Care Bill [HL]

MARSHALLED
LIST OF Amendments
to be moved
on report

The amendments have been marshalled in accordance with the Order of 8th October 2013, as follows—

Clauses 1 to 39
Schedule 1
Clauses 40 to 43
Schedule 2
Clauses 44 to 70
Schedule 3
Clause 71
Schedule 4
Clauses 72 to 86
Schedule 5
Clauses 87 to 94
Schedule 6
Clauses 95 to 99
Schedule 7
Clauses 100 to 103
Schedule 8
Clauses 104 to 116

[Amendments marked * are new or have been altered]

Clause 1

LORD HUNT OF KINGS HEATH

1

Page 1, line 4, at end insert—

“( )   The Secretary of State in making regulations or issuing guidance under this
Part must have regard to the general duty of local authorities, in exercising
a function under this Part in the case of an individual, to promote that
individual’s well-being.”

EARL HOWE

2

Page 1, line 8, at end insert—

“( )   personal dignity (including treatment of the individual with
respect);”

3

Page 1 , line 9, leave out “, emotional well-being and personal dignity” and insert
“and emotional well-being”

BARONESS BARKER

4

Page 1, line 9, at end insert “and spiritual wellbeing”

LORD WARNER

LORD MACKAY OF CLASHFERN

BARONESS GREENGROSS

5

Page 2, line 28, at end insert—

“( )   In exercising a function under this Part, the Secretary of State must have
regard to the obligation on local authorities to promote individual well-
being as defined in subsection (2).”

BARONESS FINLAY OF LLANDAFF

BARONESS PITKEATHLEY

6*

Page 2, line 34, at end insert—

“( )   For the purposes of this section, “an individual” includes a person with
parental responsibility for a disabled child.”

Clause 2

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

7

Page 2, line 41, at end insert—

“( )   contribute towards preventing or delaying the development by
children caring for an individual in its area of needs for support;”

BARONESS FINLAY OF LLANDAFF

BARONESS PITKEATHLEY

8*

Page 2, line 41, at end insert—

“( )   contribute towards preventing or delaying the development by a
person with parental responsibility for a disabled child in its area of
needs for support;”

9*

Page 2, line 43, at end insert—

“( )   reduce the needs for support of a person with parental
responsibility for a disabled child in its area”

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

10

Page 3, line 4, after “carers” insert “, both adult carers and individuals under the
age of 18 with caring responsibilities,”

Clause 3

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

11*

Page 4, line 3, at end insert—

“( )   NHS bodies must exercise their functions—

(a)   with a view to ensuring the integration of services for the purposes
of enhancing the health and well-being of people, in keeping with
the duty on Health and Wellbeing Boards enshrined in section 195
of the Health and Social Care Act 2012; and

(b)   without hindering the efforts of a local authority to fulfill its duty
under subsection (1) above.”

EARL HOWE

12

Page 4, line 10, at end insert—

“( )   For the purposes of this section, the provision of housing is health-related
provision.

( )   In section 13N of the National Health Service Act 2006 (duty of NHS
Commissioning Board to promote integration), at the end insert—

“(5)   For the purposes of this section, the provision of housing
accommodation is a health-related service.”

( )   In section 14Z1 of that Act (duty of clinical commissioning groups to
promote integration), at the end insert—

“(4)   For the purposes of this section, the provision of housing
accommodation is a health-related service.””

Clause 4

BARONESS GREENGROSS

13

Page 4, line 12, leave out “and maintain” and insert “, maintain and facilitate access
to”

EARL HOWE

14

Page 4, line 22, leave out from “matters” to “, and” in line 24 and insert “relevant to
the meeting of needs for care and support”

LORD BEST

LORD HUNT OF KINGS HEATH

BARONESS BARKER

BARONESS EATON

15

Page 4, line 24, at end insert—

“( )   available housing options, and the choice of providers, available in
the authority’s area,”

EARL HOWE

16

Page 4, line 28, after “particular” insert “—

( )   have regard to the importance of identifying adults in the
authority’s area who would be likely to benefit from financial
advice on matters relevant to the meeting of needs for care and
support,

( )   ”

17

Page 4, line 32, after “arise” insert “, and

(iii)   to understand the different ways in which they may access
independent financial advice on matters relevant to the
meeting of needs for care and support.”

BARONESS GREENGROSS

18

Page 4, line 34, leave out “for whom it is being provided” and insert “who would
benefit from receiving it”

EARL HOWE

19

Page 4, line 34, at end insert—

“( )   “Independent financial advice” means financial advice provided by a
person who is independent of the local authority in question.”

LORD LIPSEY

LORD SHARKEY

BARONESS GREENGROSS

LORD HUNT OF KINGS HEATH

20

Page 4, line 41, at end insert—

“( )   The Secretary of State—

(a)   has a duty to ensure through national public awareness campaigns
that there is a high level of public awareness and understanding of
the terms and implications of the cap on the cost of care; and

(b)   shall publish annually a report on the levels of such awareness and
understanding, including the results of a representative poll of
adults.

( )   Regulations must make provision for when a local authority must refer an
adult with care and support needs, or who is making plans for meeting
such needs, to a regulated financial adviser; and for when a local authority
may refer such an adult for such advice.

( )   The advice and information made available to adults with care and support
needs must include—

(a)   advice on housing options; and

(b)   tailored information for individuals with specific medical
conditions and complex individual needs.”

BARONESS MEACHER

21

Page 4, line 41, at end insert—

“(6)   Regulations must make further provision in relation to information and
advice, and in particular to ensure that information and advice meet the
needs of those for whom they are provided, a local authority must require
social work-qualified staff to provide information and advice in cases
where present or foreseeable needs are classified as complex.”

Clause 5

BARONESS MEACHER

LORD LOW OF DALSTON

BARONESS GREENGROSS

BARONESS FINLAY OF LLANDAFF

22

Page 5, line 19, at end insert—

“( )   the need to adhere to specific minimum quality standards and
requirements in the commissioning and provision of services to
adults, as regulations may prescribe;”

LORD BEST

LORD HUNT OF KINGS HEATH

BARONESS BARKER

BARONESS EATON

23

Page 5, line 19, at end insert—

“( )   the importance of ensuring adults with needs for care and support
have access to suitable living accommodation;”

EARL HOWE

24

Page 5, line 22, at end insert—

“( )   the importance of fostering a workforce whose members are able to
ensure the delivery of high quality services (because, for example,
they have relevant skills and appropriate working conditions).”

BARONESS MEACHER

LORD LOW OF DALSTON

BARONESS GREENGROSS

BARONESS FINLAY OF LLANDAFF

25

Page 5, line 22, at end insert—

“( )   Regulations made under this section shall clarify that visits to deliver
personal care in an adult’s home should not normally be commissioned to
last less than thirty minutes, excluding travel time.”

BARONESS MEACHER

26

Page 5, line 24, leave out “have regard to the need to”

EARL HOWE

27

Page 5, line 26, at end insert—

“( )   In arranging for the provision by persons other than it of services for
meeting care and support needs, a local authority must have regard to the
importance of promoting the well-being of adults in its area with needs for
care and support and the well-being of carers in its area.”

Clause 6

EARL HOWE

28

Page 6, line 6, at end insert—

“( )   The following are examples of persons with whom a local authority may
consider it appropriate to co-operate for the purposes of subsection (2)—

(a)   a person who provides services to meet adults’ needs for care and
support, services to meet carers’ needs for support or services,
facilities or resources of the kind referred to in section 2(1);

(b)   a person who provides primary medical services, primary dental
services, primary ophthalmic services, pharmaceutical services or
local pharmaceutical services under the National Health Service
Act 2006;

(c)   a person in whom a hospital in England is vested which is not a
health service hospital as defined by that Act;

(d)   a private registered provider of social housing.”

BARONESS GREENGROSS

29

Page 6, line 37, at end insert—

“( )   ensuring that consideration of the early and co-ordinated
assessment of an adult who may have care and support needs,
following discharge from hospital or other acute care setting, is
initiated upon admission to that acute care setting.”

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

30

Page 6, line 37, at end insert—

“( )   encouraging the integration of health and social care services for the
benefit of adults with needs for care and support and of carers.”

EARL HOWE

31

Page 6, line 44, at end insert—

“( )   the Minister of the Crown exercising functions in relation to social
security, employment and training, so far as those functions are
exercisable in relation to England;”

Clause 9

EARL HOWE

32

Page 8, line 27, leave out paragraph (d)

33

Page 8, line 36, at end insert—

“( )   When carrying out a needs assessment, a local authority must also
consider—

(a)   whether, and if so to what extent, matters other than the provision
of care and support could contribute to the achievement of the
outcomes that the adult wishes to achieve in day-to-day life, and

(b)   whether the adult would benefit from the provision of anything
under section 2 or 4 or of anything which might be available in the
community.”

Clause 10

BARONESS TYLER OF ENFIELD

34

Page 9, line 4, after “adult” insert “or young person”

BARONESS FINLAY OF LLANDAFF

BARONESS PITKEATHLEY

35*

Page 9, line 4, leave out “another adult (an “adult needing care”)” and insert “an
adult (“an adult needing care”) or disabled child”

EARL HOWE

36

Page 9, line 21, leave out paragraph (f)

37

Page 9, line 31, at end insert—

“( )   When carrying out a carer’s assessment, a local authority must also
consider—

(a)   whether, and if so to what extent, matters other than the provision
of support could contribute to the achievement of the outcomes that
the carer wishes to achieve in day-to-day life, and

(b)   whether the carer would benefit from the provision of anything
under section 2 or 4 or of anything which might be available in the
community.”

After Clause 10

BARONESS BARKER

38

Insert the following new Clause—

“Duty to provide independent advocacy

(1)   A local authority has a duty to provide an independent advocate to assist
any qualifying adult under this Act for the purposes of assessment,
supporting planning or review processes, or both.

(2)   An adult is a qualifying adult if—

(a)   the adult’s needs for care and support are being assessed under
section 9 or a care and support plan is being prepared for the adult
under section 25 or a review of the adult’s needs is conducted under
section 27, and

(b)   the local authority considers that without the assistance of an
advocate the adult will experience substantial difficulty in relation
to one or more of the following—

(i)   understanding, retaining, using or weighing the
information relevant to the process of assessment, care and
support planning or review;

(ii)   expressing or communicating their own views or wishes
and feelings;

(c)   the adult is an individual to whom section 11(2)(a) or (2)(b) of the
Act applies (refusal of assessment where an adult lacks capacity or
is experiencing, or is at risk of, abuse or neglect), or

(d)   the adult is a carer for whom the local authority is undertaking a
carers assessment in accordance with section 10(1) and the local
authority considers that without the assistance of an advocate the
carer will experience substantial difficulty in relation to one or more
of the following—

(i)   understanding, retaining, using or weighing the
information relevant to the process of assessment, support
planning or review;

(ii)   expressing or communicating their own views or wishes
and feelings.

(3)   Regulations may be made to—

(a)   the appointment of advocates;

(b)   the skills or qualifications of advocates;

(c)   the duties of advocates;

(d)   the right of access for advocates to the adult;

(e)   the duty to take account of representations by the advocate on
behalf of the adult;

(f)   the right of access for advocates to the adult’s relevant personal
data including records held by local authorities and health
authorities;

(g)   additional circumstances in which an advocate must be provided.”

Clause 12

EARL HOWE

39

Page 10, line 39, leave out from “which” to “jointly” in line 40 and insert “the
assessment may or must be carried out by a person (whether or not an officer of
the authority) who has expertise in a specified matter or is of such other
description as is specified,”

40

Page 10, line 46, after “matter” insert “or is of such other description as is specified”

BARONESS MEACHER

41

Page 11, line 3, at end insert—

“(h)   specify circumstances in which a person’s social care needs are to
be regarded as complex and stipulate that social work-qualified
staff should always be used in the assessment of complex needs as
defined”

EARL HOWE

42

Page 11, line 23, leave out subsection (5) and insert—

“(5)   A local authority may combine a needs or carer’s assessment with an
assessment it is carrying out (whether or not under this Part) in relation to
another person only if the adult to whom the needs or carer’s assessment
relates agrees and—

(a)   where the combination would include an assessment relating to
another adult, that other adult agrees;

(b)   where the combination would include an assessment relating to a
child (including a young carer), the consent condition is met in
relation to the child.

(5A)   The consent condition is met in relation to a child if—

(a)   the child has capacity or is competent to agree to the assessments
being combined and does so agree, or

(b)   the child lacks capacity or is not competent so to agree but the local
authority is satisfied that combining the assessments would be in
the child’s best interests.”

43

Page 11, line 26, leave out from “in” to third “, the” in line 27 and insert “relation to
the adult to whom the assessment relates or in relation to a relevant person”

44

Page 11, line 37, at end insert—

“( )   A person is a “relevant person”, in relation to a needs or carer’s assessment,
if it would be reasonable to combine an assessment relating to that person
with the needs or carer’s assessment (as mentioned in subsection (5)).”

Clause 13

EARL HOWE

45

Page 12, line 1, leave out paragraph (b)

Clause 14

BARONESS PITKEATHLEY

46*

Page 12, line 33, leave out from “18” to “by” in line 40 and insert “is met”

47*

Page 12, line 41, leave out “be exercised so as to”

48*

Page 12, line 41, at end insert—

“( )   Services of an intimate nature can only be provided to the disabled person
and not to meet a carer’s need for support; and regulations may make
provision about what is, or is not, of an intimate nature for the purposes of
subsection (3).”

EARL HOWE

49

Page 13, line 13, at end insert “; and the regulations may in particular (in reliance
on section 112(6)) specify—

(a)   different amounts for different descriptions of care and support;

(b)   different amounts for different descriptions of support.”

50

Page 13, line 13, at end insert—

“( )   Regulations under subsection (7) may make provision as to cases or
circumstances in which an adult is to be treated as having income that
would, or as having income that would not, fall below the amount
specified in the regulations if a charge were to be made.”

Clause 17

EARL HOWE

51

Page 15, line 14, leave out “provide that where” and insert “make provision as to
cases or circumstances in which, if”

52

Page 15, line 22, leave out “provide that where” and insert “make provision as to
cases or circumstances in which, if”

53

Page 15, line 38, leave out “financial resources at or” and insert “, or as not having,
financial resources”

54

Page 15, line 38, at end insert—

“( )   The regulations may make provision as to cases or circumstances in which
a local authority is to be treated as—

(a)   having carried out a financial assessment in an adult’s case, and

(b)   being satisfied on that basis that the adult’s financial resources
exceed, or that they do not exceed, the financial limit.”

LORD LIPSEY

55

Page 15, line 38, at end insert—

“( )   After section 54(2) of the Health and Social Care Act 2001 (funding by
resident etc of more expensive accommodation) insert—

“(2A)    The regulations shall only restrict the right of residents to top up
their fees to the extent that is reasonable, and in particular they shall
not limit top-ups to residents using the 12 week property disregard
or the deferred payment scheme.””

After Clause 17

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

56

Insert the following new Clause—

“Ministerial advisory committee

An independent ministerial advisory committee shall be set up to keep
under review the workings of the cap and the means-testing arrangements
set out in section 17.”

Clause 19

EARL HOWE

57

Page 17, line 5, at end insert—

“( )   A local authority may meet an adult’s needs under subsection (3) where,
for example, the adult is terminally ill (within the meaning given in section
82(4) of the Welfare Reform Act 2012).”

Clause 20

BARONESS PITKEATHLEY

58

Page 17, line 22, leave out subsections (2) and (3)

Clause 24

EARL HOWE

59

Page 21, line 1, leave out subsection (3) and insert—

“(3)   Where a local authority is not going to meet an adult’s needs for care and
support, it must nonetheless prepare an independent personal budget for
the adult (see section 28) if—

(a)   the needs meet the eligibility criteria,

(b)   at least some of the needs are not being met by a carer, and

(c)   the adult is ordinarily resident in the authority’s area or is present
in its area but of no settled residence.”

Clause 25

LORD DUBS

60*

Page 21, line 23, at end insert—

“(iii)   what can be done in the event of an emergency or if needs
change”

61*

Page 21, line 23, at end insert—

“(g)   states the date agreed between the adult and local authority upon
when a review of the care and support plan will be offered”

EARL HOWE

62

Page 22, line 20, leave out subsection (11) and insert—

“(11)   A local authority may combine a care and support plan or a support plan
with a plan (whether or not prepared by it and whether or not under this
Part) relating to another person only if the adult for whom the care and
support plan or the support plan is being prepared agrees and—

(a)   where the combination would include a plan prepared for another
adult, that other adult agrees;

(b)   where the combination would include a plan prepared for a child
(including a young carer), the consent condition is met in relation to
the child.

(11A)   The consent condition is met in relation to a child if—

(a)   the child has capacity or is competent to agree to the plans being
combined and does so agree, or

(b)   the child lacks capacity or is not competent so to agree but the local
authority is satisfied that the combining the plans would be in the
child’s best interests.”

Clause 35

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

63

Page 30, line 12, at end insert—

“( )   The Secretary of State shall make available to all local authorities a model
deferred payment scheme and all local authorities must follow this model
unless they can show due cause not to.”

Clause 39

EARL HOWE

64*

Page 34, line 1, after “authority” insert “in England or the local authority in Wales”

65*

Page 34, line 2, at end insert “; and for that purpose—

(a)   “local authority in England” means a local authority for the
purposes of this Part, and

(b)   “local authority in Wales” means a local authority for the purposes
of the Social Services and Well-being (Wales) Act 2013”

66*

Page 34, line 3, leave out “accommodation under the National Health Service Act
2006” and insert “NHS accommodation”

67*

Page 34, line 10, at end insert—

“(5A)    “NHS accommodation” means accommodation under—

(a)   the National Health Service Act 2006,

(b)   the National Health Service (Wales) Act 2006,

(c)   the National Health Service (Scotland) Act 1978, or

(d)   Article 5(1) of the Health and Personal Social Services (Northern
Ireland) Order 1972.”

Schedule 1

EARL HOWE

68*

Page 101, line 42, leave out “in a case within any of paragraphs 1 to 4”

69*

Page 102, line 17, leave out “within” and insert “where there is a dispute about the
application of”

70*

Page 102, line 19, at end insert—

“( )   After subsection (10) of that section insert—

“(10A)   A person who, as a result of Schedule 1 to the Care Act 2013
(cross-border placements), is treated as ordinarily resident in an
area in England, Wales or Northern Ireland (as the case may be)
is to be treated as ordinarily resident in that area for the purposes
of this section.

(10B)   A person who, as a result of that Schedule, is not treated as
ordinarily resident anywhere in England or Wales (as the case
may be) is not to be treated as ordinarily resident there for the
purposes of this section.”

71*

Page 102, line 24, at end insert—

“Provision of NHS accommodation not to affect deemed ordinary residence etc.

7A    (1)   In a case where, as a result of this Schedule, an adult is treated as
ordinarily resident in an area in England, Wales or Northern Ireland (as
the case may be), the adult does not cease to be so treated merely because
the adult is provided with NHS accommodation.

(2)   In a case where, as a result of this Schedule, an adult is not treated as
ordinarily resident anywhere in England or Wales (as the case may be),
the adult continues not to be so treated even if the adult is provided with
NHS accommodation.

(3)   In a case where, as a result of this Schedule, no duty under a relevant
enactment applies, the duty does not apply merely because the adult in
question is provided with NHS accommodation; and for this purpose
“relevant enactment” means—

(a)   Part 2 of the Social Work (Scotland) Act 1968,

(b)   sections 25 to 27 of the Mental Health (Care and Treatment)
(Scotland) Act 2003,

(c)   the Health and Personal Social Services (Northern Ireland) Order
1972, or

(d)   the Health and Social Care (Reform) Act (Northern Ireland) 2009.

(4)   In a case where, as a result of paragraph 2(2), (4) or (7), an adult is treated
as remaining within, or as remaining outside but ordinarily resident in,
an area in Wales, the adult does not cease to be so treated merely because
the adult is provided with NHS accommodation.”

72*

Page 102, line 24, at end insert—

“Direct payments

7B    (1)   Regulations may provide for this Schedule to apply, with such
modifications as may be specified, to a case where accommodation in
England, Wales, Scotland or Northern Ireland is provided for an adult
by means of direct payments made by an authority in another of the
territories.

(2)   The reference in sub-paragraph (1) to direct payments accordingly
includes a reference to direct payments made—

(a)   under section 34 or 36 of the Social Services and Well-being
(Wales) Act 2013,

(b)   as a result of a choice made by the adult pursuant to section 5 of
the Social Care (Self-directed Support) (Scotland) Act 2013, or

(c)   by virtue of section 8 of the Carers and Direct Payments Act
(Northern Ireland) 2002.”

73*

Page 102, line 24, at end insert—

“PARTICULAR TYPES OF ACCOMMODATION

7C    (1)   Regulations may provide for this Schedule to apply, with such
modifications as may be specified, to a case where—

(a)   an adult has needs for care and support which can be met only if
the adult is living in accommodation of a type specified in the
regulations,

(b)   the adult is living in accommodation in England, Wales, Scotland
or Northern Ireland that is of a type so specified, and

(c)   the adult’s needs for care and support are being met by an
authority in another of the territories providing or arranging for
the provision of services other than the accommodation.

(2)   In section 5 of the Community Care and Health (Scotland) Act 2002 (the
title to which becomes “Local authority arrangements for residential
accommodation etc. outwith Scotland”), in subsection (1), at the end
insert “or for the provision in England and Wales or in Northern Ireland
of a service or facility of such other description as may be specified in the
regulations”.

74*

Page 103, line 14, at end insert—

“( )   “NHS accommodation” has the meaning given in section 39(5A).”

75*

Page 103, line 40, at end insert—

“( )   In paragraph 7B, the reference to sections 34 and 36 of the Social Services
and Well-being (Wales) Act 2013 is to be read as a reference to section 57
of the Health and Social Care Act 2001.”

After Clause 40

BARONESS GREENGROSS

LORD HUNT OF KINGS HEATH

76

Insert the following new Clause—

“Appealing decisions taken by the local authority

(1)   The local authority must have in place a procedure, which includes a
review element that is independent of the local authority, by which adults
or carers can appeal a decision made by the local authority about—

(a)   whether an adult or carer’s needs meet eligibility criteria under
section 13,

(b)   whether to charge for meeting needs under section 14,

(c)   the result of a financial assessment under section 17,

(d)   the content of a care and support plan or support plan under section
25,

(e)   the amount of a personal budget made under section 26 or
independent personal budget made under section 28,

(f)   the payment of an “additional cost” under section 30.

(2)   Regulations may make further provision about any aspect of the appeals
procedure mentioned in subsection (1).

(3)   Wherever a decision has been made of a type referred to in subsection (1),
the local authority must make the adult or carer aware of their right to
appeal the decision and how to request details of the appeals procedure.
Details of the procedure must be made available on request.”

After Clause 41

BARONESS GREENGROSS

BARONESS MEACHER

BARONESS BARKER

77

Insert the following new Clause—

“Power of access for confidential interview

Adult safeguarding access order

(1)   An authorised officer may apply to a court for an order (an “adult
safeguarding access order”) in relation to a person living in any premises
within a local authority’s area.

(2)   The purposes of an adult safeguarding access order are—

(a)   to enable the authorised officer and any other person
accompanying the officer to speak in private with a person
suspected of being an adult at risk of abuse or neglect,

(b)   to enable the authorised officer to assess the mental capacity of a
person suspected of being an adult at risk of abuse,

(c)   to enable the authorised officer to ascertain whether that person is
making decisions freely, and

(d)   to enable the authorised officer properly to assess whether the
person is an adult at risk of abuse or neglect and to make a decision
as required by section 41(2) on what, if any, action should be taken.

(3)   When an adult safeguarding access order is in force the authorised officer,
a constable and any other specified person accompanying the officer in
accordance with the order, may enter the premises specified in the order for
the purposes set out in subsection (2).

(4)   The court may make an adult safeguarding access order if satisfied that—

(a)   the authorised offcer has reasonable cause to suspect that a person
is an adult who is experiencing or at risk of abuse or neglect,

(b)   it is necessary for the authorised officer to gain access to the person
in order to make whatever enquiries thought necessary and to
make a decision as required by section 41(2) on what, if any, action
should be taken,

(c)   exercising the power of access conferred by the order will not result
in the person being at greater risk of abuse or neglect.

(5)   An adult safeguarding access order must—

(a)   specify the premises to which it relates,

(b)   provide that the authorised officer may be accompanied by a
constable,

(c)   specify the period for which the order is to be in force.

(6)   Other conditions may be attached to an adult safeguarding access order,
for example—

(a)   specifying restrictions on the time that the power of access
conferred by the order may be exercised,

(b)   providing for the authorised officer to be accompanied by another
specified person,

(c)   requiring notice of the order to be given to the occupier of the
premises and to the person suspected of being an adult at risk of
abuse.

(7)   A constable accompanying the authorised officer may use reasonable force
if necessary in order to fulfil the purposes of an adult safeguarding access
order set out in subsection (2).

(8)   On entering the premises in accordance with an adult safeguarding access
order, the authorised officer must—

(a)   state the object of the visit,

(b)   produce evidence of the authorisation to enter the premises, and

(c)   provide an explanation to the occupier of the premises of how to
complain about how the power of access has been exercised.

(9)   In this section “an authorised officer” means a person authorised by a local
authority for the purposes of this section, but regulations may set
restrictions on the persons or categories of persons who may be
authorised.”

BARONESS GREENGROSS

78

Insert the following new Clause—

“Duty to report adults at risk of abuse

(1)   If a relevant partner of a local authority has reasonable cause to suspect that
the local authority would be under a duty to make enquiries under section
41, it must inform the local authority of that fact.

(2)   If the person that the relevant partner has reasonable cause to suspect
would be the subject of enquiries under section 41 and appears to be within
the area of a local authority other than the one of which it is a relevant
partner, it must inform that other local authority.

(3)   If a local authority has reasonable cause to suspect that a person within its
area at any time would be the subject of enquiries under section 41 and is
living or proposing to live in the area of another local authority (including
a local authority in Wales, Scotland or Northern Ireland), it must inform
that other local authority.

(4)   In this section “relevant partner”, in relation to a local authority, means—

(a)   the local policing body and the chief officer of police for a police
area any part of which falls within the area of the local authority,

(b)   any other local authority with which the authority agrees that it
would be appropriate to co-operate under this section,

(c)   any provider of probation services that is required by arrangements
under section 3(2) of the Offender Management Act 2007 to act as a
relevant partner of the authority,

(d)   any provider of regulated activities as listed in Schedule 1 to the
Health and Social Care Act 2008 (Regulated Activities) Regulations
2010,

(e)   a local health board for an area any part of which falls within the
area of the authority,

(f)   an NHS trust providing services in the area of the authority,

(g)   any other such person, or a person of such description, as
regulations may specify.”

79

Insert the following new Clause—

“Neglecting or ill-treating an adult at risk of abuse

Any person who knowingly causes or permits an adult to suffer, or inflicts
physical pain or mental suffering upon an adult who has care and support
needs, or having the care or custody of that adult, knowingly causes or
permits the person or health of that adult to be injured, including through
the neglect of their care and support or health needs, or knowingly causes
or permits that person to be placed in a situation that endangers his or her
person or health, is liable—

(a)   on summary conviction, to imprisonment for term not exceeding 12
months or a fine not exceeding the statutory maximum or both;

(b)   on conviction on indictment, to imprisonment for a term not
exceeding 5 years or a fine or both.”

Schedule 2

BARONESS GREENGROSS

BARONESS MEACHER

80

Page 104, line 21, at end insert—

“(e)   staff, from the establishing local authority, qualified in social
work”

EARL HOWE

81

Page 105, line 34, at end insert—

“( )   what it has done during that year to implement the findings of
reviews arranged by it under that section, and

( )   where it decides during that year not to implement a finding of a
review arranged by it under that section, the reasons for its
decision.”

Clause 44

BARONESS GREENGROSS

BARONESS MEACHER

82

Page 36, line 35, at end insert—

“( )   A SAB is required to appoint a social work-qualified individual to
supervise the carrying out of a review as stated.”

After Clause 47

LORD LOW OF DALSTON

LORD PANNICK

LORD LESTER OF HERNE HILL

LORD MACKAY OF CLASHFERN

83

Insert the following new Clause—

“Human Rights Act 1998: provision of “care and support services” to be public
function

(1)   A person (“P”) who provides regulated “social care” is to be taken for the
purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998
(acts of public authorities) to be exercising a function of a public nature in
doing so.

(2)   This section applies to persons providing services regulated by the Care
Quality Commission.

(3)   In this section “social care” has the same meaning as in the Health and
Social Care Act 2008.”

Clause 58

EARL HOWE

84

Page 47, line 5, leave out from “Where” to “after” in line 7 and insert “it appears to
a local authority that a child is likely to have needs for care and support”

85

Page 47, line 8, leave out “may” and insert “must”

86

Page 47, line 16, leave out subsection (3)

87

Page 47, line 19, leave out from beginning to “the” in line 20

88

Page 47, line 25, at end insert—

“( )   Where a child refuses a child’s needs assessment and the consent condition
is accordingly not met, the local authority must nonetheless carry out the
assessment if the child is experiencing, or is at risk of, abuse or neglect.”

89

Page 47, line 26, leave out from beginning to “must” and insert “Where a local
authority, having received a request to carry out a child’s assessment from the
child concerned or a parent or carer of the child, decides not to comply with the
request, it”

Clause 59

EARL HOWE

90

Page 48, line 6, leave out paragraph (d)

91

Page 48, line 14, at end insert—

“( )   When carrying out a child’s needs assessment, a local authority must also
consider whether, and if so to what extent, matters other than the provision
of care and support could contribute to the achievement of the outcomes
that the child wishes to achieve in day-to-day life.”

92

Page 48, leave out line 16 and insert “child”

93

Page 48, line 24, at end insert—

“( )   But in a case where the child is not competent or lacks capacity to
understand the things which the local authority is required to give under
subsection (3), that subsection is to have effect as if for “must give the child”
there were substituted “must give the child’s parents”.”

Clause 60

EARL HOWE

94

Page 48, line 38, leave out from “Where” to “after” in line 40 and insert “it appears
to a local authority that a carer of a child is likely to have needs for support”

95

Page 49, line 1, leave out subsection (2)

96

Page 49, line 10, leave out “or (2)”

97

Page 49, line 11, at end insert—

“(3A)    Where a child’s carer refuses a child’s carer’s assessment, the local
authority is not required to carry out the assessment (and subsection (1)
does not apply in the carer’s case).

(3B)   Where, having refused a child’s carer’s assessment, a child’s carer requests
the assessment, subsection (1) applies in the carer’s case (and subsection
(3A) does not).

(3C)   Where a child’s carer has refused a child’s carer’s assessment and the local
authority concerned thinks that the carer’s needs or circumstances have
changed, subsection (1) applies in the carer’s case (but subject to further
refusal as mentioned in subsection (3A).”

98

Page 49, leave out lines 12 and 13 and insert “Where a local authority, having
received a request to carry out a child’s carer’s assessment from the carer
concerned, decides not to comply with the request, it must give the carer—”

99

Page 49, line 17, leave out subsection (5)

Clause 61

EARL HOWE

100

Page 50, line 10, leave out paragraph (f)

101

Page 50, line 21, at end insert—

“( )   When carrying out a child’s carer’s assessment, a local authority must also
consider whether, and if so to what extent, matters other than the provision
of support could contribute to the achievement of the outcomes that the
carer wishes to achieve in day-to-day life.”

102

Page 50, leave out line 23 and insert “carer”

Clause 63

EARL HOWE

103

Page 50, line 44, leave out from “Where” to “after” in line 1 on page 51 and insert
“it appears to a local authority that a young carer is likely to have needs for
support”

104

Page 51, line 2, leave out “may” and insert “must”

105

Page 51, line 10, leave out subsection (3)

106

Page 51, leave out line 13

107

Page 51, line 20, at end insert—

“( )   Where a young carer refuses a young carer’s assessment and the consent
condition is accordingly not met, the local authority must nonetheless carry
out the assessment if the young carer is experiencing, or is at risk of, abuse
or neglect.”

108

Page 51, line 21, leave out from beginning to “must” and insert “Where a local
authority, having received a request to carry out a young carer’s assessment from
the young carer concerned or a parent of the young carer, decides not to comply
with the request, it”

Clause 64

EARL HOWE

109

Page 52, line 7, leave out paragraph (f)

110

Page 52, line 14, leave out “whether” and insert “the extent to which”

111

Page 52, line 16, leave out “whether” and insert “the extent to which”

112

Page 52, line 23, at end insert—

“( )   When carrying out a young carer’s assessment, a local authority must also
consider whether, and if so to what extent, matters other than the provision
of support could contribute to the achievement of the outcomes that the
young carer wishes to achieve in day-to-day life.”

113

Page 52, leave out line 25 and insert “young carer”

114

Page 52, line 33, at end insert—

“( )   But in a case where the young carer is not competent or lacks capacity to
understand the things which the local authority is required to give under
subsection (3), that subsection is to have effect as if for “must give the
young carer” there were substituted “must give the young carer’s
parents”.”

Clause 65

EARL HOWE

115

Page 53, line 6, leave out subsections (2) and (3) and insert—

“(2)   A local authority may combine a child’s needs assessment or young carer’s
assessment with an assessment it is carrying out (whether or not under this
Part) in relation to another person only if the consent condition is met in
relation to the child to whom the child’s needs or young carer’s assessment
relates and—

(a)   where the combination would include an assessment relating to
another child, the consent condition is met in relation to that other
child;

(b)   where the combination would include an assessment relating to an
adult, the adult agrees.

(3)   A local authority may combine a child’s carer’s assessment with an
assessment it is carrying out (whether or not under this Part) in relation to
another person only if the adult to whom the child’s carer’s assessment
relates agrees and—

(a)   where the combination would include an assessment relating to
another adult, that other adult agrees, and

(b)   where the combination would include an assessment relating to a
child, the consent condition is met in relation to that child.

(3A)   The consent condition is met in relation to a child if—

(a)   the child has capacity or is competent to agree to the assessments
being combined and does so agree, or

(b)   the child lacks capacity or is not competent so to agree but the local
authority is satisfied that combining the assessments would be in
the child’s best interests.”

116

Page 53, line 24, leave out from “in” to “, the” in line 25 and insert “relation to the
person to whom the assessment relates or in relation to a relevant person”

117

Page 53, line 30, at end insert—

“( )   A person is a “relevant person”, in relation to a child’s needs, child’s carer’s
or young carer’s assessment, if it would be reasonable to combine an
assessment relating to that person with the child’s needs, child’s carer’s or
young carer’s assessment (as mentioned in subsections (2) and (3)).”

After Clause 66

EARL HOWE

118

Insert the following new Clause—

“Independent advocacy support: involvement in assessments, plans etc.

(1)   This section applies where a local authority is required by a relevant
provision to involve an individual in its exercise of a function.

(2)   The authority must, if the condition in subsection (4) is met, arrange for a
person who is independent of the authority (an “independent advocate”) to
be available to represent and support the individual for the purpose of
facilitating the individual’s involvement; but see subsection (5).

(3)   The relevant provisions are—

(a)   section 9(5)(a) and (b) (carrying out needs assessment);

(b)   section 10(7)(a) (carrying out carer’s assessment);

(c)   section 25(3)(a) and (b) (preparing care and support plan);

(d)   section 25(4)(a) and (b) (preparing support plan);

(e)   section 27(2)(b)(i) and (ii) (revising care and support plan);

(f)   section 27(3)(b)(i) and (ii) (revising support plan);

(g)   section 59(2)(a) and (b) (carrying out child’s needs assessment);

(h)   section 61(3)(a) (carrying out child’s carer’s assessment);

(i)   section 64(3)(a) and (b) (carrying out young carer’s assessment).

(4)   The condition is that the local authority considers that, were an
independent advocate not to be available, the individual would experience
substantial difficulty in doing one or more of the following—

(a)   understanding relevant information;

(b)   retaining that information;

(c)   using or weighing that information as part of the process of being
involved;

(d)   communicating the individual’s views, wishes or feelings (whether
by talking, using sign language or any other means).

(5)   The duty under subsection (2) does not apply if the local authority is
satisfied that there is a person—

(a)   who would be an appropriate person to represent and support the
individual for the purpose of facilitating the individual’s
involvement, and

(b)   who is not engaged in providing care or treatment for the
individual in a professional capacity or for remuneration.

(6)   For the purposes of subsection (5), a person is not to be regarded as an
appropriate person unless—

(a)   where the individual has capacity or is competent to consent to
being represented and supported by that person, the individual
does so consent, or

(b)   where the individual lacks capacity or is not competent so to
consent, the local authority is satisfied that being represented and
supported by that person would be in the individual’s best
interests.

(7)   Regulations may make provision in connection with the making of
arrangements under subsection (2); the regulations may in particular—

(a)   specify requirements that must be met for a person to be
independent for the purposes of subsection (2);

(b)   specify matters to which a local authority must have regard in
deciding whether an individual would experience substantial
difficulty of the kind mentioned in subsection (4);

(c)   specify circumstances in which the exception in subsection (5) does
not apply;

(d)   make provision as to the manner in which independent advocates
are to perform their functions;

(e)   specify circumstances in which, if an assessment under this Part is
combined with an assessment under this Part that relates to another
person, each person may or must be represented and supported by
the same independent advocate or by different independent
advocates;

(f)   provide that an independent advocate may, in such circumstances
or subject to such conditions as may be specified, examine and take
copies of relevant records relating to the individual.

(8)   This section does not restrict the provision that may be made under any
other provision of this Act.

(9)   “Relevant record” means—

(a)   a health record (within the meaning given in section 68 of the Data
Protection Act 1998 (as read with section 69 of that Act)),

(b)   a record of, or held by, a local authority and compiled in connection
with a function under this Part or a social services function (within
the meaning given in section 1A of the Local Authority Social
Services Act 1970),

(c)   a record held by a person registered under Part 2 of the Care
Standards Act 2000 or Chapter 2 of Part 1 of the Health and Social
Care Act 2008, or

(d)   a record of such other description as may be specified in the
regulations.”

119

Insert the following new Clause—

“Independent advocacy support: safeguarding enquiries and reviews

(1)   This section applies where there is to be—

(a)   an enquiry under section 42(2),

(b)   a review under section 44(1) of a case in which condition 2 in section 44(3) is met or a review under section 44(4).

(2)   The relevant local authority must, if the condition in subsection (3) is met,
arrange for a person who is independent of the authority (an “independent
advocate”) to be available to represent and support the adult to whose case
the enquiry or review relates for the purpose of facilitating his or her
involvement in the enquiry or review; but see subsections (4) and (6).

(3)   The condition is that the local authority considers that, were an
independent advocate not to be available, the individual would experience
substantial difficulty in doing one or more of the following—

(a)   understanding relevant information;

(b)   retaining that information;

(c)   using or weighing that information as part of the process of being
involved;

(d)   communicating the individual’s views, wishes or feelings (whether
by talking, using sign language or any other means).

(4)   The duty under subsection (2) does not apply if the local authority is
satisfied that there is a person—

(a)   who would be an appropriate person to represent and support the
adult for the purpose of facilitating the adult’s involvement, and

(b)   who is not engaged in providing care or treatment for the adult in
a professional capacity or for remuneration.

(5)   For the purposes of subsection (4), a person is not to be regarded as an
appropriate person unless—

(a)   where the adult has capacity to consent to being represented and
supported by that person, the adult does so consent, or

(b)   where the adult lacks capacity so to consent, the local authority is
satisfied that being represented and supported by that person
would be in the adult’s best interests.

(6)   If the enquiry or review needs to begin as a matter of urgency, it may do so
even if the authority has not yet been able to comply with the duty under
subsection (2) (and the authority continues to be subject to the duty).

(7)   “Relevant local authority” means—

(a)   in a case within subsection (1)(a), the authority making the enquiry
or causing it to be made;

(b)   in a case within subsection (1)(b), the authority which established
the SAB arranging the review.”

Clause 67

LORD LIPSEY

120

Page 57, line 17, leave out from “person” to “in” in line 18 and insert “fraudulently
or negligently misrepresents or fails to disclose any material fact that they might
have reasonably been aware would have a bearing on expenditure incurred by the
local authority”

Before Clause 69

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

121

Insert the following new Clause—

“Initial funding assessment

Before enactment of Part 1, the Secretary of State must ask the Office for
Budget Responsibility to complete by the end of 2014 a review of the
funding of adult social care that assesses—

(a)   the adequacy of current public funding of these services;

(b)   the proposals for funding the provisions in this Act;

(c)   the implications of the Act and its funding for the NHS over the
next five years; and

(d)   in particular the short and long term costs of setting the eligibility
criteria at the level set out in regulations.”

Clause 69

LORD WARNER

122

Page 59, line 10, at end insert—

“( )   In advance of the first five-yearly review, the Secretary of State must
prepare and publish a review of the working of Part I and its funding
before the date in subsection (4) and after consultation with interested
parties.”

After Clause 69

BARONESS MEACHER

BARONESS HOLLINS

BARONESS FINLAY OF LLANDAFF

123

Insert the following new Clause—

“Appeals on care and support decisions

The Secretary of State shall make regulations setting out a system for
appeal or review of decisions made about their care and support, on a
question of fact or law, including where a local authority—

(a)   makes a decision under section 13(1) that some or all of an adults
needs meet the eligibility criteria, or none of their needs meet the
eligibility criteria,

(b)   exercises its power to charge for meeting needs under section 14,

(c)   completes a financial assessment under section 17,

(d)   makes a determination under section 18 or 19 that it must or may
provide services to meet the adults care and support needs,

(e)   makes a determination under section 20 that it must or may provide
services to meet a carer’s needs for support,

(f)   makes any other decisions about an individual’s care and support
as shall be prescribed.”

BARONESS GREENGROSS

124

Insert the following new Clause—

“Appeals on decisions for NHS continuing care

The Secretary of State shall make regulations setting out a system for
appeal or review of decisions made about NHS continuing care,
independent of the NHS, on a question of fact or law.”

Schedule 3

BARONESS GREENGROSS

125

Page 110, line 3, at end insert—

“( )   specify matters which the local authority and relevant partners
must have regard to in carrying out an assessment of a person
who may have care needs following discharge from a hospital or
other acute care setting, including the content of the admission
process to that acute setting.”

Clause 71

EARL HOWE

126*

Page 59, line 24, at end insert—

“(aa)   if, immediately before being detained, the person concerned
was ordinarily resident in Wales, for the area in Wales in
which he was ordinarily resident; or”

127*

Page 59, leave out lines 25 to 27

128*

Page 59, leave out lines 30 to 33 and insert—

“(4)   Where there is a dispute about where a person was ordinarily
resident for the purposes of subsection (3) above—

(a)   if the dispute is between local social services authorities in
England, section 40 of the Care Act 2013 applies to the
dispute as it applies to a dispute about where a person was
ordinarily resident for the purposes of Part 1 of that Act;

(b)   if the dispute is between local social services authorities in
Wales, section 164 of the Social Services and Well-being
(Wales) Act 2013 applies to the dispute as it applies to a
dispute about where a person was ordinarily resident for
the purposes of that Act;

(c)   if the dispute is between a local social services authority in
England and a local social services authority in Wales, it is
to be determined by the Secretary of State or the Welsh
Ministers.

(4A)   The Secretary of State and the Welsh Ministers shall make and
publish arrangements for determining which of them is to
determine a dispute under subsection (4)(c); and the arrangements
may, in particular, provide for the dispute to be determined by
whichever of them agree is to do so.”

129

Page 59, line 35, after “services”” insert “, in relation to a person,”

130

Page 59, line 37, leave out “mental disorder of the person concerned” and insert
“person’s mental disorder”

131

Page 59, line 41, leave out “the” and insert “mental”

132*

Page 60, line 28, after “purpose” insert “Part 1 of”

133*

Page 60, line 29, at end insert—

“(7A)    In section 37 of the Social Services and Well-being (Wales) Act 2013 (direct
payments: further provision), at the end insert—

“(11)   The ways in which a local authority may discharge its duty under
section 117 of the Mental Health Act 1983 include by making direct
payments; and for that purpose Schedule A1 (which includes
modifications of sections 34 and 35 and this section) has effect.”

(7B)   Before Schedule 1 to that Act insert the Schedule A1 contained in Part 2 of
Schedule 4 to this Act.

(7C)   In section 163 of that Act (ordinary residence), after subsection (4) insert—

“(4A)    A person who is being provided with accommodation under
section 117 of the Mental Health Act 1983 (after-care) is to be treated
for the purposes of this Act as ordinarily resident in the area of the
local authority, or the local authority in England, on which the duty
to provide that person with services under that section is imposed.”

(7D)   In consequence of subsections (7) to (7B), in subsection (2C) of section 117
of the Mental Health Act 1983—

(a)   in paragraph (a), for “regulations under section 57 of the Health and
Social Care Act 2001 or” substitute “—

(i)   sections 31 to 33 of the Care Act 2013 (as
applied by Schedule 4 to that Act),

(ii)   sections 34, 35 and 37 of the Social Services
and Well-being (Wales) Act 2013 (as applied
by Schedule A1 to that Act), or

(iii)   regulations under”,

(b)   in paragraph (b), after “apart from” insert “those sections (as so
applied) or”.”

134*

Page 60, line 33, at end insert—

“( )   In section 145 of the Mental Health Act 1983 (interpretation), for the
definition of “local social services authority” substitute—

““local social services authority” means—

(a)   an authority in England which is a local authority for
the purposes of Part 1 of the Care Act 2013, or

(b)   an authority in Wales which is a local authority for
the purposes of the Social Services and Well-being
(Wales) Act 2013.””

Schedule 4

EARL HOWE

135*

Page 111, line 13, leave out paragraph 2

136*

Page 111, line 21, at end insert—

“PART 2

PROVISION TO BE INSERTED IN SOCIAL SERVICES AND WELL-BEING (WALES) ACT 2013

“SCHEDULEA1

DIRECT PAYMENTS: AFTER-CARE UNDER THE MENTAL HEALTH ACT 1983

General

1 Sections 34 (direct payments to meet an adult’s needs), 35
(direct payments to meet a child’s needs) and 37 (direct
payments: further provision) apply in relation to section 117 of
the Mental Health Act 1983 but as if the following
modifications were made to those sections.

Modifications to section 34

2 For subsection (1) of section 34 substitute—

“((1))   Regulations may require or allow a local authority to
make payments to an adult to whom section 117 of
the Mental Health Act 1983 (after-care) applies that
are equivalent to the cost of providing or arranging
for the provision of after-care services for the adult
under that section.”

3 In subsection (3) of that section—

(a)   in paragraph (a), for “who has needs for care and
support (“A”)” substitute “in respect of the provision to
the adult (“A”) of after-care services under section 117
of the Mental Health Act 1983”, and

(b)   in paragraph (c)(i), for “of meeting A’s needs”
substitute “of discharging its duty towards A under
section 117 of the Mental Health Act 1983”.

4 In subsection (4) of that section—

(a)   in paragraph (a), for “who has needs for care and
support (“A”)” substitute “to whom section 117 of the
Mental Health Act 1983 applies (“A”)”, and

(b)   in paragraph (d)(i), for “meeting A’s needs” substitute
“discharging its duty towards A under section 117 of
the Mental Health Act 1983”.

5 In subsection (5) of that section—

(a)   in paragraph (a), for “A’s needs for care and support”
substitute “the provision to A of after-care services
under section 117 of the Mental Health Act 1983”, and

(b)   in paragraph (b), for “towards the cost of meeting A’s
needs for care and support” substitute “equivalent to
the cost of providing or arranging the provision to A of
after-care services under section 117 of the Mental
Health Act 1983”.

6 In subsection (6)(b) of that section, for “A’s needs for care and
support” substitute “the provision to A of after-care services
under section 117 of the Mental Health Act 1983”.

Modifications to section 35

7 For subsection (1) of section 35 substitute—

“((1))   Regulations may require or allow a local authority to
make payments to a person in respect of a child to
whom section 117 of the Mental Health Act 1983
(after-care) applies that are equivalent to the cost of
providing or arranging the provision of after-care
services for the child under that section.”

8 In subsection (3)(a), (b) and (c) of that section, for “who has
needs for care and support” (in each place it occurs) substitute
“to whom section 117 of the Mental Health Act 1983 applies”.

9 In subsection (5)(a) of that section, for “meeting the child’s
needs” substitute “discharging its duty towards the child
under section 117 of the Mental Health Act 1983”.

Modifications to section 37

10 In subsection (1) of section 37—

(a)   in the opening words, for “34, 35 and 36” substitute “34
and 35”,

(b)   omit paragraphs (a), (b) and (c),

(c)   in paragraph (i), for “a local authority’s duty or power
to meet a person’s needs for care and support or a
carer’s needs for support is displaced” substitute “a
local authority’s duty under section 117 of the Mental
Health Act 1983 (after-care) is discharged”, and

(d)   in paragraph (k), for “34 to 36” substitute “34 and 35”.

11 Omit subsections (2) to (8) of that section.

12 After subsection (8) of that section insert—

“((8A))   Regulations under sections 34 and 35 must specify
that direct payments to meet the cost of providing or
arranging for the provision of after-care services
under section 117 of the Mental Health Act 1983
(after-care) must be made at a rate that the local
authority estimates to be equivalent to the
reasonable cost of securing the provision of those
services to meet those needs.”

13 In subsection (9) of that section—

(a)   for “, 35 or 36” substitute “or 35”, and

(b)   for “care and support” substitute “after-care services”.

14 In subsection (10) of that section, for “care and support to meet
needs” substitute “after-care services”.””

After Clause 73

LORD WARNER

LORD PATEL

BARONESS GREENGROSS

137

Insert the following new Clause—

“End of life care

After consultation, the Secretary of State may make regulations for
terminally ill persons to—

(a)   have their preference for place of death recorded by local health and
social care services and for that preference to be implemented
wherever practicable;

(b)   have their care and support needs and those of their carer treated as
urgent by the local authority responsible for assessing those needs;
and

(c)   be exempt from any local authority charges for adult social care.”

Clause 74

EARL HOWE

138

Page 62, line 41, at end insert—

“( )   The Secretary of State must have regard to the general duty of local
authorities under section 1(1) (promotion of individual well-being)—

(a)   in issuing guidance for the purposes of subsection (1);

(b)   in making regulations under this Part.”

After Clause 76

BARONESS BARKER

BARONESS TYLER OF ENFIELD

BARONESS BAKEWELL

139

Insert the following new Clause—

“Older Persons’ Commissioner

(1)   In the Health and Social Care Act 2008, after section 128 insert—

“PART 2A

OLDER PERSONS’ COMMISSIONER

128A          Establishment of an office of the Older Persons’ Commissioner

(1)   There shall be an office of the Older Persons’ Commissioner.

(2)   Schedule (The Older Persons’ CommissionerThe Older Persons’ Commissioner) shall have effect with
respect to the Older Persons’ Commissioner.

128B          Functions of the office of the Older Persons’ Commissioner

(1)   The Older Persons’ Commissioner has the function under this Part
of promoting the wellbeing, dignity and respect of older people and
safeguarding and promoting their rights and welfare.

(2)   In fulfilling their duties under subsection (1), the Older Persons’
Commissioner may review, and monitor the operation of,
arrangements falling within subsection (2), (3) or (4) for the purpose
of ascertaining whether, and to what extent, the arrangements are
effective in promoting the wellbeing, dignity and respect, and
safeguarding and promoting the rights and welfare of older people.

(3)   The arrangements falling within this subsection are the
arrangements made by the providers of regulated services in
England, or by the Secretary of State, for dealing with complaints or
representations in respect of such services made by or on behalf of
older people.

(4)   The arrangements falling within this subsection are arrangements
made by the providers of regulated services in England, or by the
Secretary of State, for ensuring that proper action is taken in
response to any disclosure of information which may tend to show
that, in the course of, or in connection with, the provision of
regulated services to older people—

(a)   that a criminal offence has been committed;

(b)   that a person has failed to comply with any legal obligation
to which he is subject;

(c)   that the health and safety of any person has been
endangered; or

(d)   that information tending to show that any matter falling
within one of the preceding paragraphs has been
deliberately concealed.

(5)   The arrangements falling within this subsection are arrangements
made (whether by providers of regulated services in England, by
the Secretary of State or by any other person) for making persons
available—

(a)   to represent the views and wishes of older people to whom
this Part applies; or

(b)   to ensure the adequate provision to older people of advice
and support of any prescribed kind.

(6)   The Secretary of State may, by regulations confer power on the
Older Persons’ Commissioner to require prescribed persons to
provide any information which the Older Persons’ Commissioner
considers it necessary or expedient to have for the purposes of his
functions under this section.

(7)   A statutory instrument containing regulations under subsection (5)
is not to be made unless a draft of the instrument has been laid
before, and approved by a resolution of, each House of Parliament.

128C          Examination of cases by the Older Persons’ Commissioner

(1)   The Secretary of State may, by regulations, make provision for the
examination by the Older Persons’ Commissioner of the cases of
particular older people.

(2)   The regulations may include provision about—

(a)   the types of case which may be examined;

(b)   the circumstances in which an examination may be made;

(c)   the procedure for conducting an examination, including
provision about the representation of parties;

(d)   the publication of reports following an examination.

(3)   The regulations may, for the purposes of enabling the Older
Persons’ Commissioner to examine or determine whether any
recommendation made in a report following an examination has
been complied with, make provision for—

(a)   requiring persons to provide the Older Persons’
Commissioner with information; or

(b)   requiring persons who hold or are accountable for
information to provide the Older Persons’ Commissioner
with explanations or other assistance,

for the purpose of an examination or for the purposes of for the purpose of an examination or for the purposes of
determining whether any recommendation made in a report determining whether any recommendation made in a report
following an examination has been complied with.following an examination has been complied with.

(4)   For the purposes mentioned in subsection (3), the Older Persons’
Commissioner shall have the same powers as the High Court in
respect of—

(a)   the attendance and examination of witnesses (including the
administration of oaths and affirmations and the
examination of witnesses abroad); and

(b)   the provision of information.

(5)   No person shall be compelled for the purposes mentioned in
subsection (3) to give any evidence or provide information which
he could not be compelled to give or provide in civil proceedings
before the High Court.

(6)   The regulations may make provision for the payment by the Older
Persons’ Commissioner of sums in respect of expenses or
allowances to persons who attend or provide information for the
purposes mentioned in subsection (3).

(7)   A statutory instrument containing the first regulations made under
subsection (1), (2) or (3) is not to be made unless a draft of the
instrument has been laid before, and approved by a resolution of,
each House of Parliament.

(8)   A statutory instrument that contains regulations made under
subsection (6) is subject to annulment in pursuance of a resolution
of either House of Parliament.

128D          Obstruction

(1)   The Older Persons’ Commissioner may certify an offence to the
High Court where—

(a)   a person, without lawful excuse, obstructs him or any
member of his staff in the exercise of any of his functions
under regulations made under section 128B(5) or 128C; or

(b)   a person is guilty of any act or omission in relation to an
examination under regulations made by under section 128C
which, if that examination were proceedings in the High
Court, would constitute contempt of court.

(2)   Where an offence is so certified the High Court may inquire into the
matter; and after hearing—

(a)   any witnesses who may be produced against or on behalf of
the person charged with the offence; and

(b)   any statement that may be offered in defence,

the High Court may deal with the person charged with the offence the High Court may deal with the person charged with the offence
in any manner in which it could deal with him if he had committed in any manner in which it could deal with him if he had committed
the same offence in relation to the High Court.the same offence in relation to the High Court.

128E          Further functions

(1)   The Older Persons’ Commissioner may, in connection with his
functions under this Part give advice and information to any
person.

(2)   Regulations may confer power on the Older Persons’
Commissioner to assist an older person—

(a)   in making a complaint or representation to or in respect of a
provider of regulated services in England; or

(b)   in any prescribed proceedings.

(3)   For the purposes of subsection (2), assistance includes—

(a)   financial assistance; and

(b)   arranging for representation, or the giving of advice or
assistance, by any person.

(4)   Regulations under subsection (2) may also provide for assistance to
be given on conditions, including (in the case of financial
assistance) conditions requiring repayment in specified
circumstances.

(5)   Regulations may, in connection with the Older Persons’
Commissioner’s functions under this Part, confer further functions
on the Commissioner.

(6)   Regulations may, in particular, include provision about the making
of reports on any matter connected with any of his functions.

(7)   Apart from identifying any person investigated, a report by the
Older Persons’ Commissioner shall not—

(a)   mention the name of any person, or

(b)   include any particulars which, in the opinion of the Older
Persons’ Commissioner, are likely to identify any person
and can be omitted without impairing the effectiveness of
the report,

unless, after taking account of the public interest (as well as the unless, after taking account of the public interest (as well as the
interests of any person who made a complaint and other persons), interests of any person who made a complaint and other persons),
the Older Persons’ Commissioner considers it necessary for the the Older Persons’ Commissioner considers it necessary for the
report to mention his name or include such particulars.report to mention his name or include such particulars.

(8)   For the purposes of the law of defamation, the publication of any
matter by the Older Persons’ Commissioner in a report is absolutely
privileged.

(9)   In subsection (1) of this section “proceedings” includes a procedure
of any kind and any prospective proceedings.

(10)   A statutory instrument containing the regulations under this
section is not to be made unless a draft of the instrument has been
laid before, and approved by a resolution of, each House of
Parliament.

128F          Restrictions

(1)   This Part does not authorise the Older Persons’ Commissioner to
enquire into or report on any matter so far as it is the subject of legal
proceedings before, or has been determined by, a court or tribunal.

(2)   This Part does not authorise the Commissioner to exercise any
function which by virtue of an enactment is also exercisable by the
prescribed person.

128G          Interpretation

(1)   For the purposes of this Part “regulated services” has the same
definition as “regulated activity” in section 8 of this Act as they
relate to older people.

(2)   This Part applies to any older person normally domiciled in
England.”

(2)   After Schedule 5, insert the following new Schedule—

“SCHEDULE 5A

THE OLDER PERSONS’ COMMISSIONER

Status

1    (1)   The Older Persons’ Commissioner is to be a corporation sole.

(2)   The Older Persons’ Commissioner is not to be regarded as the
servant or agent of the Crown or as enjoying any status,
immunity or privilege of the Crown; and the Older Persons’
Commissioner’s property is not to be regarded as property of, or
property held on behalf of, the Crown.

Appointment and tenure of office

2 Regulations may make provision—

(a)   as to the appointment of the Older Persons’
Commissioner (including any conditions to be fulfilled
for appointment);

(b)   as to the filling of vacancies in the office of Commissioner;

(c)   as to the tenure of office of the Older Persons’
Commissioner (including the circumstances in which he
ceases to hold office or may be removed or suspended
from office).

Remuneration

3 The Secretary of State shall—

(a)   pay the Commissioner such remuneration and
allowances; and

(b)   pay, or make provision for the payment of, such pension
or gratuities to or in respect of him, as may be provided
for under the terms of his appointment.

Staff

4    (1)   The Commissioner may appoint any staff he considers necessary
for assisting him in the exercise of his functions, one of whom
shall be appointed as deputy Commissioner.

(2)   During any vacancy in the office of Commissioner or at any time
when the Commissioner is for any reason unable to act, the
deputy Commissioner shall exercise his functions (and any
property or rights vested in the Commissioner may accordingly
be dealt with by the deputy as if vested in him).

(3)   Without prejudice to sub-paragraph (2), any member of the
Commissioner’s staff may, so far as authorised by him, exercise
any of his functions.

General powers

5    (1)   Subject to any directions given by the Secretary of State, the
Commissioner may do anything which appears to him to be
necessary or expedient for the purpose of, or in connection with,
the exercise of his functions.

(2)   That includes, in particular—

(a)   co-operating with other public authorities in the United
Kingdom;

(b)   acquiring and disposing of land and other property; and

(c)   entering into contracts.

Reports

6 Regulations may provide for the Commissioner to make periodic
or other reports to the Secretary of State relating to the exercise of
his functions and may require the reports to be published in the
manner required by the regulations.

Accounts

7    (1)   The Older Persons’ Commissioner must keep accounts in such
form as the Secretary of State may determine.

(2)   The Older Persons’ Commissioner must prepare annual
accounts in respect of each financial year in such form as the
Secretary of State may determine.

(3)   The Older Persons’ Commissioner must send copies of the
annual accounts to the Secretary of State and the Comptroller
and Auditor General within such period after the end of the
financial year to which the accounts relate as the Secretary of
State may determine.

(4)   The Comptroller and Auditor General must examine, certify and
report on the annual accounts and must lay copies of the
accounts and of his report before Parliament.

(5)   In this paragraph “financial year”, in relation to the Older
Persons’ Commissioner, means—

(a)   the period beginning with the date on which the Older
Persons’ Commissioner is established and ending with
the next 31st March following that date; and

(b)   each successive period of twelve months ending with 31st
March.

Payments

8 The Secretary of State may make payments to the Older Persons’
Commissioner of such amounts, at such times and on such
conditions (if any) as he considers appropriate.

General

9 In the House of Commons Disqualification Act 1975, in Part III of
Schedule 1 (certain disqualifying offices), the following entries
are inserted at the appropriate places—

“Older Persons’ Commissioner.”

“Member of the staff of the Older Persons’ Commissioner.”

10 In the Northern Ireland Assembly Disqualification Act 1975, the
same entries as are set out in paragraph 9 are inserted at the
appropriate places in Part III of Schedule 1.

11    (1)   Regulations may provide that the office of Older Persons’
Commissioner shall be added to the list of “Offices” in Schedule
1 to the Superannuation Act 1972 (offices etc. to which section 1
of that Act applies).

(2)   The Secretary of State shall pay to the Minister for the Civil
Service, at such times as he may direct, such sums as he may
determine in respect of any increase attributable to provision
made under sub-paragraph (1) in the sums payable out of money
provided by Parliament under the Superannuation Act 1972.””

Before Clause 77

EARL HOWE

140*

Insert the following new Clause—

“Duty of candour

In section 20 of the Health and Social Care Act 2008 (regulation of regulated
activities), after subsection (5) insert—

“(5A)    Regulations under this section must make provision as to the
provision of information in a case where an incident of a specified
description affecting a person’s safety occurs in the course of the
person being provided with a service.””

Clause 77

LORD WARNER

141

Page 66, line 21, at end insert—

“( )   in so deciding in the case of an NHS trust, the Commission
must review the effectiveness of previous interventions
with that trust by the Trust Development Authority (or its
predecessor bodies) and consider whether to require the
Authority to advise the Secretary of State to appoint a trust
special administrator.”

After Clause 82

EARL HOWE

142*

Insert the following new Clause—

“Chief Inspectors

After paragraph 3 of Schedule 1 to the Health and Social Care Act 2008
insert—

“Chief Inspectors

3A    (1)   The non-executive members must—

(a)   appoint an executive member to be the Chief Inspector of
Hospitals,

(b)   appoint an executive member to be the Chief Inspector of
Adult Social Care, and

(c)   appoint an executive member to be the Chief Inspector of
General Practice.

(2)   Each of those executive members is to exercise such functions of
the Commission on its behalf as it determines.

(3)   When exercising functions under sub-paragraph (2), an
executive member must have regard to the importance of
safeguarding and promoting the Commission’s independence
from the Secretary of State.””

143*

Insert the following new Clause—

“Independence of the Care Quality Commission

(1)   Part 1 of the Health and Social Care Act 2008 (the Care Quality
Commission) is amended as follows.

(2)   In section 48 (special reviews or investigations), omit subsection (7)
(Secretary of State’s power to make regulations as to procedure for
representations before publication of report).

(3)   In section 54 (studies as to economy, efficiency etc), in subsections (1) and
(3), omit “, with the approval of the Secretary of State,”.

(4)   After subsection (2) of that section, insert—

“(2A)    The Commission may not exercise the power under subsection
(1)(a), so far as it relates to the activity mentioned in subsection
(2)(d), without the approval of the Secretary of State.”

(5)   In section 55 (publication of results of studies under section 54), omit
subsection (2) (Secretary of State’s power to make regulations as to
procedure for representations before publication of report).

(6)   In section 57 (reviews of data, studies and research), in subsection (1), omit
“, with the approval of the Secretary of State,”.

(7)   In section 61 (inspections carried out for registration purposes), omit—

(a)   subsection (1) (Secretary of State’s power to make regulations
specifying frequency etc. of inspections), and

(b)   subsection (4) (Secretary of State’s power to make regulations as to
procedure for representations before publication of report).

(8)   In section 83 (annual reports), omit subsection (3) (Secretary of State’s
power to direct preparation of separate reports).

(9)   In paragraph 5 of Schedule 4 (inspection programmes etc.), omit—

(a)   in sub-paragraph (1) (preparation of programme etc.), “, or at such
times as the Secretary of State may specify by order,”, and

(b)   sub-paragraph (3) (Secretary of State’s power to specify form of
programme etc.).

(10)   In consequence of subsections (3) and (6), omit section 293(3) and (4) of the
Health and Social Care Act 2012.”

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

144

Insert the following new Clause—

“Staffing numbers and skills mix

The Care Quality Commission shall, in carrying out its functions, have
regard to any official guidance on staffing numbers and skills mix.”

Clause 83

EARL HOWE

145*

Page 72, leave out lines 16 to 27

146*

Page 72, line 28, leave out “or local authority”

BARONESS GREENGROSS

147

Page 72, line 45, at end insert—

“( )   Indicators the Commission devises for the purposes of subsection
(5) should include indicators of the quality of services provided for
the identification and treatment of those conditions that most
frequently occur in a particular care setting.”

EARL HOWE

148*

Page 73, line 14, at end insert—

“(13)   Consultation undertaken before the commencement of this section
is as effective for the purposes of subsection (9) as consultation
undertaken after that commencement.”

149*

Page 73, line 16, at end insert—

“( )   In section 48 (special reviews and investigations), in subsection (1)—

(a)   omit “, with the approval of the Secretary of State,”, and

(b)   at the end insert “; but the Commission may not conduct a review
or investigation under subsection (2)(ba) or (bb) without the
approval of the Secretary of State.”

( )   Omit subsection (1A) of that section.

( )   In subsection (2) of that section, for “a periodic review” substitute “a review
under section 46”.

( )   In that subsection, after paragraph (ba) (but before the following “or”)
insert—

“(bb)   the exercise of the functions of English local authorities in
arranging for the provision of adult social services,”.

( )   After subsection (3) of that section insert—

“(3A)    A review or investigation under subsection (2)(b), in so far as it
involves a review or investigation into the arrangements made for
the provision of the adult social services in question, is to be treated
as a review under subsection (2)(bb) (and the requirement for
approval under subsection (1) is accordingly to apply).””

150*

Page 73, line 25, at end insert—

“( )   in section 293 of the Health and Social Care Act 2012, omit
subsections (1) and (2);”

After Clause 83

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

151

Insert the following new Clause—

“Periodic reviews and assessments of standards of employment and impact of
quality of care

The Commission shall have a duty to carry out periodic reviews and
assessments of standards of employment in health and social care
provision with particular emphasis on workforce conditions which
support continuity and quality of care, and are consistent with the
wellbeing principle as set out in section 1.”

Before Clause 84

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

152

Insert the following new Clause—

“Duty of candour

(1)   Every organisation registered with the Care Quality Commission to
provide health or social care services must be honest, open and truthful in
all their dealing with patients and the public.

(2)   Organisational interests of those so registered must never be allowed to
outweigh the duty to be honest, open and truthful.

(3)   Where death or serious harm has been or may have been caused to a patient
by an act or omission of the organisation or its staff, the patient or any
lawfully entitled personal representative or other authorised person
should be—

(a)   informed of the incident;

(b)   given full disclosure of the surrounding circumstances; and

(c)   be offered an appropriate level of support,

whether or not the patient or representative has asked for this whether or not the patient or representative has asked for this
information.”information.”

After Clause 85

EARL HOWE

153*

Insert the following new Clause—

“Training for persons working in regulated activity

In section 20 of the Health and Social Care Act 2008 (regulation of regulated
activities), after subsection (4) insert—

“(4A)    Regulations made under this section by virtue of subsection (3)(d)
may in particular include provision for a specified person to set the
standards which persons undergoing the training in question must
attain.””

Schedule 5

EARL HOWE

154*

Page 112, line 6, at end insert—

“(0 )   The non-executive members of HEE must include a person who will
represent the interests of patients.”

155*

Page 114, line 33, at end insert—

“(1A)    HEE may arrange for any of its committees, sub-committees or members
or any other person to exercise any of its functions on its behalf (but see
sub-paragraph (4)).”

156*

Page 114, line 36, after “sub-paragraph” insert “(1A) or”

157*

Page 115, line 1, after “LETB” insert “, or for a sub-committee, member or any other
person,”

After Clause 89

LORD WILLIS OF KNARESBOROUGH

BARONESS EMERTON

LORD PATEL

158

Insert the following new Clause—

“Mandatory training and certification for health and care support workers and
nursing assistants

(1)   HEE must develop a mandatory training curriculum and certification
standards, with two levels, for health and care support workers who are
delivering direct care to service users and for nursing assistants.

(2)   For the purposes of subsection (1), a health or care support worker shall be
an individual who works in support of health or care professionals and
delivers direct care to service users.

(3)   The training curriculum, under subsection (1), will have—

(a)   a basic level; and

(b)   an advanced level,

of certification in health and care standards.of certification in health and care standards.

(4)   Providers of health or care services must be reponsible for ensuring that all
health and care support workers hold a certificate in health and care
standards.

(5)   Any individual working directly with patients or clients must have
completed training and hold, at least, a basic level certificate in health and
care standards.

(6)   A nursing assistant must have completed training and hold an advanced
level certificate in health and care standards.

(7)   The training curriculum and certification standards set out in subsection (1)
will be set by the Nursing and Midwifery Council and approved by HEE.

(8)   Employers must retain a register of individuals who hold any certificate in
health and care standards.

(9)   It is an offfence for any employer to employ—

(a)   an individual to work directly with patients or clients who is not
registered as holding at least a basic level certificate in health and
care standards; or

(b)   a nursing assistant who is not registered as holding an advanced
level certificate in health and care standards.”

159

Insert the following new Clause—

“Safeguarding patients

(1)   The first duty that a health or care service provider must consider for any
decision is patient safety.

(2)   Health or care service providers must publish a report containing staffing
levels based on evidence of safe staffing levels supported by acuity and
dependency levels for each patient.

(3)   The report must relate safe staffing levels to patient outcomes and
mortality rates.

(4)   The report must be presented to the hospital management board or any
other relevant board of management.

(5)   The frequency of the report will be determined by the Secretary of State.

(6)   The Care Quality Commission or Monitor will be able to request to see the
report, under subsection (2), at any time.”

LORD HUNT OF KINGS HEATH

BARONESS WHEELER

160

Insert the following new Clause—

“Regulation of health and care support workers

(1)   The Secretary of State shall, by regulations and in consultation with the
Care Quality Commission, HEE and such other persons as it considers
appropriate, ensure the establishment of a system of regulation of health
and care support workers.

(2)   For the purpose of subsection (1), a health or care support worker shall be
an individual who works in support of health or care professionals and
delivers direct care to service users.”

Clause 93

EARL HOWE

161*

Page 80, line 5, at end insert—

“( )   Subsections (1), (2) and (4) of section 89 (quality improvement in education
and training etc.) apply to an LETB in the exercise of its functions as they
apply to HEE in the exercise of its functions.”

Clause 94

EARL HOWE

162*

Page 80, line 23, at end insert “, and

( )   a person who will represent the interests of patients.”

163*

Page 80, line 24, leave out “The regulations” and insert “Regulations under
paragraph (b) of subsection (3)”

164*

Page 80, line 24, leave out “that expertise” and insert “the expertise mentioned in
that paragraph”

Schedule 7

EARL HOWE

165*

Page 126, line 36, after “any” insert “of its committees, sub-committees or members
or any other”

Clause 100

EARL HOWE

166*

Page 85, line 12, leave out “such research” and insert “research that is safe and
ethical (including by promoting transparency in research)”

167*

Page 85, line 25, at end insert—

“( )   Promoting transparency in research includes promoting—

(a)   the registration of research;

(b)   the publication and dissemination of research findings and
conclusions;

(c)   the provision of access to data on which research findings or
conclusions are based;

(d)   the provision of information at the end of research to participants in
the research;

(e)   the provision of access to tissue used in research, for use in future
research.”

Schedule 8

EARL HOWE

168*

Page 132, line 45, leave out from second “a” to end of line 3 on page 133 and insert
“research ethics committee recognised or established by or on behalf of the Health
Research Authority under the Care Act 2013.”

Clause 112

EARL HOWE

169

Page 92, line 25, leave out “or duty”

Clause 114

EARL HOWE

170*

Page 94, line 23, after “cases)” insert “or 71 (after-care under the Mental Health Act
1983)”.

Prepared 8th October 2013