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PERSONAL SOCIAL SERVICES (AMENDMENT) BILL

EXPLANATORY AND FINANCIAL MEMORANDUM

Introduction

  1. This Explanatory and Financial Memorandum relates to the Personal Social Services (Amendment) Bill. It has been prepared by the Department of Health, Social Services and Public Safety in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.

  2. The Bill places the new responsibilities on "an authority". This term is defined in the Bill as meaning either an HSS Board or a Trust, though in practice it will mean an HSS Trust in virtually all cases. This memorandum therefore refers throughout to assessments and services being provided by HSS Trusts.

  3. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require explanation or comment, none is given.

    4. Background and policy objectives

  4. Carers play a vital role looking after those who are sick, disabled, vulnerable or frail. It is estimated that there are 250,000 carers in Northern Ireland and that 18 per cent of households here contain a carer. Without this extensive caring, many more elderly, frail, sick or disabled people would need the support of the statutory services and might need to enter a residential or nursing home or go into hospital.

  5. The Bill has three main objectives. First, it is proposed to give HSS Trusts the power to supply services, which will help the carer to care for the person being cared for, directly to carers themselves following assessment. This change will include a new statutory right to a carer's assessment which, in particular, will allow for an assessment to be carried out in circumstances even where the person cared for has refused an assessment for, or the provision of, personal social services.

  6. Secondly, it is proposed to give HSS Trusts the power to make direct payments to carers (including 16 and 17 year old carers) for the services that meet their own assessed needs; to people with parental responsibility for disabled children and to 16 and 17 year old disabled children for services that meet their own assessed needs.

  7. Extending the direct payments legislation to carers will enable them to make more choices for themselves and to have more control over their lives. The extension of direct payments to 16 and 17 year old carers is designed to offer them additional flexibility in meeting their developmental needs. The responsibilities of people with parental responsibility for disabled children are sometimes made more arduous by the difficulty they have in accessing mainstream services such as child care and leisure activities. Direct payments offer these carers more choice in the way services are delivered. The extension of direct payments to 16 and 17 year old disabled children may be helpful where those children are intending to leave home or residential care to go into further or higher education.

  8. Thirdly, it is proposed to give HSS Trusts the power to run short-term break voucher schemes. Voucher schemes are designed to offer flexibility in the timing of carers' breaks and choice in the way services are delivered to the person cared for while his or her usual carer is taking a break.

    9. Additional provisions in relation to direct payments

  9. It is proposed to require HSS Trusts to make a direct payment in cases where someone who has been assessed as needing services requests a direct payment and where he or she meets the conditions for receipt of a direct payment. At present HSS Trusts have the power to make a direct payment in these cases but they are not required to do so.

  10. It is further proposed to allow a direct payment to be made to a disabled parent for children's services so as to help the disabled person in their parenting role. Allowing direct payments for children's services would give disabled parents more choice and control in meeting their parenting needs. Currently direct payments can only be made to meet the assessed needs of the disabled parent.

  11. Finally, it is proposed to make direct payments available to people who have been assessed as needing a service even if it is on a short-term basis, for example for rehabilitation after a stay in hospital.

    12. Consultation

  12. A consultation document, entitled "Proposals for a Carer's and Disabled Children Bill" (the original title given to this Bill) was issued to a wide range of interested parties in March, with a closing date for comments of 18 May 2001. Responses to the consultation indicated a broad welcome for the proposals, particularly from organisations representing carers.

    13. Options considered

  13. Options considered included the exploration of the possibility of introducing the proposed measures by Departmental direction to HPSS bodies, but this was rejected in favour of the conferral on service users of a statutory right, and the imposition of statutory duties on HPSS bodies. Bodies representing carers are strongly in favour of the conferral of a statutory right to an assessment.

    14. Overview

  14. The Bill has 10 clauses, and is to be read as one with the Health and Personal Social Services (NI) Order 1972 for the purposes of interpretation.

    15. Commentary on clauses
    Clause 1 - Right of carers to assessment

    Clause 1(1) provides that a person who is a carer has the right to have an assessment of his own ability to provide (and to continue to provide) care for the person cared for. That assessment will enable HSS Trusts to decide what services, if any, should be provided direct to the carer under clause 2 of this Bill.

    Clause 1(2) similarly provides for an assessment of a carer's ability to care but, in this case, it is used to inform an HSS Trust's decision on what personal social services should be provided to the person cared for under the Health and Personal Social Services (Northern Ireland) Order 1972.

    The clause applies only if the carer provides care on an informal basis (see clause 1(3)). Also, a carer is defined in clause 8(1) as an individual who provides or intends to provide a substantial amount of care on a regular basis for the person cared for.

    The duty to take into account the ability of a carer of a disabled person, under section 8 of the Disabled Persons (Northern Ireland) Act 1989, is disapplied provided an assessment in respect of the carer has been done under this Act (clause 1(6)).

    Clause 2 - Services for carers

    Clause 2(1) enables an HSS Trust, for the first time, to provide services directly to carers following a carer's assessment under clause 1. The assessment must be considered and a decision taken as to whether the carer has any needs in relation to the care which he provides for the person cared for. The HSS Trust must then decide whether or not it can provide services to meet those needs.

    Services to carers are not defined in the Bill, and an HSS Trust is empowered to provide any services which in its view will help the carer care for the person cared for (clause 2(2)). Those services may take the form of physical help, for example assistance around the house, or other forms of support such as training or counselling for the carer.

    Sometimes there will be services which, although they are provided to the carer, could be delivered to the person cared for by way of personal social services under the Health and Personal Social Services (Northern Ireland) Order 1972. Such services may be delivered to the person cared for if both the carer and the person cared for agree but may not, except in prescribed circumstances, include anything of an intimate nature (clause 2(3)). What is, or is not, a service of an intimate nature may be prescribed in regulations (clause 2(4)), but might include dressing, feeding, lifting, washing or bathing the person cared for.

    Charges may be made under clause 2(5) for services provided to carers.

    Personal social services are provided to "persons in need" under the Health and Personal Social Services (Northern Ireland) Order 1972, and the definition of that term is very broad. Subsection 2(6) is to ensure that all assessed services to carers are provided only under this Bill and not under the 1972 Order.

    Subsections (7) to (10) covers the situation where there is a need for services which could be provided either by way of carers' services to the carers under this clause or as personal social services to the person cared for under the Health and Personal Social Services (Northern Ireland) Order 1972. A decision must be made as to whom the services are to be provided, and that decision must be made without regard to the means of the carer or of the person cared for. This will ensure that the decision is based on assessed need. The recipient of the service is the person who will be liable for any charges, and who may complain in relation to the service in question.

    Clause 3 - Vouchers

    This clause enables the Department to make regulations which will allow HSS Trusts to issue vouchers for short term breaks. Vouchers are defined in subsection (2) and will enable the person cared for to arrange for someone to provide services for him, in place of the care which would otherwise have been provided to him by the carer (either at home or in residential accommodation) while the carer takes a break from caring. It is intended that the regulations will include provision for vouchers expressed either in terms of money, or for the delivery of a service for a period of time.

    Clause 4 - Assessments: persons with parental responsibility for disabled children

    Clause 4 inserts a new Article 18A into the Children (NI) Order 1995 (the 1995 Order).

    The new Article 18A(1) requires an authority to carry out an assessment, on request, of the ability of a person with parental responsibility for a disabled child to provide (and to continue to provide) care for the child. (An "authority" is defined in Article 2(2) of the 1995 Order as meaning an HSS Board, except where a function is exercisable by a Trust. As with other responsibilities under this Bill, those which are being inserted into the 1995 Order will in practice be exercised by HSS Trusts.) The authority must take that assessment into account when deciding what services, if any, to provide under Article 18 of the 1995 Order.

    Article 18A(2) requires an authority, when carrying out an assessment of the needs of a disabled child under the 1995 Order or section 2 of the Chronically Sick and Disabled Persons (NI) Act 1978, to carry out also, if requested by the child's carer, an assessment of the ability of the carer to provide and continue to provide care for that child. The authority must take the assessment into account in deciding what services to provide. This paragraph only applies if the care is being provided on an informal basis.

    In Article 18A, a carer is someone who provides a substantial amount of care on a regular basis for a child (paragraph (7)).

    Clause 5 - Vouchers for persons with parental responsibility for disabled children

    Clause 5 inserts a new Article 18B into the 1995 Order. The new Article provides for the Department to make regulations allowing the introduction of a voucher scheme for persons with parental responsibility for a disabled child to take a break from caring in the same way as for carers of adults.

    Clause 6 - Direct payments

    Direct payments are cash payments given to persons in lieu of services that would otherwise have been arranged for them by HSS Trusts, so that they may arrange the provision of their own services. Direct payments allow greater flexibility for service users, allowing them to make arrangements with providers of their choice and at times convenient to them.

    Clause 6(1) and (2) makes provision for the Department, by regulations, to introduce a scheme of direct payments for persons receiving personal social services under the Health and Personal Social Services (Northern Ireland) Order 1972, or for services to carers under clause 2(1) of this Bill. The existing provisions for direct payments are repealed by the Schedule to the Bill.

    Regulations may also provide (clause 6(3)) for the detail of how the scheme will operate, circumstances in which direct payments are not authorised or required, conditions to be complied with by payees, and for 'recovery of charges' according to means. Since the cost of some services provided directly by Trusts are currently partly recoverable following a means assessment, this provision puts those receiving direct payments onto the same footing. What is meant by "gross" and "net" payments is covered in clause 6(4) and (5), which allows flexibility in the method of payment where someone is assessed as having to contribute to the cost of the services provided to them. Persons could be paid the cost of obtaining a service with the recovery of a contribution being made later, or paid the cost of the service less the assessed contribution - "gross" and "net" payment respectively, depending on individual circumstances.

    The regulations may also provide that direct payments may only be paid for residential accommodation for a limited time (clause 6(6)).

    Clause 7 - Direct payments in respect of children

    Clause 7 inserts a new Article 18C into the 1995 Children Order, which permits a similar scheme of direct payments to that introduced by clause 6 of the Bill for adults and described above in paragraphs 30 to 33. The persons covered by the new Article are (a) someone with parental responsibility for a disabled child, (b) a disabled person with parental responsibility for a child and (c) a disabled child aged 16 or 17.

    Like the scheme for adults, contributions towards the costs of services may be recovered, according to the means of the payee. Again, flexibility as to whether payments are made gross or net of assessed contributions can be included by regulations covering the detail of the scheme.

    Paragraphs (6) and (7) of new Article 18C specify the persons (subject to regulations) from whom a contribution will not be required. They are (a) a person with parental responsibility for a disabled child, or a disabled person with parental responsibility for a child, where the child is aged 16 or 17 or (b) a person who is in receipt of income support, working families' tax credit or a disabled person's tax credit under Part VII of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 or of an income-based jobseeker's allowance.

    Clauses 8 and 9

    These two clauses provide for interpretation, regulations and commencement.

    Financial Effects of the Bill

  15. The proposals are expected to be broadly cost neutral. An assessment of the needs of the carer and the services which are likely to allow him or her to provide, or continue to provide, care should save money in the long run. The collapse of informal caring arrangements can result in admission to residential or nursing home care which will be more expensive in the longer term.

    16. Effects on equal opportunity

  16. The provisions in the Bill should have a positive impact in terms of reducing social exclusion and providing equality of opportunity, in that they will enable the carer to be assisted in the tasks and responsibilities associated with caring for someone in the community. Any assistance to the carer will enable the person cared for to remain in the community rather than enter a residential or nursing home.

    17. Human Rights Issues

  17. No human rights issues are involved.

    18. Equality Impact assessment

  18. The impact of the Bill on equality of opportunity as between those groups listed in section 75 of Northern Ireland Act 1998 has been considered, and no adverse or differential effects have been identified.

    19. Summary of the regulatory appraisal

  19. The Bill has no impact on business.

    20. Legislative Competence

  20. The Minister of Health, Social Services and Public Safety has made the following statement under section 9 of the Northern Ireland Act 1998:

"In my view the Personal Social Services (Amendment) Bill would be within the legislative competence of the Northern Ireland Assembly."