Title and commencement

1.–(1) The title of these Regulations is the Local Health Boards (Directed Functions) (Wales) Regulations 2009.

(2) These Regulations come into force on 1 October 2009.

Interpretation

2.–(1) In these Regulations –

• "the Act" ("y Ddeddf") means the National Health Service (Wales) Act 2006;

• "the 1989 Act" ("Deddf 1989") means the Children Act 1989(2);

• "continuing care" ("gofal parhaus") means care provided over an extended period of time to a person to meet physical or mental health needs which have arisen as a result of illness;

• "former Local Health Boards" ("Byrddau Iechyd Lleol blaenorol") means the twenty two Local Health Boards which were established on 10 February 2003 by the Local Health Boards (Establishment) (Wales) Order 2003(3);

• "general ophthalmic services" ("gwasanaethau offthalmig cyffredinol") has the same meaning as in section 71(10) of the Act;

• "Local Health Board" ("Bwrdd Iechyd Lleol") means a Local Health Board established in accordance with section 11(2) of the Act(4);

• "LHB Order" ("Gorchymyn BILl") is to be construed in accordance with section 11(2) of the Act;

• "pharmaceutical services" ("gwasanaethau fferyllol") has the same meaning as in section 80(8) of the Act;

• "primary dental services" ("gwasanaethau deintyddol sylfaenol") has the same meaning as in section 56 of the Act;

• "primary medical services" ("gwasanaethau meddygol sylfaenol") has the same meaning as in section 41 of the Act; and

• "the relevant date" ("y dyddiad perthnasol") means 1 October 2009.

(2) For the purposes of these Regulations, and subject to regulation 3, the persons for whom a Local Health Board is responsible in any year are the persons usually resident in the area for which the Local Health Board is established.

(3) Subject to any direction which the Welsh Ministers may give as to any particular case or classes of case, if there is doubt as to where a person is usually resident for the purposes of paragraph (2) –

(a) the person is to be treated as usually resident at the address given by him or her to the person or body providing him or her with services, as being that at which the person usually resides;

(b) where the person gives no such address, he or she is to be treated as usually resident at the address which he or she gives to the person or body providing him or her with services, as being the person´s most recent address;

(c) where the person´s usual address cannot be determined under sub-paragraphs (a) and (b) above, he or she is to be treated as usually resident in the area in which the person is present.

Exception to regulation 2(2)

3.–(1) A Local Health Board of origin continues to be responsible for the persons specified in paragraph (3) who have been usually resident in the area for which it is established, in the circumstances set out in paragraph (2).

(2) The circumstances are that –

(a) on or after 1 July 2007

(i) the Local Health Board of origin has made an arrangement in the exercise of its functions, or

(ii) a local authority has made an arrangement

by virtue of which a person to whom paragraph (3) applies is provided with services which consist of or include the provision of accommodation situated in the area of another Local Health Board or a Primary Care Trust; and

(b) the person is thereby living in the accommodation.

(3) This paragraph applies

(a) to a person who is under the age of 18 and

(i) is looked after by a local authority within the meaning of section 22(1) of the 1989 Act,

(ii) is a relevant child within the meaning of section 23A of the 1989 Act,

(iii) qualifies for advice and assistance under section 24(1A) or section 24(1B) of the 1989 Act,

(iv) is placed at a school in accordance with a statement of special educational needs made under section 324 of the Education Act 1996(5) that names the school, or

(v) requires accommodation to meet continuing care needs; and

(b) to a person under the age of 21 who was, immediately prior to his or her eighteenth birthday, a person within one of the sub-categories of sub-paragraph (a).

(4) The responsibility of a Local Health Board of origin under this regulation does not extend to its functions in relation to primary medical, primary dental, pharmaceutical and general ophthalmic services.

(5) In this regulation "Local Health Board of origin" ("Bwrdd Iechyd Lleol gwreiddiol") means the Local Health Board which made the arrangement under sub-paragraph (2)(a)(i) or the Local Health Board which corresponds to the geographical area of the local authority which made the arrangement under sub-paragraph (2)(a)(ii).

Functions to be exercised by Local Health Boards

4.–(1) Subject to regulation 5, the functions to be exercised by a Local Health Board as from the relevant date are, subject to any prohibitions or restrictions in a LHB Order:

(a) functions of former Health Authorities in Wales which were transferred to the National Assembly for Wales by the Health Authorities (Transfer of Functions, Staff, Property, Rights and Liabilities and Abolition) (Wales) Order 2003(6) and which former Local Health Boards were directed to exercise on 1 April 2003 by the Local Health Boards (Functions) (Wales) Regulations 2003(7); and

(b) functions of the Welsh Ministers insofar as they are not functions under sub-paragraph (a) as are specified in the Schedule.

(2) The functions referred to in paragraph (1)(a) in particular include but are not limited to such of those functions as are specified in the Schedule.

Restriction on the exercise of functions by Local Health Boards

5. Nothing in these Regulations is to be taken as giving directions for the exercise of any functions conferred on or vested in the Welsh Ministers with respect to –

(a) the making of any Order or Regulations; or

(b) the giving of any directions.

Revocations

6. The following Regulations are revoked –

• National Health Service (Functions of Health Authorities and Administration Arrangements) Regulations 1996 (S.I. 1996/708);

• Local Health Boards (Functions) (Wales) Regulations 2003 (S.I. 2003/150 (W.20));

• Local Health Boards (Functions) (Amendment) Regulations 2003 (S.I. 2003/816 (W.101));

• The Powys Local Health Board (Additional Functions) Regulations 2003 (S.I. 2003/815 (W.100)); and

• Local Health Boards (Functions) (Wales) (Amendment) Regulations 2007 (S.I. 2007/315 (W.29)).

Consequential Amendments

7. The following consequential amendments are made –

(a) in paragraph 16 of Part 2 of Schedule 2 to the National Health Service (Consequential Provisions) Act 2006(8)–

(i) for "Local Health Boards (Functions) (Wales) Regulations 2003" substitute "Local Health Boards (Directed Functions) (Wales) Regulations 2009",

(ii) in sub-paragraph (c) for "3(1)" substitute "4",

(iii) delete sub-paragraph (d); and

(b) in the Directions to Cardiff Local Health Board, Swansea Local Health Board and Monmouthshire Local Health Board (2006) which came into force on 1 April 2006, in direction 2(1) for "Local Health Boards (Functions) (Wales) Regulations 2003" substitute "Local Health Boards (Directed Functions) (Wales) Regulations 2009".

Regulation 4

SCHEDULE Enactments Conferring Functions Exercisable by Local Health Boards

Explanatory Note

(This note is not part of the Regulations)

These Regulations specify the directed functions of Local Health Boards established for all areas of Wales pursuant to section 11 of the National Health Service (Wales) Act 2006 (c. 42) (see S.I. 2003/148 (W.18) and S.I. 2009/778 (W.66)) (regulation 4 and the Schedule). The Local Health Boards are Abertawe Bro Morgannwg University Local Health Board, Aneurin Bevan Local Health Board, Betsi Cadwaladr University Local Health Board, Cardiff and Vale University Local Health Board, Cwm Taf Local Health Board, Hywel Dda Local Health Board and Powys Teaching Local Health Board.

Local Health Boards are responsible for persons usually resident in their area (regulation 2(2)). A Local Health Board maintains its responsibility for certain categories of children who come from their area but are then placed out of area and who would otherwise become the responsibility of another Local Health Board by virtue of being usually resident in that area. The children concerned are children looked after by local authorities, local authority care leavers, children resident at a school named in their statement of special educational needs and children with ongoing health needs and who, for any of those reasons are placed out of their area (regulation 3).

From 1 October 2009 seven Local Health Boards are responsible for the provision of health services in Wales and exercise the functions previously exercised by twenty two Local Health Boards on 30 September 2009, together with other functions of the Welsh Ministers including certain functions which were exercised by National Health Service Trusts. On 1 October 2009 seven National Health Service Trusts which delivered hospital services are dissolved. The Welsh Ambulance Services National Health Service Trust and Velindre National Health Service Trust remain in existence.

Health Authorities in Wales were abolished with effect from 1 April 2003. Under section 27 of the Government of Wales Act 1998 (c. 38) the National Assembly for Wales made the Health Authorities (Transfer of Functions, Staff, Property, Rights and Liabilities and Abolition) (Wales) Order 2003 (S.I 2003/813 (W.98)) which provided that from 1 April 2003 all functions of Health Authorities in Wales were transferred to the National Assembly for Wales and that all such Health Authorities were abolished.

The Local Health Boards (Functions) (Wales) Regulations 2003 (S.I. 2003/150 (W.20)) came into force on 1 April 2003. The functions of Health Authorities in Wales which had been transferred to the National Assembly for Wales were (with some specified exceptions) made exercisable by (rather than being transferred to) Local Health Boards. On 1 April 2003 all references to Health Authorities in Wales, insofar as they related to Health Authority functions, were construed as references to the National Assembly for Wales, although not textually amended in legislation.

There were numerous provisions in the National Health Service Act 1977 (c. 49) under which functions were stated to be exercisable by Health Authorities even though there were no longer any Health Authorities in existence and no power for any new ones to be created. In light of this, when National Health Service legislation was consolidated, the National Health Service (Wales) Act 2006 ("the Act") enacted the effect of the Local Health Boards (Functions) (Wales) Regulations 2003. The Act provides for functions which were exercisable by Local Health Boards by virtue of the Local Health Boards (Functions) (Wales) Regulations 2003 to be treated as functions of Local Health Boards for the purposes of the Act. These Regulations specifically direct Local Health Boards to exercise those functions despite appearing as Local Health Board functions on the face of the Act because they are functions of the Welsh Ministers.

The National Health Service (Consequential Provisions) Act 2006 (c. 43) provides that nothing in the Act by virtue of the Local Health Boards (Functions) (Wales) Regulations 2003 affects the power of the Welsh Ministers to exercise the functions under those Regulations and preserves the power to revoke those Regulations. The Local Health Boards (Functions) (Wales) Regulations 2003 are revoked on 1 October 2009 (regulation 6) and this is reflected in consequential amendments (regulation 7).

The Health and Social Care (Community Health and Standards) Act 2003 (c. 43) ("the 2003 Act") amended the National Health Service Act 1977 to include provisions that are now in the Act. The 2003 Act amendments had effect, in part, as textual amendments to references to Health Authorities in the relevant provisions of the National Health Service Act 1977. References to Local Health Boards were inserted by the 2003 Act at a stage when the Local Health Boards (Functions) (Wales) Regulations 2003 had come into force and the effect of those Regulations was disregarded when dealing with references to Health Authorities. References in the 2003 Act should have been to National Assembly for Wales functions and not to Local Health Board functions. Therefore, Local Health Boards are directed to exercise such functions under these Regulations because despite appearing as Local Health Board functions on the face of legislation, they are functions of the Welsh Ministers.

Certain functions are conferred on Local Health Boards outside of these Regulations. The References to Health Authorities Order 2007 (S.I 2007/961 (W.85)) was made pursuant to section 75 of the Health Act 2006 (c. 28) to change references to Health Authorities to references to Local Health Boards in non-health related legislation to reflect the fact that certain functions previously exercised by Health Authorities are exercised by Local Health Boards. Local Health Boards also continue to exercise functions directly conferred on Local Health Boards in legislation such as those in the Health and Social Care Act 2001 (c. 15), the National Health Service Reform and Health Care Professions Act 2002 (c. 17) and the Health Act 2006 and provisions in the Act inserted by those Acts.

A regulatory impact assessment has been prepared in connection with these Regulations. A copy can be obtained from the Welsh Assembly Government, Cathays Park, Cardiff, CF10 3NQ.