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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC257-i

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

WELSH AFFAIRS COMMITTEE (ENLARGED BY

THE PROPOSED DOMICILIARY CARE LCO COMMITTEE, NATIONAL ASSEMBLY FOR WALES)

 

National Assembly for Wales, Cardiff

 

 

PROPOSED LEGISLATIVE COMPETENCE ORDER IN COUNCIL:

CHARGING FOR NON-RESIDENTIAL SOCIAL CARE

 

 

 

THURSday 17 JANUARY 2008

Gwenda Thomas, Steve Milsom, and MS AMANDA JONES

Evidence heard in Public Questions 1 - 46

 

 

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Oral Evidence

Taken before the Welsh Affairs Committee (enlarged by the proposed domiciliary Care LCO Committee, National Assembly for Wales)

on Thursday 17 January 2008

Members present

Dr Hywel Francis, MP, in the Chair

Mrs Siận C. James, MP

Hywel Williams, MP

The following members of the Proposed Domiciliary Care LCO Committee of the National Assembly for Wales also attended in accordance with Standing Order Number 137A(3)

Joyce Watson AM

Peter Black AM

Irene James AM

Dai Lloyd AM

Jonathan Morgan AM

________________

Witnesses: Gwenda Thomas, AM, Deputy Minister for Social Services, Mr Steve Milsom, Acting Director, Older People and Long term Care Policy Directorate, Ms Amanda Jones, Legal Services Department, Welsh Assembly Government, gave evidence.

 

Joyce Watson: Good morning, everybody, bore da bawb. I am afraid that I will have to speak in English because it is the only language that I can speak that anyone would be able to understand what I was saying. Although I am learning Welsh, I have a considerable way to go. I welcome everybody to this meeting this morning, a joint meeting on the Proposed Domiciliary Care LCO between our Committee and the House of Commons Welsh Affairs Committee. I have had apologies from Karen Sinclair AM, and Irene James AM is substituting for her. I remind everybody that this Committee, as all committees do, will operate bilingually; that they can use their headsets to listen to the translation of Welsh contributions or as an induction loop to hear the whole proceeding more clearly. Channel 0 on the headphones will provide the verbatim broadcast and channel 1 will provide the translation. I remind everybody to turn off mobile phones, pagers or electronic devices that may interfere with the broadcast and translation system. If there is a fire, after I have left the ushers will escort the rest of you out of the room! I remind you all not to touch the microphones as that will disable the system because they work automatically. It is the very first meeting of this particular Assembly legislative committee and of the Welsh Affairs Committee, so I would like to extend a very warm welcome to the Chair of the Welsh Affairs Committee, to Dr Hywel Francis, to Siān James, MP, and Mr Hywel Williams, MP. I am delighted that our respective committees have taken an opportunity to meet jointly. I hope, and I am sure, that this will be the beginning of a constructive working relationship with the Welsh Affairs Committee that will be mutually beneficial to all of us.

Chairman: (Through an Interpreter) Thank you very much, and thank you for your words of welcome. It is a privilege for us to be here again. This, I believe, however, is a very special day, and before we commence our activities I would like to welcome this opportunity to collaborate with Assembly Members. This is a historic day for us all and, as Chair of the Welsh Affairs Select Committee, I am looking forward very much to collaborating with you in the future for the benefit of the people of Wales. It is a great pleasure for me personally to be here to take evidence from my old friend Gwenda Thomas.

Q1 Joyce Watson: The purpose of the meeting today is simply to take oral evidence in connection with the proposed National Assembly for Wales Legislative Competence Order No.4 relating to charges for non-residential social care. The proposed Order was laid before the Assembly by the Deputy Minister for Social Services on 26 November 2007. The Business Committee subsequently agreed to refer the proposed order to this Committee at plenary on 5 December. At the same time that it was laid before the Assembly it was also laid in both the Houses of Parliament by the Secretary of State for Wales and referred to the House of Commons Welsh Affairs Committee and the House of Lords Constitution Committee for pre-legislative committee. I should also like to welcome Gwenda Thomas, AM, Deputy Minister for Social Services today. I would like to ask Gwenda if she would like to introduce herself and her officials.

Gwenda Thomas: Thank you. (Through an Interpreter) May I thank you for your kind words and say that it is a pleasure for me to be here as part of a process which, as you have said, is historic and very special. I believe that joint scrutiny along with the Westminster Committee is an extremely important part of the process. I am sure that we will all benefit from this process, and I very much hope that we will be able to respond to your questions today and that you will be able to support this LCO as it goes through the scrutiny process, so that we are able to legislate here in Wales for the benefit of the people of Wales. It is a great pleasure to be here, as I have said, and joining me is Amanda Jones, who is a lawyer, and Steve Milsom, who is a high-ranking official. (Continued in English) You are an Acting Director for the Older People's Directorate.

Mr Milsom: That is right, Minister.

Gwenda Thomas: (Through an Interpreter) There are more officials sitting at the back here. Penny Hall, for example, has been working very hard on this process. Thank you very much.

Joyce Watson: We are here to take evidence and we have some questions to get through. It is my intention to move to that now. Irene James has indicated that she would like to ask the first three questions.

Q2 Irene James: Thank you. What would conferral of legislation competence in respect of Matter 15.9 allow the Assembly to do that cannot be done through existing legislation? Matter 15.9 states: "Charges levied by local authorities for non-residential social care provided or secured by them and payments in respect of individuals with particular needs relating to their well-being so that they or persons looking after them may secure non-residential social care to meet those needs."

Gwenda Thomas: Thank you, Irene. Whilst the Assembly Government can issue statutory guidance to local authorities under Section 7 of the Local Authorities Social Services Act 1970 on the exercise of their charging arrangements, local authorities are able to depart from such guidance, and its impact has therefore been very limited. If the Assembly Government were to issue further guidance under Section 7, it would need to ensure that this guidance did not fetter the fundamental discretion of local authorities to charge for certain services, and to recover such charges as they consider reasonable, as set out in Section 17 of the 1983 Act. Any policy that sought to establish greater uniformity, for example by applying maximum charges or standard charges, could not therefore be achieved using the existing powers.

Q3 Irene James: How does the proposed order provide an opportunity for the Assembly to introduce future measures which would be aiming at improving the quantity and the quality of social care provision in Wales? My third question: the proposed Order would confer further legislation competence on the Assembly by inserting a new matter, Matter 15.9 in Field 15, which is the social welfare, in Part 1 of Schedule 5, Government of Wales Act - which sounds very, dare I say, officious! Given that the legislative competence sought refers specifically to "charges levied by local authorities" is the ability to make Measures under the proposed Order conditional on the Assembly having legislative competence in other fields in Part 1 of Schedule 5, for example Field 12 (local government)?

Gwenda Thomas: To deal with question 2 first, this takes me back to some comments that Jonathan made during the plenary debate on 27 November. To try and clarify, this LCO has been drafted to address the specific issues regarding fairer charging, for which we need to gain legislative competence before we can act. It is not intended to be a comprehensive cure-all, to put right all of the issues confronting social care in Wales, nor does it need to be. On Tuesday we debated the CSSIW report. This report showed an improvement in the quality and care being provided in Wales, but it also clearly stated that there was quite a distance to go in achieving consistency. I think this LCO can serve that purpose when we come to considering the measure. Our strategy Fulfilled Lives: Supporting Communities is the appropriate vehicle for tackling broader issues of improving the supply and quality of social care in Wales; and I have given a commitment, and the Welsh Assembly Government's commitment to review the whole of the funding of social care. We hope to move towards discussing those specifics very soon. That review, of course, will take place over the next two years. I think we need to consider quite seriously the way that this LCO can facilitate this work, or any things that come out of that work.

Q4 Dai Lloyd: (Through an Interpreter) Thank you, Chair. I have a supplementary question to that second question, Minister. I think that we are all fundamentally agreed that making these payments consistent across the Welsh counties is a good idea because at present social service users at home face payments and charges that are very high in some counties and relatively low in others. Would you agree with the aim of this Order? If I could spell it out, it is that we need to make charges consistent. That will in its way be a means of improving the service to those service users.

Gwenda Thomas: (Through an Interpreter) I would agree, and I believe that that is a very important point. There are great inconsistencies in the way that people are charged for services that are jointly provided on the same level. It is important. We have seen that Cynon Taff has the lowest charges. Some authorities do not even have a maximum charge, and so that is important. That is the main thrust behind this LCO. The One Wales document emphasises the importance of this policy.

Irene James: The definition of "social care" is not included. That is perhaps something that we really need to look at.

Q5 Joyce Watson: We will be coming on to that later.

Gwenda Thomas: The definition of "social care" is spelt out in the previous LCO that was introduced, the Vulnerable Children and Child Poverty LCO. My interpretation of social care is that it includes the provision by any person of residential care. It includes the provision by any person of residential care, although that is not included in this LCO - non-residential care, support, financial or any other assistance, advice or counselling in connection with the well-being of any person. That is the interpretation of social care that we are using in this LCO.

Joyce Watson: If I can clarify the situation: there are questions on definitions that will be asked later on. If we could deal with them later on, that would be useful, to keep the meeting flowing.

Q6 Hywel Williams: (Through an Interpreter) The question follows on from Irene James's comments. I looked at Field 12 to look for that right for local authorities, or to allow you here to pass measures to allow local authorities to raise charges for services, and I could not see anything in Field 12. Just to endorse what Irene James said, will you be able to pass measures under this LCO if there is not some change to Field 12 also, which deals more generally with this place's right to come to an opinion and to make measures on local authorities' charging provisions? Is one not dependent on the other?

Gwenda Thomas: (Through an Interpreter) I think there is a technical aspect to this question, but, as I understand it, we do not need the ability to legislate in Field 12 for the rights that we are seeking in Field 15 to be effective. If the Chair is content, I could ask Amanda to expand on that technical point regarding the current law.

Ms Jones: A matter can relate to more than one field; that is quite clear in the way the Government of Wales Act has been created. It does not have to be in every field, but it can relate to more than one field and be effective.

Peter Black: Can I ask a supplementary to the question that Dai asked in terms of the way you are going to be levying a consistent charging across the whole of Wales? Is it the intention that that is phased in over a period of time? How would you be allowing for the impact on local authorities' budgets of, for example, ordering them to reduce the level of charging they have for particular services?

Joyce Watson: I advise that I think you are straying into a different remit, which would be measure, and that is not what we are dealing with here. If we start doing that - and the temptation I can understand, and the concerns I can understand; but I do not think for the purposes of this meeting which is dealing specifically with the legislation that it should be ‑‑‑‑‑

Peter Black: The principle of the Order is that local authorities would be asked to levy charges on a consistent basis.

Joyce Watson: I understand that.

Peter Black: What I am trying to understand is whether there is a similar principle in terms of how local authorities would be compensated for that.

Joyce Watson: I understand what you are saying, but if we do not stick to our remit -----

Peter Black: I would argue that that is part of the principle, and how that is applied is an important point -----

Joyce Watson: I would say it is outside our remit.

Peter Black: Well, I do not see how that is the case. It seems to me a very simple question in relation to the principle and the Order.

Joyce Watson: That is as well may be, but I think it is -----

Peter Black: I would like - we could have had an answer in this time! It seems to me important that we have an answer to that question.

Joyce Watson: No, I need to stick to the remit of our Committee.

Q7 Peter Black: I am sorry, I do disagree with that. It does seem to me that we have a principle at stake here: if local authorities are being asked to levy a standard charge, how that principle will be applied is quite important.

Gwenda Thomas: Would it be helpful to ask the Committee to refer to the plenary debate where I gave these answers in public on 27 November?

Peter Black: That would be helpful, thank you.

Joyce Watson: Thank you.

Q8 Chairman: (Through an Interpreter) I think you will see that in our questions we will tend to concentrate on the principles and perhaps the broader impacts of what we have before us on Gt Britain in a way, although we do not wish to see this necessarily from a British standpoint. (Continued in English) You have to ask - and I am sure my colleagues would agree - we would be looking for a wider perspective and how this fits into other legislation and other proposals. My first question is: why is this proposed Order as drafted dependent to an extent on the contents of another order, for example the definition of "social care"? I know you have attempted to address this already, Minister, but can you give some observations on that?

Gwenda Thomas: I will do my best, and if I need to ask for official support I will do that. My understanding is that the purpose of an LCO is to amend Schedule 5 to the Government of Wales Act 2006. This legislative competence order must be read and considered in this light, and not as a free-standing piece of legislation. This LCO contains definitions and is subject to exceptions set out in other LCOs - for example some benefits issues that were already accepted in the Vulnerable Children LCO, and of course the Environmental Protection and Waste Management LCO. If these other LCOs are made before this LCO, Schedule 5 to the government of Wales Act will already have been amended. Consequently there will no need to include this LCO, the definitions and exceptions to which we refer. It sounds a bit convoluted perhaps, but I think of it as a kind of bridge, where the bridge into legislative competence will rely on the timing of previous LCOs. Where Schedule 5 has already been amended, then the introduction of subsequent LCOs can rely on the amendments as have been previously made. Is that accurate?

Ms Jones: That is correct.

Q9 Jonathan Morgan: The concern I have with the answer you have given is that you are making an assumption that the previous competence order will clear all hurdles. I am saying that everything may be fine, but this is not a standard that we would wish to set for the future because you are relying on this to clear all the necessary hurdles without any problems at all and relying on the fact that colleagues in Westminster will be completely satisfied with what has been outlined in a previous competence order. Would it not have been better to have specified in this order the scope and definition of "social care"?

Gwenda Thomas: I assume that if this LCO is considered first, then this LCO will bring about the amendments to the schedule, but I will ask for support on this.

Ms Jones: If this LCO does come first then it will need to be amended to incorporate those things in the other LCOs that are needed for its purpose.

Dai Lloyd: (Through an Interpreter) I think my question has been answered, because I just wanted confirmation of the fact that the legislative competence order, the Vulnerable Children and Child Poverty Order, was in front of this LCO in the pecking order, as it were; so I just wanted confirmation of that. Therefore your definition of what will occur will hold water, as long as that LCO is in front of this one in the great manner of things.

Q10 Chairman: I think we are a little bit further forward. The difficulty I have is that I have tried to put myself in the position of members of the public, trying to make sense of what we are saying and doing here, and trying to understand it from a lay person's point of view. If I could put the question in a slightly different way, would it not have been clearer if the intended legal context had been included in the official documentation? There is a sense in which each of these kinds of proposals need to be free-standing and understood within their own context. I know they relate to other things. Am I making myself clear? I am not sure whether I am.

Gwenda Thomas: My understanding is that the LCO can be free-standing, depending on the timing. Perhaps Amanda or Steve would want to add to that.

Ms Jones: I do appreciate what you are saying, but at the point that this LCO is to be introduced to the Assembly for approval, it will be amended if it needs to be. In the meantime, we have attempted to deal with that by way of the explanatory memos, and of course these discussions in Committee.

Q11 Chairman: It is understandable and perfectly reasonable for us to be pressing the Government on this question of definition because a great deal will turn on it, will it not? Does the matter relate to all cases of social care mentioned in the definition of "social care" other than residential care; or does it apply solely to non-residential care in connection with the well-being of a person?

Gwenda Thomas: This LCO is concerned with non-residential social care that is provided by local authorities. With the exception of residential care, this LCO will include all forms of social care referred to in the definition of "social care" set out in the Vulnerable Children LCO and to which I referred earlier in this meeting. The term "social care" as defined in the Vulnerable Children LCO is wider than the scope of this LCO as it is intended to apply across the social welfare field and not only in relation to this LCO. What is being said is that there is wide enough scope within the Vulnerable Children LCO to accommodate the proposals that this LCO makes.

Q12 Jonathan Morgan: Minister, on 27 November you made several references to adult recipients of non-residential social care. Can you confirm that the proposed Order would allow the Assembly to legislate in respect of charges for non-residential social care to children and young people?

Gwenda Thomas: Yes. That is quite clear. The LCO, as currently drafted, would enable us to introduce a measure on charging by local authorities for children's services. However, we have no intention of introducing such a measure in the foreseeable future - but it would allow it.

Q13 Jonathan Morgan: In terms of Government thinking, why would you not wish to introduce a measure to allow that? I know that the principal concern you had was on adult social care, but there are issues around children and young people as well, so I am just wondering why that is the case.

Gwenda Thomas: Because we do not have local authorities at the moment charging for children's services. I understand that some authorities have given consideration to that, but to the best of my knowledge I know of no authority that is seeking to charge for those services at the moment.

Q14 Jonathan Morgan: Would the proposed Order enable the Assembly by measure to abolish charging for home care and other non-residential social care?

Gwenda Thomas: Yes, it would allow that, but as I made very clear in the plenary debate on 27 November, and as is underlined by One Wales, that is not a proposal at the moment because of affordability. Certainly it would not exclude it.

Q15 Jonathan Morgan: Can you explain why the scope of the Order is limited to charges in respect of non-residential social care, and why it does not extend to residential social care? Earlier, in response to Dr Lloyd, you said that there are inconsistencies for other services that are jointly provided; and of course there are issues about fee levels in residential care. I am wondering why you are confining it purely to non-residential care.

Gwenda Thomas: Our proposals to legislate on charging for non-residential social services have been made in response to a particular problem with inconsistencies of the charging regime for non-residential social services. This particular problem does not exist in the field of residential social care. That is because the Welsh Assembly Government has issued guidance, Partnership in Care, which offers guidance to local authorities. Also, a toolkit has been developed by the WLGA based on explanations of that guidance. Of course, local authorities have clear guidance, and within law, as to how they must charge for residential care.

Mr Milsom: If I could clarify what the Minister was saying then; in relation to the Partnership in Care guidance and the toolkit, they relate to how local authorities set their remuneration to care home-owners. In law, the Assembly Government cannot set those charges. It is a matter of commissioning between the local authority and the individual care home-owners. The way we ensure consistency in the charging for residential care is through something called CRAG (Charging for Residential Accommodation Guidance); and that sets out capital limits that have to be applied to individual circumstances. If someone has more than £22,000 in capital, savings and house, then they have to pay all of their care. Then there is a sliding scale between £22,000 and £17,500 where they pay some of the care; and then below £17,500 the local authority pays all the individual's care. We already have a robust mechanism in place to ensure consistency in respect of residential accommodation charging, and it is updated through regulations on an annual basis. Therefore, we do not need to do that through this LCO.

Q16 Peter Black: I understand the reasoning around residential care, but of course some residential care is owned by local authorities as well; it is not all contracted. The question really is, if at some stage in the future you did wish to legislate around residential care, would you require an additional LCO to do that?

Gwenda Thomas: Yes. I would like to stress that of course local authorities have a legal duty to apply the statutory framework that Steve has mentioned.

Q17 Dai Lloyd: (Through an Interpreter) Will the proposed order, which we are scrutinising today, enable the Assembly to bring forward other measures which are related to the whole process of assessment for charging? Naturally, Minister, you will be aware that other benefits are often involved; here there are various benefits of course, and occupational pensions and so on. Is there then the scope to bring other measures forward at a later date which would look at this whole process of how charging is assessed?

Gwenda Thomas: (Through an Interpreter) Quite clearly, yes. Speaking from personal experience I think this is a very important. It is important that we can consider not only the levels of payments but we can also look at the financial assessment. There are inconsistencies on this issue that we are aware of. For example, if we can discount some benefits and pensions, then that might be a positive, and I think there is some work to be done in the future; but that would be a matter for the measures themselves.

Q18 Dai Lloyd: Matter 15.9 relates only to non-residential social care - we have covered this a little earlier - although the definition of "social care" also includes residential care. Is there potential here for confusion, or will you make it entirely clear as part of this LCO?

Gwenda Thomas: (Through an Interpreter) As you said, we touched upon this earlier. I do understand why the Committee is seeking clarity on this issue, but I myself do not believe that there will be any confusion. Of course, this LCO does not cover non-residential care, but I am sure that the definition of social care that is included in this LCO will bring clarity to this whole process.

Q19 Hywel Williams: (Through an Interpreter) I would just like to follow up on this issue. I acknowledge, Minister, that you responded earlier; you said for example that under the Children's LCO the definition is broader; but you have a definition here that is far narrower because residential care is not included. What concerns me is that there is a definition outlined in that other LCO when there is no definition in this one, as far as I can see. How can you say whether or not it is going to be broad enough in scope? For example, as is noted here, is it broad enough to include financial support or any other assistance, advice or counselling, in connection with the well-being of an individual? Is it broad enough to cover that, or not, because you have no definition here. That is what concerns me here; that you are in danger of taking action without having a clear basis for that.

Gwenda Thomas: (Through an Interpreter) I do understand that residential care has not been given a legal definition, but we are attempting to discuss this as it is usually provided, and as we know it is provided within our communities; and that is care within people's own homes or in their communities. However, the definition of "non-residential care" is included, and that is intended to include all sorts of care with the exception of home care, which can include all sorts of support and assessments, as Dai mentioned, and all the other ways we can assist people in living within their own homes and within their own communities, using the domiciliary status - if I can use that English term there.

Q20 Hywel Williams: Minister, what concerns me is the criteria in terms of not including some services, because it will be extremely important for service-users to know whether or not this service is included. We are looking at the boundaries here, are we not? That is why I am concerned that if this definition is very broad it will include everything; but if it is not quite that broad then some services will be omitted and we will not be able to pass the measures required. That is just an explanation. I do not know if you have any further comment?

Gwenda Thomas: (Through an Interpreter) My opinion is that it is broad enough to include all sorts of services and support that are not residential. Perhaps Amanda could endorse that response.

Ms Jones: Social care is defined for the purposes this LCO and the Vulnerable Children LCO, and it is broad enough to cover all these other things that we have talked about. This LCO is dealing only with non-residential social care, so everything that is within the definition of social care that is not residential will be covered by this.

Q21 Peter Black: In your guidance to local authorities Fairer Charging Policies for Home Care and Other Non-Residential Social Services you drew a distinction between home care and other non-residential social services, which include services provided in a day centre and respite care rather than merely the personal care and domestic help provided in an individual's home. The Fair Charging Policies document also describes types of social services, meals at home or in day-care, domestic help, personal home-care equipment, housing adaptations not provided through DFGs et cetera. So what types of provision and/or services are covered by the term "non-residential social care" in the proposed Order?

Gwenda Thomas: I did not quite catch what you said about respite care, but it would certainly or could cover respite care if it was provided in the home setting. It is important to make that point. Perhaps I can answer your question by referring to what we mean by "personal home care" as part of the answer. Personal care of course is not defined in law, but it is set out in a regulatory framework. The Assembly Government's view is that personal care includes assistance with bodily functions such as feeding, bathing, walking and toileting, and care that falls just short of assistance with bodily functions but still involves physical and intimate touching. You have mentioned some other issues such as financial support and welfare rights - all of that can come within the terms of this LCO.

Q22 Peter Black: Would that include services in a day centre or respite care?

Gwenda Thomas: Yes, it could, yes.

Q23 Peter Black: It would?

Gwenda Thomas: Yes, it could, yes.

Q24 Peter Black: And respite care - outside that, other than the home.

Gwenda Thomas: Respite care provided in the home setting, and also day care, and possibly - and I do not know if I am right here - even transport to services.

Q25 Peter Black: Can you define what you mean by "respite care in the home setting"?

Gwenda Thomas: This is happening more and more and is a very valuable service. Where a crisis arises at home, then the care can be moved in to the home, rather than move the service-user out of the home.

Q26 Peter Black: It would not include respite care where the cared-for person is moved to another institution for a week or so to give respite to the carer?

Gwenda Thomas: It depends on the setting in which that respite care would be provided. I do not think it totally excludes respite care in another setting if that was provided on a very short-term basis in another place.

Mr Milsom: The Residential Accommodation Regulations and Guidance that I mentioned earlier would enable us to deal with the matter of respite care in a care-home setting, which is often the case, so it would just be going down another route for that.

Q27 Peter Black: Can you clarify what is meant by the term "persons" in Matter 15.9? For example, does it include both individuals and organisations that might be involved in looking after an individual in receipt of social care?

Gwenda Thomas: The term "person" does include individuals as well as corporate and unincorporated bodies.

Q28 Peter Black: Thank you. Finally, the proposed Order refers to "payment in respect of individuals with particular needs". Can you elaborate on what is meant by "particular needs"?

Gwenda Thomas: This part of the Order deals with those individuals who are in receipt of a payment for securing non-residential social care, which currently means those in receipt of direct payments. Direct payments may be made for the provision of care required to meet a wide range of needs. These needs are not specified in the relevant legislation, and accordingly no definition has been included in this LCO. This will enable the Assembly to legislate in respect of all payments for securing non-residential social care which are made to individuals with needs, provided these needs relate to that individual's well-being and do not fall within one of the excepted matters.

Q29 Peter Black: You are saying it will be defined in the measure.

Gwenda Thomas: Well, I think we can have discussions and consultations around this matter but certainly the direct payments issue is a scheme in its own right, and we would not want to exclude any other schemes that might be introduced, or payments made in the future.

Q30 Peter Black: So when you come to make the measures, any additional definitions will be carried out at that stage.

Gwenda Thomas: Indeed, and it could accommodate any change in policy on the way payments are made, rather than service provided.

Q31 Hywel Williams: (Through an Interpreter) I just wanted to ask you about the effects of any new regulations which may be introduced under any measures in the future. I do not think we are here, as a committee, to find out exactly the detail of what the Assembly wishes to do over the next five or ten years, as is acknowledged in the foreword that Peter Hain has provided here. It would be of assistance for us to know how you believe these measures will work. My question fundamentally revolves around the risks of capping charges or placing a floor on charges. Is there a risk in the future that placing some kind of ceiling or cap on charges would lead to lower quality services in some areas and to price increases in other areas? Much as we would like to see consistency throughout Wales - and we know the detrimental effects of the postcode lottery - is there a danger of that happening in the future?

Gwenda Thomas: (Through an Interpreter) I think it is important that we bear in mind when we consider the impact of future charging that only 15% of the charges made by local authorities come from payments - and this puts it into its context. I believe the figure is £23 million, the funding claimed by local authorities, and that the cost of services is somewhere around £153 million; so that gives you some idea of the context of the charges. I believe that one of the aspects that the measure could deal with is this aspect of capping, but this is something that we will consider as we move towards a measure and consult on any future measure as we introduce that measure.

Q32 Mrs James: (Through an Interpreter) I want to turn now to the private sector. Do you accept that charging caps may inadvertently affect the private sector providers, particularly those providers that are paid by the local authorities; and if there has been any response from the private sector, what has that response been to what is being proposed in the order?

Gwenda Thomas: (Through an Interpreter) There is no evidence of a direct link between charging and the quality of the care provided. As I have already explained, it is a very small percentage of the funding claimed by local authorities, a very small percentage of the actual cost of providing those services. I am not saying that it is not important, but I am saying that it is only 15% that is raised in charges. There is a framework in place so that we can ensure that the quality of care is of a sufficiently high standard. We are aware of the work of the SSIW as was and the CSIW. We did receive their report this year on 2006/2007 so we know what the quality of the care is and what needs to be done. Personally, I do not see that placing a cap on charges would create any problems in terms of quality of services because there are other ways and means of ensuring that the care meets the necessary standards.

Q33 Mrs James: Do you see any expansion in that gulf between the private sector and the public sector?

Gwenda Thomas: (Through an Interpreter) No, not really. We were discussing the LCO with officials, and I was surprised in hearing that 80% of services are currently provided by the private sector; and perhaps some years ago we would have thought that that would have been turned on its head. I believe that the private sector now forms an important part of the partnership. I have not received a single word of a response from the private sector regarding this LCO, but we will of course be wanting to consult with all sectors - the local authorities, the private sector, as well as the independent and voluntary sectors. When it does come time for the measure we will certainly carry out that consultation.

Q34 Chairman: (Through an Interpreter) I am surprised, Gwenda, that you have not had any response at all from the private sector to date. Am I right in saying that?

Mr Milsom: That is correct. We have regular dialogue with Care Forum Wales, the leading representative body for the private sector, and they have not raised this in any formal or informal discussions.

Q35 Chairman: (Through an Interpreter) Therefore, do we take it that they are quite happy with these proposed changes?

Gwenda Thomas: (Through an Interpreter) The work of the National Forum is extremely important as regards creating an effective partnership, and that is in place; but I am sure that when we consult on any measures we will consult through the Forum and through other methods with the private sector. We will certainly want to speak to them and to demonstrate our own commitment to the partnership that is developing here in Wales.

Joyce Watson: We are looking at direct payments now, and Dr Dai Lloyd will be asking a question on that.

Q36 Dai Lloyd: The explanatory note to the proposed Order that we are looking at today refers specifically to direct payments, whereas Matter 15.9 simply includes the term "payments"; there is no talk of direct payments as such. Can I ask what is the reason for this, and what other types of payment could be included within this Order, as well as the direct payments?

Gwenda Thomas: (Through an Interpreter) I think I may be repeating myself in answering this question. This issue covers payments rather than direct payments because, as I have already explained, the scheme is a direct payment scheme, which is a scheme in its own right, and it would not be wise, in my opinion, to talk only of direct payments when perhaps policies will develop that make reference to other payments. We know that we are awaiting the Green Paper in England, and we have to be open as to how policies could develop in future, and ensure that we have the legislative competence to consider that should it become an issue.

Q37 Jonathan Morgan: In essence, my question has been answered in that the scope of the Order goes beyond direct payments to payments more generally. Looking specifically at the direct payments system, do you anticipate the Order being able to allow the Assembly by measure to make any more fundamental changes to the direct payments system itself?

Gwenda Thomas: My understanding - but I will seek support on this - is that it is more concerned with the assessment of the level of contribution of the individual service-user. We would not want to exclude the opportunity to ensure that the financial assessment process is as fair as the charge itself. That is the way I understand it, but I will ask if anything else needs to be said in response to that question from Jonathan.

Mr Milsom: I think that explains it well. The two, direct payments and charging, are linked in the way they impact on users. It has to make sense in terms of the direct payment scheme as well.

Q38 Joyce Watson: I am going to ask a question of the Minister now on the excepted matters. Article 3 of Matter 15.9 refers to six excepted matters, namely child support, tax credit, child benefit and guardian allowance, social security and independent living funds and mobility. Minister, can you please explain the reason for the exceptions and the implications that this may have on effectiveness of any future proposed measure brought forward under Matter 15.9?

Gwenda Thomas: Given the scope of this LCO and that it extends to payments in respect of individuals with particular needs relating to their well-being, it could be interpreted as giving the Assembly competence in relation to a range of state benefits and awards. The inclusion of the various benefits as an exception makes clear that they are excluded from the competence because they are the responsibility of the United Kingdom Government. This LCO therefore reflects the general devolution settlement.

Hywel Williams: (Through an Interpreter) Can you confirm, Minister, that unless the Welsh Assembly Government is able to remove charging discrepancies by imposing minimum and maximum, the proposed order would not bring the postcode lottery to an end because the problem is how much power you will have centrally and what impact it will have at grass roots level if you are unable to do that. This point was raised by Jenny Randerson during our debate in plenary. There is no intention whatsoever in this LCO to make it a requirement of local authorities to charge for their services. That discretion will stand within the local democratic system, and the LCO will have no bearing on that. What we do want to do is to have the power to legislate on this particular aspect and to try and ensure that payments are more equitable and more consistent. I do not see that bringing in either a cap or a floor would assist that in any way whatsoever.

Q39 Mrs James: (Through an Interpreter) We covered the subject of powers and resources a little earlier when Peter Black raised his question, but I did want to return and expand upon this issue. I wanted the opportunity to ask whether you had sufficient powers and resources to support the increased financial pressures on those local authorities. I will say it in English - I have lost my train of thought - I do apologise. (Continued in English) ... with adequate powers and resources to support the increased financial pressure on those local authorities that would be forced to reduce charges.

Gwenda Thomas: The extent to which we decide to compensate local authorities for any revenue that they may lose as the result of a subsequent measure on charging is an issue for consideration when that measure is developed. Today we are discussing whether it is appropriate for the Assembly to gain competence in this area. We do, however, have a track record, which I hope will go some way to reassuring you on this issue. We have fully reimbursed local authorities for changes we made to the fairer charging guidance in 2007, using the powers we had under Section 31 of the Local Government Act; and that can clearly be seen in budget lines. Those payments to local authorities are based on actual expenditure.

Q40 Mrs James: Will central funding be made available to those local authorities?

Gwenda Thomas: That is a matter of course again for the measure, as and when we consider it.

Q41 Joyce Watson: Minister, what are the implications of drafting the proposed Order if it is laid before the Assembly for approval in relation to vulnerable children, child poverty, and environmental protection and waste management?

Gwenda Thomas: The LCOs that refer to those topics?

Q42 Joyce Watson: Yes.

Gwenda Thomas: I have tried to explain that this is down to timing, and whichever LCO is considered first. What we need to remember is that this is about amendments to Schedule 5 and that any one of the LCOs so far introduced - and we are pleased that this LCO did receive the agreement of Westminister at a very early point, and I hope that that will facilitate its passage. I do think that any amendments to Schedule 5 can be done by any LCO. I think we have visited this before, but perhaps we need to offer some extra clarification.

Ms Jones: The question was: if this LCO proceeds, or the others, what will happen? It will need to be redrafted to incorporate those elements of the other LCO that are required for the purposes of this LCO.

Q43 Chairman: (Through an Interpreter) I believe that this is the last question - and I am sure you will be pleased about that, Gwenda! I made reference at the outset to the effect of these developments in Wales on England, and the Welsh Affairs Committee is about to start an inquiry in a month's time into public services and the various other policy developments in England and in Wales, and the impact on the border communities in Wales and in England. Have you, as a government, looked into the possibility that there will be entirely different charges and policies in place and that public services will be entirely different in those border areas between England and Wales, particularly in places like Monmouthshire and Clwyd?

Gwenda Thomas: (Through an Interpreter) I do not see how this LCO will impact upon the responsibilities in terms of assessment of individuals and the provision of care, which is consistent to an extent across England and Wales - but policies between England and Wales can differ. That is true in a number of policy areas, and I do believe that that is something to be welcomed, because that is what devolution means, in my opinion. We are giving Wales the right to legislate as its own government sees fit and sees as being in the best interests of the people of Wales; but I do accept your point on the border area between England and Wales. As I understand it, we will only be legislating for people who are resident in Wales, and I think we can be quite clear about that. We have seen Wales in the vanguard in terms of appointing a Children's Commissioner first of all, and then a Commissioner for Older People. I am very proud to say that Wales can lead the way. I am sure that there are things that we can learn from Westminster, but, likewise, Westminster can learn some lessons from us here in Wales too. I believe that a joint committee such as this one underlines that; we can be open with each other and scrutinise jointly, as we have done today.

Q44 Chairman: (Through an Interpreter) Amen to that; I would agree with every word that you have said. You, perhaps, would look forward to seeing England following your lead on this LCO?

Gwenda Thomas: (Through an Interpreter) Yes, indeed. We do look forward to seeing what the Green Paper will say, because although that will be a paper for England only there will be issues that will be of great import to Wales, and perhaps this Order will put us in a good position to make legislation in Wales so that we do our best for the people of Wales, particularly our most vulnerable people. Of course, that is our aim.

Chairman: (Through an Interpreter) That is a good point to finish on. It is a very positive point. Hywel has a supplementary question.

Q45 Hywel Williams: (Through an Interpreter) I am sorry to raise a further issue, but there are two aspects to this border issue. We have a different system to that which exists in England, and I would say the system in Wales is better; so as far as I can see it is a matter for decision-makers in England. Perhaps there are differences, but there we go - that is just the way it is. On occasion there is a perception that the people are given better services over the border, in terms of health service in particular; but in terms of these services referred to here, is there anywhere in Wales where, for practical reasons, the service is provided from Chester or Shropshire? I am thinking of the border towns, which are exactly on the border. Perhaps you could provide a note for the Welsh Affairs Select Committee and for Assembly Members.

Gwenda Thomas: (Through an Interpreter) I am sure we can answer your questions in a letter. I do not know if those figures are available. I do not have that information, but I am quite clear in my own mind that we are discussing here charges for people resident in Wales. If there are people in England who receive services in Wales, then it is the responsibility of the local authority in England to fund that service, so I do not see that there is any question that could cause difficulties as this LCO develops.

Q46 Chairman: (Through an Interpreter) Do you, as a government, have a strategy to ensure that there is collaboration in those border areas? Do you give advice to local authorities to ensure that there is some kind of strategy to ensure that everyone is treated fairly in those areas?

Gwenda Thomas: (Through an Interpreter) I do believe that the rules are quite clear on who has the responsibility for the funding of services. I have no doubt about that. I know that Hywel has raised the issue on figures, and perhaps once we have that information that will give us some clarity in this area. I think it is quite safe for us to put our faith in the rules already in existence.

Dai Lloyd: (Through an Interpreter) The services you receive are dependent on your postcode, and if your postcode is in Wales the provision will be there; and if that provision happens to be provided in England, then the Assembly will look after you through the local health board by means of a contract or agreement; and the opposite is also true: if your home address is in England and you are receiving services in Wales, then your local authority will pay for that where necessary. The last time I looked at the figures in terms of health services, you will recall that some 2.9 million people live in Wales, and 37,000 patients from Wales are treated in England, which is a very small figure.

Joyce Watson: I am going to draw the meeting to a conclusion. I am going to start by thanking the Minister for her contributions and for being very open and forthright with us. I also thank the Members of the Welsh Affairs Committee for their contributions and for being here with us today. The Welsh Affairs Committee and our Committee will be meeting separately on 31 January to take further evidence in connection with this proposed Order.

Chairman: (Through an Interpreter) Ms Watson, thank you very much for the way in which you have chaired proceedings on behalf of the National Assembly for Wales today. It has been an exceptionally successful meeting and, as I said earlier, it is a historic day. Thank you.