Legislative Consent Memorandum
Welfare Reform Bill
Draft Legislative Consent Motion
1. The draft motion, which will be lodged by the Cabinet Secretary for Health and Wellbeing, is:
"That the Parliament agrees that the relevant provisions of the Welfare Reform Bill, introduced in the House of Commons on 14 January 2009, relating to a Right to Control for disabled people, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament."
Background
2. This memorandum has been lodged by Nicola Sturgeon MSP, Cabinet Secretary for Health and Wellbeing, under Rule 9.B.3.1(a) of the Parliament's standing orders. The Welfare Reform Bill ("the Bill") was introduced in the House of Commons on 14 January 2009. The Bill can be found at:
http://services.parliament.uk/bills/2008-09/welfarereform.html
Content of the Welfare Reform Bill
3. The main purpose of the Bill is to further reform the welfare and benefit systems to improve support and incentives for people to move from benefits into work, provide greater choice and control for disabled people and encourage parental responsibility by introducing a requirement for births to be registered jointly by both parents.
Provisions which relate to Scotland
4. Part 2 of the Bill relates specifically to the proposals for a Right to Control. The following paragraphs describe those proposals.
These provisions will help to give disabled people control over their lives by legislating for them to have a right to control certain services for which they are eligible, and will allow for the new arrangements to be piloted. Currently, many disabled people do not have the sort of choice and control over their lives that non-disabled people take for granted. In part, this can be explained by the fact that disabled people require public services to a greater extent than non-disabled people. Recent policy developments have focused on addressing this disparity and providing disabled people with greater choice and control.
5. The purpose of the Right to Control provisions is to enable disabled people aged 18 or over to have choice and control over the way certain services are provided to, or for, them by defined public authorities. The provisions consist of a series of regulation-making powers which will enable disabled people to have choice and control over named services they receive - either by discussing and reaching agreement with the authority about how the service could be delivered to them, or by taking an equivalent direct payment. The provisions will allow for these measures to be piloted for a period up to 36 months.
6. The relevant provisions within the Welfare Reform Bill will enable disabled people to have choice and control over named services they receive. The relevant services relate to:
- The provision of further education
- Facilitating the undertaking of further education or higher education
- The provision of training
- Securing employment
- Facilitating continued employment
- Enabling the disabled person to live independently or more independently in their home
- Enabling the disabled person to overcome barriers to participation in society
7. Community care services and children's services are excluded services. In particular, community care services as defined by section 5A of the Social Work Services (Scotland) Act 1968 (c.49) and services provided under section 22(1) of the Children (Scotland) Act 1995 (c.36) (promotion of welfare of children in need) are excluded.
Reasons for seeking a legislative consent motion
8. The Right to Control will be delivered through regulations. The provisions include a power to enable the appropriate authority to make regulations which make provision enabling exercise of greater choice and control. In relation to provisions that would be within the legislative competence of the Scottish Parliament if it were included in an Act of that Parliament, the Scottish Ministers are the appropriate authority.
9. The Sewel Convention requires that the Scottish Parliament gives its consent to those aspects of the Bill which legislate for the Right to Control in relation to devolved matters in Scotland (including the provision of regulation-making powers to be exercised by the Scottish Ministers). The Scottish Government believes that it would be appropriate to take advantage of the enabling legislation being promoted at Westminster, while exercising specific responsibility for determining those devolved funds to be eligible for the Right to Control mechanism, through regulations.
Consultation
10. The UK Department of Work and Pensions ("DWP") consulted on the principle of a Right to Control through their Green Paper "No-one written off: reforming welfare to reward responsibility" in July 2008. The Scottish Government indicated its support for the principle in November and made clear its willingness to work with DWP to simplify the means of disabled people accessing different funding streams designed to support them.
11. The Scottish Government remains supportive of the principle of additional control and choice of services for those with disabilities. This is being taken forward in Scotland through our policy of "self-directed support" which refers to the process of giving individuals the ability to control their own budget for social care. The Scottish Government is also keen to extend support to meet healthcare and educational needs. At present, different funding streams have different eligibility criteria and means of monitoring. The Scottish Government intends to work with the UK Government to consider how we could simplify the means of accessing these funds.
12. The Bill as introduced has been developed to provide enabling provisions, creating pilot schemes which will allow the consideration of administrative arrangements and regulation-making powers to set out the detail of the Right to Control schemes proposals. The Scottish Government will consult on the draft Scottish regulations in due course.
Financial Implications
13. The changes to be brought about by the Bill will be limited to affecting the administrative mechanism through which the existing funding streams available to disabled people are delivered. There are consequently no direct financial implications.
Conclusion
14. In summary, these proposals will give disabled people more control over the public funding available to support their inclusion in society, and provide for the Scottish Ministers to bring forward regulations implementing the new arrangements in Scotland.
SCOTTISH GOVERNMENT
January 2009