Welfare Reform Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Welfare Reform Bill

Welfare Reform Bill
Part 2 — Disabled people: right to control provision of services
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Relevant services
(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.
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(2)
Those matters are—
(a)
the provision of further education for P;
(b)
facilitating the undertaking by P of further education or higher
education;
(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—
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(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. 16), and
(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).
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Relevant authority
(1)
In this Part “relevant authority” means—
(a)
a Minister of the Crown or government department;
(b)
the Scottish Ministers;
40
(c)
the Welsh Ministers;
(d)
a local authority;
(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.

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(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
funds.
5
(4)
In subsection (1)(d) “local authority” means—
(a)
a local authority within the meaning of the Local Government Act 1972
(c. 70),
(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
authority, or
(e)
the Council of the Isles of Scilly.
(5)
In subsection (2) “Minister of the Crown” includes the Scottish Ministers and
15
the Welsh Ministers.
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
person is entitled;
(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,
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take before, or after, the relevant authority makes a decision for the

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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
regulations.
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(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
authority.
(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.
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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
regulations.
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(2)
Direct payments regulations relating to a relevant service (“the qualifying
service”) of a relevant authority (“the providing authority”) may in
particular—
(a)
specify circumstances in which the providing authority is or is not
required to comply with a request for direct payments to be made
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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
payments is to be made;
(c)
make provision enabling a disabled person to require a providing
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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
them;
(d)
enable a disabled person to require a providing authority to comply
with a request to provide direct payments in place of the qualifying
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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
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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
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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.

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(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;
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(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
to the authority;
(f)
prescribe circumstances in which any sum is to cease to be payable by
virtue of paragraph (d);
(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
relating to—
(a)
what is or is not to be regarded as an equivalent service,
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(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
of the service, or
(e)
the provision of the service.
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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
decision concerned, and
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(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
that decision.
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Pilot schemes
(1)
Regulations to which this subsection applies may be made so as to have effect
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for a specified period not exceeding 36 months.

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(2)
Subsection (1) applies to regulations under section 31 that are made with a
view to ascertaining—
(a)
the extent to which their provisions contribute to achieving the purpose
of this Part,
(b)
the extent of any beneficial effects on the lives of the disabled people
5
affected, and
(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”.
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(4)
A pilot scheme may provide that its provisions are to apply only in relation
to—
(a)
one or more specified areas;
(b)
one or more specified classes of person;
(c)
persons selected—
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(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
similar provision.
(7)
The appropriate authority which made a pilot scheme must prepare and
publish a report on the operation of the scheme.
Supplementary
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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
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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).
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36
Regulations under section 31: supplementary provisions
(1)
Any power to make regulations under section 31 may be exercised—

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(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
purposes;
(c)
any such provision either unconditionally or subject to any specified
condition.
(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.
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(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
necessary or expedient;
(b)
to provide for a person to exercise a discretion in dealing with any
20
matter;
(c)
to amend or repeal an enactment whenever passed or made.
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Consultation
(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.
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(2)
In this section “the appropriate authority” is to be read in accordance with
section 35(2).
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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.