Commentary on Sections Part 2: Disabled people: Right to control provision of services Section 41: Power to make provision enabling exercise of greater choice and control
206.Subsection (1) provides a general power for an appropriate authority (defined in section 45) to make regulations for the purpose set out in section 38.
207.Subsections (2) to (6) give details of particular matters for which regulations under subsection (1) may provide. Subsection (2)(a) enables regulations to require an authority to inform a disabled person about the right to control and what it means to them and would enable regulations to require an authority to tell a disabled person how much money is available for their support under the relevant funding streams. Subsection (2)(b) to (d) enable regulations to require an authority to work with the disabled person to agree outcomes, develop a support plan and review and revise that support plan. It also enables regulations to require an authority to ensure that services provided or commissioned by them for the disabled person are provided in a way that is consistent with the person’s support plan, where this is reasonably practicable. Subsection (2)(e) enables regulations to require the authority to make payments to the disabled person (at his or her request) to secure provision of an equivalent service instead of providing the service itself.
208.Subsection (3) sets out further details of the provisions that may be included in regulations. Paragraph (a) provides that regulations may specify who is or is not to be treated as a disabled person for the purpose of the regulations. Paragraph (b) enables regulations to make provision to determine whether a public authority has exercised its discretion to provide a service to a person. The need for this power arises from the fact that the disabled person’s rights to a different service or to a direct payment may depend on whether such a decision has been made. Paragraph (c) gives a power to prescribe the matters which a public authority should take into account when making a decision under this Part of the Act. Paragraph (d) gives a power to make provision about the steps this public authority must take when making a decision regarding its duties under this Part of the Act.
209.Subsection (4) enables regulations to allow information to be shared between authorities for the prescribed purposes of the regulations.
210.In subsection (5), paragraph (a) enables regulations to vary conditions attached to any grant made by a relevant authority to a disabled person where it is necessary for the operation of the right to control. Paragraph (b) enables regulations to vary conditions attached to any power of a relevant authority to provide financial assistance to another relevant authority in connection with the provision of relevant services. An example of this would be the variation of grant conditions in relation to a grant from a central government department to a local authority.