Health and Care Bill (HL Bill 71)

Health and Care BillPage 110

at risk of becoming a pandemic disease, the Welsh Ministers
must revoke that provision within such period as the Welsh
Ministers consider reasonable (taking into account, in
particular, the need for any transitional arrangements).”

5International healthcare

136 International healthcare arrangements

(1)The Healthcare (European Economic Area and Switzerland Arrangements)
Act 2019 is renamed the Healthcare (International Arrangements) Act 2019.

(2)That Act is amended as follows.

(3)10Omit section 1 (power to make healthcare payments).

(4)For section 2 substitute—

2 Healthcare agreements and payments

(1)The Secretary of State may by regulations make provision for the
purpose of giving effect to a healthcare agreement (including provision
15about payments).

(2)The Secretary of State may by regulations make provision authorising
the Secretary of State to make a payment (otherwise than under a
healthcare agreement) in respect of healthcare provided in a relevant
country or territory, but only where the Secretary of State considers that
20exceptional circumstances justify the payment.

(3)In subsection (2) “relevant country or territory” means a country or
territory, outside the United Kingdom, in respect of which there is a
healthcare agreement.

(4)Regulations under this section may include provision about
25administrative arrangements (including provision about evidential
requirements).

(5)Regulations under this section may—

(a)confer functions on a relevant public authority or a Scottish or
Welsh health board (including discretions);
30provide for the delegation of functions to a relevant public
authority or a Scottish or Welsh health board.

(6)The Secretary of State may give directions to a person about the exercise
of any functions exercisable by the person under regulations made by
virtue of subsection (5) (and may vary or revoke any such directions).

(7)35In this section “relevant public authority” means a person who
exercises functions of a public nature other than—

(a)the Scottish Ministers,

(b)a Scottish public authority with mixed functions or no reserved
functions (within the meaning of the Scotland Act 1998),

(c)40the Welsh Ministers,

(d)a devolved Welsh authority as defined by section 157A of the
Government of Wales Act 2006,

(e)a Northern Ireland department, or

Health and Care BillPage 111

(f)any other person whose functions—

(i)are exercisable only or mainly in or as regards Northern
Ireland, and

(ii)relate only or mainly to transferred matters within the
5meaning of the Northern Ireland Act 1998.

(8)In this section—

  • “Scottish health board” means a Health Board established under
    section 2(1)(a) of the National Health Service (Scotland) Act
    1978;

  • 10“Welsh health board” means a Local Health Board established
    under section 11 of the National Health Service (Wales) Act
    2006.

2A Healthcare agreements and payments: powers of devolved authorities

(1)A devolved authority may by regulations make provision for the
15purpose of giving effect to a healthcare agreement (including provision
about payments).

(2)No provision may be made by a devolved authority under subsection
(1) unless the provision is within the devolved competence of that
devolved authority [(and any applicable consent requirement under
20section 2B has been complied with)].

(3)In this section “devolved authority” means the Scottish Ministers, the
Welsh Ministers or a Northern Ireland department.

(4)For the purposes of this section—

(a)provision is within the devolved competence of the Scottish
25Ministers if it would be within the legislative competence of the
Scottish Parliament if it were contained in an Act of that
Parliament;

(b)provision is within the devolved competence of the Welsh
Ministers if it would be within the legislative competence of
30Senedd Cymru if it were contained in an Act of Senedd Cymru
(including any provision that could only be made with the
consent of a Minister of the Crown);

(c)provision is within the devolved competence of a Northern
Ireland department if it would be within the legislative
35competence of the Northern Ireland Assembly if it were
contained in an Act of that Assembly.

(5)Regulations under this section may include provision about
administrative arrangements (including provision about evidential
requirements).

(6)40Regulations under this section may—

(a)confer functions on a public authority (including discretions);

(b)provide for the delegation of functions to a public authority.

(7)A devolved authority may give directions to a person about the
exercise of any functions exercisable by the person under regulations
45made by that devolved authority by virtue of subsection (6) (and may
vary or revoke any such directions).

Health and Care BillPage 112

(8)In this section “public authority” means a person who exercises
functions of a public nature.

2B Regulations under section 2A: consent requirements

(1)The consent of a Minister of the Crown is required before any provision
5is made by the Welsh Ministers in regulations under section 2A(1) so
far as that provision, if contained in an Act of Senedd Cymru, would
require the consent of a Minister of the Crown.

(2)The consent of the Secretary of State is required before any provision is
made by a Northern Ireland department in regulations under section
102A(1) so far as that provision, if contained in an Act of the Northern
Ireland Assembly, would require the consent of the Secretary of State.”

(5)In section 3 (meaning of “healthcare” and “healthcare agreement”), for the
definition of “healthcare agreement” substitute—

  • ““healthcare agreement” means an agreement or other
    15commitment between the United Kingdom and either a country
    or territory outside the United Kingdom or an international
    organisation, concerning healthcare provided anywhere in the
    world;”.

(6)In section 7 (regulations and directions)—

(a)20in subsection (1), after “A power” insert “of the Secretary of State or
Welsh Ministers”;

(b)after subsection (1) insert—

(1A)A power of a Northern Ireland department to make regulations
under section 2A is exercisable by statutory rule for the
25purposes of the Statutory Rules (Northern Ireland) Order 1979
(S.I. 1979/1573 (N.I. 12)).”;

(c)in subsection (5), for “this Act” substitute “section 2”;

(d)after subsection (5) insert—

(5A)Regulations made by the Scottish Ministers under section 2A
30are subject to the negative procedure (see Part 2 of the
Interpretation and Legislative Reform (Scotland) Act 2010 (asp
10)).

(5B)Regulations made by a Northern Ireland department under
section 2A are subject to negative resolution within the meaning
35given by section 41(6) of the Interpretation Act (Northern
Ireland) 1954.

(5C)A statutory instrument which contains regulations made by the
Welsh Ministers under section 2A is subject to annulment in
pursuance of a resolution of Senedd Cymru.”

(7)40In section 8 (short title etc), in subsection (3), for “Healthcare (European
Economic Area and Switzerland Arrangements) Act 2019” substitute
“Healthcare (International Arrangements) Act 2019”.

Social care

137 Regulation of local authority functions relating to adult social care

(1)45Chapter 3 of Part 1 of the Health and Social Care Act 2008 (quality of health and
social care) is amended as follows.

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(2)In section 46 (reviews and performance assessments by the Care Quality
Commission), in the heading, at the end insert “: registered service providers”.

(3)After section 46 insert—

46A Reviews and performance assessments: local authorities

(1)5The Commission must, in accordance with this section—

(a)conduct reviews of the exercise of regulated care functions by
English local authorities,

(b)assess the performance of those authorities following each such
review, and

(c)10publish a report of its assessment.

(2)In this section “regulated care functions” means such functions under
Part 1 of the Care Act 2014 (functions relating to adult social care in
England) as may be prescribed.

(3)Regulations under subsection (2) may prescribe—

(a)15all functions of English local authorities under Part 1 of the Care
Act 2014 or some of their functions under that Part;

(b)the whole of a function or a particular aspect of it.

(4)The Secretary of State—

(a)must set, and may from time to time revise, objectives and
20priorities for the Commission in relation to the assessment
under this section of the performance of English local
authorities, and

(b)must inform the Commission of the objectives and priorities.

(5)The Commission—

(a)25must determine, and may from time to time revise, indicators of
quality for the purposes of the assessment under this section of
the performance of English local authorities, and

(b)must obtain the approval of the Secretary of State in relation to
the indicators.

(6)30The Secretary of State may direct the Commission to revise the
indicators under subsection (5).

(7)Different objectives and priorities may be set, and different indicators
of quality may be determined, for different cases.

(8)The Commission—

(a)35must prepare, and may from time to time revise, a statement—

(i)setting out the frequency with which reviews under this
section are to be conducted and the period to which they
are to relate, and

(ii)describing the method that it proposes to use in
40assessing and evaluating the performance of a English
local authority under this section, and

(b)must obtain the approval of the Secretary of State in relation to
the statement.

(9)The Secretary of State may direct the Commission to revise the
45statement under subsection (8).

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(10)The statement may—

(a)make different provision about frequency and period of
reviews for different cases, and

(b)describe different methods for different cases.

(11)5The Commission must publish—

(a)the objectives and priorities under subsection (4),

(b)the indicators of quality under subsection (5), and

(c)the statement under subsection (8).

(12)For the purposes of this section “English local authority” includes the
10Council of the Isles of Scilly only so far as references to a local authority
in Part 1 of the Care Act 2014 include references to that Council as a
result of an order under section 128(4) of that Act.”

(4)In section 48 (special reviews and investigations)—

(a)in subsection (2), after “section 46” insert “,46A”;

(b)15in subsection (3A), after “treated as a review” insert “or investigation”.

(5)In section 50 (failings by English local authorities), in subsection (1), after “46”
insert “,46A”.

(6)In section 60 (inspections)—

(a)in subsection (1), after paragraph (c) (but before the “or” at the end)
20insert—

(ca)the exercise of functions by an English local authority,”;

(b)after subsection (2) insert—

(3)In this section “English local authority” has the same meaning
as in section 46A (see subsection (12) of that section).”

138 25Default powers of Secretary of State in relation to adult social care

(1)In section 7D of the Local Authority Social Services Act 1970 (default powers
of Secretary of State as respects social services functions of local authorities)—

(a)in subsection (1), for the words from “imposed” to “2002” substitute
“referred to in subsection (4)”;

(b)30after subsection (3) insert—

(4)Subsection (1) does not apply in relation to a duty imposed by
or under—

(a)the Children Act 1989,

(b)section 1 or 2(4) of the Adoption (Intercountry Aspects)
35Act 1999,

(c)the Adoption and Children Act 2002, or

(d)Part 1 of the Care Act 2014.”

(2)The Care Act 2014 is amended in accordance with subsections (3) and (4).

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(3)After section 72 insert—

“Default by local authority

72A Default power of Secretary of State

(1)Where the Secretary of State is satisfied that a local authority is failing,
5or has failed, to discharge any of its functions under or by virtue of this
Part to an acceptable standard, the Secretary of State may give to the
local authority any directions that the Secretary of State considers
appropriate for the purpose of addressing the failure.

(2)The directions may include provision requiring the local authority—

(a)10to act in accordance with advice given by the Secretary of State
or a person nominated by the Secretary of State,

(b)to collaborate with the Secretary of State or a person nominated
by the Secretary of State in taking steps specified in the
directions, or

(c)15to provide the Secretary of State or a person nominated by the
Secretary of State with information of a description specified in
the directions, on request or otherwise.

(3)If the Secretary of State considers it necessary for the purpose of
addressing the failure, the directions may include provision—

(a)20for specified functions of the local authority to be exercised by
the Secretary of State or a person nominated by the Secretary of
State for a period specified in the direction or for so long as the
Secretary of State considers appropriate, and

(b)requiring the local authority to comply with any instructions of
25the Secretary of State or the nominee in relation to the exercise
of the functions.

(4)So far as is appropriate in consequence of directions given by virtue of
subsection (3), a reference (however expressed) in an enactment,
instrument or other document to a local authority is to be read as a
30reference to the person by whom the function is exercisable.

(5)If directions given by virtue of subsection (3) expire or are revoked
without being replaced then, so far as is appropriate in consequence of
the expiry or revocation, a reference (however expressed) in an
instrument or other document to the person by whom the function was
35exercisable is to be read as a reference to the local authority to whom
the directions were given.

(6)The Secretary of State may, for the purposes of cases in which directions
are given under subsection (3)(a), make regulations disapplying or
modifying an enactment which confers a function on the Secretary of
40State in respect of a function of a local authority.

(7)Directions under this section may require the local authority to provide
financial assistance to the Secretary of State, or a person nominated by
the Secretary of State, for the purpose of meeting costs incurred by the
Secretary of State or the nominee as a result of the directions.

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72B Default power of Secretary of State: supplementary

(1)Before giving directions under section 72A the Secretary of State must
give the local authority concerned an opportunity to make
representations about the proposed directions, except so far as the
5Secretary of State considers that it is impractical to do so for reasons of
urgency.

(2)The power to give directions under section 72A includes a power to
vary or revoke the directions by subsequent directions.

(3)Subsection (1) does not apply in relation to proposed directions varying
10previous directions if the Secretary of State does not consider the
variations to be significant.

(4)Directions under section 72A must be in writing.

(5)The Secretary of State must publish—

(a)any directions given under section 72A, and

(b)15the reasons for giving them.

(6)Directions under section 72A are enforceable, on the Secretary of State’s
application, by a mandatory order.”

(4)In section 125(4) (regulations and orders subject to affirmative procedure),
after paragraph (k) insert—

(ka)20regulations under section 72A(6) (modification of enactments
where local authority functions are exercised by the Secretary of
State or a nominee);”.

139 Care Quality Commission’s powers in relation to local authority failings

(1)The Health and Social Care Act 2008 is amended as follows.

(2)25In section 48 (special reviews and investigations), in subsection (6) omit “or
(3)”.

(3)In section 50 (failings by English local authorities)—

(a)in subsection (2), in the words before paragraph (a), omit “subject to
subsection (3)”;
30for subsections (3) and (4) substitute—

(3A)Nothing in subsection (2) prevents a report published under
section 46(1)(c), 46A(1)(c), 46B(1)(c) or 48(4) from specifying
respects in which the Commission considers a local authority to
be failing and making recommendations to the local authority
35for addressing the failure.”

140 Cap on care costs for charging purposes

(1)The Care Act 2014 is amended as follows.

(2)In section 15 (cap on care costs), for subsections (2) and (3) substitute—

(2)The reference to costs accrued in meeting the adult’s eligible needs is a
40reference—

(a)in so far as a local authority met the eligible needs, to how much
of the cost of meeting those needs at the local authority’s rate

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the adult was required to pay (as reckoned from the amount
that was specified in the local authority’s personal budget in
respect of those needs (see section 26(2)(b)));

(b)in so far as a local authority did not meet the eligible needs, to
5what the cost of meeting those needs would have been at the
rate of the responsible local authority (as reckoned from the
amount that was specified in the personal budget (see section
26(2A)(a)) or the independent personal budget (see section
28(1)) in respect of those needs).

(3)10A reference in subsection (2)(b) to eligible needs does not include any
eligible needs during a period when the adult had neither a personal
budget nor an independent personal budget, other than eligible needs
during the period between the making of a request for an independent
personal budget and its preparation.

(3B)15For the purposes of this Part an adult’s needs are “eligible needs” if—

(a)the needs meet the eligibility criteria,

(b)the needs are not being met by a carer, and

(c)the adult is ordinarily resident or present in the area of a local
authority.

(3C)20In this Part, “the responsible local authority” means the local authority
in whose area the adult is ordinarily resident or in whose area the adult
is present (where the adult is of no settled residence).”

(3)In section 24 (the steps for the local authority to take), for subsection (3)
substitute—

(3)25Where no local authority is going to meet any of an adult’s needs for
care and support, the local authority that is for the time being the
responsible local authority must prepare an independent personal
budget for the adult (see section 28) if—

(a)the adult has any eligible needs, and

(b)30the adult has at any time asked a local authority that was, at that
time, the responsible local authority, to prepare an independent
personal budget.”

(4)In section 26 (personal budget), for subsections (1) and (2) substitute—

(1)A personal budget is a statement which specifies, in respect of the
35adult’s needs which a local authority is required or decides to meet as
mentioned in section 24(1)—

(a)the cost of meeting those needs at that local authority’s rate,

(b)how much of that cost the adult must pay, on the basis of the
financial assessment, and

(c)40the amount which that local authority must pay towards that
cost (which is the balance of the cost referred to in paragraph
(a)).

(2)If the needs referred to in section 26(1) include eligible needs, the
personal budget must also specify—

(a)45the cost of meeting those eligible needs at that local authority’s
rate,

(b)how much of that cost the adult must pay, on the basis of the
financial assessment, and

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(c)where the amount referred to in paragraph (a) includes daily
living costs, the amount attributable to those daily living costs.

(2A)If the adult also has eligible needs which are not being met by any local
authority, the personal budget must specify—

(a)5what the cost of meeting those eligible needs would be at the
responsible local authority’s rate, and

(b)where the amount referred to in paragraph (a) includes daily
living costs, the amount attributable to those daily living costs.

(2B)References in this section to the cost of meeting needs at a local
10authority’s rate are to the cost that the local authority would incur in
meeting those needs, assuming for the purposes of this subsection that
the adult is not paying any amount in respect of those needs and has
not expressed any preference for particular accommodation.”

(5)In section 28 (independent personal budget)—

(a)15for subsection (1) substitute—

(1)An independent personal budget is a statement which specifies
what the cost of meeting the adult’s eligible needs would be at
the responsible local authority’s rate (but the independent
personal budget need not specify the cost of meeting those
20needs at any time when the local authority required to prepare
it has ceased to be the responsible local authority).”;

(b)after subsection (2) insert—

(2A)References in this section to the cost of meeting needs at a local
authority’s rate are to the cost the local authority would incur in
25meeting those needs, assuming for the purposes of this
subsection that the adult is not paying any amount in respect of
those needs.”;

(c)omit subsection (3).

(6)In section 29 (care account), in subsection (1), in the words before paragraph
30(a), for the words from “the local authority” to “present” substitute “the
responsible local authority”.

(7)In section 31 (adults with capacity to request direct payments), in subsection
(1)(a), for “needs to which the personal budget relates” substitute “adult’s
needs which a local authority is required or decides to meet as mentioned in
35section 24(1) (see section 26(1)(c)).”

(8)In section 32 (adults without capacity to request direct payments), in
subsection (1)(a) for “needs to which the personal budget relates” substitute
“adult’s needs which a local authority is required or decides to meet as
mentioned in section 24(1)(see section 26(1)(c)).”

(9)40In section 37 (notification, assessment etc.), in subsection (15), omit paragraph
(a).

(10)In section 80 (Part 1: interpretation), in the table in subsection (1), at the
appropriate places insert—

“Eligible needsSection 15(3B)”

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“The responsible local authoritySection 15(3C)”.

Social care: regulation and financial assistance

141 Provision of social care services: financial assistance

(1)The Health and Social Care Act 2008 is amended as follows.

(2)5In section 149 (power of Secretary of State to give financial assistance in relation
to provision of health or social care services)—

(a)in subsection (1)(a) and (b), omit “or of social care services”;

(b)after subsection (1) insert—

(1A)The Secretary of State may give financial assistance to bodies
10which are engaged in—

(a)the provision in England of social care services, or

(b)the provision to other persons of services that are
connected with the provision in England by those other
persons of social care services.

(1B)15Assistance may be given to a body under subsection (1A) for the
purposes of the provision of social care services only if those
services are provided in England.”

(3)In section 151 (forms of assistance under section 149), in subsection (2)(d), after
“149(1)” insert “or (1A)”.

(4)20For section 153 substitute—

153 Directions to certain NHS bodies

(1)The Secretary of State may direct the following to exercise any
functions of the Secretary of State in relation to financial assistance
under section 149(1)—

(a)25a National Health Service trust all or most of whose hospitals,
establishments and facilities are situated in England, or

(b)a Special Health Authority performing functions only or mainly
in respect of England.

(2)The Secretary of State may direct any Special Health Authority to
30exercise any functions of the Secretary of State in relation to financial
assistance under section 149(1A).

(3)The Secretary of State may direct the following to exercise any
functions of the Secretary of State in relation to financial assistance
under section 149(2) so far as those functions relate to the establishment
35of bodies which are to be wholly or mainly engaged in the provision of
health services or services connected to health services—

(a)a National Health Service trust all or most of whose hospitals,
establishments and facilities are situated in England, or

(b)a Special Health Authority performing functions only or mainly
40in respect of England.

(4)The Secretary of State may direct any Special Health Authority to
exercise any functions of the Secretary of State in relation to financial