Clause 135 and Schedule 13: Abolition of maintenance liability of relatives

486.     This clause removes local authorities' powers to seek liable relatives payments under the National Assistance Act 1948. This will bring the operating principles for the charging policy for social care in line with those that are used in the rest of the health and social care system. The 'liable relatives rule' will come to an end in particular cases in accordance with Schedule 13.

Clause 136: Ordinary residence for certain purposes of National Assistance Act 1948 etc.

487.     Section 24 of the National Assistance Act 1948 provides that a patient in an NHS hospital is to be treated for the purposes of the provision of residential accommodation under Part 3 of that Act as being ordinarily resident in the area where he was ordinarily resident before he was admitted to hospital. Subsection (1) extends this rule to apply also to accommodation provided by NHS bodies in places other than NHS hospitals.

488.     Subsection (2) gives the Secretary of State and the Welsh Ministers the power to make and publish arrangements for determining which cases are to be dealt with by the Secretary of State and which are to be dealt with by the Welsh Ministers. The arrangements can include provision for the determination of cross-border ordinary residence disputes between English and Welsh local authorities.

489.     The Chronically Sick and Disabled Persons Act 1970 gives local authorities a statutory duty to make arrangements for individuals who are ordinarily resident in their area, if the local authority considers the arrangements necessary to meet certain specified needs of that person, as listed in section 2 of that Act. These needs might include, for example, the provision of assistance to participate in recreational or learning activities, the provision of meals at home or elsewhere, or the provision of assistance in obtaining telephone or any other special equipment. The Chronically Sick and Disabled Persons Act 1970 does not state explicitly whom local authorities should approach to resolve ordinary residence disputes under section 2. Subsection (3) brings provisions relating to determinations of ordinary residence disputes under section 2 of the Chronically Sick and Disabled Persons Act 1970 in line with the National Assistance Act 1948 by providing that any ordinary residence disputes are referred to the Secretary of State or the Welsh Ministers for a determination (in accordance with the arrangements made and published under the National Assistance Act 1948).

Financial assistance related to provision of health or social care services

Clauses 137 and 138: Power of Secretary of State to give financial assistance / Qualifying bodies

490.     Clause 137(1) allows the Secretary of State to provide financial support to qualifying bodies who are delivering health and social care services. It also allows the Secretary of State to fund qualifying bodies delivering related services to providers of health and social care services. Clause 137(2) allows the Secretary of State to give financial support to people to set up such bodies.

491.     Clause 138 sets out the conditions for being a qualifying body. The first of these is that the body must pass the community benefit test. This is satisfied if a reasonable person might consider that the activities of a body are carried on for the benefit of a section of the community in England. The regulation-making power in clause 138(2) will allow provision to be made about the sort of activities that can be treated as meeting this condition and the activities that can be treated as not meeting it, in cases where there may be some doubt. For example, it is intended to make regulations setting out that political activities are not to be treated as activities that are carried on for the benefit of the community.

492.     The second condition is that the body satisfies any conditions relating to the distribution of profits as are set out in regulations. The Department proposes to make regulations which ensure that the profits of a qualifying body are principally invested for social objectives; either in the body itself or in the community. Clause 138(1)(b) allows for prescribed bodies to be excepted from the requirement to meet such conditions.

493.     The third condition under clause 138(1)(c) is that the body must be carrying on a business. Our intention is to distinguish these bodies from those carrying on activities on purely a voluntary basis.

494.     Clause 138(1)(d) allows regulations to be made setting out other conditions that a body must meet in order to be a qualifying body, and where a person is given financial support to set up a qualifying body, additional conditions that such a qualifying body must satisfy. Under clause 138(2), regulations may also provide that only certain kinds of body can be a qualifying body.

Clauses 139 and 140: Forms of assistance under s.137; Terms on which assistance under s.137 is given

495.     These clauses concern the forms of finance (e.g. grants, loans, guarantees, share capital) the Secretary of State could give to social enterprises and allow the Secretary of State to specify the terms on which financial support is provided. The clauses allow some flexibility, so that:

• the Secretary of State can provide finance packages tailored for the particular needs of social enterprises;

• the Secretary of State can set appropriate terms and conditions which will protect these investments.

496.     Clause 139 allows the financial support that the Secretary of State can provide to take any form (with one exception), as well as setting out examples of the types of financial support that may be given. Subsection (3) ensures that the Secretary of State cannot give financial support to a company to set up a qualifying body by purchasing share capital in that company.

497.     Clause 140 enables the Secretary of State to impose terms and conditions on the financial support given to qualifying bodies and people setting up qualifying bodies. This includes terms as to when the financial assistance must be repaid. Subsection (3) requires the people or bodies receiving this kind of financial support from the Secretary of State to comply with the terms on which the support is provided.

Clause 141: Directions to certain NHS bodies

498.     Subsection (1) enables the Secretary of State to direct certain NHS bodies in England to exercise his power to give financial support under clause 137. This will mean that, to the extent permitted by the Secretary of State's directions, NHS trusts, PCTs and Strategic Health Authorities in England and Special Health Authorities performing functions only or mainly in relation to England would be able to give financial support to qualifying bodies; or people who want to set up such bodies.

Clause 142: Arrangements with other third parties

499.     This clause allows the Secretary of State to make arrangements for a third party, other than those NHS bodies set out in clause 141(1) or an English local authority, to give financial support to a qualifying body, or to carry on functions relating to such support. These functions can be completely carried out by a qualifying third party, or to the extent set out in the arrangements, and can be carried out generally, or in specific cases. These arrangements made between the Secretary of State and the third party may set out the terms on which the third party can give financial support to qualifying bodies, including the types of support that can be given. The clause also provides for the Secretary of State to provide the necessary funding to the third party and for provision to be made as to repayment (for example if the arrangements came to an end.)

500.     The reason for excluding local authorities is because they have sufficient powers to fund social enterprises and have their own legislative structure. The reason for excluding NHS bodies set out in clause 141(1) is that separate arrangements for these bodies are already set out in that clause. The provisions in this Bill are designed to give the Secretary of State and NHS bodies the necessary wider powers to fund social enterprises.

Clause 143: Power to form a company

501.     This clause allows the Secretary of State to set up a company to fund qualifying bodies and people wanting to set up such bodies. Under clause 142 the Secretary of State could make arrangements with such a company to exercise the Secretary of State's powers to fund such qualifying bodies and people wanting to set up such qualifying bodies. Under the arrangements with such a company, the Secretary of State will transfer money to the company to enable the company to provide such financial support.

Clause 144: Interpretation of group of sections

502.     Clause 144 sets out the meaning of various terms used in clauses 137 to 144.

National Information Governance Board for Health and Social Care

Clause 145 and clause 146: National Information Governance Board for Health and Social Care

503.     Clause 145 establishes the National Information Governance Board for Health and Social Care.

504.     Clause 145 inserts four new sections (250A to 250D) in the NHS Act 2006:

• Section 250A sets out the functions of the National Information Governance Board relating to England, how it will exercise these functions and defines the information that will be within the remit of the Board. It provides that the Board can issue advice without being requested to do so, can request information from organisations which fall within its remit and confirms that organisations have to give due regard to advice supplied by the Board.

• Section 250B has the effect of giving the National Information Governance Board functions in relation to Wales that are narrower than its functions in relation to England. In relation to Wales, its functions will correspond to those currently carried out by PIAG, which in particular has functions in relation to the use of identifiable patient information without the patient's consent.

• Section 250C details the regulations that the Secretary of State might make in respect of the National Information Governance Board. These may cover such matters as the composition of the Board, the committees or sub-committees that may be necessary, the terms of appointment of Board members, the payment of allowances or expenses, and the delegation of the Board's functions.

• Section 250D details the annual reporting arrangements for the National Information Governance Board. The Board is to report to the Secretary of State on an annual basis.

505.     Clause 145 also confirms that, when the National Information Governance Board is established as a statutory body, PIAG (which is the current statutory body and was continued by section 252 of the NHS Act 2006) will be abolished.

506.     Clause 146 substitutes a new section for section 252 of the National Health Service Act 2006. It requires the Secretary of State to consult the National Information Governance Board where he proposes to make patient information regulations under section 251 of that Act.

507.     Schedule 14 inserts references to the National Information Governance Board into the Parliamentary Commissioner Act 1967, the House of Commons Disqualification Act 1975 and the Freedom of Information Act 2000. It also inserts references to the National Information Governance Board in section 271 of the National Health Service Act 2006 to indicate that some of its functions are exercisable in relation to England and Wales.

Functions of Health Protection Agency in relation to biological substances

Clause 147: Functions of Health Protection Agency in relation to biological substances

508.     This clause abolishes the NBSB and gives functions to the Health Protection Agency corresponding to the NBSB's functions. It also enables the Health Protection Agency to be given any other functions that could have been given to the NBSB.

509.     Subsection (1) abolishes the NBSB and repeals the Biological Standards Act 1975. Subsections (2) to (6) amend the Health Protection Agency Act 2004, under which the Health Protection Agency was established and given its functions, to expand the Health Protection Agency's functions (and possible functions) to include functions in relation to biological substances.

510.     Subsection (3) inserts a new section 2A into the Health Protection Agency Act 2004, giving the 'relevant authority' (the Secretary of State and DHSSPSNI, acting jointly) power to direct the Health Protection Agency to carry out functions in relation to biological substances. The new section 2A(3) of the Health Protection Agency Act 2004 deems the relevant authority to have directed that initially the Health Protection Agency is to acquire functions that are the same as the NBSB's: those functions are specified in the National Biological Standards Board (Functions) Order 1976. Subsection (5) amends section 8 (power to make transfer schemes) of the Health Protection Agency Act 2004, to enable the relevant authority to make a scheme for the transfer of the property, rights and liabilities of the NBSB to the Health Protection Agency.

PART 6 - GENERAL

Clause 149: Orders, regulations and directions: general provisions

511.     Clause 149 makes provision in relation to powers to make orders and regulations and to give directions under the provisions of this Bill. It provides that orders and regulations made by the Secretary of State, the Treasury, the Privy Council, or the Welsh Ministers are to be made by statutory instrument; and, that regulations made by DHSSPSNI are to be made by statutory rule. It also makes provision as to how the powers in question may be exercised.

Clause 150: Orders and regulations: Parliamentary control

512.     Clause 150 provides that all regulation and order making powers of the Secretary of State and the powers of the Privy Council to make an order approving rules made by the OHPA (clause 102) and to make regulations about the membership of the OHPA (Schedule 6), will be subject to the negative resolution procedure, other than in the following cases:

• where subsection (3) applies, in which case the instrument must be approved by resolution of each House of Parliament; or

• where the order is a commencement order under clause 158, in which case there is no Parliamentary procedure.

513.     Subsection (3) lists those orders and regulations which will be subject to affirmative resolution procedure. They are as follows:

• regulations to specify regulated activity (clause 4(1)) for the purposes of registration in respect of the provision of health or social care;

• regulations under clause 39 modifying Chapter 2 of Part 1 (registration in respect of the provision of health or social care) of the Bill in relation to newly regulated activities;

• regulations making provision modifying the regulation of social care workers (clause 114) or making provision modifying the functions of the GSSC in relation to the education and training of AMHPs (clause 116); and

• orders containing transitional or consequential provision (clause 155) which amend or repeal any provision of an Act of Parliament.

Clause 151: Orders and regulations: control by National Assembly for Wales

514.     Clause 151 provides that all regulation making powers of the Welsh Ministers, other than regulations to which subsection (3) applies, are subject to the negative resolution procedure in the National Assembly for Wales. The negative resolution procedure also applies to orders made by the Welsh Ministers under clause 155(2) containing transitional or transitory provisions or savings

515.     Subsection (3) provides that regulations making provision modifying the regulation of social care workers (clause 114), or making provision modifying the functions of the CCW in relation to the education and training of AMHPs (clause 116), must be approved by a resolution of the National Assembly for Wales.

Clause 152: Regulations: control by Northern Ireland Assembly

516.     Clause 152 provides that regulations made under clause 111 (responsible officers) by DHSSPSNI are subject to the negative resolution procedure in the Northern Ireland Assembly.

Clause 153: Directions

517.     Clause 153 provides that any directions given by the Secretary of State or the Privy Council must be in writing and that any directions given may be varied or revoked by subsequent directions.

Clause 154: Repeals

518.     Clause 154 makes provision in respect of repeals. It gives effect to the repeals specified in Schedule 15.

Clause 155: Power to make transitional and consequential provision etc.

519.     Clause 155 confers power to make transitional or transitory provisions and savings and supplementary, incidental or consequential provision. Subsection (1) confers on the Secretary of State power to make by order transitional or transitory provisions and savings in connection with the commencement of any provision of the Bill in relation to which the Secretary of State is the appropriate Minister for the purposes of clause 158(2) (commencement). It also confers on the Secretary of State the power to make by order such supplementary, incidental or consequential provision as considered appropriate.

520.     Subsection (2) confers on the Welsh Ministers power to make by order transitional or transitory provisions and savings in connection with the commencement of any provision of the Bill in relation to which the Welsh Ministers are the appropriate Minister for the purposes of clause 158(2) (commencement).

521.     Subsection (3) provides that an order under this clause may amend, repeal, revoke or otherwise modify any enactment. Subsection (7) defines "enactment" as an enactment contained in, or in any instrument made under, an Act of Parliament, an Act of the Scottish Parliament, a Measure or Act of the National Assembly for Wales, or Northern Ireland legislation. Subsection (5) provides that before making an order under this clause containing provision which would fall within the legislative competence of the Scottish Parliament, the Secretary of State must consult the Scottish Ministers.

522.     Powers of this kind are often included in Bills which make extensive changes to existing statutory regimes. This clause will ensure that necessary or expedient transitional arrangements can be made as the Bill is commenced without creating any difficulty or unfairness and that there can be a smooth transition from the old law and procedures to the new.

523.     A number of transitional provisions will be needed in relation to the establishment of the Commission and the assumption by it of the functions of CHAI, CSCI and MHAC. The Commission will assume the different functions of the three existing regulators over a period of time and will take on some earlier than others. Transitional provision will, for example, be needed in relation to the transition from the registration provisions of Part 2 of the Care Standards Act 2000 to the new regime under Chapter 2 of Part 1 of the Bill.

524.     Transitional provision will also need to be made in relation to some of the provisions in Part 2 (regulation of health professions and health and social care workforce) of the Bill. This will be the case in relation to the transition from adjudication of fitness to practise cases by committees of the GMC and the GOC to their adjudication by the OHPA. Transitional provision will also have to be made in connection with: (a) preserving existing regulations, or parts of them, under the Public Health Act 1984 (Part 3 of the Bill); and, (b) the abolition of the NBSB and the assumption of identical functions by the Health Protection Agency (clause 147).

525.     The power to make consequential amendments will enable changes made to the law by the Bill to be reflected in other legislation which refers to or is dependent on provisions repealed or amended by the Bill. In particular, whilst Schedules 3 and 5 make amendments to the Mental Health Act, the Care Standards Act 2000, and the Health and Social Care (Community Standards) Act 2003 in connection with Part 1 of the Bill, amendments will need to be made to other legislation which contains references to CHAI, CSCI and MHAC.

Clause 156: Financial provisions

526.     Clause 156 makes provision for expenditure which will be incurred under or be attributable to the provisions of the Bill, once it has received Royal Assent, to be paid out of money provided by Parliament.

Clause 157: Extent

527.     Clause 157 makes provision as to the extent of the provisions of the Bill.

Clause 158: Commencement

528.     Clause 158 makes provision for the coming into force of the provisions of the Bill. This clause provides that the Bill, with certain exceptions, will come into force on a day appointed by order of the appropriate authority. The exceptions to this provision are Part 6 (general) of the Bill (except clause 154 and Schedule 15 (repeals)), and any other provision of the Bill so far as it confers power to make orders and regulations or defines any expression relevant to the exercise of any such power. In these cases the provisions come into force on the day on which the Bill receives Royal Assent.

Clause 159: The appropriate authority by whom commencement order is made

529.     Clause 159 determines who the appropriate authority is for the purposes of making commencement orders under clause 158. Except as provided by subsections (3) to (5), the appropriate authority is the Secretary of State.

530.     In relation to clauses 110, 111, and 113 (responsible officers), so far as they relate to Northern Ireland, the appropriate authority is DHSSPSNI.

531.     In relation to the following provisions, the appropriate authority is the Welsh Ministers:

• Part 3 (public health protection), including Schedule 11, and Part 3 of Schedule 15 so far as they relate to Wales (and clause 154 (repeals) so far as it relates to that Part of Schedule 15 in its application to Wales),

• clause 130 (pharmaceutical services), so far as relating to Part 2 of Schedule 12, together with that Part of that Schedule and Part 4 of Schedule 15 so far as it relates to the repeals in the NHS (Wales) Act 2006 (and clause 154 so far as it relates to those repeals),

• clause 133 (weighing and measuring of children: Wales),

• subsections (1) to (7) of clause 134 (direct payments in lieu of provision of care services), so far as they relate to Wales, and subsection (8) of that section,

• clause 135 (abolition of maintenance liability of relatives), Schedule 13 and Part 5 of Schedule 15, so far as they relate to local authorities in Wales (and clause 154 so far as relating to Part 5 of Schedule 15 in its application to local authorities in Wales), and

• clause 136 (ordinary residence for certain purposes of National Assistance Act 1948 etc.), so far as relating to Wales.

532.     In relation to Part 4 (health in pregnancy grant), the appropriate authority is the Treasury.

Clause 160: Consultation in relation to commencement

533.     Clause 160 makes provision requiring the appropriate authority for the purposes of making commencement orders under clause 158 to consult others before making orders commencing certain provisions of the Bill.

534.     The Secretary of State must consult the Scottish Ministers before making a commencement order relating to:

• clause 103 and Schedule 8 (extension of powers under section 60 of the Health Act 1999) so far as relating to-

• clause 104 (standard of proof in fitness to practise proceedings) in relation to a profession that is not a reserved profession for Scotland; or

• clause 107 (powers of Secretary of State and devolved administrations), so far as relating to the functions of the Scottish Ministers.

535.     Before making a commencement order relating to clause 136 (ordinary residence for the purposes of the National Assistance Act 1948 etc.) in relation to England, the Secretary of State must consult the Welsh Ministers; and before making a commencement order relating to that clause in relation to Wales, the Welsh Ministers must consult the Secretary of State.

536.     Before making a commencement order relating to clause 147 (functions of Health Protection Agency in relation to biological substances), or Part 7 (abolition of NBSB) of Schedule 15 (or clause 154 so far as relating to that Part of that Schedule), the Secretary of State must consult DHSSPSNI.