Care Bill [HL]

Debate between Lord Low of Dalston and Baroness Browning

Monday 29th July 2013 Lords Chamber

[Baroness Browning]

My Lords, this is something of a miscellaneous group of amendments. I wish to speak to Amendment 105Q standing in my name and that of the noble Lord, Lord Touhig. I also refer the Committee to my interests in the register as far as autism charities are concerned.

This Bill must ensure that the duties set out in the statutory guidance under the Autism Act 2009 continue to apply to local authorities and local NHS bodies in order to ensure the ongoing implementation of the Act, which remains England’s only disability-specific legislation. The Act led to the publication of the adult autism strategy and the accompanying statutory guidance. When the Bill went through the House—I was on the committee when it went through another place—great play was made by the Minister of the importance of statutory guidance rather than having certain things on the face of the Bill. Ministers therefore have a responsibility to ensure that it is complied with. The guidance commits the Government, local authorities, local NHS bodies and other stakeholders to take action to improve the lives of adults with autism across England. This year, the Department of Health will undertake a statutory review of the strategy. This amendment seeks to ensure that the statutory guidance resulting from the Autism Act is embedded in the new legislation and that nothing that currently gives protection to people with autistic spectrum disorders slips through the net.

[Lord Low of Dalston]

My Lords, I shall speak more briefly, your Lordships will be pleased to learn, than I have in any of the debates we have held so far in Committee. I wish to speak to Amendment 105R. This is a probing amendment designed to seek clarification as to the meaning of Clause 72. The clause gives local authorities power to delegate some of their functions to other care providers. This raises the question of whether care provided under such delegated authority should be regarded as arranged by a public authority and therefore subject to the Human Rights Act. Clause 72(6) states that:

“Anything done or omitted to be done by a person authorised under this section … is to be treated … as done or omitted … by … the local authority.”.

This means that the local authority remains bound notwithstanding any delegation of its functions. But the Joint Committee on the draft Care and Support Bill recommended that the clause should be amended to state that the person with delegated authority is also subject to the same legal obligations as the local authority itself. It is argued that this should include obligations under the Equality Act 2010, the Human Rights Act 1998 and the Freedom of Information Act 2000. However, subsection (7)(a) puts the whole matter in doubt by providing that this does not apply,

“for the purposes of the terms of any contract between the authorised person and the local authority which relate to the function”.

The amendment seeks clarification as to what this means and an assurance that not only local authorities but also those who provide care under these arrangements will be treated as public authorities for the purposes of the Human Rights Act and other legislation.