
54.
Subsection (2) provides for a power to make provision to adjust the
boundary as set by subsection (1).
55.
Regulations under subsection (2)(a) may specify types of services or
facilities which, although on the face of it prohibited by the terms of
subsection (1), may nevertheless be provided or arranged by a local
authority (or circumstances in which such specified types of service or
facility may be arranged or provided). This would in effect “loosen” the
prohibition in these specified cases or circumstances.
56.
Regulations under subsection (2)(b) may specify types of services or
facilities that may not be provided or arranged by a local authority (or
circumstances in which they may not be provided or arranged). This
would in effect “tighten” the prohibition.
57.
Regulations
under
subsection
(2)(c)
may make
provision
for
determining, for the purposes of the prohibition in subsection (1), what
is or is not to be treated as incidental or ancillary or of a nature that a
local authority could be expected to provide . In this way, those matters
which a local authority may properly provide by way of healthcare can
be clarified in specific cases, which will in turn clarify the extent of the
prohibition.
58.
Regulations may be made under subsection (4)(a) specifying which
clinical commissioning group is the group from which consent for
arranging the nursing care element of accommodation with registered
nursing care must be sought by the local authority (as the provision
and funding of nursing care is a matter for the NHS). This requirement
in subsection (4)(a) to obtain the prior consent from the relevant clinical
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commissioning group before arranging the provision of registered
nursing care reflects the current requirement in section 26(1C) of the
National Assistance Act 1948. Regulations made under that section
(the Residential Accommodation (Determination of District Health
Authority) Regulations 1992 (as amended))3 currently indicate from
which CCG consent must be sought. Regulations under subsection
(4)(a) would enable similar provision to be made.
59.
Regulations may be made under subsection (6) requiring a local
authority to (a) be involved in processes for assessing health needs
and (b) have suitable local arrangements for settling disputes with the
NHS as to whether a service is for the local authority or for the NHS.
Such regulations would reproduce the effect of the NHS Continuing
Healthcare (Responsibilities of Social Services Authorities) Directions
2013. These are currently addressed to local authorities and are part of
the current framework for establishing when a person has a primary
health need and is entitled to NHS continuing healthcare. The
corresponding responsibilities of the relevant NHS bodies within that
framework are dealt with in the National Health Service Commissioning
Board and Clinical Commissioning Groups (Responsibilities and
Standing Rules) Regulations 2012.4 The intention is that the application
of this framework should continue to be the basis for establishing such
entitlement.
Reason for delegating the power
60.
The power in subsection (2) is in effect a power to adjust the boundary
between the provision of social care and healthcare. Taking this
delegated power provides flexibility to clarify uncertainty should it arise
and to respond to changing circumstances and policy development.
3
4
SI 1992/3182
SI 2012/2996
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61.
The main prohibition on a local authority providing, as part of social
care, services that should in fact be provided under the NHS is set out
on the face of the Bill at clause 22(1). This prohibition seeks to
reproduce, as far as possible, the boundary between social care and
healthcare as it currently exists in the National Assistance Act 1948.
Clarity on that boundary is an important element in establishing
responsibility for the provision of NHS continuing healthcare. Currently,
in respect of the provision of accommodation by a local authority as
part of its social care obligations, a local authority may not provide such
services which may be “authorised or required” to be provided under
the National Health Service Act 2006. Those matters are for the NHS.
In the case of other non-residential services, the prohibition is set at
those matters which may be “required” to be provided under the
National Health Service Act 2006, where, again, such matters are “off
limits” to the local authority. In both cases, that prohibition is tempered
by case law which acknowledges that a local authority may provide
certain minor services which have a health service flavour but which
are merely incidental or ancillary to their main social care functions and
are the kind of thing a local authority might be expected to provide.
62.
This provision in subsection (1) reproduces as far as possible the effect
of these two current prohibitions. However, as the Law Commission
observed, see paragraphs 11.11 – 11.21 of the Law Commission
Report, there is currently considerable confusion and lack of clarity
regarding the statutory prohibitions, in particular on such matters as
what may be covered by “authorised” and “required” and what might be
considered to be “incidental” and “ancillary”. In addition to the concerns
expressed by the Law Commission, following the amendments made to
the National Health Service Act 2006 by the Health and Social Care
Act 2012 the provision of services may be “authorised” or “required” in
different ways and by different bodies from the current system. In this
changed landscape references to “authorised or required” might
continue to cause confusion. This clause therefore aims at capturing
the essence of what the current prohibitions capture – (i.e. the
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prohibition on providing services etc that are “meant” to be provided by
the NHS, subject to permitting things that are merely incidental and
ancillary to provision of service the local authority is properly providing).
63.
This clause also includes this regulation-making power in subsection
(2) to allow for “loosening” or “tightening” the detail of the prohibition
and for clarifying, if necessary, the extent of what a local authority may
do in the way of incidental or ancillary matters. The intention is to
maintain the current boundary but this regulation-making power will
enable any minor adjustments to be made to clarify that boundary in
response to circumstances or where there is in practice uncertainty and
greater clarity is required. This meets the Law Commission’s
recommendations at recommendation 51.
64.
Subsection (4)(a) – this is a power to make regulations to specify which
clinical commissioning group is the one from which consent must be
sought by the local authority. Such regulations would enable
arrangements for the provision of NHS registered nursing care, as part
of accommodation arrangements, to continue as now.
65.
Subsection (6) – the power at subsection (6) is a power to make
regulations to require a local authority to have arrangements for
requiring a local authority to participate in processes for assessing a
person’s health needs and for determining disputes with the NHS about
which side of the boundary a service falls. Currently, NHS Continuing
Healthcare (Responsibilities of Social Services Authorities) Directions
2013 direct local authorities as to how they must work with the relevant
NHS body when that body is considering whether a person’s needs
entitle them to NHS continuing healthcare. In essence the obligations
are to cooperate with the NHS body in the assessment process and to
have a dispute resolution system.
66.
It is an objective of Part 1 this Bill, in line with the Law Commission’s
recommendations, to end the use of directions relating to adult care
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and support and replace them with provision either on the face of the
Bill, or in regulations, as the case may be. In this case, this regulationmaking power in (6) will enable provision to be made to govern the
necessary participation of local authorities in the process of
assessment of eligibility for NHS continuing healthcare and the
settlement of any disputes between local authorities and the NHS as to
such eligibility.
Reason for the selected procedure
67.
Regulations under subsection (2) are essentially procedural and
technical regulations to regulate, if necessary, the practical details of
the boundary between social care and healthcare as established by the
main prohibition in subsection (1). It is considered that the negative
resolution
procedure
will
provide
the
appropriate
degree
of
Parliamentary scrutiny.
68.
Regulations under subsection (4)(a) are essentially procedural and
reflect the current arrangements. It is considered that the negative
resolution
procedure
will
provide
the
appropriate
degree
of
Parliamentary scrutiny.
69.
Regulations
under
subsection
(6)
are
essentially
procedural
requirements, as currently imposed by directions, and it is considered
that the negative resolution procedure will provide the appropriate
degree of Parliamentary scrutiny.
Next steps after assessments
Clause 25: Care and support plan, support plan
70.
This clause makes provision about care and support plans and support
plans, in particular, as to the minimum required content of a plan
(subsections (1) and (2)), and the procedures to be followed
21
DPRR/13-14/02
(subsections (3) to (11)). Subsection (12) provides power for specified
elements of a care or support plan not to be required in specified cases
or circumstances.
Subsection (12)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
Reason for delegating the power
71. The Law Commission recommended that the form and content of care
plans be set out in regulations.5 The Government has chosen to make
the necessary provision on the face of the primary legislation. But there
may be cases where it would not be relevant or proportionate for a plan
to have to adhere to one or more of the requirements set out in
subsections (1) and (2). It is not feasible to anticipate or set out this level
of detail on the face of the legislation, and a regulation-making power
has therefore been taken.
Reason for the selected procedure
72. Given the subject matter, it is considered that the negative resolution
procedure will provide the appropriate degree of Parliamentary scrutiny.
Clause 29: Care account
73.
This clause provides requires local authorities to keep a care account
for adults whose care costs are counted towards the costs cap. The
purpose of the account is to maintain a record of the adult’s accrued
care costs, and progress towards the costs cap.
5
Recommendations 31 and 32.
22
DPRR/13-14/02
Sub-sections (4) and (5):
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
74.
Subsection (4) requires local authorities to provide adults with a
statement about their care account; the statement must be provided at
times specified in regulations, and regulations may specify matters to
be included in the statement. Regulations under subsection (5) may
specify circumstances when the duty to provide a statement does not
apply.
Reason for delegating the power
75.
These regulations will provide for the detailed procedure to be followed
in the provision of care account statements; it is not appropriate or
necessary to set these out on the face of the Bill. Also, delegating the
power provides flexibility to change the rules from time to time.
Reason for the selected procedure
76.
The regulations are essentially procedural and it is considered that the
negative resolution procedure will provide the appropriate degree of
Parliamentary scrutiny.
Clause 30: Cases where adult expresses preference for particular
accommodation
77.
This clause makes provision for the situation where someone’s needs
are to be met by the provision of accommodation and they express a
preference for a particular type of accommodation.
Subsections (1) and (2)
Power conferred on: Secretary of State
23
DPRR/13-14/02
Power exercised by: Regulations
Parliamentary procedure: Negative
Subsection (1)
78.
Subsection (1) provides power for regulations to set out, in relation to
certain
types
of
accommodation
(for
example,
care
home
accommodation) that, where the person concerned expresses a
preference for a particular accommodation of that type (for example, a
certain care home), and any specified conditions are met, then the
local authority must provide or make arrangements for the provision of
that particular accommodation.
Reason for delegating the power
79.
Provision requiring local authorities to comply with preferences in
relation to care home accommodation, provided certain conditions are
met, is currently made by directions – the National Assistance Act
1948 (Choice of Accommodation) Directions 1992. It is an objective of
this Bill, in the interests of transparency and accountability, to replace
all existing directions (assuming equivalent provision is needed), with
provision either on the face of the Bill, or in regulations, as the case
may be.
80.
In this case, this regulation-making power will enable provision to be
made requiring local authorities to comply with expressed preferences
for a particular type of accommodation, subject to specified conditions
being met. The current directions only apply to care home
accommodation, but this power enables regulations to provide for
choice over other types of residential accommodation. A regulationmaking power has been taken, in line with recommendation 36 of the
Law Commission Report on Adult Social Care, as it would be too
complex and inflexible to make provision of this kind on the face of the
Bill.
24
DPRR/13-14/02
Reason for the selected procedure
81.
This power is essentially procedural, and does not encompass any new
policy or principle. It is considered that the negative resolution
procedure will provide the appropriate degree of Parliamentary
scrutiny.
Subsection (2)
82.
Regulations may be made under subsection (2) to provide for the
person being provided with the accommodation (or some other
specified description of person) to pay what are known as a “top up”,
that is some or all of the additional cost of the accommodation, over
and above the amount specified in their personal budget for that type of
accommodation. In this way, a person can be provided with more
expensive accommodation than the local authority would otherwise
provide, if the person concerned wants that more expensive
accommodation and they or someone else will meet the additional
cost.
83.
Provision about such “top-up” payments is made currently in
regulations (the National Assistance (Residential Accommodation)
(Additional
Payments
and
Assessment
of
Resources)
(Amendment)(England) Regulations 2001) under section 4 of the
Health and Social Care Act 2001. This regulation-making power will
therefore enable provision to be made, as now, for a person to be able
to take up more expensive accommodation provided the cost over and
above what the local authority will pay is met.
Reason for the selected procedure
84.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny. The comparable current
25
DPRR/13-14/02
provision is contained in regulations which are made under the
negative resolution procedure.
Direct payments
Clause 33: Direct payments further provision
85.
The duty to make direct payments is set out in clauses 31 and 32.
Clause 33 is a provision which requires the Secretary of State to make
further provision about direct payments. Subsection (1) requires the
Secretary of State to make regulations.
Subsections (1) and (2)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
86.
Subsection (2) sets out a non- exhaustive list of matters which those
regulations may specify. Subsection (2)(a) provides that regulations
may specify cases or circumstances in which a local authority must not
make a direct payment or where a local authority has discretion to
make a direct payment. Subsection (2)(b) provides that regulations
may specify conditions which a local authority may or must attach to
the making of a direct payment. Subsection (2)(c) provides that they
may specify matters to which the local authority may or must have
regard when making a decision of a specified type about direct
payments. Subsection (2)(d) enables regulations to specify steps which
a local authority may or must take before or after making a decision of
a specified type. Subsection (2)(e) enables regulations to specify cases
or circumstances in which an adult who no longer lacks capacity to
request a direct payment (or who the local authority considers no
longer lacks such capacity) can be regarded as lacking capacity.
Subsection (2)(f) provides that regulations may specify cases or
26
DPRR/13-14/02
circumstances in which a local authority making direct payments must
review the making of direct payments.
Reason for delegating the power
87.
Delegating the powers provides flexibility to set out to whom and under
what conditions and circumstances a direct payment may be made.
This clause is intended to reproduce the general effect of section 57 of
the Health and Social Care Act 2001 which enables regulations to be
made for and in connection with the making of direct payments
Reason for the selected procedure
88.
The existing provisions which these replace are subject to the negative
resolution procedure and it is believed that procedure will provide the
appropriate degree of Parliamentary scrutiny.
Deferred payment agreements
Clause 34: Deferred payment agreements and loans
89.
This clause allows regulations to be made for people to enter into
deferred payment agreements with local authorities. That is to say
agreements whereby they postpone paying local authorities the
charges due or loans made in relation to the costs of their care until a
later date. The clause also allows regulations to be made for local
authorities to enter into conventional repayment loan agreements with
adults to assist the adult to obtain care and support.
Subsections (1), (4), (5) and (7)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
27
DPRR/13-14/02
90.
Subsection (1) allows the Secretary of State to make regulations to
specify cases, circumstances or conditions subject to which a local
authority may or must enter into a deferred payment or loan
agreement.
91.
Subsection (4) makes clear that the regulations may make provision as
to whether or not a local authority may enter into a deferred payment or
loan agreement without obtaining adequate security for the payment of
the deferred amount or for repayment of the loan (as the case may be).
92.
Subsection (5) allows the regulations to specify the meaning of
adequate security for the purposes of subsection (4) and makes clear
that for these purposes adequate security does not have to be a
charge in respect of the adult’s interest in the property he or she
occupies as their home but may be something else, such as, but not
limited to a third party guarantee.
93.
Subsection (7) requires regulations to be made to specify the time at
which the repayment is and the amount due under the agreement.
Reason for delegating the power
94.
Delegating the powers provides flexibility to set out terms which should
apply to deferred payment agreements and to make different provision
for different cases. This regulation-making power will enable provision
to be made setting out the detail of the deferred payment scheme
which may be different for different cases, which it is not appropriate or
necessary to set out on the face of the Bill.
Reason for the selected procedure
95.
The negative resolution procedure is considered appropriate and
current legislation (section 55 of the Health and Social Care Act 2001)
enables the Secretary of State to make directions to specify conditions
28
DPRR/13-14/02
and to require local authorities to enter into deferred payment
agreements (although there are currently no directions). It is an
objective of Part 1 of this Bill to replace existing directions relating to
care and support with provision either on the face of the Bill, or in
regulations, as the case may be.
Clause 35: Deferred payment agreements: further provision
96.
The clause makes further provision about deferred payments.
Subsections (1), (2), (3), (4), (5), (6), (7), (8) and (9)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative, apart from regulations under subsection
(9) which amend, repeal, revoke or modify an Act of Parliament, in which case
the affirmative resolution procedure applies.
97.
Subsection (1) enables regulations to be made which allow or require a
local authority to charge interest in respect of the deferred amount or
loan, to make a charge in respect of administrative costs it incurs in
relation to the agreements and to charge interest on the same.
98.
Subsection (2) enables regulations to be made to specify what may or
may not be administrative costs for these purposes.
99.
Subsection (3) enables the regulations to provide that the payment of
administrative costs and interest can be treated as a deferred payment
(i.e. added to the amount of the deferred payment and repaid at the
same time as the sum owing under the deferred payment agreement)
and that if so adequate security can be defined and required in respect
of the administrative costs and interest.
29
DPRR/13-14/02
100.
Subsection (4) allows regulations to specify the maximum interest rate
which the local authority may charge. If no rate is specified the local
authority may not charge interest.
101.
Subsection (5) requires the regulations to enable the adult to terminate
the agreement by giving notice to and paying the local authority the full
amount owing under the agreement.
102.
Subsection (6) enables the regulations to make other provision about
the duration or termination of the agreement.
103.
Subsection (7) enables the regulations to make provision to cover a
situation where the property against which the loan is secured is sold
or otherwise disposed of and the adult acquires an interest in a new
property.
104.
Subsection (8) allows the regulations to specify types of terms or
conditions or the precise form of terms and conditions which must be
included in the agreement. For example terms to explain (if it is the
case) that the interest rate might change and in such a case how much
notice a local authority must give an adult of any change in the interest
rate.
105.
Subsection (9) allows regulations to make provision for the purpose of
enabling the local authority to protect the security obtained for the
deferred payment agreement and to amend legislation for this purpose
if necessary. For example in order that the Registrar may enter a
restriction in respect of a charge of a beneficial interest in land on the
register.
Reason for delegating the power
106.
Delegating the powers provides flexibility to set out terms which should
apply to deferred payment agreements and to make different provision
30
DPRR/13-14/02
for different cases. This regulation-making power will enable provision
to be made setting out the detail of the deferred payment scheme
which may be different for different cases, which it is not appropriate or
necessary to set out on the face of the Bill.
Reason for the selected procedure
107.
Except for subsection (9) to the extent that the regulations amend,
repeal, revoke or modify an Act of Parliament, the negative resolution
procedure is considered appropriate and current legislation (section 55
of the Health and Social Care Act 2001) enables the Secretary of State
to make directions to specify conditions and to require local authorities
to enter into deferred payment agreements (although there are
currently no directions). It is an objective of Part 1 of this Bill to replace
existing directions relating to care and support with provision either on
the face of the Bill, or in regulations, as the case may be. For
subsection (9) the affirmative resolution procedure is considered
appropriate if the regulations include a provision which amends and Act
of Parliament.
Continuity of care and support when adult moves
Clause 36: Notification, assessment, etc.
108.
This clause and clause 37 make provision to ensure that when
someone whose care and support needs are being met by a local
authority in one area moves to the area of another local authority, they
can do so without any interruption to their care (or, where appropriate,
the
support
to
their
carer).
recommendation 50.
Subsection (12)
Power conferred on: Secretary of State
Power exercised by: Regulations
31
It
implements
Law
Commission
DPRR/13-14/02
Parliamentary procedure: Negative
109.
Subsection (12) sets out a regulation-making power to supplement the
provision made by clause 36. The clause provides that when a local
authority (the second authority) is notified by or on behalf of someone
receiving care and support in another authority (the first authority) that
the person intends to move to the area of the second authority (and
they are satisfied that intention is genuine), then certain duties are
triggered on both authorities. In particular, the second authority must
assess whether that person has any needs for care and support and if
so what they are (and, where appropriate, whether any carer they
have, or will have, has needs for support).
110.
The regulation-making power will enable further detail to be provided
for in regulations to ensure the best operation of these provisions.
Reason for delegating the power
111.
Regulations under subsection (12) will enable provision to be made to
specify the steps the local authority must take for the purpose of being
satisfied that the intention to move is genuine (as the duty on the
receiving authority is only triggered where they are satisfied the
intention is genuine). These are matters of detail and procedure which
it would not be appropriate or necessary to set out on the face of the
Bill.
Reason for the selected procedure
112.
These regulations are procedural in nature, dealing with the detailed
steps required to be taken to give effect to the obligations set out in the
clause. It is considered that the negative resolution procedure will
provide the appropriate degree of Parliamentary scrutiny.
32
DPRR/13-14/02
Clause 37: Case where assessments not complete on the day of move
113.
This clause provides that if the second authority does not complete the
assessment under clause 36 before the person moves into their area,
they must provide that person with care and support (and any carer
they have with support) based on the first authority’s assessment or
assessments, pending completion of their own assessment or
assessments. The second authority will remain under a duty to meet
the needs as identified in the first authority’s assessment until they
have completed their own assessment or assessments. It may turn out
that the second authority is not liable to meet that person’s needs (for
example if the person in fact remains ordinarily resident in the first
authority’s area.). However, the clause provides that, whoever
eventually proves to be the authority responsible for providing care and
support, the person concerned will not have any “break” in the
provision of care.
Subsection (8)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
114.
Subsection (8) provides that regulations may specify matters to which
the second authority must have regard when meeting needs based on
the first authority’s assessment (pending their own assessment being
completed and their own arrangements being in place).
Reason for delegating the power
115.
These are matters of detail and procedure which it would not be
appropriate or necessary to set out on the face of the Bill.
33
DPRR/13-14/02
Reason for the selected procedure
116.
These regulations are procedural in nature, dealing with the detailed
steps required to be taken to give effect to the obligations set out in the
clause. It is considered that the negative resolution procedure will
provide the appropriate degree of Parliamentary scrutiny.
Establishing where a person lives, etc
Clause 38: Where a person’s ordinary residence is
117.
This clause makes provision about determining the ordinary residence
of adults who are being accommodated under various statutory
provisions.
Subsections (1) and (3)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: negative resolution
118.
In most cases, the local authority’s duty to meet care and support
needs will arise because a person is ordinarily resident in their area.
The question of where a person’s ordinary residence is will normally
depend on the facts of the case and will usually be associated with
where that person is actually living. This clause makes specific
provision for determining a person’s ordinary residence in certain
circumstances.
119.
Subsection (1) provides that when a person’s needs can only be met in
a particular type of accommodation specified in regulations, then they
are to be treated as being ordinarily resident in the area where they
were ordinarily resident (or, if they had no settled residence, where
they were present) immediately before they began to live in
accommodation of that type, irrespective of where the accommodation
34
DPRR/13-14/02
they are living in is to be found. It therefore ensures that a person does
not lose their ordinary residence in their home local authority area if
that authority places them, in a particular form of accommodation, in
another authority’s area.
120.
This provision repeats, and extends to those of no settled residence,
the current so-called “deeming provision” in section 24(5) of the
National Assistance Act 1948. That provision applies only to
accommodation in a care home but this provision, read with the
regulation-making power in subsection (3), extends the principle to
other types of accommodation.
Reason for delegating the power
121.
The “deeming provision” under subsection (1) applies where a person’s
needs can only be met in accommodation of a particular type.
Regulations under subsection (3) may make provision for determining
whether someone has needs which can only be met in a particular type
of accommodation; and may make provision by reference to specified
types of accommodation. These are essentially detailed procedural
provisions for assisting in determining when the “deeming provision”
would apply. These are matters of detail and procedure which it would
not be appropriate or necessary to set out on the face of the Bill.
Reason for the selected procedure
122.
The
power
enables
effective
implementation
of
the
principle
established by subsection (1), and it is considered that the negative
resolution
procedure
will
provide
Parliamentary scrutiny.
35
the
appropriate
degree
of
DPRR/13-14/02
Schedule 1: Cross-border placements
123.
Where an adult has needs for care and support that require the
provision of accommodation, a local authority may arrange for this to
be provided in Wales, Scotland or Northern Ireland; this Schedule
provides that in such cases the placing local authority will remain
responsible for the adult’s care and support, and the authority in the
area where person is placed will not be under a duty to meet the
person’s needs. Reciprocal arrangements will apply when an authority
in Wales, Scotland, or Northern Ireland arranges care in England for a
person for whom it is responsible. The Schedule also provides for
similar arrangements between all the devolved administrations.
Paragraphs 1(5), 1(6), 2(4), 2(5), 3(5), 4(5), 4(6))
Power conferred on: Secretary of State, with (where applicable) the consent
of the Welsh Ministers, the Scottish Ministers, or the Department of Health,
Social Services and Public Safety in Northern Ireland (“the Northern Ireland
Department”)
Power exercised by: Regulations
Parliamentary procedure: Negative
124.
Regulations may be made under the above paragraphs setting out
further provision in relation to cross-border placements. For example
regulations may specify that certain conditions should be satisfied
before a placement is made.
Reason for delegating the power
125.
These regulations will provide for the detailed procedure to be followed
when these arrangements are made; it is not appropriate or necessary
to set these out on the face of the Bill. Delegating the power also
provides flexibility to change the rules from time to time.
36
DPRR/13-14/02
Reason for the selected procedure
126.
The regulations are essentially procedural and it is considered that the
negative resolution procedure will provide the appropriate degree of
Parliamentary scrutiny.
Paragraph 5(9), (10) and (11):
Power conferred on: Secretary of State, with (where applicable) the consent
of the Welsh Ministers, the Scottish Ministers, or the Northern Ireland
Department
Power exercised by: Regulations
Parliamentary procedure: Negative
127.
Paragraph 5 of the Schedule provides for a dispute resolution process.
Subparagraph (9) requires regulations to be made setting out which of
the relevant persons (the Secretary of State, the Welsh Ministers, the
Scottish Ministers, or the Northern Ireland Department) should
determine a dispute, sub-paragraph (10) provides that regulations may
make provision for the determination of disputes between more than
two parties and sub-paragraph (11) enables regulations to make further
provision about the determination of disputes.
Reason for delegating the power
128.
These regulations will provide for the detailed procedure to be followed
when a dispute arises between authorities; it is not appropriate or
necessary to set these out on the face of the Bill. Delegating the power
also provides flexibility to change the rules from time to time.
Reason for the selected procedure
129.
The regulations are essentially procedural and it is considered that the
negative resolution procedure will provide the appropriate degree of
Parliamentary scrutiny.
37
DPRR/13-14/02
Paragraph 8(2), (3) and (4)
Power conferred on: Secretary of State, with (where applicable) the consent
of the Welsh Ministers, the Scottish Ministers, or the Northern Ireland
Department
Power exercised by: Regulations
Parliamentary procedure: Negative
130.
Paragraph 8 provides for the meaning of “accommodation” for the
purpose of the Schedule; subparagraphs (2), (3) and (4) allow
regulations to provide exceptions to other applicable definitions for
England, Wales and Scotland.
It is anticipated that the types of
accommodation to which the Schedule applies may differ slightly for
each administration, and may need to be adjusted from time to time to
ensure reciprocity in the arrangements.
Reason for delegating the power
131.
Delegating the power allows the flexibility to alter the types of
accommodating to which the Schedule applies according to the
ongoing requirements of each administration.
Reason for the selected procedure
132.
The regulations are essentially procedural and it is considered that the
negative resolution procedure will provide the appropriate degree of
Parliamentary scrutiny.
Clause 39: Disputes about ordinary residence or continuity of care
133.
This clause provides for the Secretary of State to resolve disputes
between local authorities about where a person is ordinarily resident.
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DPRR/13-14/02
Subsection (4)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
134.
Subsection (4) provides power for regulations to make further provision
about disputes, in particular to ensure that care and support continues
to be provided to a person while the dispute is unresolved, and
requiring the local authorities involved to take specified action before
they refer the dispute to the Secretary of State.
135.
At present, provision relating to ordinary residence disputes is set out
in Directions made under section 7A of the Local Authority and Social
Services Act 1970. As recommended by the Law Commission, this Bill
ends the use of directions to impose general obligations in relation to
adult social care, and to ensure that future provision will be made only
in primary legislation, regulations or guidance, as the case may be.
Reason for delegating the power
136.
The power will enable detailed provision about procedural matters to
be made, which it is not necessary to set out on the face of the primary
legislation.
Reason for the selected procedure
137.
The power will enable detailed procedures to be set out, for which the
negative resolution procedure will provide the appropriate degree of
Parliamentary scrutiny.
Current provision is made by directions, to
which no parliamentary procedure applies.
39
DPRR/13-14/02
Safeguarding adults at risk of abuse or neglect
Clause 42 and Schedule 2: Safeguarding Adult Boards
138.
Clause 42 places a duty on each local authority to establish a
Safeguarding Adults Board (SAB) for its area.
Paragraph 1 of
Schedule 2 specifies that the core members of the SAB must include
the local authority; each Clinical Commissioning Group in the SAB’s
(local authority’s) area and the chief officer of police for a police area
within the SABs area. Paragraph 1(1)(d) of Schedule 2 provides a
regulation-making power by which other persons may be added to the
list of core members whom the local authority must include in its SAB;
although such additional members will not include certain prison office
holders by virtue of clause 69(7). This will be subject to the negative
procedure.
Paragraph 1(1)(d): Membership, etc.
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
Reason for delegating the power
139.
Delegating the power provides flexibility to include other bodies within
the core membership of SABs. This is considered necessary in light of
multi-agency arrangements relevant to issues of adult safeguarding
and the on-going developments in relation to this area where new
bodies with relevant functions may be established.
Delegating the
power provides requisite flexibility while also ensuring appropriate
Parliamentary accountability to ensure that any such new bodies also
fall within the membership of the SAB.
40
DPRR/13-14/02
Reason for the selected procedure
140.
The negative resolution procedure is considered appropriate as it is
only intended to add new bodies to the list as and when they have
relevant functions relating to adult safeguarding conferred upon them.
Provider failure
Clause 49: Sections 47 and 48: supplementary
141.
Clause 47 places a temporary duty on a local authority to meet adults’
and carers’ needs which were being met by a registered care provider
within that authority’s area who ceases to be able to carry on that
activity. This duty applies regardless of whether the person concerned
is ordinarily resident in the authority’s area, whether the authority has
carried out a needs assessment or a financial assessment and whether
any of the needs meet the eligibility criteria.
142.
Clause 48 provides for a similar duty to apply in respect of certain
individuals whose needs are being met in Wales under a cross-border
arrangement on in England under a cross-border placement from
Wales.
143.
Clause 49(10) requires regulations to be made as to the interpretation
of “business failure” or being unable to do something because of
business failure for the purposes of clauses 48 and 49 and to allow
regulations to specify circumstances in which a person is to be treated
as unable to do something because of business failure.
Subsection (10)
Power conferred on: Secretary of State after consulting Welsh Ministers
Power exercised by: Regulations
Parliamentary procedure: Negative
41
DPRR/13-14/02
Reason for delegating the powers
144.
This power is essential to give the necessary flexibility to prescribe the
circumstances in which the duty will apply.
Reason for the selected procedure
145.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny.
Market oversight
Clause 50: Specifying criteria for application of market oversight regime
146.
This clause provides powers in relation to a new market oversight
regime.
The “entry criteria” that the Care Quality Commission (the
“Commission”) should apply in determining whether a registered
service provider falls within the oversight regime will be set in
regulations by the Secretary of State. The Secretary of State may also
specify that the oversight regime, or parts thereof, do not apply, or
apply only to the extent specified, to certain registered care providers.
Conversely, the Secretary of Sate may specify that the oversight
regime, or parts thereof, apply, or apply only to the extent specified, to
certain registered care providers, regardless of whether those
providers would meet the oversight regime’s criteria.
Subsection (1)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
147.
Subsection (1) provides that the Secretary of State must make
regulations specifying the criteria which the Commission must use for
determining whether a registered service provider falls within the
42
DPRR/13-14/02
oversight regime. In setting out the criteria, the Secretary of State must
have regard to certain factors (stipulated in subsection (2)).
The
Secretary of State must also keep the entry criteria under review and
publish information as to how the entry criteria is to be measured
(subsection (3)).
Reason for delegating the power
148.
There are a variety of reasons why a care provider may prove to be
difficult to replace if it went out of business. These reasons may relate
both to the care provider itself and to aspects of the market being
serviced by that particular provider. Delegating this power allows for
flexibility in setting out the criteria to be used in order to identify these
providers appropriately. In addition, it ensures that such criteria can be
kept under review and updated to reflect both changes in the way
providers operate and changes in the market in which they operate.
Reason for the selected procedure
149.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny.
Subsection (4)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
150.
Subsection (4) provides that the Secretary of State may by regulations
specify that the oversight regime, or parts thereof, do not apply, or
apply only to the extent specified, to certain registered care providers.
The circumstances in which such regulations may be made include
those in which the Secretary of State is satisfied that certain registered
care providers are already subject to a regulatory regime comparable
to the market oversight regime (subsection (6)). Regulations made in
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such circumstances may, for example, make provision requiring
persons to co-operate or share relevant information (subsection (6)).
Reason for delegating the power
151.
There are certain service providers, for example, those who provide
social housing together with care services, that may be regulated by
another body in addition to the Commission. Delegating this power is
needed to provide for situations where registered care providers have
to comply simultaneously with two regulatory regimes – something
which can impose unnecessary burdens on them.
Reason for the selected procedure
152.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny.
Subsection (5)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
153.
Subsection (5) provides that the Secretary of State may by regulations
specify that the oversight regime, or parts thereof, apply, or apply only
to the extent specified, to certain registered care providers, regardless
of whether those providers would meet the oversight regime’s criteria.
Reason for delegating the power
154.
Delegating this power is necessary to allow for flexibility in overseeing
certain providers who, whilst not meeting the oversight regime’s
criteria, may nonetheless pose a significant threat to continuity of care
if they went out of business.
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Reason for the selected procedure
155.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny.
Clause 52: Assessment of financial sustainability of care provider
156.
This clause stipulates that the Commission must assess the financial
sustainability of registered care providers who fall within the oversight
regime with a view to identifying any significant risk that such providers
may face to their financial sustainability. This clause also sets out the
ways in which the Commission may engage such providers in
mitigating any identified financial threats.
Subsection (5)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
157.
Subsection (5) provides that the Secretary of State may make
regulations about the production of information to the Commission by
persons other than the registered care provider.
Reason for delegating the power
158.
In order to assess the financial sustainability of a registered care
provider, the Commission requires access to financial information. The
registered care provider will not always be the most appropriate source
of financial information, particularly in the case of large and complex
group structures. In addition, there may be situations where the
Commission may require financial information relating to a person
connected with the registered care provider if the provider is financially
dependant on such connected person. Again, this is likely to be the
case for complex group arrangements. Delegating this power allows for
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the flexibility needed in determining the persons which may be required
to provide information to the Commission and the circumstances of
such requirements.
Reason for the selected procedure
159.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny.
Subsection (6)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
160.
Subsection (6) provides that the Secretary of State may make
regulations about the making of the Commission’s assessment of a
provider’s ongoing financial sustainability.
Reason for delegating the power
161.
There are various types of registered care providers operating within
different structures and therefore it is not appropriate to measure the
financial health of all care providers in the same way. Delegating this
power allows for the flexibility needed in determining the ways in which
the financial sustainability of different types of providers should be
measured.
Reason for the selected procedure
162.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny.
Subsection (7)
Power conferred on: the Commission
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Power exercised by: Guidance
Parliamentary procedure: None
163.
Subsection (7) provides that the Commission must consult and publish
guidance on the methods for assessing the financial sustainability of a
provider.
Reason for delegating the power
164.
Delegating this power allows for the flexibility needed by the
Commission to consult with relevant persons in order to publish
guidance on the most appropriate methods it expects to apply in
assessing financial sustainability.
Reason for the selected procedure
165.
No Parliamentary procedure is envisaged for the exercise of this
power.
Clause 53: Informing local authorities where failure of care provider
likely
166.
This clause stipulates that the Commission must inform the relevant
local authorities that a registered care provider (within the oversight
regime) is likely to become unable to continue carrying on the
regulated activity in respect of which it is registered. The Commission
must assist local authorities in ensuring continuity of care.
Subsection (5)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
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167.
Subsection (5) provides that the Secretary of State may make
regulations as to the circumstances in which the Commission is entitled
to be satisfied that a registered care provider is likely to become unable
to carry on a regulated activity.
Reason for delegating the power
168.
The circumstances in which a registered provider may become unable
to continue carrying on their regulated activity are numerous and will
vary on a case by case basis. Delegating this power is necessary to
allow for flexibility in making an assessment as to the likelihood of
failure.
Reason for the selected procedure
169.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny.
Subsection (6)
Power conferred on: the Commission
Power exercised by: Guidance
Parliamentary procedure: None
170.
Subsection (6) provides that the Commission must consult and publish
guidance on the methods for assessing the likelihood of a provider
being unable to continue carrying a regulated activity.
Reason for delegating the power
171.
Delegating this power allows for the flexibility needed by the
Commission to consult with relevant persons in order to publish
guidance on the most appropriate methods it expects to apply in
assessing the likelihood of failure.
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Reason for the selected procedure
172.
No Parliamentary procedure is envisaged for the exercise of this
power.
Transition for children to adult care and support, etc
Clause 57: Assessment of a child's carer's needs for support
173.
This clause imposes a duty on local authorities to assess the needs of
a carer of a child when that child is receiving services and a power on
local authorities to assess the needs of a carer of a child when that
child is not receiving services. For the purposes of this clause,
subsection (5) provides that a child is receiving services if those
services are being provided under section 17 Children Act 1989,
section 2 Chronically Sick and Disabled Persons Act 1970, section 117
Mental Health Act 1983 or paragraph 1 of Schedule 20 National Health
Service Act 2006.
174.
Should future legislation create a further provision under which
services may be provided to a child or their family which is relevant, it
may be desirable to in effect include that provision in this list. The need
to include such a provision in the list may not be apparent at the time
any future legislation is made and as such, paragraph (5)(e) provides a
regulation-making power to allow services provided under future
enactments to constitute relevant services for the purposes of this
section.
Paragraph (5)(e)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
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Reason for delegating the power
175.
Delegating the power would allow future provision under which a child
or their family is receiving services to be also treated as a trigger to a
child being classed as “receiving services” under this subsection at any
time it is deemed desirable, even following the enactment of such a
provision. This in turn would enable the child’s carer to be assessed
under this provision. The list in subsection (5) will not itself be
amended. In the event such regulations are made, specifying a
relevant enactment, guidance could set out a list of the four provisions
under subsection (5) together with the provision from the regulations to
ensure individuals have ready access to a list of all of the relevant
provisions.
Reason for the selected procedure
176.
This is essentially a procedural obligation, and it is considered that the
negative resolution procedure will provide the appropriate degree of
Parliamentary scrutiny.
Clause 59: Power to meet child’s carers needs for support
Clause 62: Assessments under sections 55 to 61: further provisions
177.
Clauses 55-63 support the transition for young people between
children’s and adult’s care and support by giving power to local
authorities to assess a child, a young carer or a child’s carer under the
Care and Support Bill in advance of the relevant child’s 18th birthday.
178.
Clause 59(1) gives the local authority, having carried out a child’s
carer’s assessment, a power to meet that child’s carer’s needs. Clause
59(2) provides a power for the Secretary of State to make regulations
to in connection with the exercise of that power to meet needs, in
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particular to enable the provisions of the Bill to apply, with
modifications, in such cases. .
179.
Clause 62(1) enables the Secretary of State to make regulations under
Clause 12 (the clause that provides for making regulations in respect of
needs assessments and carer’s assessments in the case of adults) to
make similar detailed provision about assessments of a child, a young
carer or a child’s carer under these provisions in clauses 55 – 63..
Subsection (2) of clause 59 and (1) of clause 62
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
Reason for delegating the powers
180.
Both these regulation-making powers enable provision to be made
setting out the detail of procedural and related matters, which it is not
appropriate or necessary to set out on the face of the Bill.
Reason for the selected procedure
181.
These are essentially procedural obligations, and it is considered that
the negative resolution procedure will provide the appropriate degree of
Parliamentary scrutiny.
Enforcement of debts
Clause 64: Recovery of charges, interest etc.
182.
This clause allows a local authority to recover as a debt unpaid
charges in respect of the provision of care and support together with
interest and costs. It also allows for the recovery of charges where a
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person has misrepresented or failed to disclose a material fact and the
local authority has expended sums as a result.
Subsection (6)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
183.
Subsection (6) provides that the Secretary of State may make
regulations stipulating the date when a sum becomes payable to a
local authority under this section and also cases or circumstances
when a local authority cannot recover a sum due. The subsection also
provides a power for the Secretary of State to specify when interest on
a sum can be charged and the rate or maximum at which such interest
is chargeable.
Reason for delegating the power
184.
Again, delegating this power allows for flexibility to uprate the
appropriate amount of interest and to adapt regulations to allow for
change, should that be needed, in relation to stipulating the time at
which a sum is regarded as being due to a local authority.
Reason for the selected procedure
185.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny.
Clause 65: Transfer of assets to avoid charges.
186.
This clause makes provision for a local authority to recover charges for
the provision of care and support where a person has transferred
assets intending to avoid paying those charges.
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Subsection (7)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
187.
Subsection (7) provides a power to make regulations to specify
circumstances where the transferee is not liable to repay the difference
between what would have been charged but for the transfer and what
was in fact charged. This replaces a power in section 21(3A) of the
Health and Social Services and Social Security Adjudications Act 1983
for the Secretary of State to issue Directions concerning cases in which
a transferee would not be liable to repay this difference.
Reason for delegating the power
188.
This allows flexibility to provide for changing or unforeseen
circumstances where it might be inequitable to recover from the
transferee.
Reason for the selected procedure
189.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny. Current provision is
contained in Directions to which no Parliamentary procedure applies.
Miscellaneous
Clause 67 and Schedule 3: Discharge of hospital patients with care and
support needs
190.
Schedule 3 re-enacts the delayed discharges provision of the
Community Care (Delayed Discharges etc) Act 2003 (“2003 Act”) and
the relevant regulations which deal with the planning of the safe
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discharge of patients in England from NHS hospital care to local
authority social are to ensure that patients are not delayed in hospital
despite being fit, safe and ready to be discharged.
Paragraph 2(5)(b) and paragraph 4(4)(b) and (6)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
191.
Paragraph 2(5)(b) allows for regulations to set the end date on which a
discharge notice remains in force.
This is necessary to define the
period for which the responsible local authority may be held liable to
pay reimbursement under paragraph 4 to the responsible NHS body for
the cost of accommodation or personal care caused by the delayed
discharge from hospital.
This replicates the provisions set out in
section 5 of the 2003 Act and regulation 5 of the Delayed Discharges
(England) Regulations 2003 (S.I. 2003/2277).
192.
Paragraph 4 allows for regulations to specify the daily amount payable
and period for which a local authority may be liable to reimburse the
responsible NHS body or specified person required in respect of a
patient whose hospital discharge has been delayed by reason of a
delay in the availability of care and support or carer’s provision. In
specifying the amount the Secretary of State must have regard to the
costs to NHS bodies of providing accommodation and personal care to
patients ready to be discharged and to the costs to local authorities of
meeting care and support and carer’s needs to persons who have been
discharged. This replicates section 6(2) of the 2003 Act.
Reason for delegating the power
193.
The regulations will state the actual amounts payable per day and the
end date for any liability period. It is intended that the rate should be
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adjusted periodically in line with inflation and actual cost adjustments
and so it is appropriate to be delegated to regulations whilst the end
date or specified person relates to purely procedural matters which are
not appropriate for primary legislation.
Reason for the selected procedure
194.
Although the regulations deal with amounts of money, the Department
considers that the negative procedure is appropriate, as this is a matter
of setting rates of payment and procedure, rather than setting out any
wider principle or liability for making a payment. Also, it replicates the
existing regulation making power at sections 5 and 6(2) of the 2003 Act
where the negative procedure has been adopted.
Paragraph 6(1) and (2): Adjustments between local authorities
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
195.
Paragraph 6 allows for regulations to be made to modify the provisions
relating to delayed hospital discharges in a case where the NHS body
considers that the patient is ordinarily resident in the area of another
local authority. This might require the local authority to accept
assessment notices even in cases where it may wish to dispute that it
is the relevant local authority. The regulations may also enable the
local authority to recover relevant expenditure that it incurs.
This
replicates section 10 of the 2003 Act.
Reason for delegating the power
196.
The regulation-making power enables provision to be made setting out
the detail of procedural matters, which it is not appropriate or
necessary to set out on the face of the Bill.
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Reason for the selected procedure
197.
These are essentially procedural obligations, and it is considered that
the negative resolution procedure provides the appropriate degree of
Parliamentary scrutiny.
It re-enacts the regulation-making power at
section 10 of the 2003 Act which also provides for the negative
resolution procedure to apply.
Paragraph 8: Further provision about assessment notices, discharge
notices, etc
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
198.
Paragraph 8 sets out a regulation-making power to specify the form
and content of assessment, discharge or withdrawal notices under the
delayed discharge scheme and further provisions such as the
circumstances in which such notices are given and how the date upon
which such notices is given is to be determined.
These replicate
various regulation-making powers under the 2003 Act (e.g. sections
3(3), 3(5) and 5(7) and 5(10))
Reason for delegating the power
199.
The regulation-making power enables provision to be made setting out
the detail of procedural matters, which it is not appropriate or
necessary to set out on the face of the Bill.
Reason for the selected procedure
200.
These are essentially procedural obligations, and it is considered that
the negative resolution procedure provides the appropriate degree of
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Parliamentary scrutiny.
It re-enacts various equivalent regulation-
making powers in the 2003 Act which also provided for the negative
resolution procedure to apply.
Clause 68 and Schedule 4: After-care under the Mental Health Act 1983
201.
This clause and Schedule make minor amendments to section 117 of
the Mental Health Act 1983. Section 117 places a free-standing duty on
clinical commissioning groups and local authorities to arrange aftercare services for people who have been detained in hospitals for a
mental disorder. The amendments remove a number of anomalies,
whereby after-care services under section 117 are subject to different
rules to other types of care and support – e.g. to provide for regulations
about choice of accommodation to apply to after-care accommodation.
83uty on clinical
Subsection (6)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
202.
Subsection (6) inserts a new section 117A into the Mental Health Act
1983 which provides that the Secretary of State may make regulations
setting out the circumstances in which a local social services authority
providing (or arranging to provide) accommodation for a person under
section 117 of the Mental Health Act will be required to meet that
person’s preference for particular accommodation. Subsection (2) of
the new section 117A provides that the regulations may also provide
for that person, or others of a specified description, to pay any “top-up”
fees payable in specified circumstances.
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Reason for delegating the power
203.
Delegating this power allows both flexibility and the ability to set out
detailed provision as to the circumstances in which persons being
provided with accommodation under section 117 can choose their
accommodation, and for the circumstances in which any “top-up” fees
should be paid by that person, or another person of a specified
description.
Reason for the selected procedure
204.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny.
Clause 70: Registers of sight impaired adults, disabled adults, etc.
205.
This clause provides that local authorities must establish a register of
sight impaired and severely sight impaired adults who are ordinarily
resident in its area and provides a power to maintain such a register for
other categories of adults so ordinarily resident.
Subsection (2)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
206.
Regulations under subsection (2) provide a power to specify
descriptions of people who come within the term “sight impaired” or
“severely sight impaired”.
Reason for delegating the power
207.
The descriptions of people who come within the above definitions may
change from time to time with advances in medical science. A
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regulatory power allows for flexibility to easily accommodate such
changes.
Reason for the selected procedure
208.
It is considered that the negative resolution procedure will provide the
appropriate degree of Parliamentary scrutiny.
Clause 71: Guidance
209.
Clause 71 provides that local authorities must act under the general
guidance of the Secretary of State in the exercise of their functions
under Part 1 of the Bill, and requires the Secretary of State to consult
relevant persons before issuing any such guidance.
Subsection (1)
Power conferred on: Secretary of State
Power exercised by: Guidance
Parliamentary procedure: None
Reason for delegating the power
210.
The Secretary of State’s existing power to issue guidance in relation to
social services functions (commonly termed “statutory guidance”) is
derived from section 7 Local Authority and Social Services Act 1970
(“1970 Act”). Clause 49 provides equivalent power specifically in
relation to the exercise of functions conferred by or under Part 1 of this
Bill. Unlike section 7, this provision sets out an express duty to consult
before issuing guidance.
211.
Guidance on the exercise of functions is an essential component of the
existing and proposed legislative scheme for adult care and support. It
would not be possible to set out the necessary detail on the face of the
legislation,
or
indeed,
in
regulations.
59
The
Law
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recommended that adult social care should be regulated through a
three-layer structure of statute, regulations and statutory guidance.
Reason for the selected procedure
212.
No Parliamentary procedure is envisaged for the exercise of this
power. None attaches to the equivalent current power in section 7 of
the 1970 Act.
213.
The Government has accepted the Law Commission’s view that the
complex nature of existing adult social care legislation is exacerbated
by the absence of a clear, uniform legal framework and this Bill takes
the necessary action to remedy the position by establishing a coherent
legal framework. However the Government has not accepted the Law
Commission’s recommendation that guidance to local authorities
should take the form of a statutory code of practice. The Government
considers that a code of practice would be resource-intensive to
develop, inflexible to amend, and consequently quickly become out of
date. In the Government’s view, the key advantages of a code of
practice are its accessibility and overall coherence, and these will be
equally met by new statutory guidance being issued in unified volumes.
Clause 72: Delegation of local authority functions
214.
This clause gives local authorities new powers to delegate some of
their care and support functions to other organisations. The power to
delegate applies to functions under Part 1 of the Bill, subject to certain
functions specifically excepted on the face of the Bill. The power also
applies to functions under section 117 of the Mental Health Act 1983.
Although not functions conferred under this Bill, these functions relate
to adult social care matters, namely after-care provisions for people
who have been detained under the Mental Health Act 1983.
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Subsection (9)
Power conferred on: Secretary of State
Power exercised by: Order
Parliamentary procedure: Affirmative
215.
Although
the
Law
Commission
did
not
make
any
specific
recommendation on the issue of delegation of local authority functions
it did discuss (paragraphs 5.106 – 5.124 of the Law Commission
Report) the question of the power to delegate in respect of the
assessment process. The Law Commission acknowledged that this
was an area of some potential confusion. Local authorities are
increasingly using independent organisations to provide specialist
services, particularly in connection with groups with very specific
needs. In addition, it is becoming increasingly common for local
voluntary organisations to take a more formal role in care planning
processes alongside the local authority. This general power of
delegation provides clarity in an area which the Law Commission
acknowledged could cause confusion.
216.
Local authorities may, at present, delegate functions where specifically
authorised to do so under the terms of an order made under the
Deregulation and Contracting Out Act 1994. The effect of any
delegation authorised under this clause, and the restrictions that would
apply, are similar to the effect, and the restrictions, of an authorisation
given under an Order made under the 1994 Act.
Reason for delegating the power
217.
The order-making power in subsection (9) provides that the Secretary
of State may by order amend the list of functions to which this general
power of delegation applies so as to either add or remove functions
(either functions under Part 1 of the Bill or functions under another
legislative provision, where such provision relates to care and support
for adults or support for carers). In this way the Secretary of State can
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extend or reduce the functions to which this general power of
delegation applies.
Reason for the selected procedure
218.
An Order under this provision may either extend or reduce a local
authority’s powers to delegate its functions and will do so by amending
this clause. Alternatively, it may restrict or impose conditions on the
way a local authority exercises the power to delegate, again possibly
by amending this clause. Such an Order therefore would involve
amending primary legislation. It would also relate to the manner in
which and the extent to which a local authority may authorise another
person to exercise its statutory functions. On both counts therefore it is
appropriate that such an Order should be subject to the scrutiny of both
Houses of Parliament under the affirmative procedure.
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PART 2
CARE STANDARDS
Quality of services
Clause 76: trust special administration: appointment of administrator
219.
This clause extends the power of Monitor to make an order authorising
the appointment of a trust special administrator to exercise the
functions of the governors, chairman and directors of an NHS
foundation trust.
Subsections (1), (2) and (3)
Power conferred on: Monitor
Power exercised by: Order
Parliamentary procedure: None. The order must be laid before Parliament
after it is made.
220.
Clause 76(1) to (3) extends the power of Monitor under section 65D(2)
of the National Health Service Act 2006 to make an order authorising
the appointment of a trust special administrator to exercise the
functions of the governors, chairman and directors of an NHS
foundation trust. It may make such an order where it is satisfied that
there is a serious failure by the NHS foundation trust in question to
provide services that are of sufficient quality to be provided under that
Act. Monitor must make such an order when required to do so by the
Care Quality Commission, where the Commission is satisfied that there
is such a serious failure by the NHS foundation trust.
Reason for delegating the power
221.
A delegated power is needed as it would not be practical to make
specific provision in primary legislation in each case where the
appointment of a trust special administrator to take over the
governance of an NHS foundation trust proves to be necessary. The
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decision is also of a technical nature which it is appropriate for
specialist independent regulators to take.
Reason for the selected procedure
222.
The choice of no Parliamentary procedure follows the precedent set for
the existing power of Monitor under section 65D(2) to appoint a trust
special administrator for an NHS foundation trust and of the Secretary
of State to appoint a trust special administrator for a NHS trust
established under section 25 of the National Health Service Act 2006
(see section 65B(1) of that Act).
The Department considers a
Parliamentary procedure unnecessary for the use of this power, since it
is of an administrative rather than legislative nature.
It is also
consistent with Monitor and the Care Quality Commission’s roles as
independent regulators to decide when it is appropriate for a trust
special administrator to be appointed to take over the governance of an
NHS foundation trust as a result of a significant failure to provide
services of sufficient quality.
Care Quality Commission
Clause 79: Unitary Board
223.
Clause 79 amends provisions relating to the membership of the Care
Quality Commission (“the Commission”).
Clause 79(4) and (5)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
224.
Clause 79(4) and (5) amends the existing regulation-making powers at
paragraphs 3(3) and 3(4) of Schedule 1 to the 2008 Act respectively to
clarify which enabling powers apply to non-executive members only
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and which apply to both executive and non-executive members
generally.
225.
Subsection (4) of clause 79 amends sub-paragraph 3(3) so that this
regulating making power only applies in respect of the removal of the
chair and non-executive members.
226.
Sub-paragraph 3(4) of Schedule 1 to the 2008 Act enables the
Secretary of State to make regulations providing for:

appointment of the chair and other members (including numbers or
limits on numbers, who may be appointed and any conditions to
hold office)
227.

tenure of office

circumstances in which a person shall cease to hold office, and

disqualification and suspension.
Clause 79(5) amends the sub-paragraph to clarify that the enabling
powers relate to the maximum and minimum totals of all Board
members whether non-executive or executive whilst all other regulation
making powers on appointment relate to non-executive members only
(including the Chair).
Reason for delegating the power
228.
It is important that Parliament is assured that proper procedures
continue to apply in respect of the establishment of the Commission’s
Board. This power is amended to enable the Secretary of State to set
out procedural details in this regard in respect of total numbers of the
Board and the appointment of non-executive members. (The
Commission is responsible for the appointment of executive members
as it determines the terms and conditions of its employees). Given the
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level of detail required it seems more appropriate to deal with this by
way of secondary legislation rather than in the Bill.
Reason for the selected procedure
229.
The negative procedure currently applies to regulations made under
paragraph 3 of the Schedule to the 2008 Act and there is no reason to
change this as a result of the amendments being made by this clause
Reviews and Performance Assessments
Clause 80: Reviews and Performance Assessments
230.
Clause 80 amends provisions in the 2008 Act relating to the
Commission’s duties and powers to conduct periodic reviews.
Clause 80(2) – new section 46(1) to (4)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
231.
Clause 80(2) substitutes the Commission’s current duty to conduct
periodic reviews with a duty to conduct reviews, assess performance
and publish reports of such assessments in respect of any regulated
activities and registered service providers as may be prescribed in
regulations.
There is also the power for the Secretary of State to
prescribe reviews in respect of the provision and commissioning of
adult social services by English local authorities. This replaces and
consolidates the Secretary of State’s existing periodic review duty in
respect of the provision of health care by English NHS providers, the
provision and commissioning of adult social services by English local
authorities and the power to extend the scope of periodic reviews by
way of regulations under current section 49; which is to be repealed by
clause 80(3). This will allow the Secretary of State to prescribe the
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particular types of services or providers in relation to whom the
Commission should publish performance information so as to enable
the public to make informed choices about the quality of services being
provided.
Reason for delegating the power
232.
The regulated activities registered, reviewed and inspected by the
Commission which are to be the subject of review and performance
assessment may change over time; for example, as new services
develop, or as the quality of particular types of services or particular
types of registered providers become a matter of public or Government
concern.
A regulation-making power provides flexibility for the
Secretary of State to take account of these changing factors and to
require the Commission through regulations to review certain services
in a way that primary legislation does not.
233.
For example, the Secretary of State may decide that it is important that
performance information on particular regulated activities, for instance
hospitals or care homes, is available to the public to enable them to
make informed choices. Where services are providing publicly funded
care this is also important in terms of providing public accountability
that services represent good value for money. It may not be
appropriate for every type of regulated activity to be subject to
performance review as some may be very small services providing
care to small numbers of people. This power therefore enables the
Secretary of State to provide in secondary legislation which types of
regulated activity should be covered. This power is needed so that
additional activities can be specified for review once the scope of
registration has been determined following consultation. It will also
allow flexibility if there are changes to the scope of registration in the
future.
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Reason for the selected procedure
234.
The
Department
considers
the
negative
resolution
procedure
appropriate because it provides a degree of Parliamentary oversight
while ensuring that the details of the regulations and focus of the
Commission’s review duty can readily be kept up to date.
This
procedure is also consistent with that previously adopted for the power
to extend the Commission’s periodic review functions by way of
regulations made under section 49.
Indicators of Quality and Statements as to method and frequency
235.
This paragraph provides that the Commission can devise its own
methodology for the review, assessment and publication of such
assessment under section 46.
Clause 80(2) – new section 46(5) to (7)
Power conferred on: Commission
Power exercised by: Statements
Parliamentary procedure: None
236.
This subsection provides that the Commission is to devise the
indicators of quality by which it will assess a registered service
provider’s or local authority’s performance and the method by which it
will assess and evaluate a registered service provider or local authority.
The Commission must prepare and publish the statement describing
the method it proposes to use including a statement setting out the
frequency with which such reviews are to be conducted and the period
to which they relate. Other than removing the requirement that the
Secretary of State must approve such indicators and statements, this
replicates the current provision in the existing section 46(4) to (7) and
section 47. Instead, before publishing any such statement and any
significant revisions thereto, the Commission is under a new duty to
consult with the Secretary of State and such persons as prescribed by
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regulations (see below) and it may also consult with any other persons
it considers appropriate. The Commission is able to update and revise
the devised indicators of quality and prepared method and frequency
statements from time to time.
Reason for delegating the power
237.
The method and frequency statement may go into some detail and may
vary depending on the particular type of regulated activity, service
provider or local authority performance being reviewed. It is also likely
to need updating from time to time. As a result, it would be undesirable
to aim to set out its contents in primary legislation.
238.
The power is delegated to the Commission with a requirement to
consult in accordance with the recommendations of the Nuffield Trust 6
that the developments of the process for ratings whilst reflecting
government priorities (both at national and local level) should also be
sector-led. As the independent regulator of health and adult social
care services responsible for conducting periodic reviews, it is
appropriate to delegate this power to the Commission (rather than to
the Secretary of State whether by direct delegation or by virtue of
conferring a power of approval on the Secretary of State).
The
Commission will be best placed to produce the method of reviews,
assessment and publication in consultation with key, representative
stakeholders and take a view as to what procedure should be adopted
for the review and assessment of any particular regulated activity or
provider which is to be subject to review.
Reason for the selected procedure
239.
A Parliamentary procedure would be inappropriate given both the
technical, detailed nature of the content of the quality indicators and
6
http://www.nuffieldtrust.org.uk/publications/rating-providers-quality
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method statement and the fact that it relates to the Commission’s own
procedure of how to conduct reviews and assessments. As set out
below, the new duty constrains the Commission by imposing a
requirement on the Commission to consult with the Secretary of State
and persons to be specified as well as those it considers appropriate
before publishing the method statement.
Duty to Consult
240.
This clause imposes a duty on the Commission to consult with the
Secretary of State and such persons as specified by regulations in
relation to the indicators of quality, method and frequency statement it
devises under new subsection (5) and (6) respectively.
New
subsection 46(9)(a) provides a regulation-making power by which
statutory consultees may be specified. This will be subject to the
negative procedure.
Clause 80(2) – new section 46(9)(a)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
Reason for delegating the power
241.
Given that the scope of reviews and assessments is prescribed, it is
also appropriate that the consultees with whom the Commission must
consult are prescribed to ensure the key, nationwide statutory and
representative bodies relevant to the regulated activity, service provider
or local authority being reviewed are consulted in relation to the quality
indicators, method and frequency of such reviews.
242.
The Secretary of State is named as it is considered to be inappropriate
for the Secretary of State to prescribe himself as a statutory consultee.
However, delegating the power in relation to other consultees provides
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requisite flexibility to include other key statutory and representative
bodies within the scope of the duty to consult while also ensuring
appropriate Parliamentary accountability.
Reason for the selected procedure
243.
The
Department
considers
the
negative
resolution
procedure
appropriate for the same reasons that it is appropriate for the
regulations prescribing the scope of reviews and performance
assessments. It is only intended to specify persons who represent or
have relevant functions relating to regulated activities, registered
service providers or local authorities as and when such regulated
activities, providers or local authorities are to be made the subject of
review and assessment under section 46.
False or misleading information
Clause 81: Offence
244.
Clause 81 enables regulations to be made that will make it an offence
for a specified health or social care provider to supply, publish or
otherwise make available specified information that is false or
misleading, where that information is required under an enactment or
other legal obligation.
Subsections (1) and (6)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Affirmative
245.
Subsections (1) and (6) provide the Secretary of State with a power to
make regulations to specify (i) a description of the information, and (ii)
the care providers, which supply, publish or make available that
information, to which the offence is applicable. It is anticipated that
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initially the regulations will specify only certain information (such as
mortality statistics) that is supplied or made available by providers of
NHS secondary care.
Reasons for delegating the powers
246.
Giving the Secretary of State power to specify the information and the
care providers to which the offence is applicable allows flexibility and
the ability to adapt to changing circumstances.
In particular, the
information requirements of the possible recipients of the specified
information (i.e. the Secretary of State, the Health and Social Care
Information Centre, regulators and commissioners) may change, and
new areas of concern may develop in terms of information that is
subject to falsification or misleading presentation.
Reason for the selected procedure
247.
These regulations deal with the circumstances in which a criminal
offence will be applicable and will be of considerable interest to the
public and to Parliamentarians. It is therefore appropriate that they
should be subject to the scrutiny of both Houses of Parliament under
the affirmative procedure.
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PART 3
HEALTH
CHAPTER 1
HEALTH EDUCATION ENGLAND
Establishment
Clause 83 and Schedule 5: Health Education England
248.
This clause establishes Health Education England (HEE) as a nonDepartmental public body to replace the Special Health Authority called
Health Education England.
Subsection (4)
Power conferred on: Secretary of State
Power exercised by: Order
Parliamentary procedure: None
249.
Clause 83(4) provides that the Secretary of State may provide by order
for the transfer of property, rights and liabilities from the Special Health
Authority to HEE.
Reason for delegating the power
250.
A delegated power is needed as it would not be practical to make
specific provision in primary legislation in each case where a transfer of
property and staff, and of the associated rights and liabilities, proves to
be necessary.
Reason for the selected procedure
251.
The Department considers a Parliamentary procedure unnecessary for
the use of this power, since it would make provision for the transfer of
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property and for other rights and liabilities, from the old HEE as a
Special Health Authority to the new HEE as a non-departmental body.
Schedule 5
Part 1: Constitution
252.
This Schedule deals with the establishment of HEE as a nondepartmental public body.
Paragraph 2 – Membership
253.
Paragraph 2 provides that the Secretary of State may by regulations
provide for the detail of the clinical expertise requirement for members
of HEE. By operation of sub-paragraph (2) this may require a specified
number of members to have clinical expertise, a specified number of
non executive members to have that expertise and/or a specified
number of executive members to have that expertise.
Sub-paragraph (1) and (2)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
Reason for delegating the power
254.
The exact nature and description of the clinical expertise required, and
the numbers and types of members of HEE to have that expertise, are
matters of detail which are better suited to secondary legislation. They
may also be subject to change over time. It would therefore be
inappropriate to make this provision in primary legislation.
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Reason for selected procedure
255.
HEE’s duty to appoint members with clinical experience is on the face
of the Bill and the regulation-making power provides for matters of
detail only , and does not involve any new principle. The negative
resolution procedure will afford an appropriate amount of parliamentary
scrutiny in these circumstances.
Part 2: Functions
Paragraph 15 – Functions: Co-operation
256.
Paragraph 15 requires HEE to co-operate with the Secretary of State in
the exercise of his public health functions (as defined in section 1H of
the National Health Service Act 2006) and with other NHS bodies and
the Care Quality Commission. It is important that HEE co-operates with
the commissioners of NHS and public health services to ensure that it
reflects their service commissioning priorities, and is responsive to any
changes in the pattern and nature of the way services are delivered.
Sub-paragraph (4)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
257.
Sub-paragraph (4) gives the Secretary of State a power to specify in
regulations that other bodies and HEE must co-operate with each
other.
Reason for delegating the power
258.
The power enables the Secretary of State to provide by regulations for
HEE to cooperate with other bodies, if the need arises.
It is not
possible to predict in advance a complete list of bodies which HEE
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should co-operate with and this would therefore be inappropriate detail
for primary legislation.
Reason for the selected procedure
259.
The regulation-making power is limited to the addition of new bodies if
the needs arises. The negative resolution procedure will afford an
appropriate amount of parliamentary scrutiny in these circumstances.
Paragraph 18 – Functions: Failure to exercise functions
260.
This paragraph confers power on the Secretary of State to direct HEE
in cases of serious failure by HEE as to how to carry out any of its
functions.
Sub-paragraph (1)
Power conferred on: Secretary of State
Power exercised by: Directions
261.
Sub-paragraph (1) provides for the Secretary of State to give HEE a
direction if the Secretary of State considers that HEE is failing or has
failed to discharge any of its functions and that failure is significant. The
direction can direct HEE to discharge those functions in such manner
and within such period as may be specified in the direction. If HEE fails
to comply with such a direction, the Secretary of State may discharge
the function that the direction relates to or make arrangements for
another person to discharge the function on behalf of the Secretary of
State.
The Secretary of State must publish his reasons for the
intervention.
Reason for delegating the power
262.
It would not be possible to set out in primary legislation exactly what
intervention would be necessary in what circumstances, so this power
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provides the Secretary of State with flexibility to respond accordingly to
any failures by HEE and at speed. The power might be needed, not
necessarily because of any fault on the part of HEE, but because of
circumstances outside its control, for example, a serious infection
affecting many of its staff and therefore its ability to perform its duties.
Reason for the selected procedure
263.
Any intervention would concern how an existing function should be
exercised, rather than impose any new functions. A Parliamentary
procedure is inappropriate, given the administrative content of the
directions, and bearing in mind the likely context of urgency.
Part 3: Finance and reports
Paragraph 19 – Funding
264.
Paragraph 19 sets out how the Secretary of State will fund Health
Education England.
Sub-paragraph (4)
Power conferred on: Secretary of State
Power exercised by: Directions
265.
Sub-paragraph (4) gives the Secretary of State a power to give
directions to HEE with respect to the payment of sums by it to the
Secretary of State in respect of charges or other sums referable to the
valuation or disposal of assets. This power is needed to ensure that
capital receipts in particular are applied to the best effect within the
programmes for which the Department of Health is accountable. The
power may also be exercised to prevent sums of cash accumulating
with HEE in situations where HEE may not have either the need or the
authority to spend that cash.
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Reason for delegating the power
266.
It would not be possible to set out in primary legislation the sums that
should be paid, since these would inevitably vary in the light of
circumstances.
Reason for the selected procedure
267.
A
Parliamentary
procedure
seems
unnecessary,
given
the
administrative content of the directions. This position is the same as
for similar powers under existing provisions in the Health and Social
Care Act 2012 relating to funding of the NHS Commissioning Board.
Paragraph 20: Financial duties: expenditure
268.
Paragraph 209 details HEE’s financial duties in respect of expenditure.
Sub-paragraphs (2), (3) and (4)
Power conferred on: Secretary of State
Power exercised by: Directions
269.
Under sub-paragraph (1), HEE will have an obligation to ensure that its
total expenditure does not exceed the aggregate of the amount allotted
to HEE by the Secretary of State for that year and any income derived
from other sources. Sub-paragraph (2) provides that the Secretary of
State has the power to determine by directions what will and what will
not count as total expenditure for the purposes of paragraph (1). Subparagraph (3) gives the Secretary of State a power to determine in
directions the extent to which, and the circumstances in which, sums
received by HEE under paragraph 18 but not yet spent must be treated
for the purposes of this section as part of total expenditure, and to
which financial year’s expenditure they must be attributed.
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270.
Sub-paragraph (4) provides that the Secretary of State has a power to
direct HEE to use specified banking facilities.
Reason for delegating the power
271.
Delegated powers are needed under this paragraph because the
requirements as to what is or is not to be taken into account for the
purposes of the various financial limits are likely to be detailed and to
be subject to change from time to time.
272.
The delegated power in sub-paragraph (4) is needed so that the
Government can ensure that allocations to HEE are held in
Government Banking Service accounts, that these are the accounts in
which HEE keeps its allocation, and that the monies allocated to HEE
stay in such accounts until paid out (although there may be
circumstances in which other commercial accounts may be held).
Reason for the selected procedure
273.
A Parliamentary procedure is inappropriate, given the administrative
content of the directions and the fact that the power under subsection
(4) relates to delivery of a wider Government requirement.
This
position is the same as for similar powers under the existing provisions
of the Health and Social Care Act 2012 relating to funding of the NHS
Commissioning Board.
Paragraph 22: Financial duties: controls on total resource use
274.
Paragraph 22 is concerned with HEE’s annual resource allocation.
Under this paragraph, the total use of capital resources and the total
use of revenue resources by HEE in a financial year must not exceed
amounts specified by the Secretary of State. HEE is placed under a
duty to ensure that these total limits are not exceeded.
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Sub-paragraph (2)
Power conferred on: Secretary of State
Power exercised by: Directions
275.
The resource allocations include not only HEE’s expenditure in the
form of cash spending (that is, the cash spending that should be
accounted for in that financial year, in line with resource accounting
standards), but also consumption of other resources and the reduction
in value of assets belonging to HEE.
276.
Sub-paragraph (2) gives the Secretary of State a power to give
directions that specify what descriptions of resources must be treated
as capital or revenue resources, and the uses of resources that must,
or must not, be taken into account, when determining whether HEE has
remained within the resource allocations for a financial year.
Reason for delegating the power
277.
These delegated powers are needed because the requirements as to
what is or is not to be taken into account for the purposes of the
various financial limits are likely to be detailed and to be subject to
change from time to time.
Reason for the selected procedure
278.
A Parliamentary procedure is unnecessary, given the administrative
content of the directions.
This position is the same as for similar
powers under the existing provisions of the Health and Social Care Act
2012 relating to the NHS Commissioning Board.
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Paragraph 23: Financial duties: additional controls on total resource use
279.
Paragraph 23 enables the Secretary of State to specify additional limits
within the total revenue resource limit on the maximum use of
resources attributable to administrative matters by HEE.
Sub-paragraphs (1) and (2)
Power conferred on: Secretary of State
Power exercised by: Directions
280.
Sub-paragraph (1) provides that the Secretary of State may direct HEE
to ensure that the total capital or revenue resource in a financial year
which is attributable to specified matters does not exceed a specified
amount. These powers can only be exercised if it is for the purpose of
complying with a limit imposed by the Treasury. The sub-paragraph
also provides that the Secretary of State may direct HEE to ensure that
the revenue resource in relation to administration which is attributable
to a specified matter does not exceed a specified amount.
281.
Sub-paragraph (2) provides that the Secretary of State may direct in
relation to a financial year specified uses of capital resources or
revenue resources which are, or are not, to be taken into account for
the purposes of sub-paragraph (1)(a),(b) or (c).
Reason for delegating the power
282.
The limits on administrative costs and on resource use that would be
imposed under this new section, and the detailed specification relating
to them, would be likely to change from time to time, so would be
unsuitable for primary legislation.
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Reason for the selected procedure
283.
A Parliamentary procedure is considered unnecessary, as the
directions would deal with specific financial details. This position is the
same as for similar powers under existing provisions of the Health and
Social Care Act 2012 relating to the NHS Commissioning Board.
Paragraph 25: Accounts
Paragraph 26: Annual Accounts
Paragraph 27: Interim Accounts
284.
Paragraph 25 requires HEE to keep proper accounts and records in
relation to the accounts.
285.
Paragraph 26 requires HEE to prepare consolidated annual accounts
in respect of each financial year.
This consolidated account must
include the annual accounts of each LETB, the annual accounts of
each other committee of HEE and the annual accounts relating to the
rest of HEE’s activities.
286.
Paragraph 27 enables the Secretary of State, with the approval of the
Treasury, to direct HEE to prepare consolidated interim accounts in
respect of a period specified in the direction.
Sub-paragraphs 25(2), 26(3), 27(1) and 27(3)
Power conferred on: Secretary of State (with the approval of the Treasury)
Power exercised by: Directions
287.
Paragraph 25(2) enables the Secretary of State, with the approval of
the Treasury, to give directions to HEE as to the content and form, and
the methods and principles to be applied in the preparation, of its
accounts.
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288.
Paragraph 26(3) enables the Secretary of State to direct HEE
regarding the period within which HEE must send copies of the
consolidated annual accounts to the Secretary of State and the
Comptroller and Auditor General.
289.
Paragraph 27(1) enables the Secretary of State to direct HEE to
prepare accounts in respect of such period or periods as are specified
in the direction. Paragraph 27(3) enables the Secretary of State to
direct HEE regarding the period within which it must send copies of the
interim accounts to the Secretary of State and, if the Secretary of State
directs, the Comptroller and Auditor General. Paragraph 27(4) requires
the Comptroller and Auditor General to examine, certify and report on
any interim accounts, and, if directed by the Secretary of State, the
Comptroller and Auditor General would be required to send a copy of
the report to the Secretary of State and lay copies of the accounts and
the report on them before Parliament.
290.
The Secretary of State will remain accountable to the Treasury for the
Department’s Departmental Expenditure Limit. The Department’s
annual Resource Account must be prepared in accordance with the
accounting rules and instructions set out by the Treasury in the annual
Financial Reporting Manual.
In turn, the accounts of all bodies,
including HEE, that are consolidated into the Department’s Resource
Account must be prepared in accordance with the same Treasury
accounting framework.
The Secretary of State therefore requires
powers to ensure that HEE’s accounts are prepared in accordance with
the requirements set by the Treasury.
291.
It is possible that Parliament might request in-year financial statements
from the Department. It is therefore necessary to have a power to
require in-year accounts from HEE and to direct that these are audited
if required.
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Reason for delegating the power
292.
Accounting requirements need to be specified in detail and are likely to
change over time (for example as the accounting rules and instructions
set out by the Treasury in the annual Financial Reporting Manual are
revised and updated), so it is not desirable to set them in primary
legislation.
Reason for the selected procedure
293.
The Department considers that a parliamentary procedure is
unnecessary for these directions. Accounting requirements for public
bodies deal with technical matters and it is standard practice to use
directions for this purpose (as with other bodies established under preexisting legislation such as the National Health Service Act 2006 and
the Health and Social Care Act 2012).
There is a power for the
Secretary of State to direct that copies are laid before Parliament, so
Parliament can scrutinise the actual accounts rather than the process
for preparing them.
Clause 84: Planning education and training for health care workers etc.
294.
This clause sets out one of HEE’s main functions – to plan education
and training for health care workers. The Secretary of State has a duty
in section 1F of the National Health Service Act 2006 to carry out his
functions under prescribed enactments, including section 63(1) and (5)
of the Health Services and Public Health Act 1968 and section 258(1)
of the National Health Service Act 2006, so as to secure an effective
system for the planning and delivery of education and training to
persons who are employed, or who are considering becoming
employed, in an activity which involves or is connected with the
provision of services as part of the health service in England. The duty
applies in relation to people working in the NHS and to trainee
professionals at the start of their career, before they enter employment
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in the NHS. The section 1F duty was introduced by the Health and
Social Care Act 2012. Subsection (1) of this clause delegates the duty,
so far as it applies to section 63(1) and (5) of the Health Services and
Public Health Act 1968 and section 258(1) of the National Health
Service Act 2006 to HEE.
Subsections (1)(c), (2)(a), (2)(b), (3) and (5)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
295.
Subsection (1)(c) enables delegation to HEE of the Secretary of States
functions under other enactments listed in section 1F(3) of the National
Health Service Act 2006. These enactments are the National Health
Service Act 2006, the Health and Care Act 2008, the Health and Social
Care Act 2012, the Health Act 2009 and Section 63 of the Health
Services and Public Health Act 1968.
296.
Subsection (2)(a) provides that regulations may provide for the duty
under section 1F(1) of the NHS Act 2006 to apply to such other
functions of the Secretary of State as are specified.
297.
Subsection (2)(b) provides that regulations may also impose a duty on
HEE to exercise a duty as it applies as a result of provision made
under paragraph (a).
298.
Subsection (3) provides that regulations may specify that the duty
under subsection (1) or (2) may be performed only, or may not be
performed, in relation to persons of a specified description.
299.
Subsection (5) provides that regulations may give HEE further
functions relating to education and training.
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Reason for delegating the power
300.
The functions it is desirable for HEE to exercise in respect of planning
education and training for health care workers may change over time,
and delegating the power ensures that new functions can be added
without the need for primary legislation.
Reason for the selected procedure
301.
The regulations would provide a means to ensure that HEE exercises
specified functions relating to education and training of health care
workers within the context of HEE’s overall responsibilities as set out in
the primary legislation. The negative resolution procedure is therefore
considered to afford the appropriate degree of parliamentary scrutiny.
Clause 85: Ensuring sufficient skilled health care workers for the health
service
302.
This clause requires HEE to exercise its powers to ensure that
sufficient skilled workers (e.g. doctors, nurses etc) are trained
nationally to meet anticipated demand for NHS service provision.
Subsection (2)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
303.
Subsection (2) states that regulations may provide the duty under
subsection (1) (to ensure sufficient skilled workers) may be performed,
or may not be performed, only in relation to persons of a specified
description.
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Reason for delegating the power
304.
Delegating this power ensures that HEE can respond quickly and
effectively to workforce requirements without the need to wait for
primary legislation. It will allow HEE to respond to changes in its remit,
for example, if in the future it were to be no longer deemed responsible
for particular sections of the workforce or if it were to take on additional
responsibility for groups currently outside the health workforce.
Reason for the selected procedure
305.
HEE’s main function to ensure sufficient skilled workers is clear on the
face of the Bill, and the additional regulation-making power is intended
to allow it increased flexibility to respond to changing needs. Bearing
this in mind, the negative resolution procedure is considered
appropriate.
Clause 87: Objectives, priorities and outcomes
306.
Clause 87 provides that the Secretary of State and HEE must publish
documents that specify objectives, priorities and outcomes for the
education and training system for health care workers.
Subsections (1), (2), (3) and (4)
Power conferred on: HEE and Secretary of State
Power exercised by: Specification in writing and guidance
Parliamentary procedure: None
307.
Subsection (1) requires the Secretary of State to publish a document at
the start of each financial year which specifies the objectives and
priorities that the Secretary of State has set for HEE in relation to the
education and training to be provided for health care workers.
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308.
Subsection (2) requires the Secretary of State to publish at intervals of
not more than three years a document called the “Education Outcomes
Framework” that specifies the outcomes that the Secretary of State has
set for HEE having regard to the objectives and priorities.
309.
Subsection (3) gives the Secretary of State a power to revise the
documents in subsections (1) and (2).
Paragraph (b) requires the
Secretary of State to republish any revised version.
310.
Subsection (4)(a) requires HEE to publish a document that specifies
the objectives and priorities it expects to achieve within the period it
has set. Subsection (4)(b) requires HEE to publish a document which
specifies the outcomes that HEE expects to achieve in that time period
having regard to those objectives and priorities. These priorities and
outcomes must be consistent with those in the Secretary of State’s
published documents provided for in subsections (1) and (2).
311.
By operation of subsection (4)(c) HEE’s document must include
guidance to Local Education and Training Boards (“LETBs”) (see
clauses 89 and 90) about how they should carry out their
commissioning functions for education and training in clause 94.
312.
Subsections (5)-(9) make further detailed provision about the
requirements of the content of this guidance and when it must be
reviewed and republished.
Reason for delegating the power
313.
Taking delegated powers enables the Secretary of State to publish
detailed objectives, priorities and outcomes in relation to education and
training, for HEE to achieve.
The power to revise this document
provides the flexibility to modify the details specified if changes are
required.
HEE’s power to publish a document allows it to detail
objectives, priorities and outcomes for education and training. HEE’s
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power to issue a document, which includes, guidance for LETBs on the
exercise of their functions with respect to commissioning education and
training is appropriate as it is to be responsible for ensuring that
LETBs, for each financial year, arrange for the provision of education
and training in accordance with its education and training plan for that
year. The detailed content of these documents is inappropriate to set
out on the face of the legislation. The power to revise this document
provides the flexibility to modify the details specified if changes are
required.
Reason for the selected procedure
314.
Since these powers are concerned with operational and administrative
matters in the context of the responsibilities conferred by clauses 83,
84 and 85 the provision to be made is administrative rather than
legislative in character, and no Parliamentary procedure is considered
necessary.
Clause 91 LETBs: appointment etc.
315.
Subsection (3)(b) provides that the Secretary of State may by
regulations provide for the detail of the clinical expertise requirement
for members of a LETB.
By operation of subsection (4) this may
require a specified number of members of a LETB to have clinical
expertise.
316.
Subsection (13) gives the Secretary of State a regulation making power
to make further provision on the appointment of members of the LETB,
the removal by HEE of members of a LETB and the suspension by
HEE of members of a LETB.
Subsections (3)(b), (4) and (13)
Power conferred on: Secretary of State
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Power exercised by: Regulations
Parliamentary procedure: Negative
Reason for delegating the power
317.
On subsections (3)(b) and (4) the detail of the clinical expertise
required is a matter more suited to secondary legislation and the detail
of this requirement may change over time. It would therefore be
inappropriate detail for primary legislation.
318.
On subsection (13), further provision for membership of LETBs and the
removal and suspension of members by HEE will require a level of
detail which is unsuitable for primary legislation. Further these details
may change over time and the regulation making power affords the
necessary level of flexibility to allow for this.
Reason for selected procedure
319.
The requirement for members of the LETB to have clinical experience
is on the face of the Bill and the regulation making power is limited to
specifying maters of detail. The negative resolution procedure will
afford an appropriate amount of parliamentary scrutiny in these
circumstances.
320.
Similarly, in respect of sub-paragraph (13), the scope of the power is
clear from the face of the Bill and the provision is likely to be of an
administrative or operational nature. In this context no parliamentary
procedure is considered necessary.
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Schedule 6 Local Education and Training Boards
Paragraph 2: Assessment of whether the appointment criteria are being
met in relation to LETBs.
Sub-paragraph (8) and (9)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
321.
Paragraph 2(8) provides that regulations must require specified
commissioners of health services to include in the arrangements under
the National Health Service Act 2006 for the provision of such services
to ensure that the provider complies with requirements imposed under
sub-paragraphs 2(8)(a) and (b). Sub-paragraph 2(8)(a) states that
providers must co-operate with any LETB which represents that
provider by virtue of it being appointed to do so under sub-paragraph
4(c). Sub-paragraph 2(8)(b) requires providers to provide LETBs with
such information as they may request.
322.
Paragraph 2(9) provides for the Secretary of State to make regulations
specifying other circumstances where HEE may intervene in the
operation of a LETB.
Reason for delegating the power
323.
The technical and detailed nature of these powers would make them
inappropriate to set in primary legislation. The detailed provisions
regarding intervention arrangements may well be subject to change
over time.
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Reason for the selected procedure
324.
Given the technical nature of these measures and the likelihood that
they may be subject to change, the negative resolution procedure is
considered appropriate
Paragraph 3: Publication and review of the appointment criteria
Sub-paragraph (1) and (2)
Power conferred on: HEE
Power exercised by: Specification in writing and guidance
Parliamentary procedure: None
325.
Sub-paragraph (1) provides that HEE must obtain approval from the
Secretary of State and publish the appointment criteria.
Sub-
paragraph (2) requires HEE to keep the appointment criteria under
review and may revise them. HEE must obtain the Secretary of State’s
approval where it considers that a revision is significant.
Reason for delegating the power
326.
Taking delegated powers enables HEE to publish appointment criteria
for prospective LETBs to achieve. The power to revise this document
provides the flexibility to modify the details specified if changes are
required.
The detailed content of this document is inappropriate to set
out on the face of the legislation.
Reason for the selected procedure
327.
Since these powers are concerned with operational and administrative
matters in the context of the responsibilities conferred by clause 90, the
provision to be made is administrative rather than legislative in
character, and no Parliamentary procedure is considered necessary.
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Paragraph 4: Exercise of functions
328.
Paragraph 4 makes further provision for LETB’s exercise of their
functions.
Sub-paragraph (1)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
329.
Sub-paragraph (1) enables the Secretary of State, through regulations,
to give LETBs additional functions relating to education and training or
the planning of its provision and impose requirements about how those
functions should be exercised.
Reason for delegating the power
330.
The functions it is desirable for a LETB to have may change over time,
and delegating the power ensures that new functions can be added
without the need to wait for primary legislation.
Reason for the selected procedure
331.
The main functions of LETBs are on the face of the Bill, and any
additional functions given to it by these regulations must relate to the
provision of education and training of health care workers, or the
planning of its provision. Bearing this in mind, the negative resolution
procedure is considered to provide the appropriate degree of
parliamentary scrutiny.
Sub-paragraph (3)
Power conferred on: HEE
Power exercised by: Directions
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332.
Sub-paragraph (3) provides for HEE to give a LETB a direction if HEE
considers that the LETB has failed to exercise its function or there is a
significant risk that it will fail to do so. The direction can direct the
LETB to discharge those functions in such manner and within such
period as may be specified in the direction. If the LETB fails to comply
with such a direction, HEE may take action under one or more of
paragraphs (a) to (c) of paragraph 2(4) (with paragraph 2(5) to (7)
applying accordingly).
Reason for delegating the power
333.
It would not be possible to set out in primary legislation exactly what
intervention would be necessary in what circumstances, so this power
provides HEE with flexibility to respond accordingly to any failures by
HEE and at speed. The power might be needed, not necessarily
because of any fault on the part of a LETB, but because of
circumstances outside its control, for example, a serious infection
affecting many of its staff and therefore its ability to perform its duties.
Reason for the selected procedure
334.
Any intervention would concern how an existing function should be
exercised, rather than impose any new functions. A Parliamentary
procedure is therefore unnecessary, given the administrative content of
the directions, and bearing in mind the likely context of urgency.
Clause 92: LETBs: co-operation by providers of health services
335.
This clause provides for the appointment of committees for HEE for
areas of England called Local Education and Training Boards
(“LETBs”).
LETBs will carry out prescribed education and training
duties, and in doing so, will represent the interests of all NHS providers
in the body’s area.
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Subsection (1)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
336.
Subsection (1) provides that regulations must require specified
commissioners of health services to include in contracts for the
provision of services terms to ensure that a providers co-operate with
the LETB to such an extent as the LETB may request, provide LETBs
with such information as they may request and comply with other such
obligations relating to education and training for health care workers as
the regulations may specify.
337.
Subsection (3) provides that regulations may specify the specific
factors which the LETB must take into account when making a request
for co-operation as described above.
Reason for delegating the power
338.
The delegated powers in subsections (1)(a), (1)(b), (1)(c) and (3) are
largely of a procedural and administrative nature.
Furthermore the
level of co-operation, information requested and obligations may vary
over time and would therefore be inappropriate to set in primary
legislation. The specific factors which LETBs must take into account
when making a request of providers may change over time and
delegating the power ensures these changes can be affected without
the need to wait for primary legislation.
Reason for the selected procedure
339.
The negative resolution procedure is considered appropriate, for
provision of this type because of the procedural and administrative
nature of the powers.
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Clause 93: Education and Training plans
340.
This clause provides for the details relating to education and training
plans. Each LETB must develop and publish an education and training
plan that sets out its proposals for their current and future workforce.
Subsection (1)
Power conferred on: LETB
Power exercised by: Specification in writing and guidance
Parliamentary procedure: None
341.
Subsection (1) provides that each LETB must develop and publish an
education and training plan about how it proposes to exercise its main
functions.
342.
Subsections (2) to (3) make further detailed provision about the content
of education and training plans. Subsection (4) requires HEE involve
specified bodies in its preparation of the plans. Subsection (5) requires
LETBs to have their plans (or amended plans) approved by HEE prior
to publication.
Reason for delegating the power
343.
Taking delegated powers enables the LETB to publish detailed
information which would not be appropriate for primary legislation and
to determine the plan for its own area. The content of this document is
likely to be operational and technical. It is also likely to change over
time and delegating the power affords flexibility to the LETB to adapt to
changing circumstances.
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Reason for the selected procedure
344.
Since the power is concerned with operational and administrative
matters in the context of the responsibilities conferred by clause 90 a
Parliamentary procedure is considered unnecessary.
Subsection (6), (7) and (9)
Power conferred on: HEE
Power exercised by: Directions
345.
Subsection (6) allows HEE to direct LETBs to amend their education
and training plans before they are published. Subsection (7) limits this
power in respect of LETBs that have met their appointment criteria to
only allow HEE to make directions that are necessary for LETBs to
achieve HEE’s outcomes set in clause 87(4)(b).
346.
Subsection (9) provides that HEE may give LETBs directions about
what to include in their education and training plans, how to present
them, when to send them to HEE for review or approval.
Reason for delegating the power
347.
The content of education and training plans is likely to include a
number of administrative, technical and operational factors. The matter
of how education and training plans are presented is an administrative
matter. It is likely that education and training plans will require a level
of detail that it is not desirable to set out in primary legislation.
Furthermore, to set this out in detail on the face of the Bill would be
unduly prescriptive.
Reason for the selected procedure
348.
The power would concern how an existing function should be
exercised, rather than a matter of principle (such as what functions
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there should be), it does not involve the exercise of any new power.
Given the administrative and technical content of the directions, a
Parliamentary procedure is deemed unnecessary.
Clause 94: Commissioning education and training
Subsection (2)(b)
Power conferred on: HEE
Power exercised by: Directions
349.
Subsection (2)(b) allows HEE to direct one or more LETBs to arrange
for the provision of certain education and training to be made on a
national basis.
Reason for delegating the power
350.
It is not possible to predict in advance the detail of what education and
training arrangements HEE will require one or more LETBs to carry out
on a national basis. It is likely that these arrangements may change
providing for this in primary legislation would be unduly prescriptive and
detailed.
Reason for the selected procedure
351.
The directions are likely to be operation, administrative and technical in
content and as such Parliamentary procedure is deemed unnecessary.
Clause 95: Tariffs
352.
This clause provides for a tariff to set out approved prices for payments
to providers for education and training.
Subsection (1)
Power conferred on: Secretary of State
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Power exercised by: Specification in writing and guidance
Parliamentary procedure: None
Reason for delegating the power
353.
Taking delegated powers enables the Secretary of State to publish a
tariff document which will specify at a detailed level the amounts of
payments made to providers. This document will require a level of
technical detail that would be inappropriate to set out on the face of the
Bill. Further, the tariff will likely vary over time. Delegating the power
allows it to be flexible enough to respond quickly to changing market
conditions without the need to wait for parliamentary procedure.
Reason for the selected procedure
354.
Given the administrative and technical content of the tariff document,
and the fact that it may require regular updating, a Parliamentary
procedure is deemed unnecessary.
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CHAPTER 2
HEALTH RESEARCH AUTHORITY
Establishment
Clause 96 and Schedule 7: The Health Research Authority
355.
This clause and Schedule 7 establish a new body to be known as the
Health Research Authority (HRA) which replaces the Special Health
Authority (SpHA) also known as the Health Research Authority and will
take on functions relating to the regulation of health and social care
research.
Clause 96(4) and Clause 105
Power conferred on: Secretary of State
Power exercised by: Order
Parliamentary procedure: None
356.
Clause 96(4) together with Clause 105 provides that the Secretary of
State may provide by order for the transfer of property, rights and
liabilities from that Special Health Authority to the HRA established
under clause 96(1).
Reason for delegating the power
357.
A delegated power is needed as it would not be practical to make
specific provision in primary legislation in each case where a transfer of
property and staff, and of the associated rights and liabilities, proves to
be necessary.
Reason for the selected procedure
358.
The Department considers a Parliamentary procedure unnecessary for
the use of this power, since it would make provision for the property
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and for other rights and liabilities from the old HRA as SpHA to the new
HRA as non-Departmental Public Body within the limits set by Clause
j908.
Schedule 7: The Health Research Authority
Paragraph 15: Failure to exercise functions
359.
This provision confers power on the Secretary of State to direct HRA in
the case of significant failure by HRA to exercise its functions.
Paragraph 15(1)
Power conferred on: Secretary of State
Power exercised by: Directions
Parliamentary procedure: None
360.
Paragraph 15(1) gives the Secretary of State the power to direct the
HRA to perform its functions. If the HRA fails to comply with the
direction made under sub-paragraph (1), sub-paragraph (2) enables
the Secretary of State to exercise the functions specified in the
direction, or make arrangements for another person to exercise those
functions on his behalf. Where the Secretary of State exercises the
power under sub-paragraph (1) or (2) he must publish the reasons for
doing so.
Reason for delegating the power
361.
It would not be possible to set out in primary legislation exactly what
intervention would be necessary in what circumstances, so this power
provides the Secretary of State with flexibility to respond accordingly to
failures by the HRA and at speed. The power might be needed, not
necessarily because of any fault on the part of the HRA, but because of
circumstances outside its control, for example, a serious infection
affecting many of its staff and therefore its ability to perform its duties.
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362.
The power is similar to those in relation to other arm’s length bodies
(for example section 13Z2 National Health Services Act 2006 for the
NHS Commissioning Board, section 71 Health and Social Care Act
2012 for Monitor).
Reason for the selected procedure
363.
The power would concern how an existing function should be
exercised, rather than a matter of principle (such as what functions
there should be). In these circumstances, and where urgent action is
required, the Department considers that no parliamentary procedure is
required.
Paragraph 17: Fees and Indemnities
364.
Paragraph 17 gives the Secretary of State the power to make
regulations requiring a fee to be paid to the HRA for specified
functions.
Paragraph 17(1)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Affirmative
Reason for delegating the power
365.
The power seeks to ensure sufficient flexibility in the event the
Secretary of State considers it appropriate for HRA to require a fee to
be paid in relation to the exercise of any of its specific functions relating
to the regulation of health and social care research. It may not be
appropriate for all functions and it is therefore desirable to prescribe
which functions this power should apply to in regulations. Delegating
the power is an appropriate and proportionate way of providing the
requisite flexibility whilst also ensuring appropriate Parliamentary
oversight.
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366.
It is not appropriate to set out in primary legislation the necessary
technical and administrative detail required including the circumstances
in which a fee is payable and the method for determining the fee to be
paid, the timing of payment and detail about the recovery of fees, which
would vary depending on the circumstances.
367.
Furthermore, making these provisions in delegated legislation would
give the flexibility to revise these technical and administrative details
from time to time.
368.
Before making regulations under this section, the Secretary of State
must consult such persons as he considers appropriate. If regulations
require the HRA to determine the amount of the fee, the determination
must be approved by the Secretary of State.
369.
The power is similar to those providing for regulations relating to the
payment of fees to other non-departmental public bodies, such as
section 85 of the Health and Social Care Act 2008, which relates to the
power in respect of fees to be paid to the Care Quality Commission.
Reason for the selected procedure
370.
Any such regulations would require persons to pay a fee to the HRA in
order to meet the costs of HRA’s services. Given the breadth of this
power, it is considered that the affirmative resolution procedure is
appropriate.
General Functions
Clause 97: The HRA’s functions
371.
This clause sets out the main functions of the HRA including those
relating to the co-ordination and standardisation of health and social
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care research practice, those relating to research ethics committees
(RECs), membership of the United Kingdom Ethics Committee
Authority (UKECA) and the process for approving the processing of
confidential patient information for medical research. These functions
are set out in detail in clauses 97, 98 to 101, 102 and 103 respectively.
372.
The main functions are set out in subsection (1) and subsection (7)
enables the Secretary of State to amend that subsection by Order as a
result of any subsequent changes to the functions as currently given to
the HRA.
Subsection (7)
Power conferred on: Secretary of State
Power exercised by: Order
Parliamentary procedure: Negative
Reason for delegating the power
373.
Delegating the power provides flexibility to respond to changes over
time and enable the Secretary of State to make necessary changes to
the legislation if additional functions are imposed on the HRA. This
power does not give the Secretary of State any additional power to add
functions, but respond to functions being conferred in other ways (e.g.
by virtue of regulations made to implement any changes to relevant
European Directives).
Reason for selected procedure
374.
The power is limited to making consequential amendments to
subsection (1) by virtue of functions being imposed by other means
and therefore the negative resolution procedure is appropriate.
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Clause 98: Co-ordinating and promoting regulatory practice etc.
375.
This clause imposes a new general duty on the HRA and each of the
listed persons to co-operate with each other when exercising their
respective functions relating to health and social care research with a
view to co-ordinating and standardising practice. It also requires the
HRA to publish guidance on the principles of good practice in the
conduct of health and social care research and requirements to which
persons conducting such research are subject.
376.
The persons under the reciprocal duty to co-operate with HRA are
listed in sub-section (1). Subsection (1)(i) provides a regulation-making
power by which other persons may be added to the list of persons with
whom the HRA is required to co-operate. This will be subject to the
negative procedure.
Subsection (1)(i)
Power conferred on: Secretary of State
Power exercised by: Regulations
Parliamentary procedure: Negative
Reason for delegating the power
377.
Delegating the power provides flexibility to include other bodies within
the scope of the duty to cooperate. This is considered necessary in
light of the on-going developments in health and social care research
where functions relevant to such research may be conferred on new
bodies. Delegating the power provides requisite flexibility while also
ensuring appropriate Parliamentary accountability to ensure that any
such new bodies with relevant functions also fall within the scope of the
co-operation duty.
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Reason for the selected procedure
378.
The negative resolution procedure is considered appropriate as it is
only intended to add new bodies to the list as and when they have
functions relevant to health and social care research conferred upon
them.
Guidance on exercise of functions
Subsection (6)
Power conferred on: HRA
Power exercised by: Guidance
Parliamentary procedure: None
379.
Subsection (6) requires the HRA to publish guidance on the principles
of good practice in the management and conduct of health and social
care research and requirements to which persons conducting such
research are subject.
Reason for delegating the power
380.
The guidance may go into some detail and will need updating from time
to time; it would therefore be undesirable to aim to set out its contents
in primary legislation. The HRA’s main objective in exercising its
functions is to protect participants and potential participants in health
and social care research by encouraging research that is safe and
ethical. Under the current system, the description of good practice in
the management and conduct of health and social care research is set
out in the Research Governance Framework for Health and Social
Care, a policy document published by the Department of Health.
Under the new system it is appropriate to delegate the power to the
HRA (rather than to the Secretary of State) because the HRA will be
best placed to produce such guidance, working closely with others with
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responsibilities for the regulation and management of research and be
able to take a view across the whole system.
Reason for selected procedure
381.
Given the technical content of the guidance, it is considered
unnecessary for it to be subject to a Parliamentary procedure.
Clause 99: HRA’s policy on research ethics committees (“RECs”)
REC Policy Document
382.
This clause states the general policy of the HRA in relation to any
RECs it recognises or establishes under clauses 100 and 101
respectively. The HRA must ensure that such RECs provide an
efficient and effective means of assessing the ethics of health and
social care research.
Subsection (3)
Power conferred on: HRA
Power exercised by: Policy Document
Parliamentary procedure: None
383.
Subsection (3) requires HRA to publish a REC policy document to set
out the requirements that RECs recognised or established by the HRA
are expected to comply with and it must monitor compliance with these
requirements. The requirements are currently set out in the
Governance Arrangements for Research Ethics Committees (GAfREC)
document published by the Department of Health.
Reason for delegating the power
384.
The REC policy document may go into some detail and will need
updating from time to time; it would therefore be undesirable to aim to
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set out its contents in primary legislation. Under Clause 99(1), the
HRA would be responsible for ensuring that RECs it recognises or
establishes provide an efficient and effective means of assessing the
ethics of health and social care research.
Given this duty, it is
appropriate to delegate the power to the HRA (rather than to the
Secretary of State). As the research regulator, the HRA will be best
placed to produce such guidance working closely with others with
responsibilities for the regulation and management of health and social
care research and be able to take a view across the whole system as
to what requirements RECs should comply with.
Reason for selected procedure
385.
Given the technical nature of the content of the policy document, it is
considered unnecessary for it to be subject to Parliamentary
procedure. However, the new power sets out constraints as to the
contents of the document (e.g. it must not conflict with requirements
imposed on RECs by the Clinical Trial Regulations) and the HRA must
consult with the devolved authorities and those persons it consider
appropriate before publishing the document.
Clause 100: Approval of research
386.
This clause requires the HRA to give guidance on the cases in which
good practice requires a person proposing to conduct research
involving individuals should obtain approval from a REC and the cases
in which an enactment requires a person proposing to conduct
research of that kind to obtain that approval.
Subsection (1)
Power conferred on: HRA
Power exercised by: Guidance
Parliamentary procedure: None
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387.
At present the Department of Health (together with the other UK health
Departments) currently issues policy guidance, GAfREC, which sets
out when the Department considers it good practice to seek approval of
research by a REC, or where legislation requires the researcher to do
so. Subsection (1) of this clause requires the HRA to publish guidance
setting out when it considers it good practice to seek approval of the
research by a REC, and where there is a legal requirement to do so.
Subsection (2) requires the HRA to consult the devolved authorities
and such other people it considers appropriate, and to obtain approval
of the Secretary of State before publishing either new guidance or
significantly revised guidance. Subsection (3) enables the HRA to
revise this guidance, and requires that the revised guidance is
published.
Reason for delegating the power
388.
The guidance may go into some detail and will need updating from time
to time; it would therefore be undesirable to aim to set out its contents
in primary legislation. Given that the HRA would be responsible for
regulating the ethics of health and social care research under the Bill, it
is appropriate to delegate the power to the HRA. As the regulator for
research, the HRA will be best placed to take a view as to good
practice for when approval of research by a REC should be sought
working closely with others with responsibilities for assessing the ethics
of health and social care research.
Reason for selected procedure
389.
Given the technical content of the guidance, it is considered
unnecessary for it to be subject a Parliamentary procedure.
The
procedure chosen also reflects the current situation with the relevant
UK health research departments issuing the GAfREC. However, the
new power requires the HRA to consult with the devolved authorities
and those persons it consider appropriate before publishing the
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document. The guidance must also be approved by the Secretary of
State.
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PART 4
GENERAL
Clause 107: power to make consequential provision
390.
This clause provides that the Secretary of State may by order make
provision in consequence of the Bill. An order may change primary or
secondary legislation and may make transitional and saving provision.
It includes a power to amend Acts of the Scottish Parliament, Acts or
Measures of the National Assembly for Wales and Northern Ireland
legislation. Where such an order contains any provision that is within
the legislative competence of a devolved administration the Secretary
of State must first consult the relevant devolved authority.
Subsections (1), (2) and (4)
Power conferred on: Secretary of State
Power exercised by: Order
Parliamentary procedure: affirmative where the order changes primary
legislation, otherwise negative.
Reason for delegating the power
391.
The power to make supplemental, incidental or consequential provision
will be used to ensure that changes made to the law by the Bill are
reflected in other legislation which refers to or is dependent on
provisions repealed or amended by the Bill.
392.
The power, in particular, will be used to make provision in respect of
repeal of the statutory provisions currently underpinning adult social
care in England, and any necessary consequential amendments
arising from such repeal.
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393.
This approach, making provision by order rather than on the face of the
Bill, is required because of the technical timing difficulties of providing
for such matters on the face of the Bill caused by the parallel
consideration of the Social Services and Well-being (Wales) Bill. This
Bill, introduced into the Welsh Assembly in January 2013, deals with
reform of adult social care in Wales, and therefore envisages repeal, in
respect of Wales, of the same statutory provisions as will be required in
respect of England. Whichever Bill came into force first would need to
disapply those provisions in respect of its territory, pending full repeal
when the second Bill comes into force. (Such eventual repeal would
be subject to savings in respect of the existing rights of those under the
age of 18 and also in respect of any provisions which also extend to
Scotland).
394.
As there can be no certainty, assuming successful passage of each
Bill, as to which Bill would come into force first, repeals and
consequential amendments will be dealt with by Order in each case.
Whichever Bill comes into force first, the relevant Order will make
provision to disapply the relevant provisions in respect of its territory.
The second Order will then in due course complete the process of
repeal (subject where necessary to savings as indicated above)
Reason for the selected procedure
395.
The Parliamentary procedure to be followed depends on the content of
the order. If the order amends or repeals any provision of an Act of
Parliament, it may not be made unless a draft has been laid before,
and approved by, each House of Parliament. In any other case the
negative resolution procedure applies. This combination of procedures
seems to the Department to strike an appropriate balance between the
need to ensure that changes made to the Bill are reflected in other
legislation as part of the transition from an old to a new regime, and the
need to respect Parliamentary involvement where an Act of Parliament
is to be amended.
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Clause 108: power to make transitional etc provision
396.
This clause provides that the Secretary of State may by order make
transitional, transitory or saving provisions in connection with the
commencement of a provision of the Bill.
Subsection (1)
Power conferred on: Secretary of State
Power exercised by: Order
Parliamentary procedure: none
Reason for delegating the power
397.
This power is required to ensure that necessary or expedient
transitional arrangements can be made as provisions of the Bill are
commenced without creating any difficulty or unfairness. This will make
possible a smooth transition from the old law to the new.
Reason for the selected procedure
398.
This power relates solely to the necessary transitional arrangements
associated with commencement of the provisions of the Bill, being
arrangements necessary for an effective transition to the new regime
being commenced. It does not include the power to make any other
incidental, supplementary or consequential provision.
399.
Provisions of the Bill will be commenced by order which, as is indicated
below, does not require any Parliamentary procedure. Those
commencement orders may include savings, transitional or transitory
arrangements made under this power. No Parliamentary procedure is
considered necessary given that these are simply transitional
arrangements associated with such commencement.
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Clause 109: regulations and orders
400.
This clause sets out the procedures to be followed for regulations and
orders made under the powers provided by this Bill. Its contents have
been taken into account in the discussion earlier in this memorandum
of the individual powers concerned.
Clause 111: Commencement
401.
This clause deals with the commencement of the provisions of the Bill.
It identifies those provisions for which the Bill itself sets a
commencement date. It provides that the other provisions in the Bill
come into force on such day as the Secretary of State may be order
appoint. Different days may be appointed for different purposes. The
Secretary of State must obtain the consent of the Welsh Ministers
before bringing into force clause 48(2) (which imposes a duty on Welsh
local authorities).
Subsection (1)
Power conferred on: Secretary of State
Power exercised by: Order
Parliamentary procedure: none
Reason for delegating the power
402.
Delegating the power provides flexibility to ensure that the provisions in
the Bill come into force at suitable dates.
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Reason for the selected procedure
403.
Commencement orders would be made by statutory instrument.
However, no Parliamentary procedure is considered necessary, given
that the detail of the provision to be commenced would already have
been considered by Parliament during the passage of the Bill.
Clause 112: Extent and application
404.
This clause makes provision as to the extent and application of the Bill.
It includes the power to provide by order that specified provisions of the
Bill, in their application to the Isles of Scilly, have effect with such
modifications as may be specified.
Subsection (4)
Power conferred on: Secretary of State
Power exercised by: Order
Parliamentary procedure: negative
Reason for delegating the power
405.
This provision enables the provisions of the Bill to be modified in their
application to the Isles of Scilly, to take account of the particular local
government arrangements that apply in the Isles of Scilly.
Reason for the selected procedure
406.
It is considered that the negative resolution procedure provides the
appropriate level of scrutiny for an order making such provisions, which
are essentially procedural in nature.
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