|
| |
|
| |
(1) | In this Part “relevant services” means services— |
| |
(a) | which are provided to or for the benefit of a disabled person (“P”) |
| |
(whether or not in connection with P’s disability), and |
| |
(b) | which relate to one or more of the following matters. |
| 5 |
| |
(a) | the provision of further education for P; |
| |
(b) | facilitating the undertaking by P of further education or higher |
| |
| |
(c) | the provision of training for P; |
| 10 |
(d) | securing employment for P; |
| |
(e) | facilitating P’s continued employment; |
| |
(f) | enabling P to live independently or more independently in P’s home; |
| |
(g) | enabling P to overcome barriers to participation in society. |
| |
(3) | Relevant services also include the provision by or on behalf of a relevant |
| 15 |
authority to or for the benefit of a disabled person of grants or loans relating to |
| |
one or more of the matters mentioned in subsection (2). |
| |
(4) | Relevant services do not include excluded services (provision as to direct |
| |
payments relating to excluded services being made by other legislation). |
| |
(5) | In relation to England and Wales, the following are excluded services— |
| 20 |
(a) | community care services as defined by section 46(3) of the National |
| |
Health Service and Community Care Act 1990 (c. 19), |
| |
(b) | services provided under the Carers and Disabled Children Act 2000 |
| |
| |
(c) | services provided under section 17 of the Children Act 1989 (c. 41) |
| 25 |
(provision of services for children in need, their families and others). |
| |
(6) | In relation to Scotland, the following are excluded services— |
| |
(a) | community care services as defined by section 5A of the Social Work |
| |
(Scotland) Act 1968 (c. 49), and |
| |
(b) | services provided under section 22(1) of the Children (Scotland) Act |
| 30 |
1995 (c. 36) (promotion of welfare of children in need). |
| |
(7) | In this section “further education” and “higher education”— |
| |
(a) | in relation to England and Wales, have the same meaning as in the |
| |
Education Act 1996 (c. 56); |
| |
(b) | in relation to Scotland, have the same meaning as in the Further and |
| 35 |
Higher Education (Scotland) Act 1992 (c. 37). |
| |
| |
(1) | In this Part “relevant authority” means— |
| |
(a) | a Minister of the Crown or government department; |
| |
(b) | the Scottish Ministers; |
| 40 |
| |
| |
(e) | a person or body whose functions are exercised on behalf of the Crown; |
| |
(f) | any other body which meets conditions A and B below. |
| |
|
| |
|
| |
|
(2) | Condition A is that the body is established by virtue of Her Majesty’s |
| |
prerogative or by an enactment or is established in any other way by a Minister |
| |
of the Crown acting as such or by a government department. |
| |
(3) | Condition B is that the body’s revenues derive wholly or mainly from public |
| |
| 5 |
(4) | In subsection (1)(d) “local authority” means— |
| |
(a) | a local authority within the meaning of the Local Government Act 1972 |
| |
| |
(b) | a council constituted under section 2 of the Local Government etc. |
| |
(Scotland) Act 1994 (c. 39), |
| 10 |
(c) | the Greater London Authority, |
| |
(d) | the Common Council of the City of London in its capacity as a local |
| |
| |
(e) | the Council of the Isles of Scilly. |
| |
(5) | In subsection (2) “Minister of the Crown” includes the Scottish Ministers and |
| 15 |
| |
Power to make regulations |
| |
31 | Power to make provision enabling exercise of greater choice and control |
| |
(1) | The appropriate authority (as defined by section 35) may by regulations made |
| |
by statutory instrument make any provision that would in the opinion of the |
| 20 |
authority making the regulations serve the purpose of this Part. |
| |
(2) | Regulations under this section may, in particular, make provision for and in |
| |
connection with enabling a disabled person (“P”) in prescribed circumstances |
| |
to require a relevant authority that is or may be obliged, or has decided, to |
| |
provide P with a relevant service, or to arrange the provision of a relevant |
| 25 |
service for P, to do any one or more of the following— |
| |
(a) | to carry out an assessment of P’s needs; |
| |
(b) | to prepare, in consultation with P, a plan setting out the way in which |
| |
the authority proposes to meet those needs; |
| |
(c) | to review and revise the plan in consultation with P taking account of |
| 30 |
any changes in P’s needs or P’s wishes; |
| |
(d) | at P’s request, to make payments to P in respect of P securing the |
| |
provision of an equivalent service. |
| |
(3) | Regulations under this section may also— |
| |
(a) | specify who is or is not to be treated as a disabled person for any |
| 35 |
purpose of the regulations; |
| |
(b) | make provision about the circumstances in which a relevant authority |
| |
is to be taken to have decided to provide a relevant service to a person; |
| |
(c) | make provision enabling a disabled person to require a relevant |
| |
authority to assess the value of any relevant services to which the |
| 40 |
| |
(d) | make provision as to matters to which a relevant authority must, or |
| |
may, have regard when making a decision for the purposes of a |
| |
provision of the regulations; |
| |
(e) | make provision as to steps which a relevant authority must, or may, |
| 45 |
take before, or after, the relevant authority makes a decision for the |
| |
|
| |
|
| |
|
purposes of a provision of the regulations (including provision |
| |
requiring the relevant authority to review its decision). |
| |
(4) | Regulations under this section may enable or require the disclosure of |
| |
information by one relevant authority to another for prescribed purposes of the |
| |
| 5 |
(5) | Regulations under this section may, for the purpose of this Part— |
| |
(a) | vary the conditions attached to any power of a relevant authority to |
| |
provide financial assistance to disabled people; |
| |
(b) | vary the conditions attached to any power of a relevant authority to |
| |
provide financial assistance to another relevant authority in connection |
| 10 |
with the provision of relevant services to disabled people by the other |
| |
| |
(6) | Regulations under this section may require a relevant authority exercising any |
| |
function under the regulations to have regard to any guidance given from time |
| |
to time by the appropriate authority. |
| 15 |
32 | Provision that may be made about direct payments |
| |
(1) | In this section “direct payments regulations” means regulations under section |
| |
31 making provision by virtue of subsection (2)(d) of that section and “direct |
| |
payments” means payments made by a relevant authority under the |
| |
| 20 |
(2) | Direct payments regulations relating to a relevant service (“the qualifying |
| |
service”) of a relevant authority (“the providing authority”) may in |
| |
| |
(a) | specify circumstances in which the providing authority is or is not |
| |
required to comply with a request for direct payments to be made |
| 25 |
under the regulations, whether those circumstances relate to the |
| |
disabled person or to the qualifying service; |
| |
(b) | make provision about the manner in which a request for direct |
| |
| |
(c) | make provision enabling a disabled person to require a providing |
| 30 |
authority to assess the amount of the payments to which the person |
| |
would be entitled if the person were to request the authority to make |
| |
| |
(d) | enable a disabled person to require a providing authority to comply |
| |
with a request to provide direct payments in place of the qualifying |
| 35 |
service (or its provision at certain times or in certain circumstances) |
| |
while providing, or continuing to provide, other relevant services (or |
| |
providing, or continuing to provide, the qualifying service at other |
| |
times or in other circumstances); |
| |
(e) | make provision displacing functions or obligations of the providing |
| 40 |
authority with respect to the provision of the qualifying service |
| |
(whether arising under any enactment, under any trust or otherwise) to |
| |
such extent and subject to such conditions as may be prescribed. |
| |
(3) | Direct payments regulations must include provision excluding any duty of a |
| |
providing authority to comply with a request for direct payments, or a class of |
| 45 |
such requests, if compliance with the request, or with requests falling within |
| |
that class, would in all the circumstances impose an unreasonable financial |
| |
burden on the providing authority. |
| |
|
| |
|
| |
|
(4) | Direct payments regulations may— |
| |
(a) | make provision for and in connection with requiring or authorising the |
| |
providing authority to make direct payments to the disabled person or |
| |
such other person as the authority may determine (“the payee”) in |
| |
accordance with the regulations in respect of the person securing the |
| 5 |
provision of the equivalent service; |
| |
(b) | make provision as to the conditions falling to be complied with by the |
| |
payee in relation to the direct payments; |
| |
(c) | prescribe circumstances in which the providing authority may or must |
| |
terminate the making of direct payments; |
| 10 |
(d) | prescribe circumstances in which the providing authority may require |
| |
repayment (whether by the payee or otherwise) of the whole or any |
| |
part of the direct payments; |
| |
(e) | make provision for any sum falling to be paid or repaid to the |
| |
providing authority by virtue of any condition or other requirement |
| 15 |
imposed in pursuance of the regulations to be recoverable as a debt due |
| |
| |
(f) | prescribe circumstances in which any sum is to cease to be payable by |
| |
| |
(g) | make provision authorising direct payments to be made to a prescribed |
| 20 |
person on behalf of the disabled person. |
| |
(5) | For the purposes of subsection (4)(b), the conditions that are to be taken to be |
| |
conditions in relation to direct payments include, in particular, conditions |
| |
| |
(a) | what is or is not to be regarded as an equivalent service, |
| 25 |
(b) | the securing of the provision of the equivalent service, |
| |
(c) | the provider of the service, |
| |
(d) | the person to whom the payments are made in respect of the provision |
| |
| |
(e) | the provision of the service. |
| 30 |
33 | Exercise of rights on behalf of persons who lack capacity |
| |
(1) | Regulations under section 31 may make provision for and in connection with |
| |
enabling any request or consent for the purposes of the regulations (including |
| |
any request or consent relating to payments by virtue of subsection (2)(d) of |
| |
that section) to be made or given on behalf of a disabled person who falls |
| 35 |
within subsection (2) by a person of a prescribed description. |
| |
(2) | A person falls within this subsection— |
| |
(a) | in relation to England and Wales, if the person lacks capacity, within |
| |
the meaning of the Mental Capacity Act 2005 (c. 9), in relation to the |
| |
| 40 |
(b) | in relation to Scotland, if the person is incapable, within the meaning of |
| |
the Adults with Incapacity (Scotland) Act 2000 (asp 4), in relation to |
| |
| |
| |
(1) | Regulations to which this subsection applies may be made so as to have effect |
| 45 |
for a specified period not exceeding 36 months. |
| |
|
| |
|
| |
|
(2) | Subsection (1) applies to regulations under section 31 that are made with a |
| |
| |
(a) | the extent to which their provisions contribute to achieving the purpose |
| |
| |
(b) | the extent of any beneficial effects on the lives of the disabled people |
| 5 |
| |
(c) | the extent of any financial burden imposed on the relevant authorities |
| |
to which the regulations relate. |
| |
(3) | Regulations which, by virtue of subsection (1), are to have effect for a limited |
| |
period are referred to in this section as a “pilot scheme”. |
| 10 |
(4) | A pilot scheme may provide that its provisions are to apply only in relation |
| |
| |
(a) | one or more specified areas; |
| |
(b) | one or more specified classes of person; |
| |
| 15 |
(i) | by reference to prescribed criteria, or |
| |
(ii) | on a sampling basis. |
| |
(5) | A pilot scheme may make consequential or transitional provision with respect |
| |
to the cessation of the scheme on the expiry of the specified period. |
| |
(6) | A pilot scheme may be replaced by a further pilot scheme making the same or |
| 20 |
| |
(7) | The appropriate authority which made a pilot scheme must prepare and |
| |
publish a report on the operation of the scheme. |
| |
| |
35 | The appropriate authority by which regulations under section 31 are made |
| 25 |
(1) | Subsection (2) has effect to determine the appropriate authority by which |
| |
regulations under section 31 may be made. |
| |
(2) | The Secretary of State is the appropriate authority, except that— |
| |
(a) | in relation to provision that would be within the legislative competence |
| |
of the Scottish Parliament if it were included in an Act of that |
| 30 |
Parliament, the Scottish Ministers are the appropriate authority, and |
| |
(b) | in relation to provision that would be within the legislative competence |
| |
of the National Assembly for Wales if it were included in a Measure of |
| |
the Assembly (or, if regulations are made after the Assembly Act |
| |
provisions come into force, an Act of the Assembly), the Welsh |
| 35 |
Ministers are the appropriate authority. |
| |
(3) | Any power of the Secretary of State to make regulations under section 31 is |
| |
exercisable only with the consent of the Treasury. |
| |
(4) | In this section “the Assembly Act provisions” has the meaning given by section |
| |
103(8) of the Government of Wales Act 2006 (c. 32). |
| 40 |
36 | Regulations under section 31: supplementary provisions |
| |
(1) | Any power to make regulations under section 31 may be exercised— |
| |
|
| |
|
| |
|
(a) | in relation to all cases to which it extends, |
| |
(b) | in relation to those cases subject to specified exceptions, or |
| |
(c) | in relation to any specified cases or classes of case. |
| |
(2) | Any such power may be exercised so as to make, as respects the cases in |
| |
relation to which it is exercised— |
| 5 |
(a) | the full provision to which the power extends or any less provision |
| |
(whether by way of exception or otherwise); |
| |
(b) | the same provision for all cases in relation to which it is exercised, or |
| |
different provision for different cases or different classes of case or |
| |
different provision as respect the same case or class of case for different |
| 10 |
| |
(c) | any such provision either unconditionally or subject to any specified |
| |
| |
(3) | Where any such power is expressed to be exercisable for alternative purposes, |
| |
it may be exercised in relation to the same case for all or any of those purposes. |
| 15 |
(4) | Any such power includes power— |
| |
(a) | to make such incidental, supplementary, consequential or saving |
| |
provision as the authority making the regulations considers to be |
| |
| |
(b) | to provide for a person to exercise a discretion in dealing with any |
| 20 |
| |
(c) | to amend or repeal an enactment whenever passed or made. |
| |
| |
(1) | Before laying before Parliament (or the Scottish Parliament or the National |
| |
Assembly for Wales) a draft of a statutory instrument containing regulations |
| 25 |
under section 31, the appropriate authority must— |
| |
(a) | publish draft regulations in such manner as it thinks fit, and |
| |
(b) | invite representations to be made to it about the draft, during a |
| |
specified period of not less than 12 weeks, by persons appearing to it to |
| |
be affected by the proposals. |
| 30 |
(2) | In this section “the appropriate authority” is to be read in accordance with |
| |
| |
38 | Regulations under section 31: control by Parliament or other legislature |
| |
(1) | The Secretary of State may not make a statutory instrument containing |
| |
regulations under section 31 unless a draft of the instrument has been laid |
| 35 |
before, and approved by a resolution of, each House of Parliament. |
| |
(2) | The Scottish Ministers may not make a statutory instrument containing |
| |
regulations under section 31 unless a draft of the instrument has been laid |
| |
before, and approved by a resolution of, the Scottish Parliament. |
| |
(3) | The Welsh Ministers may not make a statutory instrument containing |
| 40 |
regulations under section 31 unless a draft of the instrument has been laid |
| |
before, and approved by a resolution of, the National Assembly for Wales. |
| |
|
| |
|