Commissioner for Older People (Wales) Bill [HL]

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Commissioner for Older People (Wales) Bill [HL]

Commissioner for Older People (Wales) Bill [HL]
1

A
Bill
To
establish and make provision about the office of Commissioner for Older
People in Wales; to make provision about the functions of the Commissioner
for Older People in Wales; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Establishment
1
The Commissioner for Older People in Wales
(1)
There is to be a Commissioner for Older People in Wales or Comisiynydd Pobl
Hˆyn Cymru (in this Act referred to as “the Commissioner”).
(2)
Schedule 1 makes further provision about the Commissioner.
5
Functions
2
General functions
(1)
The Commissioner may—
(a)
promote awareness of the interests of older people in Wales and of the
need to safeguard those interests;
10
(b)
promote the provision of opportunities for, and the elimination of
discrimination against, older people in Wales;
(c)
encourage best practice in the treatment of older people in Wales;
(d)
keep under review the adequacy and effectiveness of law affecting the
interests of older people in Wales.
15
(2)
The powers conferred by subsection (1) are exercisable only in relation to fields
in which the Assembly has functions.
(3)
The Commissioner may consider, and make representations to the Assembly
about, any matter relating to the interests of older people in Wales.

Bill 132 54/1

Commissioner for Older People (Wales) Bill [HL]
2

3
Review of discharge of functions
(1)
For the purpose of safeguarding and promoting the interests of older people in
Wales, the Commissioner may review the effect on them of—
(a)
the discharge or proposed discharge of a function of the Assembly,
including the making or proposed making of subordinate legislation;
5
(b)
a failure by the Assembly to discharge a function;
(c)
the discharge or proposed discharge in relation to Wales of a relevant
function of a person mentioned in Schedule 2;
(d)
a failure by such a person to discharge a relevant function in relation to
Wales.
10
(2)
A relevant function is—
(a)
in the case of a person who is a family health service provider in Wales,
a function dischargeable in relation to the provision of any of the family
health services which the person has entered into a contract,
undertaken, or made arrangements, to provide;
15
(b)
in the case of a person who is an independent provider in Wales, a
function dischargeable in relation to the provision of any of the
independently provided services which the person has made
arrangements to provide;
(c)
in the case of any other person mentioned in Schedule 2, any function
20
of the person.
(3)
“Subordinate legislation” has the same meaning as in the Interpretation Act
1978 (c. 30).
(4)
The references in subsection (1) to the discharge of a function, or a failure to do
so, include the discharge of a function, or a failure to do so, at a time before this
25
section comes into force.
4
Power to amend Schedule 2
(1)
The Assembly may by order amend Schedule 2 by—
(a)
adding a person;
(b)
omitting a person;
30
(c)
changing the description of a person.
(2)
An order under subsection (1) may add a person to Schedule 2 only if—
(a)
the person has functions dischargeable in relation to Wales,
(b)
some or all of the person’s functions are in a field in which the
Assembly has functions,
35
(c)
the person is established by or under an enactment or by virtue of Her
Majesty’s prerogative or in any other way by a Minister of the Crown,
a government department, the Assembly or another person mentioned
in Schedule 2, and
(d)
at least half of the person’s expenditure on the discharge of its functions
40
in relation to Wales is met directly from payments made by the
Assembly.
(3)
But an order under subsection (1) may add a person to Schedule 2 even if the
person does not satisfy the condition in subsection (2)(d), if the Secretary of
State consents.
45

Commissioner for Older People (Wales) Bill [HL]
3

(4)
An order under subsection (1) may not add to Schedule 2 a person whose sole
or main activity is—
(a)
the investigation of complaints by members of the public about the
actions of any person, or
(b)
the supervision or review of, or of steps taken following, such an
5
investigation.
(5)
An order under subsection (1) must make provision about which of the
functions of a person mentioned in Schedule 2 and specified in the order are to
be relevant functions for the purposes of section 3.
(6)
The provision that may be made by virtue of subsection (5) includes provision
10
amending section 3.
(7)
But a function may be specified as a relevant function by virtue of subsection
(5) only if it is in a field in which the Assembly has functions.
5
Review of arrangements
(1)
The Commissioner may review—
15
(a)
any arrangements mentioned in subsection (2), and
(b)
the operation of any such arrangements,

for the purpose of ascertaining whether, and to what extent, the arrangements
are effective in safeguarding and promoting the interests of relevant older
people in Wales.
20
(2)
The arrangements are—
(a)
advocacy arrangements;
(b)
complaints arrangements;
(c)
whistle-blowing arrangements.
(3)
The Commissioner may also assess the effect on relevant older people in Wales
25
of a person’s failure to make any such arrangements.
(4)
Advocacy arrangements are arrangements made by a person for making
persons available—
(a)
to represent the views and wishes of relevant older people in Wales;
(b)
to provide relevant older people in Wales with advice and support of a
30
prescribed kind.
(5)
Complaints arrangements are arrangements made by a person falling within
section 6(3) for dealing with complaints or representations which are made—
(a)
by or on behalf of a relevant older person in Wales, and
(b)
in respect of relevant services provided to relevant older people in
35
Wales by or on behalf of the person who has made the arrangements.
(6)
Whistle-blowing arrangements are arrangements made by a person falling
within section 6(3) for ensuring that proper action is taken in response to a
disclosure of potentially adverse information.
(7)
Information is potentially adverse if it may tend to show that, in the course of,
40
or in connection with, the provision of relevant services, any of the following
has occurred—
(a)
a criminal offence has been committed;
(b)
a person has failed to comply with a legal obligation to which he is
subject;
45

Commissioner for Older People (Wales) Bill [HL]
4

(c)
the health or safety of a person has been endangered;
(d)
the dignity of a person has been violated;
(e)
information tending to show a matter falling within any of paragraphs
(a) to (d) has been deliberately concealed.
6
Review of arrangements: supplementary
5
(1)
This section applies for the purposes of section 5.
(2)
Relevant older people in Wales are older people—
(a)
to or in respect of whom regulated services in Wales are provided, or
(b)
to or in respect of whom relevant services (within the meaning of
subsection (4)) are provided by or on behalf of, or under arrangements
10
with, a person mentioned in Schedule 3.
(3)
The persons falling within this subsection are—
(a)
the Assembly;
(b)
a person providing regulated services in Wales;
(c)
a person mentioned in Schedule 3;
15
(d)
a person providing services in Wales on behalf of, or under
arrangements with, a person mentioned in Schedule 3.
(4)
A relevant service is—
(a)
in the case of the Assembly, any service which the Assembly provides;
(b)
in the case of a person providing regulated services in Wales, any of
20
those services;
(c)
in the case of a person who is a family health service provider in Wales,
any of the family health services which the person provides;
(d)
in the case of a person who is an independent provider in Wales, any of
the independently provided services which the person provides;
25
(e)
in the case of any other person mentioned in Schedule 3, any service the
person provides;
(f)
in the case of a person falling within subsection (3)(d), any service
which—
(i)
the person provides in Wales on behalf of, or under
30
arrangements with, a person mentioned in Schedule 3; and
(ii)
would, if provided by the person mentioned in Schedule 3, be a
relevant service falling within paragraphs (c) to (e).
(5)
Regulations may confer power on the Commissioner to require prescribed
persons to provide any information which the Commissioner thinks it
35
necessary or expedient to have for either or both of the following purposes—
(a)
the purposes of his functions under section 5;
(b)
the purposes of determining whether a recommendation made in a
report following the discharge of his functions under section 5 has been
complied with.
40
7
Power to amend Schedule 3
(1)
The Assembly may by order amend Schedule 3 by—
(a)
adding a person;
(b)
omitting a person;
(c)
changing the description of a person.
45

Commissioner for Older People (Wales) Bill [HL]
5

(2)
An order under subsection (1) may add a person to Schedule 3 only if—
(a)
the person provides a service in Wales,
(b)
the service is in a field in which the Assembly has functions,
(c)
the person is established by or under an enactment or by virtue of Her
Majesty’s prerogative or in any other way by a Minister of the Crown,
5
a government department, the Assembly or another person mentioned
in Schedule 3, and
(d)
at least half of the person’s expenditure on the discharge of its functions
in relation to Wales is met directly from payments made by the
Assembly.
10
(3)
But an order under subsection (1) may add a person to Schedule 3 even if the
person does not satisfy the condition in subsection (2)(d), if the Secretary of
State consents.
(4)
An order under subsection (1) may not add to Schedule 3 a person whose sole
or main activity is—
15
(a)
the investigation of complaints by members of the public about the
actions of any person, or
(b)
the supervision or review of, or of steps taken following, such an
investigation.
(5)
An order under subsection (1) must make provision about which of the
20
services provided by a person mentioned in Schedule 3 and specified in the
order are to be relevant services for the purposes of section 5.
(6)
The provision that may be made by virtue of subsection (5) includes provision
amending section 6.
(7)
But a service may be specified as a relevant service by virtue of subsection (5)
25
only if—
(a)
the person provides the service in Wales, and
(b)
the service is in a field in which the Assembly has functions.
8
Assistance
(1)
Regulations may confer power on the Commissioner to give assistance to a
30
person who is or has been an older person in Wales—
(a)
in making a complaint or representation to or in respect of the
Assembly;
(b)
in making a complaint or representation to or in respect of a person
providing regulated services in Wales, in respect of the provision of
35
those services;
(c)
in making a complaint or representation to or in respect of a person
mentioned in Schedule 3, in relation to anything done or omitted to be
done by that person the effect of which is subject to review under
section 3;
40
(d)
in making a complaint or representation to or in respect of a person
providing services on behalf of or under arrangements with a person
mentioned in Schedule 3, in respect of the provision of a relevant
service;
(e)
in any procedure, proceedings or prospective proceedings of a
45
prescribed description.

Commissioner for Older People (Wales) Bill [HL]
6

(2)
The reference in subsection (1) to a person who has been an older person in
Wales includes a person who has ceased to be an older person in Wales before
this section comes into force.
(3)
A description of procedure or proceedings may be prescribed by virtue of
subsection (1)(e) only if it relates to—
5
(a)
anything the effect of which is subject to review under section 3,
(b)
the provision of regulated services in Wales, or
(c)
the provision of a relevant service on behalf of, or under arrangements
with, a person mentioned in Schedule 3.
(4)
Assistance includes—
10
(a)
financial assistance;
(b)
arranging for a person to provide representation or give advice or
assistance.
(5)
The regulations may provide for assistance to be given on conditions including
(in the case of financial assistance) conditions requiring repayment in
15
prescribed circumstances.
(6)
In subsections (1)(d) and (3)(c) “relevant service” means a service which is a
relevant service for the purposes of section 5 by virtue of section 6(4)(f).
9
Research and educational activities
(1)
The Commissioner may, in connection with any of his functions—
20
(a)
undertake or commission research;
(b)
give assistance to another to undertake or commission research;
(c)
carry out or commission the carrying out of educational activities;
(d)
give assistance to another to carry out or commission the carrying out
of educational activities.
25
(2)
In this section “assistance” includes financial assistance.
10
Examination of cases
(1)
Regulations may make provision for the examination by the Commissioner of
the cases of particular persons who are or have been older people in Wales, in
connection with the Commissioner’s functions under this Act.
30
(2)
The reference in subsection (1) to the Commissioner’s functions under this Act
does not include his powers under sections 2(3) and 9, to the extent that they
are exercised in relation to a field in which the Assembly does not have
functions.
(3)
The reference in subsection (1) to persons who have been older people in Wales
35
includes people who have ceased to be older people in Wales before this
section comes into force.
(4)
The regulations may include provision about—
(a)
the types of cases which may be examined;
(b)
the circumstances in which an examination may be made;
40
(c)
the procedure for conducting an examination, including provision
about the representation of parties.
(5)
The regulations may make provision—

Commissioner for Older People (Wales) Bill [HL]
7

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

for either or both the purposes mentioned in subsection (6).
(6)
The purposes are—
5
(a)
the purposes of an examination;
(b)
the purposes of determining whether a recommendation made in a
report following an examination has been complied with.
(7)
For the purposes mentioned in subsection (6), the Commissioner has the same
powers as the High Court in respect of—
10
(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.
(8)
No person is to be compelled for the purposes mentioned in subsection (6) to
15
give any evidence or provide any information which he could not be
compelled to give or provide in civil proceedings before the High Court.
(9)
The regulations may make provision for the payment by the Commissioner of
sums in respect of expenses or allowances to persons who attend or provide
information, explanations or other assistance for either of the purposes
20
mentioned in subsection (6).
11
Obstruction and contempt
(1)
If the Commissioner is satisfied that the condition in subsection (2) is met in
relation to a person, he may issue a certificate to that effect to the High Court.
(2)
The condition is that the person—
25
(a)
without lawful excuse, has obstructed the Commissioner or a member
of his staff in the discharge of any of his functions under regulations
made under section 10,
(b)
without lawful excuse, has failed to comply with a requirement to
provide information which was imposed in the exercise of a power
30
conferred by regulations made under section 6(5) or 10(5), or
(c)
has done an act or made an omission in relation to an examination
under regulations made under section 10 which, if the examination
were proceedings in the High Court, would constitute contempt of
court.
35
(3)
If the Commissioner issues a certificate under subsection (1)—
(a)
the High Court may inquire into the matter, and
(b)
if the High Court is satisfied that the condition in subsection (2) is met
in relation to the person, it may deal with him in any manner in which
it could have dealt with him if he had committed contempt in relation
40
to the High Court.
12
Guidance
(1)
The Commissioner may issue guidance on best practice in connection with any
matter relating to the interests of older people in Wales.