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Commissioner for Older People (Wales) Bill [HL]


 

     These notes refer to the Commissioner for Older People (Wales) Bill [HL] as brought from the House of Lords on 16th February 2006 [Bill 132]

     COMMISSIONER FOR OLDER PEOPLE (WALES) BILL [HL]

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     EXPLANATORY NOTES

INTRODUCTION

     1.     These explanatory notes relate to the Commissioner for Older People (Wales) Bill as brought from the House of Lords on 16th February 2006. They have been prepared by the National Assembly for Wales in conjunction with the Wales Office, in order to assist the reader in understanding the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

     3.     The Bill addresses the policy of the Government and the National Assembly for Wales ("the Assembly") on establishing a Commissioner for Older People in Wales. This policy is based on the recommendation of the Welsh Assembly Government's Advisory Group on a Strategy for Older People in Wales. Their report "When I'm 64 .. and More", which was published in May 2002, was set against the background of an increasingly higher concentration of older people in Wales compared to the rest of the UK.

[Bill 132-EN]     54/1

4.     A further Advisory Group was established to consider this recommendation. The "Report and Recommendations of the Welsh Assembly Government's Advisory Group on a Commissioner for Older People in Wales" was published in March 2004 and was the subject of a wide-ranging consultation. The Bill has been produced in the light of the proposals of the Advisory Group and the outcomes of the consultation.

5.     The Bill creates the office of the Commissioner for Older People in Wales or Comisiynydd Pobl Hyn Cymru (referred to here as "the Commissioner") whose role will be, in general, to ensure that the interests of older people in Wales are safeguarded and promoted.

6.     The Commissioner's range of functions will enable him to:

    (a)     promote awareness of the interests of older people in Wales and of the need to safeguard those interests;

    (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;

    (e)     consider, and make representations to the Assembly about, any matter relating to the interests of older people in Wales;

    (f)     undertake, commission or provide assistance for another to undertake or commission research or educational activities in connection with any of his functions;

    (g)     make reports to the Assembly on the exercise of his functions;

    (h)     make reports generally following the discharge of his functions;

    (i)     review the effect on older people in Wales of the discharge of or failure to discharge functions by the Assembly or by persons listed in Schedule 2;

    (j)     review arrangements made by certain bodies for dealing with advocacy, complaints and responses to the disclosure of potentially adverse information in relation to the body ("whistle blowing") to ascertain whether, and to what extent, the arrangements are effective in safeguarding and promoting the interests of older people in Wales; and

    (k)     enter any premises, other than a private dwelling, to interview an older person, with their consent and in connection with his powers to review arrangements and the discharge of functions.

7.     The Commissioner's function of reviewing complaints and whistle-blowing arrangements will apply in relation to the providers of regulated services (in essence, certain care services) in Wales, persons listed in Schedule 3 of the Bill and persons who provide services in Wales on their behalf. The bodies listed in Schedule 3 are public sector bodies, or persons providing services on behalf of public sector health bodies, that provide services to or in respect of older people in Wales. They include local authorities, providers of health and social services, and education and training providers. The Assembly will also be one of the bodies subject to the Commissioner's function of reviewing arrangements. The Commissioner will also be able to review the arrangements of any person for providing advocacy services to persons in respect of whom regulated services are provided in Wales or to whom services are provided in Wales by or on behalf of a person mentioned in Schedule 3.

8.     The Assembly is given a power to make regulations, which may confer a power on the Commissioner to give assistance, including financial assistance, to a person who is or who has been (i.e. because they have moved out of Wales) an older person in Wales in making complaints or representations in certain circumstances. Regulations may also make provision for the Commissioner to examine, in certain circumstances, the cases of particular older people in Wales. Where both the Commissioner and the Public Services Ombudsman for Wales are entitled to examine a particular case of an older person in Wales, provision is made to enable them to work jointly. Where a case gives rise to a matter which the Commissioner is entitled to examine and the case also relates to or raises another matter which the Public Services Ombudsman for Wales or the Children's Commissioner for Wales would be entitled to examine, provision is made to enable them to work collaboratively.

TERRITORIAL EXTENT

9.     The Bill principally extends to England and Wales only but amends certain primary legislation which extends to the United Kingdom. However it is primarily concerned with the establishment of a Commissioner for Older People in Wales with powers to review the functions and arrangements of authorities that exercise functions in Wales or in relation to Wales. Consequently the Bill primarily applies to Wales. Various powers to make subordinate legislation and other functions are conferred on the National Assembly for Wales.

     COMMENTARY

Clause 1: Establishment of the Commissioner

     10.     Subsection (1) establishes the office of the Commissioner for Older People in Wales or Comisiynydd Pobl Hyn Cymru ("the Commissioner").

     11.     Subsection (2) gives effect to Schedule 1 which makes further provision about the office of the Commissioner.

Schedule 1: The Commissioner for Older People in Wales

12.     Paragraph 1 makes provision about the status of the Commissioner. Paragraph 2 confers a regulation making power on the Assembly to make provision about the appointment and term of office of the Commissioner. Paragraph 3 makes provision about remuneration and similar matters.

13.     Paragraph 4 makes provision for the appointment of a deputy Commissioner and other staff and paragraph 5 allows for the delegation of the Commissioner's functions to any person including a member of his staff.

14.     Paragraph 6 amends the Superannuation Act 1972 to add the Commissioner and the Commissioner's staff to the persons covered by that Act. This will enable the Commissioner and the Commissioner's staff to be included in any pension scheme for civil servants established under the 1972 Act.

15.     Paragraphs 7 and 9 to 14 provide for the financing of the Commissioner's office, the preparation of estimates and accounts and the auditing of accounts and the examination of resources.

16.     Paragraph 8 gives a regulation making power to the Assembly to make provision about the making by the Commissioner of reports to the Assembly.

17.     Paragraph 15 deals with the execution of documents by the Commissioner and use in evidence.

18.     Paragraphs 16 and 17 add the Commissioner and members of his staff to the lists of office holders who are disqualified from being members of the House of Commons and the Northern Ireland Assembly. Disqualification from being a member of the National Assembly will be dealt with by way of a disqualification order under section 12(1)(b) of the Government of Wales Act 1998.

19.     Paragraph 18 amends the Welsh Language Act 1993 so as to include the Commissioner in the list of public bodies required to prepare a scheme specifying the measures they propose to take in relation to the use of the Welsh language in the provision of their services.

20.     Paragraph 19 gives the Commissioner wide supplementary powers (the exercise of which is subject to directions from the Assembly). Such powers could be used by the Commissioner to ensure, for example, that older people are aware of his functions, the location of his office, and the ways in which they may communicate with him.

21.     Paragraph 20 amends the Government of Wales Act 1998 so as to exempt the Commissioner from being added to the list of public bodies whose audit and account functions the Secretary of State may by order make provision about.

22.     Paragraph 21 amends the Freedom of Information Act 2000 so as to bring the Commissioner within the remit of that Act and to allow the Information Commissioner to disclose information to the Commissioner which may be relevant to a matter that may be the subject of an examination by him.

Clause 2: General Functions

23.     Subsections (1) and (2) provide for the role of the Commissioner to include promoting awareness of the interests of older people in Wales (as defined in Clause 23(3)) and of the need to safeguard their interests, promoting the provision of opportunities for, and elimination of discrimination against older people in Wales; encouraging best practice in the treatment of them and reviewing the adequacy and effectiveness of law affecting their interests, but in each case only in relation to fields in which the Assembly has functions.

24.     Subsection (3) provides for the Commissioner to consider and make representations to the Assembly about any matter relating to the interests of older people in Wales. This power is not limited to fields in which the Assembly has functions.

Clause 3: Review of discharge of functions

25.     Subsection (1) provides a power for the Commissioner to review the effect on older people in Wales, for the purpose of safeguarding and promoting their interests, of the discharge, or proposed discharge, of the Assembly's functions (including the making or proposed making of any subordinate legislation) and the discharge, or proposed discharge in relation to Wales of a relevant function of a person listed in Schedule 2. Subsection (2) defines a relevant function. In the case of certain private persons operating in the public healthcare field, the effect is to limit their relevant functions (and so the Commissioner's power of review) to their functions in that field.

26.     The Commissioner's power extends to the review of a failure by the Assembly or listed person to discharge a function. In either case, under subsection (4) the discharge of a function, or failure to discharge a function, includes one that occurred prior to this clause coming into force.

Clause 4: Power to amend Schedule 2

27.     Subsection (1) provides the Assembly with an order-making power to add to, delete from or make alterations to the descriptions of persons listed in Schedule 2. Subsection (2) sets out the conditions which must be met in respect of a person (which can be either a body or an individual) before he can be added to Schedule 2. These are that the person must have functions dischargeable in relation to Wales in a field in which the Assembly has functions and must be established by an enactment or by Her Majesty, a Minister of the Crown, a government department, the Assembly or a person listed in Schedule 2. In addition, at least half of the person's expenditure on the discharge of its functions in relation to Wales must be funded directly by the Assembly. But under subsection (3) a person can nevertheless be added to Schedule 2 if the person is not so funded by the Assembly, provided the Secretary of State's consent is given. Subsection (4) prohibits the Assembly from adding a person to Schedule 2 whose main activity is the investigation of complaints or the supervision or review of actions taken following a complaints investigation. Subsection (5) requires the Assembly, where it makes an order under subsection (1), to specify which of that person's functions will be relevant functions (and so subject to review by the Commissioner). Subsection (7) restricts the functions which may be prescribed as relevant functions in such an order. A function of a person added to Schedule 2 can only be a relevant function if it is a function in a field in which the Assembly has functions.

Clause 5: Review of arrangements

28.     Subsections (1) and (2) set out what the Commissioner may do in respect of determining whether arrangements for advocacy, complaints and whistle-blowing are effective in safeguarding and promoting the interests of relevant older people in Wales (a narrower group than "older people in Wales" - defined in Clause 6(2)). Subsection (3) provides that the Commissioner may also assess the effect of a person's failure to make such arrangements.

29.     Subsections (4) to (7) give details of the arrangements that the Commissioner may review under subsection (1). Subsection (4) defines advocacy arrangements as services (provided by any person) to represent the views of, or to provide advice or support of kinds to be prescribed to, relevant older people in Wales. Subsection (5) defines complaints arrangements as those of the Assembly, providers of regulated services in Wales or a person listed in Schedule 3 (along with persons who provide services on such a person's behalf in Wales), which are in place to deal with complaints made by or on behalf of a relevant older person in Wales in respect of relevant services provided. Relevant services are defined in Clause 6(4).

30.     Subsection (6) defines whistle-blowing arrangements as those of the Assembly, providers of regulated services in Wales or a person listed in Schedule 3 (along with persons who provide services on such a person's behalf in Wales), which are in place to ensure that action is taken in response to disclosure of potentially adverse information. Subsection (7) defines potentially adverse information as that which may appear to show that a criminal offence has been committed, that a legal obligation has not been fulfilled, that the health or safety of a person has been endangered, that the dignity of a person has been violated or that any of these has been deliberately concealed.

Clause 6: Review of arrangements: supplementary

31.      This clause makes supplementary provision in respect of the functions found in Clause 5. Subsection (2) defines relevant older people in Wales and subsection (4) defines a relevant service, which other than in the case of the Assembly is essentially limited to a service provided in Wales. In addition, the definition of relevant service in respect of certain private bodies providing services in the field of public healthcare is limited to services provided in that field. Subsection (5) provides that regulations may confer a power on the Commissioner to require any person to provide him with information for the purposes of his functions under Clause 5 or for the purposes of determining whether a recommendation he has made in a report in connection with his functions under Clause 5 has been complied with.

Clause 7: Power to amend Schedule 3

32.     Subsection (1) provides the Assembly with an order-making power to add to, delete from or make alterations to the descriptions of persons listed in Schedule 3. The Clause sets out certain restrictions and conditions on the exercise of that power. These are similar to those in Clause 4 in relation to the power to amend Schedule 2 (see paragraph 27).

Clause 8: Assistance

33.     Subsections (1) and (3) enable the Assembly to make regulations giving the Commissioner power to assist an older person in Wales who is making a complaint or representation to or in respect of the Assembly, a person providing regulated services in Wales, or a person listed in Schedule 3 (along with a person who provides services on such a person's behalf). The complaint or representation must, when made to, or in respect of, a person providing regulated services in Wales, be about the provision of those regulated services in Wales and, when made to, or in respect of, a person listed in Schedule 3, be about the discharge of (or failure to discharge) any of that person's relevant functions (i.e. those subject to review by the Commissioner under Clause 3). This could include, for example, a complaint or representation about the way in which a person listed in Schedule 3 has commissioned the provision of services by others. The complaint or representation must, when made to a person who provides services on behalf of a person listed in Schedule 3, be about the provision of a relevant service. This is defined in Clause 6(4)(f) as a service provided in Wales that, if provided directly by the Schedule 3 person, would be a relevant service. Thus in the case of certain private bodies providing services in the field of public healthcare, it is limited to services provided in that field.

34.     The regulations may also give the Commissioner power to assist an older person in Wales who is taking part in any procedure or proceedings (including prospective proceedings) of a description to be prescribed. Subsection (4) provides that assistance includes that of a financial, representative or advisory nature and subsection (2) provides that it can include assistance to individuals who were, but are no longer, older people in Wales (as defined in Clause 24(3)). This could include, for example, an older person who has, since the incident complained of, moved out of Wales. Under the provisions of subsection (5), regulations may impose conditions on the giving of assistance, including the requirement for repayment of financial assistance, in prescribed circumstances.

Clause 9: Research and educational activities

35.     This clause makes provision for the Commissioner to undertake, commission or provide assistance (including financial assistance) for another to undertake or commission research or educational activities in connection with any of his functions. Educational activities may include, for example, the provision of teaching or training to older people and others about best practice in the treatment of older people.

Clause 10: Examination of cases

36.     Subsections (1) to (3) enable the Assembly to make regulations giving the Commissioner power to examine the cases of particular older people in Wales in connection with his functions, except those of considering and making representations to the Assembly and undertaking research and educational activities about matters in relation to a field in which the Assembly does not have functions (Clauses 2(3) and 9 respectively). The power can extend to examining the case of someone who was but is no longer an older person in Wales. This could include, for example, examining the case of someone who has since died. Provision is made under subsection (4) for regulations to detail the types of cases which may be examined, the circumstances in which an examination may be made and the procedure for conducting an examination. Subsections (5), (6) and (9) enable the regulations to make provision for the Commissioner to be able to obtain information, explanations and assistance and to make payments to persons who attend or provide information, explanations or assistance in respect of an examination or for the purposes of determining whether a recommendation that the Commissioner has made in a report following an examination of a case has been complied with. For these purposes, subsection (7) provides that the Commissioner shall have the same powers as the High Court in respect of the attendance and examination of witnesses. However subsection (8) makes it clear that the Commissioner cannot compel persons to give evidence or provide information where they would not be compelled to do so in civil proceedings before the High Court.

Clause 11: Obstruction and contempt

37.      Subsections (1) and (2) provide the Commissioner with a power to issue a certificate to the High Court if he is satisfied that, without lawful excuse, a person has obstructed him or a member of his staff in the exercise of any of his functions under regulations providing for the examination of particular cases or those giving him information gathering powers in respect of his review of arrangements function (Clause 6(5)) and his powers to examine particular cases (Clause 10(5)). The Commissioner can also issue a certificate if he is satisfied that a person has done something in relation to an examination which would, if the examination were court proceedings, have been contempt of court. Under subsection (3) the High Court can then deal with the person concerned as if they had committed contempt in relation to the High Court. This is a common form of enforcement mechanism for offices of this type.

Clause 12: Guidance

     38.      Subsections (1) and (2) allow the Commissioner to issue guidance to the Assembly, any person listed in Schedule 2 and providers of regulated services in Wales on best practice in connection with any matter relating to the interests of older people in Wales. Before issuing such guidance, subsection (3) provides that the Commissioner must consult such persons as he thinks appropriate. Subsections (4) and (5) provide that the Assembly, any person listed in Schedule 2 and providers of regulated services in Wales must have regard to such guidance and that the Commissioner may, when exercising any of his functions in respect of those persons, take into account the extent to which the person has complied with it.

Clause 13: Power of entry and of interviewing

     39.     This clause gives the Commissioner, or a person authorised by him, the power to enter premises that are not private dwellings, to interview older people with their consent in connection with his powers in Clauses 3 or 5 to review the functions or the arrangements of specified persons. Subsection (2) provides that the interview must be conducted in the presence of another person, if the older person requires someone else to be present, or otherwise in the presence of others only to the extent that the Commissioner and the older person consent to such others being present. The power does not extend to the Commissioner's other functions.

Clause 14: Further supplementary functions

40.     Subsection (1) enables further functions to be conferred on the Commissioner in regulations made by the Assembly provided they are connected with his existing functions except his powers to consider and make representations to the Assembly (Clause 2(3)) and to undertake research and educational activities (Clause 9) to the extent that they are exercised in a field in which the Assembly does not have functions, or his powers of entry and interviewing in Clause 13. Regulations under subsection (3) may however confer on the Commissioner a similar power of entry and of interviewing for the purpose of any further functions conferred on him by regulations made under subsection (1).

Clause 15: Reports following discharge of particular functions

41.     Subsections (1) and (2) enable the Assembly to make regulations providing for the making by the Commissioner of reports following the exercise of any of his functions, except those of considering and making representations to the Assembly (Clause 2(3)) and of undertaking research and educational activities (Clause 9) to the extent that they are exercised in a field in which the Assembly does not have functions. Subsection (3) provides that such regulations may stipulate the contents of a report, the publication of a report, who should receive copies, and any further action that must or may be taken by the Commissioner after making the report. The regulations may also stipulate that the Commissioner may make a joint report with the Children's Commissioner for Wales where they have each discharged their respective functions in relation to the same matter. Subsections (4) and (5) prohibit the Commissioner from naming any person, or including any particulars identifying any person, which can be omitted without impeding the report's effectiveness, unless he considers it to be in the public interest to do so.

 
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Prepared: 17 February 2006