House of Commons portcullis
House of Commons
Session 2007 - 08
Publications on the internet
Public Bill Committee Debates

Draft National Assembly for Wales (Legislative Competence) (Social Welfare) Order 2008

The Committee consisted of the following Members:

Chairman: Mrs. Janet Dean
Ainger, Nick (Carmarthen, West and South Pembrokeshire) (Lab)
Baron, Mr. John (Billericay) (Con)
Coffey, Ann (Stockport) (Lab)
David, Mr. Wayne (Caerphilly) (Lab)
Davies, David T.C. (Monmouth) (Con)
Heald, Mr. Oliver (North-East Hertfordshire) (Con)
Heppell, Mr. John (Nottingham, East) (Lab)
Hollobone, Mr. Philip (Kettering) (Con)
Irranca-Davies, Huw (Parliamentary Under-Secretary of State for Wales)
James, Mrs. Siân C. (Swansea, East) (Lab)
Jones, Mr. David (Clwyd, West) (Con)
Michael, Alun (Cardiff, South and Penarth) (Lab/Co-op)
Morden, Jessica (Newport, East) (Lab)
Williams, Mrs. Betty (Conwy) (Lab)
Williams, Hywel (Caernarfon) (PC)
Williams, Mr. Roger (Brecon and Radnorshire) (LD)
Celia Blacklock, Nick Wright, Committee Clerks
† attended the Committee

Third Delegated Legislation Committee

Monday 30 June 2008

[Mrs. Janet Dean in the Chair]

Draft National Assembly for Wales (Legislative Competence) (Social Welfare) Order 2008

4.30 pm
The Parliamentary Under-Secretary of State for Wales (Huw Irranca-Davies): I beg to move,
That the Committee has considered the draft National Assembly for Wales (Legislative Competence) (Social Welfare) Order 2008.
It is a great pleasure to be here and to serve under your chairmanship, Mrs. Dean. The draft order, covering charging for non-residential social care services, was approved by the other place on 24 June, following a considered and helpful debate. It was also approved by the National Assembly for Wales on 20 May. Today is the second opportunity that hon. Members have had to consider the devolution of legislative competence to the National Assembly for Wales under section 95 of the Government of Wales Act 2006. You, Mrs. Dean, and Committee members may recall that a draft order on additional learning needs was approved earlier this year.
Section 95 enables the National Assembly for Wales to seek legislative competence from the UK Parliament to make a new type of legislation known as Assembly Measures. The Measures will be scrutinised by the National Assembly in the same way that Parliament scrutinises Bills. The purpose of the powers being sought in this instance is to enable the Welsh Assembly Government to achieve their ambition of a fairer and more consistent approach to charging for recipients of non-residential social care services across the whole of Wales. That is linked to the 10-year strategy for social services, “Fulfilled Lives, Supported Communities”, which was published last year.
The primary piece of legislation governing charges for non-residential social care is section 17 of the Health and Social Services and Social Security Adjudications Act 1983. Section 17 gives local authorities a wide discretionary power to recover such charges as they consider reasonable from adult recipients of non-residential social services. A local authority’s power to charge is currently only restricted in that it cannot require users to pay more for services than would appear to be reasonably practical—because of that, significant differences have emerged in the charging policies of local authorities across Wales and, therefore, wide variability in the impact on service users. The Audit Commission first drew attention to the wide scale of variations between different local authorities’ charges for non-residential services in the 2000 report, “Charging with Care”. In addition, service users, carers and their representatives have repeatedly expressed concern that the different amounts charged by local authorities are both arbitrary and unfair.
Let me give an example. There is currently a wide range of hourly charge rates and weekly maxima set by local authorities. Different amounts can be charged by different authorities for similar services. For example, as currently set, the maximum weekly levels range from £16.20 to £185 per week. There is also disparity in how benefits and disability-related expenditures are treated in an individual’s assessment.
While the Assembly Government can issue statutory guidance to local authorities under section 7 of the Local Authority Social Services Act 1970, local authorities are able to depart from it, which has resulted in the guidance’s impact being limited.
The Welsh Assembly Government wish to ensure that service users have a charging system for non-residential social services that is both transparent and consistent across Wales. The competence conferred by the draft order would enable the National Assembly to legislate to achieve just that. The proposed order was considered by the Constitution Committee of the other place, by the Welsh Affairs Committee and a Committee of the National Assembly for Wales. I was delighted to see members of the Welsh Affairs Committee take part in a joint scrutiny session with the ad hoc Committee in the National Assembly in January. I commend members of the Select Committee for their obvious desire to make the new process work. I believe that that provided a sound basis for joint scrutiny work in the future.
Alun Michael (Cardiff, South and Penarth) (Lab/Co-op): It is welcome that the draft order includes the amendments recommended by the Select Committee on Welsh Affairs. Therefore, the House has made a contribution to making the legislation effective. Will my hon. Friend help to explain the changes? I believe that they in effect amount to an amendment to field 15 of schedule 5 of the 2006 Act. Why does the explanatory memorandum, which was presumably prepared by the National Assembly for Wales, include the details of some fields in full, even if not relevant to the order—for instance, there are several pages on education and training—but not of other fields, such as ancient monuments and buildings, and field 7, which is about fire services? Why is there no detail of the amendments in bold, although that is advertised on the front of the document? Field 15 does not contain anything.
Huw Irranca-Davies: My right hon. Friend raises an important question. Our intention, when we introduce Orders in Council, is to make it clear where they are inserted within particular fields. Sometimes there would inevitably be some adjustment to the fields and how they are sorted. On the question of why the explanatory memorandum includes details of some fields in full and others not, I am advised that it depends on whether the field has been filled. There can still be some adjustment over time. What we hope to do, as we take the process through, is to make it clear where those adjustments are being made. However, he raises an important point, because as we take forward the legislative competence orders, the fields will be adjusted over time. It is important that we keep the Committee and the House up to date on what is happening with them.
Alun Michael: Is my hon. Friend saying that the particular field to which I referred is there because of the order that went through a few weeks ago? Are the other fields, in which there are no details, empty at present? If so, that is a satisfactory explanation. Perhaps better drafting on future occasions would make it clearer.
Huw Irranca-Davies: Yes; my right hon. Friend’s attention to detail is exemplary. He is right in that, at one time in the pre-legislative scrutiny of the order, it was anticipated that another order would have come to fruition before this one, but it has happened the other way around. So, yes, that is why those ones are highlighted, because this order is being delivered in advance of the proposed vulnerable children order. I thank him for his point, which raises the issue of ensuring, as we progress with LCOs, that there is good clarity on how we adjust the fields.
The Welsh Assembly Government wish to ensure that service users have a charging system for non-residential social services that is both transparent and consistent across Wales, as I mentioned. I am pleased that, during the scrutiny, all the Committees supported the principles that underpin the order without any substantive concerns. There was a great degree of unanimity on the purpose and utility of the order. Mainly technical and legal definition issues were raised for further consideration. All of the recommendations arising from the final reports have been considered carefully. The draft order before us today reflects the outcome of those considerations. Many of the Committees’ recommendations arose because the proposed order, which was submitted for pre-legislative scrutiny, was reliant on elements of another proposed order—the vulnerable children and child poverty order—for definitions and exceptions. However, the draft order before us has now been laid in advance of the vulnerable children order, causing a number of changes to be made as a result—particularly the insertion into the order of the relevant definitions and exceptions that I mentioned. I am confident that the changes will address substantially the concerns raised by the Committees.
The granting of legislative competence in this area will enable the Assembly Government to continue their policy of improving the lives of some of Wales’s most vulnerable people. The draft order supports the strategic aims to promote independence and equality for people receiving social care in Wales. The order also clearly demonstrates that the UK Government are delivering for Wales. The orders are a key achievement of the 2006 Act. I look forward to seeing distinctly “Made in Wales” legislation in the policy area—legislation only made possible by the Government’s commitment to devolution. I therefore commend the order to the Committee.
4.40 pm
Mr. David Jones (Clwyd, West) (Con): May I, too, welcome you to the Chair, Mrs. Dean? The order is narrowly focused, and seeks to address the Welsh Assembly Government’s concern about the disparity in charging rates for domiciliary care between various local authorities in Wales. According to the evidence received by the Select Committee on Welsh Affairs—confirmed by the Minister—such charges vary from between £16.20 to £185 per week, with seven local authorities imposing no set maximum charge at all. The Assembly Government have arrived at the conclusion that the disparities have
“resulted in inequalities and uncertainties for service users, carers and their representatives”,
but at present they do not have the necessary competence to remove those disparities.
Although the problem might exist, it would not appear to be a hugely significant one in terms of numbers. The Select Committee, of which I have the honour to be a member, heard evidence from the Minister that, of the 66,000 adults receiving community-based non-residential services, only about 14,000 are being charged for the services received. He acknowledged in evidence that the order would permit a highly interventionist policy on the part of the Welsh Assembly Government, removing the discretion from local authorities as to the charges levied for care. The Select Committee pointed out that, in those circumstances, local authorities would need to be reimbursed for lost revenue. We also noted the assurance given by the Welsh Assembly Government that their aim was to reimburse local authorities for revenue so lost. However, I think it worth recording again the Select Committee’s words of caution about potentially significant financial implications of Measures that might be brought forward under the powers devolved by the proposed order. The Committee and all hon. Members will be looking to see that local authorities do not lose out financially as a result of any Measures made under the order.
The process of scrutinising proposed legislative competence orders continues to develop. I think it worth acknowledging the work done by the Select Committee on that occasion. As we have heard, several of the recommendations made it about the drafting of the order have been accepted and incorporated in the final draft. The draft is better for it. I am sure that that will be welcomed by all members of the Committee. It serves to underline the excellent work of the Select Committee in scrutinising draft orders.
Such scrutiny, however, takes time, but so it should. The process of scrutiny should not be, to use the words of the Secretary of State, a rubber-stamping exercise. It is clear that, as the process develops, the scrutiny of such orders is going to take a considerable amount of time here, in the Select Committee, in the other place and in the National Assembly. All Committees involved in the process are doing sterling work, but it is important to acknowledge that that work must, of necessity, be painstaking. It should never be hurried. Further than that, I am happy to say that we will not oppose the order.
4.43 pm
Mr. Roger Williams (Brecon and Radnorshire) (LD): I, too, welcome you to the Chair, Mrs. Dean. I know that the Minister will be familiar with the concerns about the Westminster scrutiny of LCOs. He will be aware that the Select Committee on Welsh Affairs has again made its concerns clear about the unsatisfactory process through which the order has gone. I hope that, when we discuss future LCOs, we will not have to go over that argument again.
The LCO introduces further Measures to rationalise and extend the Assembly’s powers to make provision for vulnerable children. We welcome that. We feel that the order adds to the many powers that Wales already has in this area, and which it will gain from the Children and Young Persons Bill. Could the powers have been included as framework powers within that Bill? I understand the Government’s argument that the scope of the LCO was wider than could be incorporated within the Bill, but given the problems that we have had with the LCO process, we should consider using framework powers wherever possible. When this question was asked in the Assembly Committee, it was told that now that the LCO had been put forward, it was the quickest route. I wonder whether the situation could have been better planned, and whether the powers could have been included in the Bill.
It has been suggested that the new laws are not what is required to help vulnerable children. That may or may not be the case, but we are here to decide whether the Assembly should have the powers to introduce Measures in these areas, and it is right that they should. My view is that these are welcome Measures and that they are well within the principles of the devolution settlement. I welcome the order, which has the potential to enable Wales to continue developing a distinctive approach to the welfare of vulnerable children. It would be complementary to the goals that it is already trying to achieve, and I have no hesitation in supporting the order.
4.46 pm
Hywel Williams (Caernarfon) (PC): I am a member of the Welsh Affairs Committee who was involved in the discussions both here and in Cardiff. Social welfare matters have long been a devolved matter. They were devolved when I was a social worker in the 1970s, which is a very long time ago.
Under the magnificently titled HASSA SSA, to which the Minister referred, charging is a matter for individual local authorities. There have been substantial variations—the Minister referred to variations ranging from about £16 to more than £100. Clearly, that is matter of concern for local authorities, our constituents and the users of the services, because that sort of variation clearly cannot be right. Some variation might be acceptable if we were considering only England, or England and Wales, with their huge range of local authorities. However, we have only 22 in Wales, and there is a good case for having uniformity in our small country.
As has already been mentioned, the order was considered by the Welsh Affairs Committee and the Committee of the Welsh Assembly. We had a very welcome joint meeting in Cardiff. However, I must point to the fragility of those arrangements. I refer to the going down to Cardiff, and the selection and the persuasion of some Members to go to Cardiff. When one Member momentarily left the room, there was even some question as to whether the Committee was quorate, which indicates the fragility of the arrangements.
I am glad that the recommendations of the Welsh Affairs Committee have been properly taken into account. I do not know what would have happened had our recommendations been ignored—I am sure that they would not have been. I know that there has been good will between us, the Committee and the Assembly, but what would have happened without it? What would happen if a member were to throw a tiny spanner into the rather complicated works? I hope that does not happen in the future, but it is something for us to consider, although it is beyond the scope of this order.
As I said, I am glad that our recommendations have been endorsed tonight and I wish the Welsh Assembly Committee well in applying this modest but very useful change, as it has seen fit to do.
4.48 pm
Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2008
Prepared 1 July 2008