Select Committee on Delegated Powers and Deregulation Nineteenth Report



ANNEX 1

CARERS AND DISABLED CHILDREN BILL

Memorandum by the Department of Health

Introduction

1. This memorandum summarises the main provisions of the Carers and Disabled Children Bill and provides an overview of the delegated powers. It subsequently identifies each power; describes its purpose; explains why the matter has been left to delegated legislation; and explains the degree of Parliamentary control provided.

The Bill

2. In summary, the Bill's main purpose is to enable local councils to offer informal carers certain services to support them in their caring role and to help them to maintain their own health and well being.

3. Clauses 1 to 5 and 8 introduce changes to the law that affect individuals aged 16 or over (carers) who provide or intend to provide a substantial amount of care on a regular basis for another individual aged 18 or over (the person cared for). These changes will involve a new right to a carer's assessment, on request, even in circumstances where the person cared for has refused an assessment for, or the provision of, community care services.

4. Following assessment the Bill empowers local councils to offer services to carers or to make direct payments to them so that they may purchase the services that meet their assessed needs. The Bill gives councils a power to charge carers for the services they receive.

5. In addition, the Bill provides for local councils to run short-term break voucher schemes that will offer persons cared for choice in how their additional support needs are met while their normal carer takes a break.

6. Clauses 6 and 7 make specific provision for persons with parental responsibility for disabled children. Clause 6 provides that, if requested, the local authority must carry out an assessment of a person with parental responsibility for a disabled child if it is satisfied that the child and his family are persons for whom it may provide or arrange for the provision of services under section 17 of the Children Act 1989. Clause 7 inserts new sections 17A and 17B into the Children Act 1989 which empower councils to offer persons with parental responsibility for disabled children the option of direct payments and of short-term break vouchers. In addition, the new section 17A in the Children Act extends the direct payment provisions to 16 and 17 year old disabled children.

Overview of the delegated powers

7. The Bill has a number of provisions containing powers to make delegated legislation. There is power to make orders and regulations. There is also power for the Secretary of State (or, in relation to Wales, the National Assembly for Wales) to give directions as to the manner in which an assessment under clause 1(1) or clause 6 (1) is to be carried out or the form it is to take.

Type of Parliamentary Scrutiny

8. In considering what type of Parliamentary procedure would be appropriate for each power, the sponsor of the Bill has sought to follow established practice. Under the current legislative framework the delegated powers in general adopt the negative resolution procedure. The sponsor has therefore decided that all of the delegated powers made under the Carers and Disabled Children Bill should be subject to the negative resolution procedure in respect of England. In Wales the power to make orders and regulations will be the responsibility of the National Assembly for Wales.

Rationale for delegated powers in the Bill

9. In considering what matters should be specified on the face of the Bill and what should be left to delegated powers, the sponsor has weighed the importance of the matter against the need to:

  • allow the Secretary of State and the National Assembly for Wales to consult interested parties, in particular, in relation to regulations prior to making and laying;
  • ensure sufficient flexibility to react to changing circumstances without the need for primary legislation; and
  • avoid placing excessive technical and administrative detail on the face of the Bill, and to keep the Bill as short as possible.

10. The following is a clause by clause consideration of those clauses which contain delegated powers.

COMMENTARY ON DELEGATED POWERS

CLAUSE 1(4)

11. Clause 1(4) allows the Secretary of State (or, in relation to Wales, the National Assembly for Wales) to give directions as to the manner in which a carer's assessment under subsection (1) is to be carried out or the form it is to take. The provision follows the model of section 1(4) of the Carers (Recognition and Services) Act 1995. The direction making power avoids unnecessary detail in primary legislation. Any directions, if issued, must be in writing but it is not thought appropriate to subject such directions to Parliamentary scrutiny.

CLAUSE 2(3) AND (4)

12. Clause 2 gives local councils the power to provide services to carers following a carer's assessment under clause 1(1). In certain circumstances these services may take the form of a service delivered to the person cared for. Under subsection (3)(b) if a service is delivered to the person cared for it may not, except in prescribed circumstances, include anything of an intimate nature. Subsection (4) allows for regulations to make provision about what services are, or are not, of an intimate nature.

13. The purpose of the restrictions outlined in the previous paragraph is to ensure that there is respect for the individual liberty of disabled, vulnerable and frail older people and to ensure that local authority support for carers does not become a tool to erode the hard won independence of disabled people.

14. The reason for taking a regulatory power in relation to these matters rather than setting them out on the face of the Bill is so that consultation can take place, particularly with groups representing disabled people. An example of a prescribed circumstance under subsection (3)(b) might be where a non-intimate sitting service is being delivered to the person cared for. If the carer's return to the house is delayed the person cared for may need to be lifted and may need help with toileting. Preliminary discussions with representatives of disability rights groups suggest that for the purposes of subsection (4) services of an intimate nature are likely to include such things as dressing, feeding, lifting, washing or bathing the person cared for.

CLAUSE 3(1)

15. Clause 3 enables the Secretary of State (or, in relation to Wales, the National Assembly for Wales) to make provision in regulations for local councils to issue vouchers for short-term breaks. Vouchers are defined in subsection (2) and will enable the person cared for to arrange for someone to provide services for him in lieu of the care that would otherwise have been provided by the carer. Once again, this has been left to secondary legislation to allow full consultation on the framework for voucher schemes that will best meet the needs of carers and persons cared for in England and Wales. The power to make regulations will allow greater flexibility to respond to changing circumstances and will avoid the inclusion of unnecessary detail on the face of the Bill.

CLAUSE 5(B)

16. Clause 5 amends section 1(1) of the Community Care (Direct Payments) Act 1996 to enable local authorities to make direct payments to carers in lieu of the services they have been assessed as needing under clause 2(1) of the Bill. All carers whom the local authority have decided to provide with carers services will be eligible for direct payments unless they are of a description specified in regulations (the new section 1(1)(b)(ii) of the 1996 Act). The regulation making power will ensure that there is the flexibility to exclude certain carers from direct payments should this prove to be necessary in the future.

CLAUSE 6(3)

17. Clause 6(3) allows the Secretary of State (or, in relation to Wales, the National Assembly for Wales) to give directions as to the manner in which an assessment of a person with parental responsibility for a disabled child is to be carried out or the form it is to take. The direction making power avoids unnecessary detail in primary legislation. As with directions under clause 1(4) (please see above) any directions must be in writing but it is not thought appropriate to subject such directions to Parliamentary scrutiny.

CLAUSE 7

New Section 17A

18. The new section 17A enables local councils, instead of providing services under the Children Act, to make to the person who has parental responsibility for the disabled child a direct payment in lieu of those services. Direct payments will also be available under this section to 16 and 17 year old disabled children.

19. The direct payment provisions are intended to give persons with parental responsibility for disabled children and 16 and 17 year old disabled children more influence over the way services are provided. Subsection (3) allows the Secretary of State (or, in relation to Wales, the National Assembly for Wales) to prescribe persons from whom services may not be secured and follows the model of section 1(4) of the Community Care (Direct Payments) Act 1996. The limitations here are likely to include the spouse of the payee and anyone who lives with him as his spouse and certain relatives who live in the same household as the payee as well as the spouse of such person and anyone living with such a person as his spouse. However, the power allows for consultation and flexibility.

20. Subsection (4) enables the Secretary of State (or, in relation to Wales, the National Assembly for Wales) to limit the period of residential accommodation which may be purchased by means of a direct payment and again this follows the model of section 1(5) of the 1996 Act. This has been left for regulation to avoid setting out the detail on the face of the Bill.

New Section 17B

21. The new section 17B in the Children Act makes similar provision for short-term break voucher schemes to that contained in clause 3 of the Bill. It enables the Secretary of State (or, in relation to Wales, the National Assembly for Wales) to make provision in regulations for the issue of vouchers by local councils to persons with parental responsibility for disabled children. This will enable such persons to arrange for someone to care for their disabled child while they take a short break. As with clause 3, these aspects have been left to secondary legislation to allow full consultation on the framework to be devised to best meet the needs of carers and persons cared for in England and Wales and to avoid putting unnecessary detail on the face of the Bill.

CLAUSE 12(2)

22. Clause 12(2) enables the Carers and Disabled Children Act to be brought into force on such day as may be appointed by a commencement order. Consultation with interested parties on the content of policy and practice guidance and on the content of regulations will be necessary before the Carers and Disabled Children Bill can be brought into force. As is usual, the power to make a commencement order is not subject to Parliamentary scrutiny.

CLAUSE 12(5)

23. This clause enables the Secretary of State to make regulations enabling the Council of the Isles of Scilly to be treated as a local authority for the purposes of the Bill. The provision follows previous community care legislation, for example, section 3 of the Carers (Recognition and Services) Act 1995 (see the Isles of Scilly (Carers) Order 1996 (S.I. 1996/693)).

Conclusion

24. The Carers and Disabled Children Bill contains a number of powers to make delegated legislation. The main reason for including these powers is to allow for consultation to take place with interested parties before implementation. The inclusion of the powers will also mean that there is flexibility to respond quickly to changing circumstances and will ensure that the primary legislation is not weighted down by excessive technical and administrative detail.

May 2000


 
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