House of Commons - Explanatory Note
Health And Social Care Bill - continued          House of Commons

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Preserved rights

Clause 49: Preserved rights: transfer to local authorities of responsibilities as to accommodation

221. Clauses 49 - 51 concern the abolition of preserved rights. Until 1993 when the community care reforms care into effect, residential care was paid for by the social security benefits that residents received. The community care reforms transferred the responsibility for paying for residential care to local authorities, where the individual was entitled to financial support for paying for care costs. People who were in residential care on 1 April 1993, the day the reforms took effect, retained their right to the higher rate of income support that they had been receiving to pay for their care. Responsibility for paying for their care was not transferred to the local authority.

222. Over time residential care costs have increased at a disproportionate rate to social security benefits, and in some cases social security benefits are not sufficient to cover the cost of the residential care. In some cases this has meant that people have had to leave the care home they have been in and find alternative accommodation that would be covered by the social security payment.

223. These clauses provide for the removal of the entitlement to higher rates of Income Support or jobseekers allowance and require local authorities to make appropriate arrangements in the same way as they are required to do for those who entered residential accommodation on or after 1 April 1993. They will also provide an associated power for the Secretary of State for Social Security to reduce the relevant Income Support or job seeker's allowance rates. At the request of the Scottish Executive and by the approval of the Scottish Parliament clause 49 amends devolved legislation concerning Scotland so that preserved rights can cease across the whole of Great Britain on the same day.

224. These new arrangements will require local authorities to assess (under the 1948 Act) the care needs of those who have had preserved rights rates of benefits for community care services.

225. Clause 49 sets out the provisions for the transfer to local authorities of the responsibility for providing community care services for preserved rights recipients. Subsection (1) will allow local authorities to provide residential accommodation for persons who were in such accommodation on 31 March 1993. By repealing section 26A of the 1948 Act. The corresponding provision for Scotland is repealed by subsection(1)(b).

226. Subsection (2) requires a local authority to secure community care services for Preserved rights recipients in relation to their accommodation from, or as soon as possible after, an appointed day. Community care services are defined for England and Wales by section 46 of the National Health Services and Community Care Act 1990. The appointed day means the day that the subsection takes effect. This subsection also applies to Scotland.

227. Subsection (3) places an obligation on local authorities to actively identify people with preserved rights and to carry out appropriate care assessments. Authorities will do this by working with the Department of Social Security who will be given power to disclose relevant information by clause 50.

228. Subsection (4) provides that where a person for whom a local authority has not been able to provide community care services by virtue of section 26A is (under subsection (2)) provided with community care services, his private arrangements with the residential home shall terminate from the date from which he is provided with those community care services.

229. Subsection (5) provides that the local authority is liable to make any payment under a person's existing arrangements between the appointed day and the date when the person is provided with community care services in respect of his accommodation or, where the person notifies the authority that he does not wish to be provided with community care services, the date of the notification. This is to ensure that where a local authority has not been able to assess a person's need for community care services before the appointed day, the person's liability to pay for his accommodation becomes the liability of the local authority until the local authority makes the arrangements they consider necessary. Subsection (6) enables the local authority to recover from the person all or part of such a payment. It is intended that the Secretary of State will make regulations so that the liability of persons to pay during this period mirrors the means testing system provided for under sections 22 and 26 of the 1948 Act.

230. Subsection (7) enables regulations to be made so that the provisions of clause 44 do not apply in relation to any person of a prescribed description.

231. Subsection (8) allows regulations to be made to define the meaning of "ordinarily resident". It also allows regulations to be made governing the payment which a person is to make in respect of his accommodation before community care services are provided.

232. Subsection (9) gives the meaning of certain terms used in the clause.

Clause 50: Preserved rights: disclosure of information

233. This clause is about identifying and locating people with preserved rights by using records held by the Department of Social Security.

234. Clause 50 allows the disclosure to local authorities of relevant information held by the Secretary of State for Social Security about preserved rights recipients to local authorities or to any person providing services to, or authorised to exercise functions of, such authorities. Subsection (1) specifies the persons this clause applies to. Subsection (2) specifies the type of information which may be supplied and for what purposes it may be used. Subsection (3) provides that the same provisions imposed on the Secretary of State for Social Security relating to unauthorised disclosure of information held by the Secretary of State (provisions found in section 123 of the Social Security Administration Act 1992) apply to local authorities who receive information as well as to the authorities' officers and employees. Subsection (4) defines certain terms used in the clause.

Clause 51: Preserved rights: alignment of social security benefits

235. Clause 51 requires the Secretary of State to exercise his powers under the Social Security Contributions and Benefits Act 1992 and the Jobseekers Act 1995 so as to secure that any special provision made as respects income support or jobseeker's allowance, payable to or in respect of persons with preserved rights, ceases to have effect from the appointed day.

Measures to increase availability of Part III accommodation

Clause 52: Disregarding of resources when determining need for residential accommodation

236. Currently local authorities can only support people in residential accommodation who are in need of care and attention which is 'not otherwise available to them'. Local authorities may refuse to support a person who has capital in excess of £16,000, the current upper capital limit and the capacity to make their own arrangements on the grounds that they have care and attention otherwise available to them (the implication is that the £16,000+ capital could be used to meet care costs).

237. Clause 52 enables the Secretary of State to specify in regulations that local authorities should ignore certain capital (where a person has less than £16,000 in assets other than their main home) in determining whether care and attention is 'otherwise available'.

238. This clause will allow for regulations to be made in the future which break the link with the capital limit when determining whether care and attention is otherwise available, so that more people are able to take up the offer of a charge against their home.

Clause 53: Funding by resident etc of more expensive accommodation

239. Currently, people supported by local authorities cannot pay money themselves for care above their standard rate. In other words, people cannot use any assets ignored by the means test to fund a care placement whose cost is greater than the level the council would usually pay. This is because they will have been assessed for a fair contribution so should not have extra resources to utilise in this way. A third party (for example a relative) can make up the difference if a more expensive home is chosen.

240. Under the new arrangements - the three month disregard and the charges scheme - greater numbers of people will be effectively supported by the local authority and many of these people will have some resources. It would be perverse and unpopular to state that people have to go into a cheaper home for the first three months of their care where after this period they will be paying the full cost of their care. Equally, it would be difficult to justify a situation where individuals whose basic care costs were being met by the local authority through a charge against their property could not choose their preferred home and contribute extra resources towards it.

241. Clause 53 allows for the making of regulations to enable both residents and third party to make additional payments so that the resident can enter more expensive accommodation than that which the authority would normally pay in respect of a person with the same needs. Subsection (2) defines additional payments.

Clause 54: Power for local authorities to take charges on land instead of contributions

242. The effect of this clause is to make it possible for people going into care to defer selling their homes in order to pay for their care until after they leave the care home or when they die. In practice the local authority makes a loan to the resident and recovers the money from the estate when the person dies or leaves the care home.

243. Subsection (1) enables local authorities to enter into deferred payments agreements with eligible residents through charges on property. Subsection (2) allows directions to be made setting out the circumstances in which an authority must enter into these arrangements. Subsection (3) sets out the nature of the deferred payment arrangement. In essence it is an agreement whereby during a certain period of time (the exempt period) a resident will not be required to make the payment, or the whole of the payments, he would otherwise have to make under the means testing regime. Instead the resident will grant the authority a charge over land in respect of payment. Subsection (4) defines the exempt period. Subsection (5) allows the local authority to determine the conditions of the arrangement subject to any directions given and provides that the arrangement shall allow the resident to terminate the agreement at any time by giving notice and paying the monies owing.

244. Subsection (6) sets out that interest shall not be charged during the exempt period but that local authorities may charge interest after that period at a reasonable rate or at such a rate as is set out in directions.

245. Subsection (7) enables regulations to define how much of a residents contributions in respect of his contributions is to be subject to a deferred payment agreement. It ensures that additional payments under clause 53 (that is payments to cover the cost of more expensive accommodation) are regarded as costs of the Part III accommodation for the purposes of this section.

246. Subsection (8) defines the terms used in this section.

Clause 55: Cross Border Placements

247. The existing legislation does not allow local authorities in England and Wales to make and pay for residential care placements in Scotland, Northern Ireland, Channel Islands or the Isle of Man. This clause will allow regulations to be made to allow this. It is intended to allow people needing residential care to have care closer to their families where their families have moved away.

248. Subsection (1) allows regulations to be made authorising local authorities to make arrangements for a person to be provided with residential accommodation in Scotland, Northern Ireland, the Channel Islands or the Isle of Man.

249. Subsection (2) provides that the regulations may, in particular make provision specifying conditions to be satisfied before a local authority may make such arrangements and make provision applying the provisions of the 1948 Act with or without modifications.

Direct payments

Clause 56 -57: Direct Payments

250. Direct payments are cash payments given to recipients of social services in lieu of services that would otherwise been arranged for them by social services departments. Social services clients are then expected to arrange their own care.

251. Clauses 56 and 57 enable regulations to be made in connection with making direct payments in respect of services under section 47 of the 1990 Act, section 2(1) of the Carers and Disabled Children Act 2000 and in respect of children. Clause 56 deals with direct payments in respect of adults. Clause 57 deals with direct payments in respect of children.

252. Clause 56 deals with direct payments in respect of adults. Under the current system local authorities are permitted but not required to offer direct payments who meet the eligibility criteria. Subsection (1) allows regulations to be made to make provision for and in connection with requiring or authorising a local authority to make direct payments to an individual who fulfils the requirements of the scheme and agrees to be part of it.

253. Subsection (2) specifies the persons to whom direct payments may be made. These are: a person who the local authority has decided needs a particular community care service; and a person for whom the local authority has decided under the Carers and Disabled Children Act 2000 to provide a service under that Act (this will include disabled 16 and 17 year olds.)

254. Subsection (3) enables the Secretary of State, in particular, to make regulations specifying the situations in which a local authority is not required or authorised to make any payment. It does however allow for flexibility so an individual who has previously made mistakes or misspent be able to get a direct payment.

255. It also enables regulations to be made that concern: making direct payments either as gross or net payments; determining the recipient's means and any contribution they will make; conditions that the local authority may impose in respect of on the direct payment; circumstances when the payment may be terminated or require repayment; reviewing the direct payment; and authorising direct payments to be paid to a third party on the behalf of the recipient.

256. The subsection also enables regulations to be made displacing, to such extent as may be prescribed, the functions and obligations of the local authority with respect to the provision of the service for which the direct payment is made. This will enable the effect of section 2 of the CCDP Act 1996 to be reproduced.

257. Subsection (4) defines gross payments as a payment which is made at a rate at which the local authority estimates is equivalent to the reasonable cost of securing the service concerned. It also specifies that they may be made subject to the condition that the recipient will reimburse the local authority with a contribution.

258. Subsection (5) defines a net payment as a payment which is made on the basis that the recipient will himself pay an amount towards the cost of securing the service as a contribution to the cost of the service. Thus the payment will be made at a rate below the equivalent to the reasonable cost of securing the provision of the services concerned in order to reflect the contribution made by the recipient.

259. Subsection (6) requires regulations to ensure that no contribution may be sought from the individual for services which are provided under section 117 of the Mental Health Act 1983 (after care). This is because local authorities are not able to charge for after care services provided under this Act, and therefore no financial contribution can be sought from the client.

260. Subsection (7) makes provision for regulations to limit the maximum period of which residential care may be purchased with a direct payment. This makes it possible for direct payments to be used to purchase short term rehabilitation care that involves a spell in respite care

261. Subsection (8) defines "prescribed" as specified in or determined in accordance with the regulations made under this section.

Clause 57: Direct payments in respect of children

262. Clause 57 deals with direct payments in respect of children. Subsection (1) substitutes a new section 17A of the Children Act 1989.

263. Within the revised section 17A of the Children Act 1989: Subsection (1) enables the Secretary of State to make regulations allows for regulations to be made to make provision for and in connection with requiring or authorising a local authority to make a direct payment to an individual who fulfils the requirements of the scheme and agrees to be part of it.

264. Subsection (2) specifies the persons to whom a direct payment may be made extending them to disabled parents. Persons are: a person with parental responsibility for a disabled child; a disabled person with parental responsibility for a child; and a disabled 16 or 17 year old. It also specifies that the local authority must have decided for the purpose of section 17 of the Children Act 1989 that the needs of the child in question call for them to provide services.

265. Subsection (3) provides that section 56(3) to (5) and (7) of this Bill apply in relation to regulations in relation to this clause.

266. Subsection (4) provides for regulations to be made to specify that direct payments to the categories of people that this subsection applies to are to be gross payments with no contribution being required for them.

267. Subsection (5) specifies the persons from whom a contribution may not be required. They are: a person with parental responsibility for a disabled child or a disabled person with responsibility for a child where the child is aged 16 or 17; or a disabled child aged 16 or 17 year old; or a person who is receipt of income support, working families tax credit or a disabled person's tax credit under Part VII of the Social Security Contributions and Benefits Act 1993 or of an income-based jobseekers allowance.

268. Subsection (6) provides references to the 2001 Act and references to this Bill. It defines "disabled" in relation to an adult by reference to the meaning given by section 17(11) in relation to a child.

Clause 58: Interpretation of Part IV

269. Clause 58 defines the terms used throughout Part IV (clauses 48-57).


Patient information

Clause 59: Control of patient information

270. The existing legal framework concerning the control of information relating to patients is complex and contains some uncertainties. There are at present no powers in health service legislation to simplify and clarify the framework or to regulate the use of information concerning patients. Recent guidance produced by the General Medical Council has brought the issue to the fore with practitioners being unclear about when it is or is not lawful for them to share information, particularly confidential information. This lack of clarity is jeopardising the flow of information to bodies such as cancer registries.

271. The Data Protection Act 1998 governs, in broad terms, the processing of information relating to individuals. This clause does not amend that Act. In addition, regulations made under this clause will not be capable of amending that Act (see note on subsection (8) below). It follows that this clause and regulations made under it will make additional provision that will supplement the Data Protection Act 1998 and may provide additional and more specific restrictions on the use of information relating to patients.

272. Information provided in confidence by patients is also subject to common law requirements which being derived from case law are difficult to apply with certainty in particular circumstances, especially since there has been little case law relating to healthcare settings. Regulations made under this clause may place additional restrictions or obligations on those wishing to use confidential patient information in prescribed circumstances. Regulations may also, subject to safeguards, require information to be disclosed by prescribed bodies for prescribed medical purposes when this is determined to be in the public interest or to support or in the interests of patient care. Regulations may provide the processing of information under the regulations is lawful despite any common law obligation of confidence (see note on subsection (4) (c) below).

273. Subsection (1) allows for regulations to be made, following consultation, prohibiting or restricting the use of patient information. For example regulations could be made which prohibit patient information being used for a purpose which is detrimental to the operation of the NHS or is not in the interest of patients.

274. Subsection (2) specifies some of the ways in which the power conferred by subsection (1) may be used. Subsection (2)(a) enables regulations to be made that extend the effect of Schedule 3 to the Data Protection Act 1998 (which relates to the processing of sensitive personal data such as health data) to information which falls outside the scope of that Schedule for example where information has been anonymised and is no longer personal data in Data Protection Act 1998 terms.

275. Subsection (2)(b) provides that exceptions to any prohibition contained in regulations made under (1) can be made where conditions are complied with or undertakings are given, for example conditions or undertakings relating to the purposes for which information may be used or for the level of its abstraction or aggregation.

276. Subsection (2)(c) provides for regulations to require or permit allows for provisions to include in the terms and conditions of service of those engaged in the health service, and in the terms under which others participate in the provision of the health service under statutory or contractual arrangements, restricting the processing of patient information. For example, a provision could be made which would prohibit the disclosure of specified information or might restrict disclosure to prescribed circumstances.

277. Subsection (2)(d) makes it possible to create a criminal offence when an individual does not act in accordance with the regulations. This is designed to protect the patient and the NHS by ensuring that where information is disclosed contrary to regulations, the body/individual in breach of the regulations is punished by a fine. Subsection (2)(d) also enables the introduction of other procedures to enforce the regulations.

278. Subsection (3) enables the Secretary of State, subject to limitations imposed by Subsections (5) - (8), to make regulations requiring patient information to be processed for medical purposes (as defined in subsection (12)) and regulating such processing. This power may only be used where the Secretary of State considers it is necessary or expedient in the interests of improving patient care or in the public interest.

279. Subsection (4) specifies some of the ways in which the power conferred by subsection (3) may be used.

280. Subsection (4)(a) enables regulations to be made that require specified communications about patients to be disclosed to them by NHS bodies, in certain circumstances. This is intended to support the NHS Plan commitment that clinicians will in the future be required to share information about patients with them. Guidance on this matter will follow.

281. Subsection (4)(b) enables regulations to be made which require the disclosure or other processing of specified patient information subject to conditions or undertakings. This will support public health work and important activities such as cancer registration where it is essential to maximise the information available.

282. Subsection (4)(c) enables regulations to be made to permit patient information to be processed lawfully where, but for the regulations, this may be prevented by an obligation of confidentiality at common law. This will enable regulations to simplify and clarify rights of confidentiality, subject to the limitations imposed by the clause (see the note on subsection (8)) and human rights requirements.

283. Subsection (4)(d) enables regulations to make provision for the enforcement of regulations made under subsection (3). The power is similar in scope to subsection (2)(d).

284. Subsections (5) - (7) serve to limit the use of the power conferred by subsection (3) To make regulations requiring the processing of confidential patient information(as defined in subsection (12)).

285. Subsection (5) says that regulations made under subsection (3) could not be made if the purpose for which confidential patient information would be used could be achieved in another reasonably practical way, having regard to cost and available technology. In practice this means, for example, that persons cannot be required to disclose confidential information where the purpose can be satisfied by use of anonymised information.

286. Subsection (6) requires the Secretary of State to carry out an annual review of whether regulations made under subsection (3)and requiring the processing of confidential patient information The review must be conducted within one month of each anniversary of the making of the regulations (paragraph (a)) and, if he determines that they would contravene subsection (5), he must vary or revoke them (paragraph (b)).

287. Subsection (7) provides that regulations may not be made under subsection (3) which have as their sole or principal purpose the processing of confidential patient information to determine the care and treatment that is to be provided to individual patients. The care and treatment of individuals should be determined by appropriate professional staff who work with, and are responsive to the preferences of those in their care.

288. Subsection (8) provides that regulations made under this clause cannot make provision for the processing of information which are inconsistent with the provisions of, or the provisions in instruments made under, the Data Protection Act 1998.

289. Subsection (9) requires that before the Secretary of State may make regulations under this clause, he must consult such bodies as appear to him to represent the interests of those likely to be affected by the regulations as he considers appropriate. The consultation is intended to ensure that the regulations are fair and non- discriminatory.

290. Subsection (10) defines patient information as any information that relates to, or is derived from, information concerning a patient's physical or mental health or condition to the diagnosis of his condition or his care or treatment. In addition to information which directly identifies individuals this information which is either anonymised (e.g. any information that cannot be tracked back to the individual) or coded (e.g. information that can be tracked back to an individual if you are in possession of the key to break the code). It includes information recorded in any manner, whether electronically or manually.

291. Subsection (11) defines confidential patient information for the purposes of the clause as, broadly speaking, patient information that has been obtained by a person who owes an obligation of confidence to an individual and from which the identity of that individual is ascertainable.

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Prepared: 21 December 2000