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Health and Social Care Bill


Health and Social Care Bill
Part 5 — Miscellaneous

90

 

(b)   

in relation to a body or other person within paragraph (i) of

subsection (2), means the body’s or person’s functions of

providing, or arranging the provision of, health services whose

provision is the subject of arrangements with a body or other

person within any of paragraphs (a) to (h) of that subsection.”

5

(5)   

In subsection (3)—

(a)   

in paragraph (b), after “body which” insert “, or other person who,”,

and

(b)   

in paragraph (c), after “Secretary of State” insert “(whether or not a

participator in the scheme and, if a participator, whether or not

10

required to make payments as a participator)”.

(6)   

For subsection (5) substitute—

“(5)   

The Secretary of State may make a direction under subsection (4) in

respect of a body only if the body is within any of paragraphs (a) to (d),

(f) and (g) of subsection (2).”

15

(7)   

After subsection (8) insert—

“(9)   

In subsection (2)(i), the reference to a person providing health services

does not include a person providing health services under a contract of

employment.

(10)   

In this section “health services” means services provided as part of the

20

health service.”

Weighing and measuring of children

137     

Weighing and measuring of children: England

(1)   

In Schedule 1 to the National Health Service Act 2006 (c. 41) (further provision

about the Secretary of State and services under that Act) after paragraph 7

25

insert—

“Weighing and measuring of children

7A    (1)  

The Secretary of State may, by arrangement with any local education

authority, provide for the weighing and measuring of junior pupils

in attendance at any school which is maintained by the authority.

30

      (2)  

The Secretary of State may, by arrangement with the proprietor of

any school which is not maintained by a local education authority,

provide for the weighing and measuring of junior pupils in

attendance at that school.

      (3)  

The Secretary of State may, by arrangement with any person who is

35

registered under Chapter 2 of Part 3 of the Childcare Act 2006 in

respect of early years provision, provide for the weighing and

measuring of young children for whom childcare is provided by that

person.

      (4)  

In sub-paragraphs (1) and (2) any expression to which a meaning is

40

given for the purposes of the Education Act 1996 or the School

Standards and Framework Act 1998 has the same meaning as in that

Act; and in sub-paragraph (3) any expression to which a meaning is

 
 

Health and Social Care Bill
Part 5 — Miscellaneous

91

 

given for the purposes of Part 3 of the Childcare Act 2006 has the

same meaning as in that Part.

7B    (1)  

The Secretary of State may by regulations—

(a)   

authorise the disclosure by any person with whom

arrangements under paragraph 7A are made, to any person

5

carrying out the weighing or measuring, of prescribed

information relating to the children concerned,

(b)   

require any weighing and measuring provided for by the

Secretary of State under paragraph 7A to be carried out in a

prescribed manner and after compliance with any prescribed

10

requirements,

(c)   

make provision authorising any resulting information

relating to a child, together with any advisory material

authorised by or under the regulations, to be communicated

in a prescribed manner to a person who is, or is treated by the

15

regulations as being, a parent of the child, and

(d)   

make other provision regulating the processing of

information resulting from any weighing or measuring

provided for by the Secretary of State under paragraph 7A.

      (2)  

Regulations made under sub-paragraph (1) may require any person

20

exercising functions in relation to any weighing or measuring to

which the regulations apply or in relation to information resulting

from such weighing or measuring to have regard to any guidance

given from time to time by the Secretary of State.

      (3)  

In sub-paragraph (1)(d), “processing”, in relation to information, has

25

the same meaning as in the Data Protection Act 1998.

      (4)  

Regulations under this paragraph cannot include provision by virtue

of section 272(8)(a) amending or repealing an Act.”

(2)   

Until the commencement of Chapter 2 of Part 3 of the Childcare Act 2006

(c. 21), the reference in paragraph 7A(3) of Schedule 1 to the National Health

30

Service Act 2006 (c. 41) (as inserted by subsection (1) of this section) to a person

registered under Chapter 2 of Part 3 of the Childcare Act 2006 in respect of

early years provision is to be read as a reference to a person registered under

Part 10A of the Children Act 1989 (c. 41) in respect of child minding or the

provision of day care (within the meaning of that Part).

35

138     

Weighing and measuring of children: Wales

In Schedule 1 to the National Health Service (Wales) Act 2006 (c. 42) (further

provision about the Welsh Ministers and services under that Act) after

paragraph 7 insert—

“Weighing and measuring of children

40

7A    (1)  

The Welsh Ministers may, by arrangement with any local education

authority, provide for the weighing and measuring of junior pupils

in attendance at any school which is maintained by the authority.

      (2)  

The Welsh Ministers may, by arrangement with the proprietor of any

school which is not maintained by a local education authority,

45

 
 

Health and Social Care Bill
Part 5 — Miscellaneous

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provide for the weighing and measuring of junior pupils in

attendance at that school.

      (3)  

The Welsh Ministers may, by arrangement with any person who is

registered under Part 10A of the Children Act 1989 (child minding

and day care for children in Wales) in respect of child minding or the

5

provision of day care, provide for the weighing and measuring of

children looked after by that person.

      (4)  

In sub-paragraphs (1) and (2) any expression to which a meaning is

given for the purposes of the Education Act 1996 or the School

Standards and Framework Act 1998 has the same meaning as in that

10

Act; and in sub-paragraph (3) any expression to which a meaning is

given for the purposes of Part 10A of the Children Act 1989 has the

same meaning as in that Part.

7B    (1)  

The Welsh Ministers may by regulations—

(a)   

authorise the disclosure by any person with whom

15

arrangements under paragraph 7A are made, to any person

carrying out the weighing or measuring, of prescribed

information relating to the children concerned,

(b)   

require any weighing and measuring provided for by the

Welsh Ministers under paragraph 7A to be carried out in a

20

prescribed manner and after compliance with any prescribed

requirements,

(c)   

make provision authorising any resulting information

relating to a child, together with any advisory material

authorised by or under the regulations, to be communicated

25

in a prescribed manner to a person who is, or is treated by the

regulations as being, a parent of the child, and

(d)   

make other provision regulating the processing of

information resulting from any weighing or measuring

provided for by the Welsh Ministers under paragraph 7A.

30

      (2)  

Regulations made under sub-paragraph (1) may require any person

exercising functions in relation to any weighing or measuring to

which the regulations apply or in relation to information resulting

from such weighing or measuring to have regard to any guidance

given from time to time by the Welsh Ministers.

35

      (3)  

In sub-paragraph (1)(d), “processing”, in relation to information, has

the same meaning as in the Data Protection Act 1998.

      (4)  

Regulations under this paragraph cannot include provision by virtue

of section 203(10)(a) amending or repealing an Act.”

Social care

40

139     

Human Rights Act 1998: provision of certain social care to be public function

(1)   

A person (“P”) who provides accommodation, together with nursing or

personal care, in a care home for an individual under arrangements made with

P under the relevant statutory provisions is to be taken for the purposes of

subsection (3)(b) of section 6 of the Human Rights Act 1998 (c. 42) (acts of

45

public authorities) to be exercising a function of a public nature in doing so.

 
 

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(2)   

The “relevant statutory provisions” are—

(a)   

in relation to England and Wales, sections 21(1)(a) and 26 of the

National Assistance Act 1948 (c. 29),

(b)   

in relation to Scotland, section 12 or 13A of the Social Work (Scotland)

Act 1968 (c. 49), and

5

(c)   

in relation to Northern Ireland, Articles 15 and 36 of the Health and

Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265

(N.I. 14)).

(3)   

In subsection (1) “care home”—

(a)   

in relation to England and Wales, has the same meaning as in the Care

10

Standards Act 2000 (c. 14), and

(b)   

in relation to Northern Ireland, means a residential care home as

defined by Article 10 of the Health and Personal Social Services

(Quality, Improvement and Regulation) (Northern Ireland) Order 2003

(S.I. 2003/431 (N.I. 9)) or a nursing home as defined by Article 11 of that

15

Order.

(4)   

In relation to Scotland, the reference in subsection (1) to the provision of

accommodation, together with nursing or personal care, in a care home is to be

read as a reference to the provision of accommodation, together with nursing,

personal care or personal support, as a care home service as defined by section

20

2(3) of the Regulation of Care (Scotland) Act 2001 (asp 8).

(5)   

Subsection (1) does not apply to acts (within the meaning of section 6 of the

Human Rights Act 1998 (c. 42)) taking place before the coming into force of this

section.

140     

Direct payments in lieu of provision of care services

25

(1)   

Section 57 of the Health and Social Care Act 2001 (c. 15) (regulations may

require or authorise direct payments to a person, with the person’s consent, in

respect of the person securing the provision to the person of certain care

services) is amended as follows.

(2)   

After subsection (1) insert—

30

“(1A)   

Regulations may make provision for and in connection with requiring

or authorising the responsible authority in the case of a person (“P”) of

a prescribed description—

(a)   

who falls within subsection (2)(a), and

(b)   

who falls within subsection (5A) or is reasonably believed by

35

the authority to fall within that subsection,

   

to make, with the requisite consent, such payments as the authority

may determine in accordance with the regulations to a suitable person

other than P in respect of the other person’s securing the provision for

P of the service mentioned in subsection (2)(a).

40

(1B)   

In subsection (1A) “the requisite consent” means—

(a)   

the consent of the other person; and

(b)   

where the other person is not a surrogate of P but there is at least

one person who is a surrogate of P, the consent also of a

surrogate of P.

45

(1C)   

For the purposes of subsection (1A), a person (whether or not an

individual) is “suitable” if—

 
 

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Part 5 — Miscellaneous

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(a)   

that person is a representative of P;

(b)   

that person is not a representative of P (or there is no-one who

is a representative of P), but—

(i)   

a surrogate of P, and

(ii)   

the responsible authority,

5

   

consider that person to be a suitable person to receive the

payments for the purpose of securing provision for P of the

service concerned; or

(c)   

that person is not a representative of P (or there is no-one who

is a representative of P), and there is no-one who is a surrogate

10

of P, but the responsible authority considers that person to be a

suitable person to receive the payments for that purpose.”

(3)   

In subsection (3) (provision which may be included in regulations under the

section)—

(a)   

in paragraph (a) (provision as to circumstances in which payments not

15

to be made), after “to a person” insert “or in respect of a person”,

(b)   

in paragraph (c)(i) (provision about determination of payee’s means),

after “the payee’s means” insert “in the case of direct payments under

subsection (1) or, in the case of direct payments under subsection (1A),

the means of the person (“the beneficiary”) in respect of whom the

20

payments are required or authorised to be made”,

(c)   

in each of paragraphs (d) and (e)(ii) (provision as to conditions to be

complied with by payee, and provision as to repayments by payee or

otherwise), after “payee” insert “in the case of direct payments under

subsection (1), or by the payee or by the beneficiary in the case of direct

25

payments under subsection (1A),” and

(d)   

after paragraph (h) insert—

“(j)   

as to matters to which the responsible authority must, or

may, have regard when making a decision for the

purposes of a provision of the regulations;

30

(k)   

as to steps which the responsible authority must, or

may, take before, or after, the authority makes a decision

for the purposes of a provision of the regulations;

(l)   

specifying circumstances in which a person who has

fallen within subsection (5A) but no longer does so

35

(whether because of fluctuating capacity, or regaining or

gaining of capacity) is to be treated, or may be treated,

as falling within subsection (5A) for purposes of this

section or for purposes of regulations under this

section.”

40

(4)   

In subsection (4)(b) (gross payments: condition that payee pays amounts by

way of reimbursement), after “payee” insert “in the case of direct payments

under subsection (1), or the beneficiary in the case of direct payments under

subsection (1A),”.

(5)   

In subsection (5) (payments made net on basis that payee will contribute to cost

45

of service)—

(a)   

in paragraph (a), after “the payee will himself” insert “in the case of

direct payments under subsection (1), or the beneficiary will in the case

of direct payments under subsection (1A),” and

(b)   

in paragraph (b), after “payee” insert “or (as the case may be) the

50

beneficiary”.

 
 

Health and Social Care Bill
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(6)   

After subsection (5) insert—

“(5A)   

A person falls within this subsection if the person lacks capacity, within

the meaning of the Mental Capacity Act 2005, to consent to the making

of direct payments.

(5B)   

In this section “representative”, in relation to a person, means such

5

other person (whether or not an individual) as may be prescribed.

(5C)   

In this section “surrogate”, in relation to a person, means—

(a)   

a deputy appointed for the person by the Court of Protection

under section 16(2)(b) of the Mental Capacity Act 2005, or

(b)   

a donee of a lasting power of attorney created by the person,

10

   

whose powers, as deputy or donee, consist of or include such powers

as may be prescribed.”

(7)   

After subsection (7) insert—

“(7A)   

For the purposes of subsection (3)(d), the conditions that are to be taken

to be conditions in relation to direct payments include, in particular,

15

conditions in relation to—

(a)   

the securing of the provision of the service concerned,

(b)   

the provider of the service,

(c)   

the person to whom payments are made in respect of the

provision of the service, or

20

(d)   

the provision of the service.”

(8)   

In section 64 of the Health and Social Care Act 2001 (c. 15) (regulations and

orders), after subsection (4) insert—

“(4A)   

A statutory instrument containing—

(a)   

regulations made by the Welsh Ministers under section 57, or

25

(b)   

regulations made by the Welsh Ministers under section 65 that

make provision for the purposes of, in consequence of or for

giving full effect to section 57,

   

is subject to annulment in pursuance of a resolution of the National

Assembly for Wales.”

30

141     

Abolition of maintenance liability of relatives

(1)   

The following provisions cease to have effect—

(a)   

section 43 of the National Assistance Act 1948 (c. 29) (recovery from

liable relative of local authority’s costs of assistance),

(b)   

in section 47(9) of that Act (liability of maintained person, or person’s

35

relatives, for expenditure incurred under section 47(8)), the words “or

from any person who for the purposes of this Act is liable to maintain

that person”,

(c)   

in section 48(3) of that Act (liability of person in hospital etc., or

person’s relatives, for costs of protecting person’s property), the words

40

“, or from any person who for the purposes of this Act is liable to

maintain him,”,

(d)   

in section 51(1) of that Act (offence where person fails to maintain

himself or any person he is liable to maintain), the words “or any

person whom he is liable to maintain for the purposes of this Act”,

45

 
 

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(e)   

in paragraph 19(1) of Schedule 6 to that Act (which ended a saved

liability to maintain a person where there was no liability to maintain

that person for the purposes of that Act), the words “whom he is not

liable to maintain for the purposes of this Act”,

(f)   

paragraph 19(2) of that Schedule (which gave continuing effect to

5

certain saved liabilities not ended by paragraph 19(1)), and

(g)   

in section 46(5) of the Public Health (Control of Disease) Act 1984 (c. 22)

(liability of person’s estate, or person’s relatives, for cost of burial or

cremation under the section), the words “or from any person who for

the purposes of the National Assistance Act 1948 was liable to maintain

10

the deceased person immediately before his death”.

(2)   

In section 29(4A)(c) of the National Assistance Act 1948 (c. 29) (which provides

for section 43 to apply where accommodation in a hostel is provided under

section 29(4)(c)), for “sections 32 and 43 shall apply as they apply” substitute

“section 32 shall apply as it applies”.

15

(3)   

In section 51(1) of that Act, for “, himself or any other person” substitute “him”.

(4)   

In section 87(3) of the Social Work (Scotland) Act 1968 (c. 49) (provision of

accommodation treated as being under Part 3 of the National Assistance Act

1948), for the words from “(as amended”, where first occurring, to “etc.)”

substitute “(as amended by any enactment within the meaning of the Scotland

20

Act 1998 (c. 46)) of the said Act of 1948”.

(5)   

In Schedule 1 to the Local Authority Social Services Act 1970 (c. 42) (definition

of “social services functions” for purposes of the 1970 Act), in the entry relating

to sections 43 to 45 of the National Assistance Act 1948, for “Sections 43 to”

substitute “Section”.

25

(6)   

The provisions of this section have effect subject to, and in accordance with,

Schedule 13.

142     

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

(1)   

In section 24 of the National Assistance Act 1948 (authority liable for provision

of accommodation) for subsections (6) and (7) substitute—

30

“(6)   

For the purposes of the provision of residential accommodation under

this Part, a patient (“P”) for whom NHS accommodation is provided

shall be deemed to be ordinarily resident in the area, if any, in which P

was resident before the NHS accommodation was provided for P,

whether or not P in fact continues to be ordinarily resident in that area.

35

(6A)   

In subsection (6) “NHS accommodation” means—

(a)   

accommodation (at a hospital or elsewhere) provided under the

National Health Service Act 2006 or the National Health Service

(Wales) Act 2006, or

(b)   

accommodation provided under section 117 of the Mental

40

Health Act 1983 by a Primary Care Trust or Local Health Board,

other than accommodation so provided jointly with a local

authority.”

(2)   

In section 32 of that Act (adjustments between authority providing

accommodation, etc., and authority of area of residence) for subsection (3)

45

 
 

 
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