Care Bill [HL]

House of Lords

Session 2013 - 14
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Other Bills before Parliament

Care Bill [HL]

Care Bill [HL]
Part 3 — Health
Chapter 4 — Trust special administration
101

General
117
Chapters 1 and 2: interpretation and supplementary provision
(1)
For the purposes of Chapters 1 and 2, an expression in the first column of the
following table is defined or otherwise explained by the provision of this Act
specified in the second column.
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Expression
Provision

Appointment criteria
Section 102

Commissioner of health services
Section 103

Devolved authority
Section 122

Devolved legislature
Section 122

10

Direct or direction
Subsection (2) below

Enactment
Section 122

Financial year
Section 122

Health care workers
Section 95

Health research
Section 108

15

The health service
Section 122

Health services
Section 97

HEE
Section 94

The HRA
Section 107

LETB
Section 101

20

Social care research
Section 108

(2)
A power under Chapter 1 or 2 to give a direction—
(a)
includes a power to vary or revoke the direction by a subsequent
direction, and
(b)
must be exercised by giving the direction in question in writing.
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(3)
The amendments made by sections 114 and 115 and Schedule 8 to provisions
of subordinate legislation do not affect the power to make further subordinate
legislation amending or revoking the amended provisions.
Chapter 4
Trust special administration
30
118
Powers of administrator etc.
(1)
In section 65O of the National Health Service Act 2006 (Chapter 5A of Part 2:

Care Bill [HL]
Part 3 — Health
Chapter 4 — Trust special administration
102

interpretation) (the existing text of which becomes subsection (1)) at the end
insert—
“(2)
The references in this Chapter to taking action in relation to an NHS
trust include a reference to taking action, including in relation to
another NHS trust or an NHS foundation trust, which is necessary for
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and consequential on action taken in relation to that NHS trust.
(3)
The references in this Chapter to taking action in relation to an NHS
foundation trust include a reference to taking action, including in
relation to another NHS foundation trust or an NHS trust, which is
necessary for and consequential on action taken in relation to that NHS
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foundation trust.”
(2)
In section 65F of that Act (administrator’s draft report), in subsection (1), for
“45 working days” substitute “65 working days”.
(3)
After subsection (2C) of that section insert—
“(2D)
Where the administrator recommends taking action in relation to
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another NHS foundation trust or an NHS trust, the references in
subsection (2A) to a commissioner also include a reference to a person
to which the other NHS foundation trust or the NHS trust provides
services under this Act that would be affected by the action.”
(4)
In section 65G of that Act (consultation plan), in subsection (2), for “30 working
20
days” substitute “40 working days”.
(5)
After subsection (6) of that section insert—
“(7)
Where the administrator recommends taking action in relation to
another NHS foundation trust or an NHS trust, the references in
subsection (4) to a commissioner also include a reference to a person to
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which the other NHS foundation trust or the NHS trust provides
services under this Act that would be affected by the action.”
(6)
In section 65N of that Act (guidance), after subsection (1) insert—
“(1A)
It must, in so far as it applies to NHS trusts, include guidance about—
(a)
seeking the support of commissioners for an administrator’s
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recommendation;
(b)
involving the Board in relation to finalising an administrator’s
report or draft report.”
(7)
In section 13Q of that Act (public involvement and consultation by NHS
Commissioning Board), at the end insert—
35
“(4)
This section does not require the Board to make arrangements in
relation to matters to which a trust special administrator’s report or
draft report under section 65F or 65I relates before the Secretary of State
makes a decision under section 65K(1), is satisfied as mentioned in
section 65KB(1) or 65KD(1) or makes a decision under section 65KD(9)
40
(as the case may be).”
(8)
In section 14Z2 of that Act (public involvement and consultation by clinical
commissioning groups), at the end insert—
“(7)
This section does not require a clinical commissioning group to make
arrangements in relation to matters to which a trust special
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Care Bill [HL]
Part 4 — General
103

administrator’s report or draft report under section 65F or 65I relates
before the Secretary of State makes a decision under section 65K(1), is
satisfied as mentioned in section 65KB(1) or 65KD(1) or makes a
decision under section 65KD(9) (as the case may be).”
(9)
In section 242 of that Act (public involvement and consultation by NHS trusts
5
and foundation trusts), in subsection (6)—
(a)
for “65I, 65R or 65U” substitute “or 65I”, and
(b)
for the words from “the decision” to the end substitute “the Secretary of
State makes a decision under section 65K(1), is satisfied as mentioned
in section 65KB(1) or 65KD(1) or makes a decision under section
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65KD(9) (as the case may be).”
(10)
In Schedule 14 to the Health and Social Care Act 2012 (abolition of NHS trusts
in England: consequential amendments)—
(a)
after paragraph 4 insert—
“4A
In section 13Q(4) (public involvement and consultation by
15
Board), omit “makes a decision under section 65K(1),”.
4B
In section 14Z2 (public involvement and consultation by
clinical commissioning groups), omit “makes a decision
under section 65K(1),”.”,
(b)
in paragraph 15, after sub-paragraph (3) insert—
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   “(3A)
In subsection (2D), omit “or an NHS trust” and “or the NHS
trust.”,
(c)
in paragraph 16 (the text of which becomes sub-paragraph (1)) at the
end insert—
    “(2)
In subsection (7) of that section, omit “or an NHS trust” and
25
“or the NHS trust”.”,
(d)
in paragraph 24, after sub-paragraph (2) insert—
   “(2A)
Omit subsection (1A).”,
(e)
after that paragraph insert—
“24A
In section 65O (interpretation)—
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(a)
omit subsection (2), and
(b)
in subsection (3), omit “or an NHS trust”.”, and
(f)
in paragraph 35, omit the “and” preceding paragraph (d) and after that
paragraph insert “, and
(e)
in subsection (6), omit “makes a decision under
35
section 65K(1),”.”
Part 4
General
119
Power to make consequential provision
(1)
The Secretary of State may by order make provision in consequence of a
40
provision of this Act.
(2)
An order under this section may amend, repeal, revoke or otherwise modify an
enactment.

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Part 4 — General
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(3)
The power conferred by this section is not restricted by any other provision of
this Act.
(4)
A saving or a transitional or transitory provision in an order under this section
by virtue of section 121(7) may, in particular, modify the application of a
provision made by the order pending the commencement of—
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(a)
another provision of the order,
(b)
a provision of this Act, or
(c)
any other enactment.
(5)
Before making an order under this section that contains provision which is
within the legislative competence of a devolved legislature, the Secretary of
10
State must consult the relevant devolved authority.
(6)
A reference to an enactment includes a reference to an enactment passed or
made after the passing of this Act.
120
Power to make transitional etc. provision
(1)
The Secretary of State may by order make transitional, transitory or saving
15
provision in connection with the commencement of a provision of this Act.
(2)
An order under this section may modify the application of a provision of this
Act pending the commencement of—
(a)
another provision of this Act, or
(b)
any other enactment (including one passed or made after the passing of
20
this Act).
121
Regulations and orders
(1)
A power to make regulations under this Act is exercisable by the Secretary of
State.
(2)
Regulations and orders under this Act must be made by statutory instrument.
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(3)
Subject to subsections (4) and (5), a statutory instrument containing regulations
or an order under this Act is subject to annulment in pursuance of a resolution
of either House of Parliament.
(4)
A statutory instrument which contains (whether alone or with other provision)
any of the following may not be made unless a draft of the instrument has been
30
laid before, and approved by a resolution of, each House of Parliament—
(a)
regulations under section 13(7) (the eligibility criteria);
(b)
regulations under section 15(4) (the cap on care costs) other than those
made in discharge of the duty under section 16(1);
(c)
the first regulations under section 15(8) (the amount attributable to an
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adult’s daily living costs);
(d)
regulations under section 22(2)(b) (services or facilities which a local
authority may not provide or arrange);
(e)
regulations under section 35(9) or 36(3) (deferred payment agreements
and loans and alternative financial arrangements) which include
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provision that amends or repeals a provision of an Act of Parliament;
(f)
the first regulations under section 53(12) (meaning of references to
business failure);

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(g)
the first regulations under section 54(1) (criteria for application of
market oversight regime);
(h)
the first regulations under section 54(4) (disapplication of market
oversight regime in particular cases);
(i)
the first regulations under section 63(2) (exercise of power to meet
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child’s carer’s needs for support);
(j)
an order under section 78(9) (delegation of local authority functions);
(k)
regulations under section 90 (offence of supplying etc false or
misleading information);
(l)
an order under section 119 (consequential provision) which includes
10
provision that amends or repeals a provision of an Act of Parliament;
(m)
regulations under paragraph 17 of Schedule 7 (fees chargeable by the
HRA).
(5)
Subsection (3) does not apply to—
(a)
an order under section 94 (transfer order to new HEE);
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(b)
an order under section 107 (transfer order to new HRA);
(c)
an order under section 120 (transitional etc. provision);
(d)
an order under section 123 (commencement).
(6)
A power to make regulations or an order under this Act—
(a)
may be exercised for all cases to which the power applies, for those
20
cases subject to specified exceptions, or for any specified cases or
descriptions of case,
(b)
may be exercised so as to make, for the cases for which it is exercised—
(i)
the full provision to which the power applies or any less
provision (whether by way of exception or otherwise);
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(ii)
the same provision for all cases for which the power is
exercised, or different provision for different cases or different
descriptions of case, or different provision as respects the same
case or description of case for different purposes of this Act;
(iii)
any such provision either unconditionally or subject to
30
specified conditions, and
(c)
may, in particular, make different provision for different areas.
(7)
A power to make regulations or an order under this Act (other than the power
to make an order under section 120 or 123) includes —
(a)
power to make incidental, supplementary, consequential, saving,
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transitional or transitory provision, and
(b)
power to provide for a person to exercise a discretion in dealing with a
matter.
(8)
Before making regulations under section 53(12) (meaning of references to
business failure), the Secretary of State must consult the Welsh Ministers and
40
the Department for Health, Social Services and Public Safety in Northern
Ireland.
122
General interpretation
In this Act—
“devolved authority” means the Scottish Ministers, the Welsh Ministers
45
or the Department for Health, Social Services and Public Safety in
Northern Ireland,

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“devolved legislature” means the Scottish Parliament, the National
Assembly for Wales or the Northern Ireland Assembly,
“enactment” includes—
(a)
an enactment contained in subordinate legislation (within the
meaning of the Interpretation Act 1978), and
5
(b)
an enactment contained in, or in an instrument made under, an
Act of the Scottish Parliament, an Act or Measure of the
National Assembly for Wales or Northern Ireland legislation,
“financial year” means a period of 12 months ending with 31 March (but
see also the definition of that expression in paragraph 3 of Schedule 2,
10
paragraph 19 of Schedule 5 and paragraph 18 of Schedule 7), and
“the health service” means the comprehensive health service in England
continued under section 1(1) of the National Health Service Act 2006.
123
Commencement
(1)
The provisions of Parts 1 to 3 come into force on such day as the Secretary of
15
State may by order appoint.
(2)
The provisions of this Part come into force on the day on which this Act is
passed.
(3)
Before making an order under this section bringing section 51 (provider
failure: temporary duty on local authority in Wales in cross-border cases) or 74
20
(after-care under the Mental Health Act 1983) into force, the Secretary of State
must obtain the consent of the Welsh Ministers.
(4)
Before making an order under this section bringing section 52 (provider
failure: temporary duty on Health and Social Care trusts in cross-border cases)
into force, the Secretary of State must obtain the consent of the Department for
25
Health, Social Services and Public Safety in Northern Ireland.
(5)
Different days may be appointed under subsection (1) for different purposes
(including different areas).
124
Extent and application
(1)
This Act extends to England and Wales only, subject to subsections (2) and (3).
30
(2)
Any amendment, repeal or revocation made by this Act has the same extent as
the enactment being amended, repealed or revoked, other than the amendment
made by section 67(3) which extends to England and Wales only.
(3)
The following also extend to Scotland and Northern Ireland—
(a)
section 39(8) and Schedule 1 (cross-border placements);
35
(b)
sections 50 to 53 (provider failure: temporary duty in relation to cross-
border cases);
(c)
Chapter 2 of Part 3 (the HRA);
(d)
section 116 (transfer orders), so far as relating to section 107 (the HRA);
(e)
section 117 (Chapters 1 and 2 of Part 3: interpretation and
40
supplementary provision);
(f)
this Part;
(g)
paragraph 17 of Schedule 5 (arrangements between HEE and devolved
authorities) and section 94(2) so far as relating to that paragraph.

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(4)
The Secretary of State may by order provide that specified provisions of this
Act, in their application to the Isles of Scilly, have effect with such
modifications as may be specified.
125
Short title
This Act may be cited as the Care Act 2013.
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