2 Definitions
of the terms used in the proposed Order
The location
of definitions
72. The proposed Order is drafted so as to insert
a matter into Field 15 of Schedule 5 of the Government of Wales
Act 2006. Field 15 relates to social welfare, and the matter which
it is proposed is inserted is numbered Matter 15.9. At present,
however, no matters are contained in Field 15. Matters 15.1 to
15.8 are in fact contained in another proposed Order, relating
to vulnerable children and child poverty.[102]
At the time this Report was agreed that proposed Order had yet
to achieve Whitehall clearance, although the Assembly Committee
had already published its report.[103]
73. Should the proposed Order on domiciliary care
be laid before the Assembly for approval first, Matter 15.9 will
need to be re-numbered Matter 15.1. This possibility arose because
the proposed Order on vulnerable children and child poverty was
published and laid before the Assembly before it had achieved
Whitehall clearance, and was acknowledged by the Secretary of
State when he wrote to invite us to conduct pre-legislative scrutiny:
If this Order is formally laid before Parliament
before the other Order then we will amend the numbering to that
it will be the first matter inserted into this Field. We hope
that this situation will not arise in the future …[104]
74. Although the proposed Order on domiciliary care
includes references to the terms "social care" and
"well-being", those terms are not defined there but
are to be found instead in the proposed Order relating to vulnerable
children and child poverty. The Deputy Minister told us in evidence:
… the purpose of an LCO is to amend Schedule
5 of the Government of Wales Act 2006. This Legislative Competence
Order must be read and considered in this light, and not as a
free-standing piece of legislation. This LCO contains definitions
and is subject to exceptions set out in other LCOs … If these
other LCOs are made before this LCO, Schedule 5 to the Government
of Wales Act will already have been amended. Consequently there
will be no need to include in this LCO the definitions and exceptions
to which we refer.[105]
75. While
we appreciate that the domiciliary care Order would be re-drafted
to include these definitions should it be laid in draft form first,[106]
understanding and scrutiny is made more difficult if the intended
legal context in which the matter is to operate is not made fully
evident in the official documentation.
We believe
it would be helpful if each proposed Order were to include for
ease of reference definitions of the terms used, either in the
proposed Order itself or as part of the accompanying Explanatory
Memorandum.[107]
76. We also
note the haphazard approach to processing proposals for Legislative
Competence Orders in Council. The failure on the part of the Welsh
Assembly Government to follow the anticipated procedures for these
proposals,[108] which
were described during the progress of the Government of Wales
Act 2006, has created significant problems. The Wales Office,
the Welsh Assembly Government and the National Assembly for Wales
should seek to coordinate the procedures more effectively in future.
The definition
of social care
77. As noted above, the definition of social care
is not contained in the proposed Order. Instead, the Explanatory
Memorandum notes that the definition to be used is set out in
the proposed Order dealing with vulnerable children and child
poverty.[109] That
definition is as follows:
"social care" includes the provision by
any person of residential care, non-residential care, support,
financial or any other assistance, advice or counselling in connection
with the well-being of any person
78. As the Deputy Minister clarified in evidence
to our two committees, while this definition of social care includes
residential care, residential care is not included for the purposes
of the proposed Order on domiciliary care.[110]
With this exception, the proposed Order includes all forms of
social care referred to in the above definition; as Amanda Jones
of the Legal Services Department of the Welsh Assembly Government
put it, "everything that is within the definition of social
care that is not residential will be covered".[111]
The Wales Carers Alliance and Disability Wales both felt that
this definition was appropriate for the purposes of this Order.[112]
79. The Deputy Minister explained that the definition
of social care was wider in the vulnerable children proposed Order
for the following reason:
The term "social care" as defined in the
vulnerable children LCO is wider than the scope of this LCO as
it is intended to apply cross the social welfare field and not
only in relation to this LCO. … there is wide enough scope
within the vulnerable children LCO to accommodate the proposals
that this LCO makes.[113]
80. It
seems unlikely that there are other matters which are intended
to be included other than those set out in the definition.
We therefore
recommend that the definition of "social care" is amended
to read "means" rather than "includes".
81. We note that the definition of "social care"
to be used not synonymous with the definition of "community
care services", the term used in the National Health Service
and Community Care Act 1990. As was confirmed by the Deputy Minister
in evidence to the Assembly Committee, the term "social
care" as used in the proposed Order is wider, and includes:
… a description of different types of care rather
than a list of existing legislation. That will ensure that the
definition remains extant, and not subject to future changes to
legislation concerning powers and duties to provide services.[114]
The definition
of well-being
82. The definition of the term "well-being"
is also set out as part of the vulnerable children and child poverty
proposed Order, as follows:
"well-being", in relation to individuals,
means well-being so far as relating to any of the following -
a) physical and mental health regarding well-being;
b) safety from harm and neglect;
c) education, training and recreation;
d) the contribution made by them to society;
e) social and economic well-being;
f) securing their rights.
83. This definition of the term "well-being"
was supported in evidence to the Assembly Committee by the Welsh
Local Government Association and by the Association of Directors
of Social Services Cymru supported this definition.[115]
The Coalition on Charging Cymru proposed amendments to points
d), e) and f), to the following effect:
d) their contribution to society;
e) social and economic well-being and participation;
f) securing their rights and dignity.[116]
84. The Deputy Minister said that she was "very
interested" in these suggestions and although she did not
consider that they changed the definition of "well-being"
in any way, she undertook to consider them in the light of the
Assembly Committee's report.[117]
85. We are
broadly satisfied with the definition of "well-being"
to be used, but recommend that it be amended in line with the
proposals put forward by the Coalition on Charging Cymru. As mentioned
previously, we recommend that all definitions to be referred to
in a proposed Order are contained either in the proposed Order
itself or in the accompanying documentation.
The definition
of particular needs
86. The proposed Order refers to "payments in
respect of individuals with particular needs". When asked
what was meant by the term "particular needs", the Deputy
Minister explained:
Direct payments may be made for the provision of
care required to meet a wide range of needs. These needs are not
specified in the relevant legislation, and accordingly no definition
has been included in this LCO. This will enable the Assembly to
legislate in respect of all payments for securing non-residential
social care which are made to individuals with needs, provided
these needs relate to that individual's well-being and do not
fall within one of the excepted matters.[118]
87. In its written memorandum to the Assembly Committee,
Carers Wales preferred the term "assessed needs", as
it already exists in the context of local authority social care
provision:
The primary legislation relates to "assessed"
needs, and we feel this may be a more appropriate terminology
as it builds on existing law and statutory guidance.[119]
88. In evidence, the Association of Directors of
Social Services Cymru said that "it would be better to keep
the definition as wide as possible". Both the Association
of Directors of Social Services Cymru and the Welsh Local Government
Association preferred the use of the term "assessed needs".[120]
The Wales Carers Alliance, however, told the Assembly Committee
that:
The difficulty with that term is that it is reliant
on an assessment, which raises the question of who does the assessment.
Therefore, the term "particular needs" may be preferable.[121]
As explained by the Deputy Minister for Social Services,
the term "particular needs" is used because it was considered
to be wide-ranging.[122]
In the view of the Deputy Minister:
… the term "particular needs" is more
appropriate than "assessed needs", which brings in such
issues as who must carry out the assessment of needs and the assessment
process itself.[123]
However, the necessity of referring to "particular"
needs was questioned by the Coalition on Charging Cymru[124]
and by Arthritis Care in its memorandum to the Assembly Committee:
It is submitted that the word "particular"
be removed because it can be narrowed in its interpretation.[125]
89. We
consider that the term "needs" is more wide-ranging
than the term "particular needs". Accordingly, we recommend
that the proposed Order be revised to refer to "needs"
rather than to "particular needs".
Clarification
of other terms contained in the proposed Order
"INDIVIDUALS" AND
"PERSONS"
90. The proposed Order uses both the terms "individuals"
and "persons". "Persons" can be construed
to cover both individuals and corporate bodies and other organisations.[126]
In evidence, the Deputy Minister clarified that the term "persons"
as used in the proposed Order includes both individuals and organisations
that might be involved in looking after someone in receipt of
social care:
The term "persons" does include individuals
as well as corporate and unincorporated bodies.[127]
"PAYMENTS" AND
"DIRECT PAYMENTS"
91. We asked the Parliamentary Under-Secretary of
State why the proposed Order refers to "payments" in
respect of individuals, whereas the reference in the accompanying
Explanatory Note uses the term "direct payments".[128]
The Parliamentary Under-Secretary of State replied:
We did not want to limit the potential scope of this
matter by using the name of one particular scheme … because
it could change. The reference to "payments" in this
particular LCO is intended to capture all relevant payments, irrespective
of what the name of that payment scheme happens to be … so
the broader definition of payments as opposed to direct payments
is one that I think helps to address that issue.[129]
Conclusion
92. We
agree that the proposed Order is consistent with existing Welsh
Assembly Government policy and priorities, and that the use of
the Legislative Competence Order in Council procedure is the most
appropriate route for this to be pursued. We have noted in this
Report that the proposed Order would grant the National Assembly
powers in certain areas for which there are no current plans to
introduce legislation - for example, the ability to abolish charges
for non-residential social care provided by local authorities.
We also acknowledge that the proposed Order reflects the current
devolution settlement, as illustrated by the Excepted Matters
it specifies.
93. Concerns
expressed to us in evidence regarding the timing of the introduction
of the Order and on local authority budgets are properly matters
for the Welsh Assembly Government, and we make no comment on these
other than to set out the points raised in evidence.
94. We acknowledge
that measures introduced under the terms of this Order may have
implications for the delivery of and the demand for services on
the Wales-England border, but do not feel that such implications
are sufficiently great to prevent us from recommending the granting
of competence.
95. We agree
that the proposed Order should be proceeded with, with some specific
amendments as set out in the recommendations of this Report. We
also recommend that in future each proposed Order should contain
the definitions of the terms to be used, for ease of reference
and for clarity.
102 National Assembly for Wales (Legislative Competence)
(No. 3) Order 2008 Back
103
National Assembly for Wales (Legislative Competence) (No. 3)
Order 2007, report by the Proposed Vulnerable Children LCO
Committee, National Assembly for Wales, January 2008 Back
104
Letter from the Secretary of State for Wales to the Chairman of
the Committee, 26 November 2007 (Ev 17); Q 50 Back
105
Q 8 Back
106
Qs 9 - 19, 50 Back
107
'Interpretation of Field' Back
108
Set out, for example, in the 2nd Report of the Welsh
Affairs Committee (HC 175, Session 2006-07) Back
109
Welsh Assembly Government Explanatory Memorandum, para 16 (Ev
22) Back
110
Q 5 Back
111
Qs 11, 20 Back
112
Oral evidence to the Proposed Domiciliary Care LCO Committee,
31 January 2008 Back
113
Q 11 Back
114
Oral evidence to the Proposed Domiciliary Care LCO Committee,
7 February 2008 Back
115
Oral evidence to the Proposed Domiciliary Care LCO Committee,
31 January 2008 Back
116
Memorandum to the Proposed Domiciliary Care LCO Committee submitted
by the Coalition on Charging Cymru; oral evidence to the Proposed
Domiciliary Care LCO Committee by Disability Wales and by the
Wales Carers Alliance, 31 January 2008. Back
117
Oral evidence to the Proposed Domiciliary Care LCO Committee,
7 February 2008 Back
118
Q 28 Back
119
Memorandum submitted to the Proposed Domiciliary Care LCO Committee
by Carers Wales Back
120
Oral evidence to the Proposed Domiciliary Care LCO Committee,
31 January 2008 Back
121
ibid Back
122
Oral evidence to the Proposed Domiciliary Care LCO Committee,
7 February 2008 Back
123
ibid Back
124
Memorandum submitted to the Proposed Domiciliary Care LCO Committee
by the Coalition on Charging Cymru Back
125
Memorandum submitted to the Proposed Domiciliary Care LCO Committee
by Arthritis Care Back
126
Consequent upon the definition of "person" in Schedule
1 of the Interpretation Act 1978 Back
127
Q 27 Back
128
Ev 20 Back
129
Q 67 Back
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