House of Commons - Explanatory Note

Health And Social Care Bill - continued	House of Commons

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Clause 120: Further amendments relating to public health protection

412. Clause 120 repeals Part 2 of the Public Health Act 1984 and gives effect to Schedule 11 to the Bill.

Schedule 11: Public health protection: further amendments

413. Schedule 11 amends or repeals provisions in other legislation consequent on changes made by the repeal and replacement of Part 2 of the Public Health Act 1984. It also amends other provisions of the Public Health Act 1984.

414. Paragraph 2 removes from section 159 of the Local Government, Planning and Land Act 1980 a reference to provisions in Part 2 which refer to common lodging houses.

415. Paragraphs 3 to 29 amend the Public Health Act 1984. Paragraphs 3 to 5 define local authorities in section 1 (authorities administering Act), update section 7 (port health district and authority for Port of London) and make amendments consequent on the replacement of Part 2 to sections 1 and 9.

416. Paragraph 6 updates section 48 in line with modern scientific understanding of the spread of disease, so that the powers to deal with the removal of dead bodies are not limited to a particular building.

417. Paragraphs 7-9 remove references to infectious disease from sections 49 to 51 of Part 4 of the Public Health Act 1984, which deals with canal boats. These references are unnecessary, as the powers in Part 2A will cover canal boats.

418. Paragraph 10 repeals provision for criminal offences in section 52 under Part 4 which have become unnecessary in light of changes made to section 2 of the Magistrates' Courts Act 1980 by the Courts Act 2003.

419. Paragraph 11 omits Part 5 (miscellaneous) and section 57 (general provision for compensation) in Part 6 of the Public Health Act 1984. The provisions are either out of date or are intended to be replaced by or under Part 2A.

420. Paragraphs 12-14 bring sections 58 to 60 in line with new Part 2A by substituting for local authorities, relevant health protection authorities which include local authorities and making other consequential amendments.

421. Paragraph 15 updates the Public Health Act 1984 by introducing a new section 60A which provides a regulation making power to enable notices, orders and other documents to be given or served electronically.

422. Paragraph 16 updates and amends the powers to enter premises in section 61 to bring them into line with Part 2A. New subsection (2A) of section 61 curtails the right of entry in subsection (1) of section 61 so that it does not apply in respect of a private dwelling, but without affecting the power of a justice of the peace to issue a warrant under subsection (3) of section 61.

423. Paragraph 17 amends section 62 to elaborate on how the right of entry or authorisation by warrant to enter under section 61 can be used.

424. Paragraph 18 substitutes a new section 63 to provide for the wilful obstruction offence that continues to apply to Parts 3, 4 and 6 of the Public Health Act 1984 and bring the maximum fine other than in relation to Part 4 into line with the maximum fine payable under Part 2A.

425. Paragraph 19 inserts new sections 63A and 63B which concern offences by bodies corporate and unincorporated associations respectively. An officer of a body corporate may be liable for an offence as well as the body corporate by virtue of new section 63A. An officer or member of an unincorporated association may be liable for an offence as well as the unincorporated association by virtue of new section 63B.

426. Paragraph 20 updates and amends section 64 to restrict who can bring a prosecution under the Public Health Act 1984.

427. Paragraph 21 inserts new section 64A to extend time limits in the Magistrates Courts Act 1980 for bringing a prosecution for an offence created by or under the Public Health Act 1984.

428. Paragraph 22 amends section 67 to extend rights of appeal under the section to cover offences committed under regulations made under the Public Health 1984 Act as amended by the Bill and makes consequential amendment.

429. Paragraph 23 substitutes a new section 69 to extend protection from personal liability in or under the Act to all those who could carry out functions by virtue of new Part 2A.

430. Paragraph 24 removes the power for the Secretary of State to hold local inquiries under section 70 by omitting the section.

431. Paragraph 25 substitutes a new section 71 to update the default powers setting out the process to be followed if the appropriate Minister believes a relevant health protection authority is not carrying out its functions correctly.

432. Paragraph 26 extends the "cumulative effects" provision in section 72 to include regulations made under new Part 2A and other provision under the Act.

433. Paragraph 27 makes consequential provision to the provisions on Crown property in section 73 to reflect the new definition of premises which includes vessels.

434. Paragraph 28 makes consequential amendments and adds definitions to, or updates the definitions in, section 74 (interpretation) to reflect changes in Part 2A.

435. Paragraph 29 repeals section 76, which made provision for the Isle of Man and the Channel Islands. The Insular Authorities have confirmed that they do not need such provision.

436. Paragraph 30 repeals a reference to a repealed provision in the Public Health Act 1984 from the Planning and Compensation Act 1991.

PART 4 - HEALTH IN PREGNANCY GRANT

England, Wales, and Scotland

Clause 121: Entitlement

437. Clause 121 amends the Social Security Contributions and Benefits Act. It inserts new part 8A to provide that a woman who has satisfied prescribed conditions in relation to a pregnancy is entitled to payment of the Health in Pregnancy Grant.

438. Clause 121, section 140A establishes conditions of entitlement. It covers such matters as prescribed conditions in relation to a woman's pregnancy, residence conditions and the requirement for women to receive maternal health advice from a health professional. It introduces the powers to enable HM Treasury to make regulations under this section.

439. Clause 121, section 140B(1) and (2) enable HM Treasury to prescribe in regulations the amount of the grant and the ability to prescribe different amounts in relation to different cases.

Clause 122: Administration

440. Subsections (1) and (2) enable the Commissioners for HM Revenue and Customs to make regulations about the administration of the health in pregnancy grant. The regulations may, for example, provide for a claim to be made in a manner, and within a time, prescribed by the regulations. The regulations may also require persons prescribed by the regulations to provide information to enable the Commissioners to determine if the conditions for eligibility are met.

441. Clause 122 (3) inserts new section 12A (necessity of application for health in pregnancy grant) into the Social Security Administration Act 1992. The new section provides that entitlement to the grant depends on making a claim in the required manner. It specifies that no person is to have entitlement to the grant without having a National Insurance Number or providing the evidence in order for a National Insurance Number to be allocated. It also enables the Commissioners for HM Revenue and Customs to prescribe exceptions to this requirement.

442. Subsections (4) and (5) enable the Commissioners for HM Revenue and Customs to recover overpayments of the grant made as a result, for example, of fraud, mistake or failure to disclose accurate information.

443. Clause 122 (6) amends section 122 of the Social Security Administration Act 1992, to insert subsections (2A) and (2B) to enable the information held by the Commissioners for HM Revenue and Customs, in relation to the Health in Pregnancy Grant, to be used to determine whether entitlement conditions for payments made out of the social fund to meet maternity expenses, currently known as the Sure Start Maternity Grant, have been satisfied.

444. Clause 122 (7) applies Chapter 2 of Part 1 of the Social Security Act 1998 which makes provision about decision and appeals and provides for those functions to be exercised by HM Revenue and Customs.

Clause 123: Penalty

445. Clause 123 amends the Social Security Administration Act 1992. It inserts new Schedule 3A to set out conditions in which the Commissioners for HM Revenue and Customs may impose civil penalties on a person and sets out the power for the amount of the penalty to be prescribed by the Commissioners for HM Revenue and Customs. It also introduces the right to appeal for those on whom a civil penalty has been imposed and establishes time limits in which a penalty may be imposed and recovered.

446. Paragraph 2(6) of the new Schedule 3A provides the power for the Commissioners for HM Revenue and Customs to apply, by regulations, provision contained in the Social Security Act 1998 in relation to an appeal against a penalty.

Northern Ireland

Clause 124: Entitlement: Northern Ireland

447. Part 8A of the Northern Ireland Contributions and Benefits Act will provide for the payment of the Health in Pregnancy Grant in Northern Ireland. New sections 136A and 136B mirror the provisions in sections 140A and 140B of the Contributions and Benefits Act.

Clause 125: Administration: Northern Ireland

448. Clause 125(1), (2), (3), (4) and (6) amend the Social Security Administration (Northern Ireland) Act 1992 in the same manner as Clause 122 (1), (2), (3), (4) and (6) amend the Social Security Administration Act 1992.

449. Clause 125(7) applies Chapter 2 of Part 2 of the Social Security (Northern Ireland) Order 1998 which makes provision about decision and appeals and provides for those functions to be exercised by HM Revenue and Customs.

Clause 126: Penalty: Northern Ireland

450. Clause 126 amends the Social Security Administration (Northern Ireland) Act 1992 in the same manner as Clause 123 amends the Social Security Administration Act 1992. It also provides the power for the Commissioners for HM Revenue and Customs to apply, by regulations, provision contained in the Social Security (Northern Ireland) Order 1998 in relation to an appeal against a penalty.

Clause 127: Health in pregnancy grant to be excepted matter

451. Clause 127 inserts a reference to the Health in Pregnancy Grant into Schedule 2 of the Northern Ireland Act 1998, thus making it an excepted matter for the purposes of the devolution settlement in Northern Ireland (and therefore outside the competence of the Northern Ireland Assembly).

Clause 128: General and supplementary

452. Clause 128 (1) provides for HM Revenue and Customs to be responsible for the payment and management of the Health in Pregnancy Grant.

453. Clause 128 (2) and (3) amends section 115 of the Immigration and Asylum Act 1999, to insert the Health in Pregnancy Grant. This sets out that no person subject to immigration control is entitled to the Health in Pregnancy Grant unless they satisfy prescribed conditions.

454. Clause 128 (4) exempts the Health in Pregnancy Grant from liability to income tax.

PART 5 - MISCELLANEOUS

Amendments relating to National Health Service

Clause 129: Duty of Primary Care Trusts

455. Clause 129 amends the NHS Act 2006 by inserting a new section 23A which imposes a duty on PCTs to make arrangements to secure continuous improvement in the quality of health care provided by or for them. This duty replaces the current duty (on PCTs and other English NHS bodies) to improve quality in section 45 of the Health and Social Care (Community Health and Standards) Act 2003, requiring on-going improvement activity, and is aligned more closely with the duty imposed on English local authorities by section 3 of the Local Government Act 1999.

456. Subsection (2) of the new section 23A provides that in discharging this duty PCTs should have regard to standards set out in statements published by the Secretary of State under clause 41.

Clause 130 and Schedule 12: Pharmaceutical services

457. The current funding arrangement for pharmaceutical services is governed by sections 228 to 231 of, and Schedule 14 to, the NHS Act 2006. Some alterations need to be made to these provisions of the NHS Act 2006 in order to move the Global Sum to PCT baseline allocations. Clause 130 introduces Schedule 12 which in turn makes amendments to sections 228 to 230 of, and Schedule 14 to, the NHS Act 2006 to change the classification of pharmaceutical services expenditure and bring it within PCT baseline allocations. In Wales, the current funding arrangements are governed by sections 174 to 177 of, and Schedule 8 to, the NHS (Wales) Act 2006. Schedule 12 makes the changes that are needed to the NHS (Wales) Act 2006 to change the classification of pharmaceutical services, which will transfer the Global Sum to the baseline allocations of Local Health Boards in Wales.

458. Paragraph 2 of Schedule 12 revises the definition of a PCT's "expenditure" within section 228 of the NHS Act 2006 to include expenditure on pharmaceutical services. Paragraphs 3 and 4 make consequential changes.

459. Paragraph 5(1) and (2) make further consequential amendments. Paragraph 5(3) inserts a new provision to make it possible to charge the dispensing fees, and other fees payable for the provision of pharmacy services, back to the PCT where a prescription was issued. This corresponds to similar provisions for the cost of medicines which are already charged to the PCT in which the prescription was issued.

460. Paragraph 5(4) makes consequential changes.

461. Paragraph 5(5) ensures that remuneration paid by PCTs for pharmaceutical services which is met by an NHS Trust or NHS Foundation Trust under section 234(4) of the NHS Act 2006 can be charged back to the PCT in which the prescription was issued.

462. Part 2, paragraphs 6-10 makes corresponding provisions for Wales.

Clause 131: Indemnity schemes in connection with provision of health services

463. Subsections (2) and (3) of clause 131 expand membership eligibility of indemnity schemes to the Secretary of State, who may secure health services directly. It also expands membership to non-NHS bodies who provide services or secure the provision of services on behalf of one or more of Strategic Health Authorities, PCTs, NHS trusts, Special Health Authorities, NHS foundation trusts, CHAI (or, in future, the Commission), the Health Protection Agency or the Secretary of State.

464. Subsection (4) (which inserts new subsection (2A) into section 71 of the NHS Act 2006) limits the losses and liabilities that an indemnity scheme may cover in respect of the Secretary of State or non-NHS bodies to functions in respect of the National Health Service. This is because both the Secretary of State and some of the eligible non-NHS bodies may have functions not related to care provided through the NHS, and these functions should not be covered by these schemes.

465. Currently, membership of the existing schemes is voluntary, although the Secretary of State may direct a body that is eligible to be a member to become a member of any of the schemes established under section 71 of the NHS Act 2006. However, subsection (6) (which substitutes subsection (5) of section 71) provides that the Secretary of State may not direct a non-NHS body to become a member of a scheme. NHS Foundations Trusts are already excluded, and continue to be excluded, from this power of direction. This provision essentially reserves the right of the Secretary of State to direct certain eligible members to become members of an established or future scheme.

Weighing and measuring of children

Clauses 132 and 133: Weighing and measuring of children

466. Provision for medical inspections for pupils in England is set out in Schedule 1 to the NHS Act 2006. New paragraphs will be inserted into Schedule 1 to make the necessary provisions on weighing and measuring children.

467. Clause 132 enables the Secretary of State to make arrangements in relation to England for the weighing and measuring of children under 12 who attend school. Similar arrangements can also be made in relation to young children who attend early years settings.

468. New paragraph 7B(1)(a) of that Schedule provides for the Secretary of State to make regulations to authorise information to be provided by local education authorities, private school proprietors and persons registered under the relevant provisions of the Childcare Act 2006, to the PCT staff who it is intended will conduct a weighing and measuring exercise.

469. New paragraph 7B(1)(b) of that Schedule enables the Secretary of State to make provision about the requirements which must be satisfied before weighing and measuring can take place and the way in which the weighing and measuring is to be carried out.

470. New paragraph 7B(1)(c) of that Schedule enables the Secretary of State to make regulations providing for children's height and weight data, or any assessment or analysis of the child's height and weight data, to be fed back routinely to the parents of that child. It is intended that the regulations will provide for other carers, such as grandparents, to be treated as parents for the purposes of being able to withdraw a child in their care from a weighing and measuring programme, or receiving information provided by that programme.

471. New paragraph 7B(1)(d) of that Schedule enables the Secretary of State to make regulations providing for the processing of information gathered during weighing and measuring. The power will be exercised in line with data protection requirements.

472. New paragraph 7B(2) of that Schedule enables regulations to be made which will require those undertaking the weighing and measuring programme to have regard to any guidance on weighing and measuring or the NCMP, issued by the Secretary of State.

473. Clause 133 allows Welsh Ministers to make arrangements in relation to Wales for the weighing and measuring of children under 12 who attend school. Similar arrangements can also be made in relation to children who attend early years settings.

474. In particular, Welsh Ministers will be able to enter into arrangements with local education authorities or proprietors of any school which is not maintained by the local authorities to provide for the weighing and measuring of junior pupils in such schools. In addition, they may enter into arrangements with persons registered under the Children Act 1989 for the purpose of providing childcare or day care for children to weigh and measure children in their care.

475. The regulations made by the Welsh Ministers can make further provision about the requirements which must be satisfied before weighing and measuring can take place and the way in which the weighing and measuring is to be carried out.

Social care

Clause 134: Direct payments in lieu of social care services

476. Subsection (2) of clause 134 inserts new subsections (1A) to (1C) in to section 57 of the Health and Social Care Act 2001.

477. New subsection (1A) enables regulations to be made which allow a designated person (a "suitable person") to receive a direct payment on behalf of another person ("P"). In order for the suitable person to receive a payment, P must be assessed as needing community care services and must lack the capacity to consent to the making of direct payments, within the meaning of the Mental Capacity Act 2005. This subsection also enables regulations to be made that set out the conditions that must be satisfied by local authorities in determining who is a suitable person.

478. New subsection (1B) describes the consent that is necessary in order for such payments to be made. The suitable person must give his or her consent. If P has either a deputy appointed by the Court of Protection under the Mental Capacity Act 2005, or a donee of a lasting power of attorney ('LPA') created by P, and the deputy or donee qualifies as a surrogate of P but the suitable person does not qualify as a surrogate of P, then the deputy or donee must give his or her consent. Regulations under new subsection (5C) will set out the authority that a person must have as a deputy or donee in order to qualify as a surrogate of P for the purposes of section 57 of the Health and Social Care Act 2001.

479. New subsection (1C) sets out what is meant by a "suitable person": a person is suitable if he or she fulfils one of the following criteria:

he or she is a representative of P. The term 'representative' will be defined in regulations made under section 57 as amended by subsection (6) of this clause. It is envisaged that these will initially apply this term to at least some of the people who are donees of LPAs or deputies appointed by the Court of Protection. Additionally, these powers would allow the category of 'representatives' to be extended more widely in the future, for example to include donees of Enduring Powers of Attorney;

he or she is not a representative of P, but there is a donee or deputy in place who qualifies as a surrogate of P and who considers this person suitable to receive and manage the direct payment on P's behalf;

he or she is not a representative of P, and there is no donee or deputy in place who qualifies as a surrogate of P, but the local authority considers this person suitable to receive and manage the direct payment.

480. Subsection (3)(a) to (c) and subsections (4) and (5) amend the regulation-making powers that already exist under section 57 of the Health and Social Care Act 2001 to ensure that they can cover direct payments made to a suitable person in respect of P, as well as covering direct payments made directly to P.

481. Subsection (3)(d) amends section 57 of the Health and Social Care Act 2001 to enable regulations to be made that specify matters that the local authority must or may have regard to when taking any decision about who will administer the direct payment. Regulations under that section will be able to specify the steps that local authorities must or may take before or after making such decision. For example, regulations might specify that a local authority must consult certain family members of P before making a direct payment. They might also specify that the local authority must keep these family members informed of how P's needs are being met once the payment has been made.

482. Subsection (3)(d) also amends section 57 of the Health and Social Care Act 2001 to enable regulations to specify that where a person has fluctuating capacity (e.g., in the early stages of dementia or when the use of medication affects the person's capacity), arrangements for managing their direct payment do not have to be continually revisited. For example, should P, who is receiving direct payments via a suitable person, temporarily gain capacity, then these regulations may provide for mechanisms to allow the suitable person to continue managing the processes around the payment but in accordance with P themself deciding how those payments are spent for the period of time for which they have capacity. Without the ability to make such provision, arrangements for the suitable person to manage the payment would immediately cease and payments would have to be made under the legislation governing payments directly to individuals rather than that governing payments to third parties. This would mean that the individual would continually fluctuate between two different regimes in section 57 of the Health and Social Care Act 2001 under which direct payments may be provided. This would have the potential to cause difficulties for P, the suitable person and the local authority involved.

483. Section 57(3)(d) of the Health and Social Care Act 2001 currently allows regulations to set out conditions to be complied with by the recipient of a direct payment which may or must be imposed by local authorities in relation to the direct payment. Subsection (7) of clause 134 amends section 57 of the Health and Social Care Act 2001 so that these can include conditions relating to securing the provision of the service concerned, the provider of the service, the person to whom payments are made in respect of the provision of the service or the provision of the service itself. Such conditions could be imposed to ensure that 'suitable persons' act in the best interests of the person whose direct payment they are receiving and managing when making decisions about their care.

484. Subsection (8) amends section 64 of the Health and Social Care Act 2001 to provide that any regulations made under section 57 of that Act by the Welsh Ministers will be subject to annulment by a resolution of the National Assembly for Wales.

485. Paragraphs (1) and (8) of Schedule 14 make amendments to other legislation in consequence of the extension of the direct payments scheme by clause 134. Paragraph (1) provides that the existing legislation relating to direct payments for disabled children or parents under section 17A of the Children Act 1989 is not affected by clause 134 (as explained in the Background and Summary section). Paragraph (8) amends section 6 of the Safeguarding Vulnerable Groups Act 2006 ("the 2006 Act"). A person who receives a direct payment under the new section 57(1A) of the Health and Social Care Act 2001 is a vulnerable adult for the purposes of the 2006 Act. This paragraph excludes local authorities when exercising functions under section 57 of the 2001 Act, and surrogates when acting under new section 57(1B)(b) or (1C)(b) of the 2001 Act, from being a regulated activity provider and therefore required to undertake the vetting and barring checks required by virtue of the 2006 Act. Regulations made under new section 57(3)(k) of the 2001 Act could however require local authorities to carry out vetting and barring checks before making direct payments to a person on behalf of a vulnerable adult.

Prepared: 16 November 2007