DPRR/13-14/109 ADDENDUM NO. (2) TO DELEGATED POWERS MEMORANDUM CARE BILL 1. This is the second addendum to the Delegated Powers Memorandum on the Care Bill sent for the consideration of the House of Lords Committee on Delegated Powers and Regulatory Reform (the “Committee”) on Thursday 9 May 2013. The first addendum to the Delegated Powers Memorandum on the Care Bill was sent to the Committee on Wednesday 23 October 2013. PART 1 CARE AND SUPPORT Charging and assessing financial resources Clause 17: Assessment of financial resources Subsections (8) and (9) Power conferred on: Secretary of State Power exercised by: Regulations Parliamentary procedure: Negative 2. Amendments to these provisions have been made to ensure that there is flexibility for regulations to set out cases or circumstances in which, if a person’s resources exceed a specified level, the local authority is either not permitted to or may, but is not required to, contribute to the costs of their care and support. This will give local authorities flexibility to respond to local needs. DPRR/13-14/109 Reason for delegating the power and for selected procedure 3. Notwithstanding these amendments, it is considered that the original reasons for delegating this power and for selecting the procedure to be used still hold good. Next steps after assessments Clause 25: Care and support plan, support plan 4. This clause makes provision about care and support plans and support plans, in particular, it provides that as a minimum the care and support plan must specify or include the matters set out in subsections (1) and (2), and the procedures to be followed (subsections (3) to (11)). Subsections (13) and (14) Power conferred on: Secretary of State Power exercised by: Regulations Parliamentary procedure: Negative 5. Subsection (13) provides power to provide in regulations for the care plan not to specify or include the matters required by subsections (1) and (2) in specified cases or circumstances. An amendment (new subsection (14)) clarifies the regulation making power in subsection (13). It makes clearer that the regulations may provide that specified needs or matters need not be included in the care plan. Reason for delegating the power and for selected procedure 6. Notwithstanding these amendments, it is considered that the original reasons for delegating this power and for selecting the procedure to be used still hold good. DPRR/13-14/109 Clause 26 Personal Budget 7. This clause provides that the expression “personal budget” is a statement which specifies certain costs. A cost which must be included in the statement is the cost to the local authority of meeting the adult’s needs. Subsection (4) Power conferred on: Secretary of State Power exercised by: Regulation Parliamentary procedure: Negative 8. The subsection allows regulations to be made so that costs which the local authority incurs in meeting needs can be excluded from the statement if they are incurred in meeting needs for which the authority does not make a charge or is not permitted to make a charge. Reason for delegating the power and for selected procedure 9. Delegating the power allows the Secretary of State flexibility to specify the costs which can be excluded from the personal budget and to make changes from time to time. In view of the fact that the power to exclude costs is restricted to those incurred in meeting needs for which the authority does not charge it is considered that the negative resolution procedure will provide the appropriate degree of Parliamentary scrutiny. Direct Payments Clause 33: Direct payments: further provision 10. 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. DPRR/13-14/109 Subsections (1) and (2) Power conferred on: Secretary of State. Power exercised by: Regulations Parliamentary procedure: Negative 11. Subsection (1) imposes a duty on the Secretary of State to make further provision about direct payments in regulations. Subsection (2) sets out a non- exhaustive list of matters which those regulations may specify. Subsection (2)(e) makes clear that regulations may be made 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. An amendment to subsection (2) by the addition of a new paragraph after paragraph (d) makes clear that regulations may be made to specify cases or circumstances in which an adult who no longer has capacity to request a direct payment (or who the local authority considers no longer has such capacity) can be regarded as not lacking capacity Reason for delegating the power and for selected procedure 12. Notwithstanding these amendments, it is considered that the original reasons for delegating this power and for selecting the procedure to be used still hold good. Appeals New clause 72: Part 1 appeals 13. This clause provides a general regulation making power to enable provision to be made for a system whereby appeals can be made against decisions taken by the local authority under Part 1 of the Bill. DPRR/13-14/109 Subsections (1) – (10) Power conferred on: Secretary of State Power exercised by: Regulations Parliamentary procedure: Negative, except where any provision is made under the power in subsection (8) conferring functions on a statutory body and in so doing amending or repealing primary legislation. Regulations which include any such provision will be made using the affirmative procedure. 14. Subsection (1) provides that regulations may make provision for appeals against decisions taken by the local authority in the exercise of function under Part 1 of the Bill in respect of an individual. This includes provision for appeals against decisions which were taken before the coming into force of the first regulations made under the section. The effect of this is that provision may be made to provide for any appeals system to cover decisions made between the time the provisions of the Care Bill come into force and the date that any regulations made under the clause come into force. In practice, it is anticipated that most of the provisions of the Care Bill will come into force in April 2015 but some, relating to the application of the financial cap, will not come into force until April 2016. The intention is to align the dates of the coming into force of the cap provisions and the making of the appeals regulations. The provision will enable any new appeals system to apply in respect of decisions made under the Care Bill but prior to the new appeals system being established. This will facilitate the transition to the cap system and will ensure that people are not disadvantaged simply because a decision, which may be relevant to the cap system, predates the coming into force of the regulations. 15. Subsections (2) – (10) make further provision as to what the regulations made under subsection (1) may provide for. Subsection (2) contains a non-exhaustive list of various practical matters in respect of which provision may be made, such as who may bring an appeal, the grounds upon which it may be brought, who is to consider the appeal etc. Subsections (3) – (6) make further provision in respect of some of DPRR/13-14/109 those matters. Subsection (7) provides that the regulations may make provision in respect of the interface with other appeal or complaint procedures. 16. It is possible that the system to be developed will involve some other statutory body. Subsection (8) provides that the regulations may make provisions conferring functions on statutory bodies and that for that purpose may amend, repeal, revoke or otherwise modify an enactment. If regulations are made which include provisions that amend or repeal an Act of Parliament, such regulations would be made using the affirmative procedure. 17. Subsection (9) provides that regulations may make provision enabling an interim decision (that is, one differing from the one appealed against) to apply for a specified period, pending a decision on the appeal - and for financial adjustments to be made following such decision. Subsection (10) provides that the specified period cannot begin earlier than the decision appealed against or end later than the day on which the appeal decision takes effect. The purpose of this provision is to enable interim support to be given in appropriate cases pending the outcome of the appeal. Reason for delegating the power 18. Delegating the powers provides flexibility to set out in regulations the details of the proposed appeals system, which it is not appropriate or necessary to set out on the face of the Bill. Reason for the selected procedure 19. The negative power is considered appropriate for regulations of this nature making detailed procedural provision, except where the regulations make provision, in reliance on the power in subsection (8), DPRR/13-14/109 which would amend or repeal an Act of Parliament. In that case, the affirmative procedure is to be used. PART 4 New clause 120: Integration of care and support with health services etc: integration fund Subsection (2) Power conferred on: National Health Service Commissioning Board Power exercised by: Directions Parliamentary procedure: N/A 20. This new clause provides for a fund to be used for the purposes of integrating health services with health-related and social care services. The objectives of the fund will be included in the mandate the Secretary of State gives to the National Health Service Commissioning Board (the “Board”) under section 13A of the National Health Service Act 2006 (the “NHS Act”). The money will be held locally in pooled fund arrangements made between clinical commissioning groups (“CCGs”) and local authorities under section 75 of the NHS Act. 21. Subsection (2) gives the Board a power to direct a CCG that a designated amount of the sums paid to the group is to be used for purposes of integration. The designated amount will be paid subject to conditions, including a condition that the CCG transfers the amount into a pooled fund arrangement. 22. Where a condition is not met, the Board may direct a CCG as to use of the designated amount for purposes relating to service integration or for making a payment under section 256 of the NHS Act (power to make payments towards expenditure on community services). DPRR/13-14/109 Reason for delegating the power 23. These powers are to be exercised by directions to give the Board the flexibility to ensure that money is put to the best use for purposes of integration, in particular to enable the Board to respond to the differing needs of local areas. This power will also ensure consistency with the NHS Act, which this clause amends, under which the power to give directions to a CCG lies with the Board not with the Secretary of State. Reason for the selected procedure 24. These powers are for the Board to give a direction to a CCG and as such are not subject to Parliamentary procedure.