Select Committee on Delegated Powers and Regulatory Reform Ninth Report



Memorandum by the Department of Health


1.  The Community Care (Delayed Discharges etc.) Bill received its first reading in the House of Lords on 16 January 2003. This memorandum identifies the provisions which enable delegated legislation to be made, explains why delegated legislation is appropriate, what the intention is in relation to the exercise of the powers and explains why the parliamentary procedure in relation to that legislation is appropriate.


2.  The Bill sets up a structure which is designed to produce more effective joint working between local authorities and NHS bodies where a person is ready, or nearly ready to be discharged from hospital. It is intended to produce a system where an individual receives community care services when and where he needs them, rather than inappropriately remaining in a hospital bed. The system is also intended to ensure that the individual's carer will receive any carers' service which is needed in order for the individual to be safely discharged. Part 1 of the Bill introduces a system of reimbursement for the costs to the NHS of providing bed, board and personal care to an individual when a hospital discharge is delayed at the point where responsibility for an individual's care should have transferred from the NHS to local authority social services. Part 2 of the Bill will allow certain social care services to be provided by local authorities free of charge.

3.  In summary, Part 1 will-

·  Introduce a new duty upon the responsible NHS body to notify the relevant local authority where they consider it likely that an individual will not be able to be safely discharged from hospital without one or more community care services being provided.

·  Place a duty on the local authority to assess a patient's need for community care services, or his carer's need for services before he is ready for discharge, and in consultation with the responsible NHS body, to go on to decide which of those services it will make available upon the patient being discharged.

·  Require the NHS body providing or arranging the hospital care and any NHS body which will provide services after discharge to consult the responsible local authority before deciding what services the NHS will make available to the patient upon discharge.

·  Require the NHS to give the local authority advance notice of the day on which it proposes to discharge the patient.

·  Require a local authority to make delayed discharge payments where the only reason that the patient's discharge has been delayed is that the local authority have not fulfilled their responsibility either to assess the patient's needs or to provide those community care services it decided to make available, or to provide the services for the carer it decided to make available.

·  Provide for regulations to be made that can require each Strategic Health Authority to establish a panel to assist in the resolution of any disputes that may occur under Part 1 of the Bill between two or more public authorities.

4.  Part 2 will-

·  Enable the Secretary of State and National Assembly for Wales to make regulations requiring certain community care services and carers' services to be provided free of charge.

5.  Part 3 will-

·  Deal with commencement of Part 1 of the Bill, and will allow the appropriate Minister to appoint by statutory instrument the day on which provisions in Part 1 of the Bill will come into force.


6.  All provisions in the Bill apply to England and Wales only. Part 2 of the Bill will apply to England and Wales and will come into force on the day that the Bill receives Royal Assent.

7.  Clause 5 (regarding disputes as to ordinary residence) gives the Secretary of State and the National Assembly for Wales the power to determine a patient's ordinary residence. The Secretary of State and the National Assembly for Wales must agree between themselves as to which of them will deal with disputes as to ordinary residence where there are cross border disputes. Clause 7 gives a power to make regulations to allow for adjustments to be made between local authorities where the wrong local authority was notified about the patient's case under section 2, and therefore wrongly incurred costs in relation to that patient.

8.  Clause 6 empowers the appropriate Minister (meaning the Secretary of State in the case of England and the National Assembly for Wales in respect of Wales) to require the setting up of dispute resolution panels, and includes powers to set out the constitution of the panels and to deal with cross border issues.

9.  Clause 8 of the Bill gives the appropriate Minister the power to make any regulations under Part 1 of the Bill. Clause 11 of the Bill empowers the appropriate Minister to extend by order Part 1 of the Bill to NHS patients in care homes.

10.  Clause 12 of the Bill gives the Secretary of State the power to make regulations to require that the provision of any qualifying service (as defined in subsection (3)) be made free of charge, and clause 13 gives an equivalent power to the National Assembly for Wales to make such regulations in relation to local authorities located in Wales.


11.  In considering whether matters should be specified on the face of the Bill or dealt with in delegated legislation the Department has taken account of the need to ensure that:

·  The overall legislative framework and the substantive policy provisions are presented clearly on the face of the Bill but that the Bill is not weighed down with technical matters; and

·  The provisions of the Bill contain sufficient flexibility to allow detailed administrative arrangements to respond to changing circumstances.


12.  Regulations and orders will be statutory instruments.

13.  Statutory Instruments made by the Secretary of State will be subject to the negative resolution procedure. Reliance upon the negative procedure reflects the Department's view that the relevant matters are of administrative or procedural or technical detail. The Department will be consulting fully on the Regulations and these will be available in draft form shortly. Regulations and orders made by the National Assembly for Wales (NAW) will be subject to the NAW's own procedures as provided for in its Standing Orders under the Government of Wales Act 1998.


Clause 1: Type of care received

14.  The regulation-making power in this clause has been taken in order to specify the patients who come within the scope of the Bill. This is in line with the government's intention to apply the reimbursement system gradually. The regulations will prescribe that qualifying patients are patients receiving acute care, which will include acute care given in geriatric beds, but which will exclude mental health, learning disability, rehabilitation, maternity and GP-led care (and other care provided in community hospitals). The regulation making power also reflects the fact that NHS legislation does not refer in any detail to particular kinds of care which can be provided by hospitals. The types of care, which can be provided in hospital, can, accordingly, change over time without the need to change any primary legislation. We need to ensure that the system of charges introduced by the Bill remains appropriate and we think that prescribing certain kinds of care is the most appropriate way to do this.

15.  The Department considers that (in relation to England) the negative resolution procedure is appropriate. The principles of the scheme are set out in the Bill, and it is the particular kind of hospital care to which the scheme will relate which will be set out in the regulations.

Clause 2(4)(a): Form and content of notice of likely need and manner in which given

16.  This power enables the details of what needs to be included in a notice and the form it will take to be set out in regulations. These are matters of detail which are appropriate for secondary legislation and which (for England) are appropriate for the negative procedure The intention is that the notice given by the NHS body will be brief, but will contain all necessary information. At the moment the notice is intended to contain the patient's name and location, the name of the NHS contact, the date of admission if this has not yet occurred, and the expected discharge date (if known). As experience is gained it may be that further (or other) information would be useful and so regulations would give flexibility to ensure that the system works properly.

17.  We do not currently think that notice need be given in a formal letter. It could be given in a fax or an email or in an update to a shared database. In many cases the social workers who are to be notified will work within the hospital and/or be part of the multi-disciplinary team who are part of the hospital's discharge planning process. The regulations will prescribe that notice is given in a written, dated form, but we need to ensure that we can keep up with modern methods of communication and with communication methods which are favoured by the NHS and local authorities.

Clause 2(4)(b): Circumstances for withdrawal or cancellation

18.  There may be occasions when notice of likely need is no longer necessary. The circumstances which the regulations will need to cover will include:

·  the death of the patient, when it will be necessary to provide that that the notice ceases to have effect;

·  an improvement of the patient's health such that it is thought the person no longer needs community care services in order to leave hospital safely.

·  a relative or carer offering to provide the support needed after discharge. So, for example, community care services may not be needed after all, or carers' services may be needed instead;

·  cancellation or postponement by the NHS or the patient of either the admission, or of treatment;

·  a change in the patient's ordinary residence (or the NHS body's understanding of the patient's ordinary residence) after the section 2 notice has been given (e.g. the patient's partner, carer or relative with whom they live moves house) so that a different local authority becomes responsible.

Clause 3(10)

19.  The regulations under Clause 3(10) are intended to add details to the obligation set out in clause 3(9). The regulations will set out the time when a notice of discharge is to be given by the NHS, the form and contents of that notice, and the manner in which it shall be given and when such a notice should be withdraw or will cease to have effect. These are all matters of detail which the Department considers (like section 2 notices) should be dealt with in secondary legislation.

Clause 3(10)(a): Time at which notice is given of intention to discharge

20.  The regulations will state that the hospital must notify the relevant local authority of the intention to discharge a patient at least one day before the proposed discharge date. This will prevent local authorities having to provide social care services immediately following a last minute notification (e.g., if the patient makes a rapid recovery and the NHS decides late in the day that a patient may be safely discharged that same day the local authority will not be required immediately to provide the community care services or carers' services it has said it will provide).

21.  Without this, the local authority could receive notification of proposed discharge on the same day that the discharge takes place, and not be able to provide services in time. Especially with an elderly patient receiving emergency treatment for an uncomplicated case, for example a broken arm, the local authority could receive the section 2 notice at the same time, or nearly, as the notice of proposed discharge day. While the minimum interval provided under Clause 4(3) means that charging could not start until three days after section 2 notice has been given, a regulation to provide 24 hours notice of discharge would provide a further safeguard that local authorities have fair warning of the likely need to provide services. Again we will need to keep the system under review to ensure that it is fair and is working as intended, and secondary legislation is the most appropriate method to do this.

Clause 3(10)(b): Form of notice of intention to discharge and manner in which given

22.  The regulations will prescribe that the notice needs to contain the patient's name and location, the name of the NHS contact and the proposed date of discharge. Although the regulations will require the notice to be in writing, it does not need to be a letter but could consist of a fax or an email alerting social services to an update of a shared database. The regulations will also prescribe that the notice should state that it is a formal notice under this section and supersedes any informal assessment of probable discharge date that the NHS may have given to social services earlier.

Clause 3(10)(c): Circumstances for withdrawal or cessation of effect of notice

23.  There will be occasions where it is necessary to withdraw the notice, or where the notice should cease to have effect. The circumstances which the regulations will cover will include:

·  the death of the patient;

·  the deterioration of the patient's health so the NHS decides they are unfit for discharge on the proposed day and treatment should continue.

Clause 4(2)(b): Minimum compliance period

24.  This subsection provides that charging for a delay cannot start until after a minimum period has elapsed from the date on which social services were asked to assess for community care services. This minimum period must be at least two days (see subsection (3)).

25.  The two day minimum starts on the day after section 2 notice has been given. This means that a period of at least three days is provided for on the face of the Bill before delays become chargeable. But this regulation making power means that the actual period, which could be a longer period, will be specified in regulations. At the moment the intention is that the regulations will prescribe 2 days as the minimum period, but this may need to change in light of experience. In our view this is appropriate for secondary legislation and (for England) appropriate for negative procedure regulations.

Clause 4(4): Amount of payment per day

26.  The regulations will state the actual amounts payable per day in the different payment bands. The amounts suggested in the consultation were £120 for the higher rate and £100 for the lower rate. The basic rate is calculated with reference to the average daily cost of treating patients in a nursing-led facility, after removing the costs of capital, medical input, special nursing and indirect overheads, in order to reflect the lower costs of care at the end of an episode of treatment. The higher rate is then calculated using an average of all local authority Area Cost Adjustments for elderly residential and domiciliary care in England.

27.  It is intended that the rate should be adjusted annually in line with inflation. The areas covered by either rate may also be adjusted in line with the annual update of the Area Cost Adjustments and when reviews of the ACA methodology occur. Accordingly regulations are appropriate. The Department also considers that, although the regulations deal with amounts of money, negative procedure regulations are appropriate, as this is a matter of setting rates of payment, rather than setting out any wider principle or liability for making a payment.

Clause 4(8)(a): Days of delay which may be disregarded

28.  The intention is that regulations will provide for various cases when the delay should not count for charging purposes. These are technical matters and are appropriate for secondary legislation. We will need to evaluate how the system works in practice and may need to make appropriate changes to fine tune the system. Regulations will, for example, deal with the following matters:

·  if a local authority fulfils its duties by 11am on the day after the proposed discharge day, or by 11am on the day after the last day of the minimum compliance period, that day should not count as a delay for the purposes of charging. However, if the local authority does not fulfil its duties by 11am and the delay then continues further, all days after the proposed discharge day or the last day of the minimum compliance period will be chargeable;

·  if during the "delayed discharge period" the medical condition of a patient deteriorates and he is no longer medically safe for discharge, any days on which the patient remains in this condition should not count as a delay for the purposes of charging. Any days prior to this change continue to count as delays.

29.  The provision of a minimum compliance period on the face of the Bill (three days, i.e. starting from the day the section 2 notice is given plus a further two days), means that any days during which a patient is medically safe for discharge but the minimum period has not yet elapsed, do not count for charging purposes.

Clause 4(8)(b): Define circumstances in which delayed period ends

30.  The regulations will allow for circumstances in which the delayed discharge period ends. Again these are detailed matters which may need to be fine tuned in light of experience, and are appropriate for secondary legislation. For example, this will need to cover

·  the death of the patient;

·  where a relative or carer takes responsibility for the patient such that social services no longer needs to provide any services ;

·  where the patient discharges himself;

·  where the patient suffers from significant new medical circumstances and requires a new course of treatment in hospital.

Clause 4(8)(c): Define day on which hospital notifies local authority of need to assess (section 2 notice)

31.  The regulations are intended to deal with the detail of when a section 2 or 3(9) notice is actually to be regarded as having been given. This is to cover cases where (for example) a notice is given late in any particular day. For example it is intended that regulations will prescribe that a section 2 notice given after 2pm does not count as being given until the following day and that a section 3(9) notice given after 5pm is to be regarded as not given until the following day. Again, these are matters of detail appropriate for secondary legislation.

Clause 4(8)(d): Define day on which discharge occurs

32.  It is intended that the regulations will make provision along the lines of a patient being regarded as discharged if community care services are in place by 11am. Also, the patient does not need to have left hospital premises to be regarded as discharged (for example, they may be waiting in a "discharge lounge" for hospital transport or pharmacy services). Provisions of this nature will be necessary to avoid confusion or dispute in cases where it is the actual discharge of the patient which ends the delayed discharge period. These are matters of detail and are appropriate for secondary legislation.

Clause 4(10): Define cases where payment is made other than to the responsible NHS body

33.  In some cases, an NHS patient may be treated in an independent hospital bed, the arrangements having been made by the Primary Care Trust or NHS (hospital) trust. These regulations will allow for the payment for the delay to be made in appropriate cases to the independent hospital, but not in cases where the contractual arrangements between the independent provider and the NHS commissioner have already made provision for delayed discharges payments to be made from the commissioner to the provider. The use of independent hospitals by the NHS is relatively new and it is thought that the contractual arrangements governing such relationships may differ from place to place and over time. Accordingly we propose a regulation making power so as to ensure the right result is achieved.

Clause 5(2)

34.  This subsection requires the Secretary of State and the National Assembly for Wales to make and publish arrangements for determining which disputes as to ordinary residence are to be determined by the Secretary of State, and which by the NAW. Because the disputes will arise between local authorities, who only need to know which of the two determining authorities to apply to for a determination, the Department has not thought it necessary for these arrangements formally to be the subject of regulations, but rather is of the view that an agreement between the two authorities will suffice.

Clause 6(1): Require Strategic Health Authorities to establish dispute resolution panels

35.  Each Strategic Health Authority will be required to establish a dispute resolution panel. The panel's role will be to review the evidence in cases of dispute between the NHS and local authorities with social services functions, for example about the readiness for discharge or the responsibility for the delay. Disputes between councils about ordinary residence are covered under the provisions in clause 5, which are similar to existing procedures. The local authority which received a section 2 notice from the NHS will still need to put in place arrangements to meet an individual's assessed needs for services within the time frame set out in legislation, even if a dispute is in progress, or face a payment.

Clause 6(2)(a): Constitution of panels

36.  The panel will consist of an independent chair, and representatives of the NHS and local authorities within that Strategic Health Authority area. The panel will seek information from the relevant professional staff (hospital, social services, PCT) and from the patient and family if appropriate.

37.  The regulations will provide for the constitution of the panel, for example that local authorities and the NHS are represented in equal numbers and that representatives of any organisation involved in the dispute(s) to be discussed at any meeting of the panel are excluded from the panel. These are matters of detail and are appropriate for secondary legislation.

Clause 6(2)(b): Define which disputes can be referred to the panel

38.  This regulation can ensure that only relevant disputes are referred for dispute resolution. It is intended that relevant disputes will include ones concerning, for example, whether a local authority did have the community care services ready and therefore should not have been charged for a delay by the NHS, or whether the real reason for the delayed discharge was that an NHS service had not been provided in time.

Clause 6(2)(c): Location of panel when disputes cross strategic health authority or local authority boundaries.

39.  The question as to which Strategic Health Authority is responsible for providing the panel to hear each particular dispute is covered by this regulation-making power. A dispute may arise involving different public authorities which are located in separate Strategic Health Authority areas. The regulations will provide that the area in which the hospital is located where the patient was being treated should be the one to assist in resolving any dispute which arises.

Clause 6(3): Prevent recourse to legal proceedings without prior panel hearing

40.  Regulations will provide that there can be no recourse to legal proceedings unless resolution between the parties via the panel has been attempted without success. The regulations will prescribe what sorts of dispute this prohibition is to relate to, and will set out those steps which must have been taken in relation to the panel before the parties may proceed to court. The broad intention is clear on the face of the legislation, and the regulations will be setting out matters of detail which again may need to be changed or updated in light of experience; the Department is again of the view that regulations made under the negative procedure are appropriate.

Clause 7(1)(a) and (b): Circumstances where ordinary residence of patient is uncertain or believed to be elsewhere

41.  In some cases, for example if a homeless person, someone who has been living with friends or relatives, or who is on holiday, is admitted to hospital, it may not be obvious where a patient is ordinarily resident. On other occasions, the NHS body may believe that a particular social services authority is responsible, and therefore issue a section 2 notice to them, but the social services authority does not accept they are the responsible authority. The regulation-making powers in this clause cover these situations, in order to prevent patients from being delayed in hospital while the correct responsible local authority is determined, or while disputes about ordinary residence are settled. Regulations are appropriate because there will be different circumstances, which will require different answers, and matters of detail will need to be dealt with.

Clause 7(2)(a): Duty of such a local authority to accept notice

42.  Under this power, it is intended that regulations will provide that the social services authority which receives a section 2 notice from an NHS body must accept it - and therefore begin the assessment and planning process, or risk paying a charge if discharge is delayed, even if it disputes it is the responsible local authority. The local authority must therefore provide community care services to an individual while a dispute about its responsibility to do so is ongoing.

Clause 7(2)(b): Duty of a different local authority to take over responsibility

43.  If it becomes clear, for example following a determination by Secretary of State or the Assembly (see Clause 5), that the wrong local authority has been undertaking the duties set out in clause 3, the power in this subsection allows regulations to provide that the correct local authority must take over responsibility. This will apply if the true local authority of ordinary residence is established while the patient is still in hospital. These will be technical and detailed rules and accordingly are appropriate for secondary legislation. We also need to ensure that there is sufficient flexibility to ensure that all cases are covered, particularly as experience of operating the scheme is gained.

Clause 7(2)(c): Authorisation of a wrongly notified local authority to reclaim certain costs

44.  If responsibility for an individual has transferred from one local authority to another, this subsection allows regulations to be made to enable the first local authority to recover the costs of assessment and of providing community care services (if any), from the second authority.

Clause 7(3): Modifying the effect of any provision of Part 1 in certain circumstances

45.  Under the provisions of this Part of the Bill, the responsible authority is defined as the local authority to which the notice under section 2 is given (Clause 2(6)). That notice must be given to the authority which appears to the NHS body to be the one in which the patient is ordinarily resident when the notice is given (Clause 2(2)). However, because the regulations also need to cover what should happen if either the notice has in fact been given to the wrong authority, or a person's ordinary residence changes while he is in hospital, the power needs to flexible enough for the strict definition to be modified in certain cases. This regulation-making power will enable the modification of the definition of 'responsible authority' so that it will not be open to a local authority in which in fact a patient is ordinarily resident upon discharge to argue that it cannot be the responsible authority because it did not receive the section 2 notice.

Clause 11: Power to extend Part 1 to apply to NHS patients in care homes

46.  At the moment the legislation is only intended to apply only to acute care received in the acute or geriatric setting, and not to intermediate care, which may be provided in care home. But the government may wish to extend the scope of the provisions to intermediate care in due course. Since the fundamental structure of the Bill is easily applied to the care home setting we consider that it would be appropriate to make such an extension through secondary legislation. The Department thinks that (as respects England) the negative procedure is appropriate, as this merely involves the extension of the principles of the Bill to a different type of qualifying person. The order-making power is not without limitation. It can only be used as respects care which is similar to the care which is provided in a hospital (see subsection (4)). So it will not apply to residents of care homes who are not receiving intermediate care in care homes.

12(1): Free provision of community care services

47.  The regulations in this subsection will prescribe community equipment and intermediate care as qualifying services which will be made free of charge to the individual, or to the carer to assist in providing care. Community equipment (the provision of aids and minor adaptations by social services) will be defined broadly in regulations, emphasising that it includes equipment for home nursing and aids to daily living, to support both physically and/or sensory impaired people, to perform key activities of daily living and promote independence. The regulations will not include a list of community equipment services, as this would quickly date and could restrict local authorities' ability to provide the service which is appropriate to a particular individual. The regulations will also define minor adaptations by reference to a (current) upper limit of £1,000 for free services, to distinguish from those services provided under the Disabled Facilities Grant, which provides funds for major adaptations or installations within the individual's home.

48.  Intermediate care is defined as a time limited service of up to six weeks, targeted at people who otherwise would remain in hospital or unnecessarily enter hospital. The services should be provided on the basis of a comprehensive assessment and involve active therapy and opportunity for recovery, with a planned outcome that enables people to maximise their independence (and return home wherever possible). Intermediate care is never long term care.

49.  It is appropriate to deal with these matters in regulations since-

- in the case of residential accommodation, the details of the charging scheme are already set out in regulations (made under section 22 of the National Assistance Act 1948)(see the National Assistance (Assessment of Resources) Regulations 1992 (S.I. 1992/2977)), and the matters to be dealt with are matters of details,

- in the case of charging for other services the primary legislation simply gives authorities a discretion to charge (see section 17 of the Health and Social Services and Social Security Adjudications Act 1983) and this discretion is to be removed in the circumstances set out in the regulations. These circumstances will be technical matters and may be subject to change as social services provision changes.

12(2)(a): Circumstances of free provision

50.  This regulation-making power allows for provision that any services provided are relevant to the assessed community care need.

12(2)(b): Time limit on free provision

51.  For intermediate care, up to six weeks care may be provided free of charge. There will be no time limit on the provision of community equipment, which will be free to the user for as long as the equipment is needed.

12(5): Varying arrangements for different types of service and transitional arrangements

52.  These provisions are necessary to ensure that the change from charging for services to providing the services free of charge is smooth, by enabling consequential or transitional provisions to be made. It also prevents the Secretary of State having to make the same provisions for all qualifying services, so that different types of service can be dealt with in the appropriate manner.

13: Free provision of services in Wales

53.  Clause 13 gives the National Assembly for Wales power to make regulations concerning which community care services or services to carers are to be provided free of charge, subject to the general constraints imposed by Clause 12.

January 2003

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