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 In May 2012, following a three year review, the Commission concluded that existing care and support legislation is outdated and confusing, and recommended wholesale reform of the law.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 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;
· 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.
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.
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 co-operate 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 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, 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 assessments[1] 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.
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 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. 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.