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National Assembly for Wales (Legislative Competence) (Social Welfare) Order 2008

Volume 702: debated on Tuesday 24 June 2008

rose to move, That the draft order laid before the House on 22 May be approved.

The noble Baroness said: My Lords, we have just debated the order that confers executive functions on Welsh Ministers. This draft order, covering charges for non-residential social care services, will confer legislative competence on the National Assembly for Wales under Section 95 of the Government of Wales Act 2006. Noble Lords will recall that we previously approved an order giving legislative competence to the National Assembly for Wales relating to children and young people with additional learning needs.

The Order in Council process created by the Government of Wales Act 2006 provided an improved mechanism to enable the Assembly to achieve its legislative priorities. No longer must the Assembly fight for space in future Queen’s Speeches for Westminster Bills. As noble Lords are aware, these orders are subject to affirmative resolution in both Houses and the approval of the National Assembly for Wales. Parliament decides on a case-by-case basis whether legislative competence in a certain area should be devolved. Many questions must be asked to make this determination. Is it appropriate for the Assembly to have legislative competence in this area or would it be better remaining at a UK level? Has a clear case for powers been made? Is the scope of the order appropriate to allow the Assembly to legislate effectively in this area? The details of any measure that the Assembly Government wish to pass—the Welsh equivalent of an Act of Parliament—are not for the Government or Parliament to consider. They will be wholly for the National Assembly for Wales to scrutinise.

On 20 May, the National Assembly considered and unanimously agreed the order that is before this House. Subject to the agreement of this House this evening, and that of the other place next week, the order will confer further legislative competence on the Assembly in the area of social welfare, which has been largely devolved for many years. This will enable the Assembly to pass measures concerning charges that may be levied for non-residential social care services, and payments made to individuals to purchase such care directly.

The primary legislation governing charges for non-residential social care is Section 17 of the Health and Social Services and Social Security Adjudications Act 1983. Section 17 gives local authorities a discretionary power to recover such charges as they consider reasonable from adult recipients of non-residential social services. The only restriction on any authority’s power to charge is that it shall not require users to pay more for services than would appear to be reasonably practical. This has resulted in significant differences between the charging policies of local authorities in Wales, and therefore wide variability in the impact on service users. There is a wide range of hourly charge rates and weekly maximums set by local authorities, and differing amounts can be charged by different authorities for similar services. There is also a disparity in the way that benefits and disability-related expenditure are treated in an individual’s assessment. The Welsh Assembly Government believe that the current marked disparities need to be tackled. They argue that service users deserve a charging system that is both transparent and consistent in the way that it operates.

The Assembly Government can currently provide statutory guidance to local authorities on charging under Section 7 of the Local Authority Social Services Act 1970. However, local authorities are able to depart from such guidance and its impact has been limited as a result. It is for the purpose, therefore, of providing the National Assembly with the legislative tools to achieve this clear objective that this order has been brought forward.

The order was considered by the Constitution Committee, the Welsh Affairs Committee and a committee of the National Assembly for Wales. This process of scrutiny was rigorous and provided members of the committees, along with interested parties and stakeholders, an opportunity to comment on and question the order. I thank all those involved in carrying out this vital scrutiny.

I am pleased to say that the committees supported the order in principle and raised only technical and definitional issues for further consideration. All recommendations arising from their final reports have been considered carefully, and the draft order before the House today reflects the outcome of that consideration.

Many of the committees’ recommendations arose from the fact that the order, which was submitted for pre-legislative scrutiny, was reliant on elements of another proposed order covering vulnerable children and child poverty for definitions and exceptions. Many of the definitions in that order were referred to in this order; there has been a lot of discussion about that in the pre-legislative scrutiny. However, the order before us has been laid in advance of the vulnerable children order, and a number of definitions and exceptions have been inserted into it as a result. I am confident that these changes address the concerns raised by the committees.

The order will enable the development of the type of distinct “Made in Wales” legislation in this area of policy that the Government envisaged in the Government of Wales Act 2006. It will enable the Welsh Assembly Government to continue to improve the lives of some of Wales’s most vulnerable people. The order supports its strategic aims to promote independence and equality for people receiving social care in Wales. It will give the Welsh Assembly Government the means to support their independence further by regulating the setting of charges and removing the wide disparities that currently exist. I therefore commend the order to the House and beg to move.

Moved, That the draft order laid before the House on 22 May be approved. 22nd report from the Joint Committee on Statutory Instruments.—(Baroness Morgan of Drefelin.)

My Lords, I thank the noble Baroness for making this not-altogether-straightforward statutory instrument abundantly clear. I also thank her for her time this afternoon when we both had an opportunity to look at the pros and cons.

There are several issues here: the political one relates to legislative competence orders. Your Lordships will be faced with debating a host of legislative competence orders in the forthcoming period. The noble Baroness made it quite clear, as have the Government, how careful we need to be to ensure that this is, on all occasions, the right road. I do not feel, and neither does my party, that it is right to pass legislative competence orders, then pass the buck to the Government of Wales and let them get on with it. That must never be allowed to happen. However, it is different where the Government of Wales have competence—that is the key issue. I hope that the competence of the Government of Wales will increase steadily as they continue to bed down and rule Wales.

There is another point arising from the order which I am a little concerned about. It appears that this statutory instrument will in some ways reduce the autonomy and powers of local authorities. I am not saying that that is necessarily a bad thing but in political terms your Lordships will be only too aware—probably more than me—that these issues can become very sensitive between a local Government, in the form of the Assembly for Wales, and local authorities, where powers are inevitably shared.

It is also important in future debates on legislative competence orders and particularly on this one which seems to do some very good things. I am not being negative about this particular statutory instrument—quite the reverse. The objective of this instrument is to smooth out and make fairer the benefits that are available, and to make sure that there are not rich counties and local authorities and poor ones dishing out different amounts of assistance. It is also complicated to some extent by the fact that the recipient has to contribute to the package. That is yet another balance that has to be taken and I would be interested to ask the noble Baroness what sort of criteria will be required to decide how much a particular recipient should contribute. Is it related to the total size of the package, which in my opinion it probably should not be, or the wealth of that person? It seems that there is plenty of room for negotiation. I wonder how it will take place and who will be negotiating with whom in order to arrive at the objective of this statutory instrument, which is that it is seen across Wales as a fair package which is justifiable and one where everyone is getting a fair deal. The statutory authorities should be seen to be doing an excellent job in providing this assistance in a fair and—this is a very important word— consistent way. In general and for the purposes of this debate, we support the passing of this statutory instrument.

My Lords, I declare an interest as president of Brecon and District Disabled Club, which has 650 members, and president of the Keith Morris Fund, which assists newly disabled people immediately.

This order concerns charges for social welfare services. There is an excellent set of definitions in the Explanatory Notes, setting out why these services are going to be entitled social care services. That is a result of the scrutiny which the noble Lord, Lord Glentoran, referred to, with the Welsh Affairs Committee and others who have clarified the terminology somewhat.

As the noble Lord, Lord Glentoran, said, this has the potential to be more controversial than the previous order. Unfortunately, it has the potential to take power away from local authorities and, not only that, it impacts on the charges for non-residential care services by local authorities which are, as we all know, strapped for cash. The fact that the Welsh Assembly Government settlement of county and borough councils has not always been generous in recent times, for reasons we all know, has meant that in some cases social services budgets have not been adequate. As a result, levels of charging have often varied from county to county. The costs of rural services, for example, are often greater due to population scarsity, demography and logistical problems of providing services. Deprivation is a problem in all parts of Wales, whether metropolitan or rural. Fairer charging for social care services is a very worthy objective, but local authorities know their citizens’ needs very well indeed. The possibility of Welsh Assembly Ministers imposing a regime of standard charging rates on councils may produce inequities in the provision of social care services. I am not saying it will, but it might do so.

It is clear that Assembly Members will have to be vigilant in relation to Minister’s executive powers of charging rates. We are in for a fairly sparky time in the Assembly over this subject. One accepts that in specific situations it may be desirable to achieve even a nil charging rate, as exemplified in the notes, but no one should underestimate the inherently high costs of delivering these services. We cannot forget that Labour promised us free social care services, for example, but then it could not deliver them because the budget would not allow it. There is an amazing statistic: 400,000 people in Wales are disabled. It is a very high percentage of the population, including the working population. The number is understandable because we have a huge legacy of a culture of hard and sustained physical work in mining, heavy industry and agriculture. I have some of those aches and pains at the moment.

We support this order with the reservations stated. However, the order will have to be implemented with great sensitivity. It addresses only non-residential care by local authorities; residential care is in a different world entirely. With the House's indulgence, I should just like to mention that the Royal British Legion is considering closing its only care home in Wales. One reason is the mix of local authority residents and ex-service people. The Royal British Legion says that the local authority’s payment structure will not maintain the care home’s economic viability. However, huge negotiations are under way to try to rescue the situation.

This legislation is a good move forward on domestic care at home for those in need. We have to support it in a way which we hope is intelligent while at the same time pointing out some of the elephant traps on the way.

My Lords, I am extremely grateful to the noble Baroness for the most detailed and clear way in which she has explained the contents of the order. As for the context of the order, I believe that much of what I said on the previous order is relevant.

I hope that as more and more of these orders come to this House there will not be a feeling that in some way or another one should legislate only at a minimum level. That would defeat the whole purpose of Part 3 of the Act and the whole tenor of Part 3 in relation to Part 4. If anybody asked me exactly what policy one should adopt, I would say an Icarus policy. Do noble Lords remember the story of Icarus? He and his father had been exiled on an island and the only way in which they could escape was by manufacturing large wings from birds’ feathers and beeswax. They had to fly not so high as to make the sun melt the wings and not so low as to run the risk of running into the sea. I think that that is the sort of approach that we should have in Wales. It should be constructive, substantial progress; it should not be too revolutionary, but on the other hand it should be well above a minuscule level that would have little significance.

The content of the order is entirely reasonable. The area that it covers is charges by local authorities for non-residential care. It may be limited to domiciliary care or it may be wider than that; I am not sure from reading the draft order. Be that as it may, it seems obvious that the policies—not just in Wales but also elsewhere in the United Kingdom—of trying to treat people more and more in their homes and on as few occasions as humanly possible in hospital will increase in volume and become of greater significance with each passing year. Therefore, when we consider these charges levied by local authorities, we should allow them as much scope and flexibility as is reasonably possible, but at the same time try to achieve not a total uniformity but as much consistency as is reasonably justifiable, bearing in mind the different characters of different parts of Wales. Those principles are probably easier to articulate than they are to execute, but that is what the order does.

The noble Lord, Lord Glentoran, worries about local government powers being reduced. I would say that local government powers here are extended in both directions. However, it is of course possible that, in practice, there might be a reduction. The only change that we will be bringing if the order is agreed is this: whereas before the Welsh Assembly, through its Ministers—the Assembly in the first instance and, since last year, through its Ministers—was able to give stern advice to local authorities, that advice had only to be morally regarded, not legally so. In some instances the local authorities might have gone contrary to the advice, but now they cannot because it is no longer advice but firm rules of a legislative nature.

This order does not legislate. It does not create anything of itself. It is right that we should remind people in Wales, who are rather confused, exactly how Part 3 works. A legislative competence order made under Part 3 does not grant any authority to the Welsh Assembly. It gives the Welsh Assembly the ability, in one of the 20 fields—they are referred to as fields in Schedule 5—ranging from agriculture to the Welsh language, to designate an area of jurisdiction and legislative authority. If the Welsh Assembly does nothing about that, then nothing has been transferred. All that is transferred is a potential—a right to build on that part of the field, or a part of that part that has been designated.

I hope that we will soon see Assembly measures following closely on legislative competence orders so that the Welsh people can see what is built by way of legislative authority in this connection. In that way, I believe that it will be possible for Part 3 to become something dynamic and creative. I hope that, one day, it will be a bridge to Part 4, once a referendum is successfully carried in Wales.

My Lords, I shall be brief and fly just above sea level. I welcome the statutory instrument, especially after the persuasive remarks of my noble friend the Minister. As the noble Lord, Lord Livsey, implied, the face of this instrument is impressive enough in itself. Under the headings, “Constitutional Law”, “Devolution, Wales”, is its title, the National Assembly for Wales (Legislative Competence) (Social Welfare) Order 2008. Here is contemporary constitutional history written out before us, which is some procedure.

I quote from the 2008 spring issue of Play for Wales, the magazine that represents Chwarae Cymru/Play Wales, because it is relevant to these orders. The article is headed, “Proposed Vulnerable Children Legislative Competence Order (LCO) Committee Report”, and it says:

“A Legislative Competence Order (LCO) describes an area in which the National Assembly for Wales is competent to make legislation—the implication being that it will be able to turn this into law for Wales in future. This LCO relates to Social Welfare—Vulnerable Children and Child Poverty.

“Play Wales strongly advocated the inclusion of the word ‘play’ within the interpretation of ‘well-being’, which currently relates to ‘education, training and recreation’—and our call was heard and acted upon.

“It may seem strange to celebrate the inclusion of one word in potential legislation, but play is so often overlooked as being a vital part of children’s lives that to find it included in the LCO meant we jumped up and down whooping with joy in our office”.

This statement by Play Wales evidences one happy customer of Her Majesty’s Government in the consultation process, on orders at least. Play Wales/Chwarae Cymru is an all-Wales organisation that works in tandem with the Welsh Assembly Government. It is a successful organisation with a dedicated leadership. It surely stands ready to advance the good intent of this order.

Dysfunctional families and unhappy children are not rare. Recently, the Dewsbury case of Shannon Matthews came to national prominence. As a commentator wrote, it was a tale of childhood misery in Britain. One hopes that the order will enable the Welsh Assembly Government to reach out into the counties of Wales to make life better for all the people of Wales, but especially for every vulnerable child.

My Lords, this has been a helpful and important debate on the legislative competence order before us. Again, the noble Lord, Lord Elystan-Morgan, gave us a great description of how the process works and reminded us that we should not congratulate ourselves too much, because we are creating potential rather than passing legislation. It was a clear explanation, and I am grateful to him for it.

It is good to hear from my noble friend Lord Jones that there are some happy customers out there. This is the beginning of this LCO process. Before this potential legislation even gets as far as becoming a real Welsh Assembly measure, there will be a significant level of consultation. That is the Welsh Assembly Government’s intention.

I will briefly answer the question of the noble Lord, Lord Glentoran, on local authority discretion. From the Government’s point of view, removing what we would describe as local authorities’ current wide-ranging discretion on how much to charge for non-residential social care is, I am afraid, unavoidable if the Assembly Government are to address the present significant disparities and introduce a fairer and more consistent approach to charging. That is the reality of this LCO; the noble Lord, Lord Livsey, highlighted his concerns about that. However, we must remember that, for local authorities in Wales, only 15 per cent of the cost of providing these non-residential services is recovered by the charges. So we must have some perspective and a sense of proportion over the concerns about the effect on local authority funding that the noble Lord raised. It is useful to note that we are talking about 15,000 individuals currently being levied a charge for these services; that is the order of magnitude.

Still, we are talking about a significant concern for the people of Wales. There is a clear discrepancy between charges, which sometimes occurs in localities situated close to each other, whereby people can be charged £16.50 on the one hand and £168 on the other. We are talking about significant ranges.

As noble Lords pointed out, we are giving the Welsh Assembly the opportunity to legislate on this matter. The noble Lord, Lord Glentoran, asked what criteria would be established regarding the changes in charging. That is a matter for the Welsh Assembly to decide. The objective is clear and is set out in the LCO, but the content of the relevant measure, and the range of criteria that might be included, will be decided by the Welsh Assembly. It is essential that consultation is carried out as the measure will be very much made in Wales. I commend the order to the House.

On Question, Motion agreed to.