20.These two sets of Regulations deal with Direct Payments for farmers. SI 2020/475 exempts farmers in England from the need to follow crop diversification requirements in order to receive Direct Payments for 2020. The Department for Environment, Food and Rural Affairs (Defra) explains that the crop diversification requirement is removed for 2020 only, in response to the recent prolonged period of wet weather and the flooding from Storm Ciara and Storm Dennis which have made it difficult for farmers to access their land and to plant. Failure to meet crop diversification requirements usually make a claim ineligible for the greening element of Direct Payments, which accounts for around 30% of the total value of payments, but SI 2020/475 ensures that farmers in England will not be required to plant more than one crop for the 2020 Direct Payments scheme year. As the instrument has been laid under the urgent ‘made affirmative’ procedure, it needs to be approved by Parliament within 28 days of having been made to remain in force. It is linked to SI 2020/463 which needed to come into force before Defra exercised powers under retained Direct Payments legislation to make the exemption under SI 2020/475. Defra explains that this is because EU law governing the 2020 Direct Payment schemes was originally incorporated into UK law on exit day, rather than at the end of the Implementation Period. SI 2020/463 ensures that regulations made under powers in retained Direct Payments legislation during the Implementation Period are treated in the same way as regulations under powers in retained EU law under the European Union (Withdrawal) Act 2018.
21.This instrument increases the rates that the NHS pays to care homes to cover the costs of services that must be carried out by a registered nurse (“the FNC rate”). (Accommodation and social care costs are the responsibility of either the local authority and/or the individual, subject to the outcome of a needs assessment and financial assessment). The appropriate level of payment has been contentious. Our 47th Report of Session 2017–19 provided additional information on the issues of concern in relation to SI 2019/789 which set the payments as £165.56 per week for the flat rate payment and £227.77 per week for the high band payment for financial year 2019–20.
22.The Explanatory Memorandum accompanying these new Regulations explains that the 2019–20 FNC rate was challenged. Following a review, the Department of Health and Social Care (DHSC) has removed the limits on the use of agency nurses and the 3.1% required efficiency gain, and increased the rate in line with the recommendations of an independent study produced by LaingBuisson. In consequence, the NHS-funded Nursing Care flat rate for 2019–20 has been increased to £180.31, (which is an increase of £14.75 per week on the rate set in SI 2019/789) and the high band payment to £248.06. This uplift will be dealt with administratively by NHS England and Improvement.
23.The new Regulations therefore act on the revised 2019–20 rate to increase the rate for 2020–21 in line with NHS wage inflation at 2%, that is, to £183.92 per week for the flat rate payment and £253.02 for the high band payment. DHSC state that although the legislation will take effect on 20 May 2020, the revised rates for 2020–21 will be backdated to 1 April 2020.
8 See on page 1 and Appendix 1 of , Session 2017–19 (HL Paper 354).
9 These payments will be made under section 2 of the NHS Act 2006, which is a power for the Secretary of State, NHS England or Clinical Commissioning Groups to “do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any function conferred on that person by this Act”.