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.
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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.
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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.
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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.
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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
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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),
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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).
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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.