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Care BillPage 40

46 Abolition of local authority’s power to remove persons in need of care

Section 47 of the National Assistance Act 1948 (which gives a local authority
power to remove a person in need of care from home) ceases to apply to
persons in England.

47 5Protecting property of adults being cared for away from home

(1) This section applies where—

(a) an adult is having needs for care and support met under section 18 or
19 in a way that involves the provision of accommodation, or is
admitted to hospital (or both), and

(b) 10it appears to a local authority that there is a danger of loss or damage to
movable property of the adult’s in the authority’s area because—

(i) the adult is unable (whether permanently or temporarily) to
protect or deal with the property, and

(ii) no suitable arrangements have been or are being made.

(2) 15The local authority must take reasonable steps to prevent or mitigate the loss
or damage.

(3) For the purpose of performing that duty, the local authority—

(a) may at all reasonable times and on reasonable notice enter any
premises which the adult was living in immediately before being
20provided with accommodation or admitted to hospital, and

(b) may deal with any of the adult’s movable property in any way which
is reasonably necessary for preventing or mitigating loss or damage.

(4) A local authority may not exercise the power under subsection (3)(a) unless—

(a) it has obtained the consent of the adult concerned or, where the adult
25lacks capacity to give consent, the consent of a person authorised under
the Mental Capacity Act 2005 to give it on the adult’s behalf, or

(b) where the adult lacks capacity to give consent and there is no person so
authorised, the local authority is satisfied that exercising the power
would be in the adult’s best interests.

(5) 30Where a local authority is proposing to exercise the power under subsection
(3)(a), the officer it authorises to do so must, if required, produce valid
documentation setting out the authorisation to do so.

(6) A person who, without reasonable excuse, obstructs the exercise of the power
under subsection (3)(a)—

(a) 35commits an offence, and

(b) is liable on summary conviction to a fine not exceeding level 4 on the
standard scale.

(7) A local authority may recover from an adult whatever reasonable expenses the
authority incurs under this section in the adult’s case.

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Public functions under the Human Rights Act 1998

48 Provision of “care and support services”

(1) A person (“P”) who provides regulated “social care” is to be taken for the
purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (acts of
5public authorities) to be exercising a function of a public nature in doing so.

(2) This section applies to persons providing services regulated by the Care
Quality Commission.

(3) In this section “social care” has the same meaning as in the Health and Social
Care Act 2008.

10Provider failure

49 Temporary duty on local authority

(1) This section applies where a person registered under Chapter 2 of Part 1 of the
Health and Social Care Act 2008 (a “registered care provider”) in respect of the
carrying on of a regulated activity (within the meaning of that Part) becomes
15unable to carry on that activity because of business failure.

(2) A local authority must for so long as it considers necessary (and in so far as it
is not already required to do so) meet those of an adult’s needs for care and
support and those of a carer’s needs for support which were, immediately
before the registered care provider became unable to carry on the regulated
20activity, being met by the carrying on of that activity in the authority’s area by
the provider.

(3) A local authority is accordingly required to meet needs under subsection (2)
regardless of—

(a) whether the relevant adult is ordinarily resident in its area;

(b) 25whether the authority has carried out a needs assessment, a carer’s
assessment or a financial assessment;

(c) whether any of the needs meet the eligibility criteria.

(4) Where a local authority is meeting needs under subsection (2), it is not required
to carry out a needs assessment, a carer’s assessment or a financial assessment
30or to determine whether any of the needs meet the eligibility criteria.

(5) A local authority may make a charge for meeting needs under subsection (2)
(except in so far as doing so involves the provision of information or advice);
and a charge under this subsection may cover only the cost that the local
authority incurs in meeting the needs to which the charge applies.

(6) 35Subsection (5) does not apply if section 50 (cross-border cases) applies (see
subsection (3) of that section).

(7) If the relevant adult is not ordinarily resident in the area of the local authority
which is required to meet needs under subsection (2), that authority—

(a) must, in meeting needs under that subsection which were being met
40under arrangements made by another local authority, co-operate with
that authority (in so far as it is not already required to do so by
section 6);

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(b) must, in meeting needs under that subsection which were being met
under arrangements all or part of the cost of which was paid for by
another local authority by means of direct payments, co-operate with
that authority (in so far as it is not already required to do so by
5section 6);

(c) may recover from the other local authority mentioned in paragraph (a)
or (b) (as the case may be) the cost it incurs in meeting those of the
adult’s or carer’s needs referred to in the paragraph in question.

(8) Any dispute between local authorities about the application of this section is to
10be determined under section 40 as if it were a dispute of the type mentioned in
subsection (1) of that section.

(9) “The relevant adult” means—

(a) in a case involving an adult’s needs for care and support, that adult;

(b) in a case involving a carer’s needs for support, the adult needing care.

50 15Section 49: cross-border cases

(1) This section applies where, in a case within section 49, immediately before the
registered care provider became unable to carry on the regulated activity, some
or all of the adult’s needs for care and support or the carer’s needs for support
were being met by the carrying on of that activity by the provider under
20arrangements made—

(a) by a local authority in Wales discharging its duty under section 21 or
26, or exercising its power under section 22 or 29, of the Social Services
and Well-being (Wales) Act 2014,

(b) by a local authority in Scotland discharging its duty under section 12 or
2513A of the Social Work (Scotland) Act 1968 or section 25 of the Mental
Health (Care and Treatment) (Scotland) Act 2003, or

(c) by a Health and Social Care trust under Article 15 of the Health and
Personal Social Services (Northern Ireland) Order 1972 or section 2 of
the Carers and Direct Payments Act (Northern Ireland) 2002.

(2) 30This section also applies where, in a case within section 49—

(a) immediately before the registered care provider became unable to carry
on the regulated activity, some or all of the adult’s needs for care and
support or the carer’s needs for support were being met by the carrying
on of that activity by the provider, and

(b) 35all or part of the cost of the accommodation or other services provided
by the provider to meet those needs was paid for by means of direct
payments made—

(i) under section 34 or 36 of the Social Services and Well-being
(Wales) Act 2014,

(ii) 40as a result of the choice made by the adult pursuant to section 5
of the Social Care (Self-directed Support) (Scotland) Act 2013, or

(iii) by virtue of section 8 of the Carers and Direct Payments Act
(Northern Ireland) 2002.

(3) The local authority which is required to meet needs under section 49(2)

(a) 45must, in meeting needs under section 49(2) which were being met by
the authority which made the arrangements referred to in subsection
(1), co-operate with that authority;

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(b) must, in meeting needs under section 49(2) which were being met by
the provision of accommodation or other services all or part of the cost
of which was paid for by an authority by means of direct payments as
referred to in subsection (2), co-operate with that authority;

(c) 5may recover from the authority referred to in paragraph (a) or (b) (as
the case may be) the cost it incurs in meeting those of the adult’s or
carer’s needs referred to in the paragraph in question;

(d) may recover from the adult or carer the cost it incurs in meeting those
of the adult’s or carer’s needs other than those referred to in paragraph
10(a) or (b) (as the case may be).

(4) Any dispute between a local authority and a local authority in Wales, a local
authority in Scotland or a Health and Social Care trust about the application of
section 49 or of this section is to be resolved in accordance with paragraph 5 of
Schedule 1.

(5) 15“Local authority in Wales” and “local authority in Scotland” each have the
meaning given in paragraph 12 of Schedule 1.

(6) The references in paragraphs (a) and (b) of subsection (3) to an authority are
references to a local authority in Wales, a local authority in Scotland or a Health
and Social Care trust (as the case may be).

51 20Temporary duty on local authority in Wales

(1) This section applies where a person registered under Part 2 of the Care
Standards Act 2000 in respect of an establishment or agency—

(a) becomes unable to carry on or manage the establishment or agency
because of business failure, and

(b) 25immediately before becoming unable to do so, was providing an adult
with accommodation or other services in Wales under arrangements
made—

(i) by a local authority meeting an adult’s needs for care and
support or a carer’s needs for support under Part 1 of this Act,

(ii) 30by a local authority in Scotland discharging its duty under
section 12 or 13A of the Social Work (Scotland) Act 1968 or
section 25 of the Mental Health (Care and Treatment) (Scotland)
Act 2003, or

(iii) by a Health and Social Care trust under Article 15 of the Health
35and Personal Social Services (Northern Ireland) Order 1972 or
section 2 of the Carers and Direct Payments Act (Northern
Ireland) 2002.

(2) This section also applies where a person registered under Part 2 of the Care
Standards Act 2000 in respect of an establishment or agency—

(a) 40becomes unable to carry on or manage the establishment or agency
because of business failure, and

(b) immediately before becoming unable to do so, was providing an adult
with accommodation or other services in Wales all or part of the cost of
which was paid for by means of direct payments made—

(i) 45under this Part of this Act,

(ii) as a result of the choice made by the adult pursuant to section 5
of the Social Care (Self-directed Support) (Scotland) Act 2013, or

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(iii) by virtue of section 8 of the Carers and Direct Payments Act
(Northern Ireland) 2002.

(3) The local authority in Wales in whose area the accommodation is situated or
the services were provided must for so long as it considers necessary meet
5those of the adult’s needs for care and support or the carer’s needs for support
which were being met by the registered person by the provision of the
accommodation or other services.

(4) A local authority in Wales which is required to meet needs under subsection
(3)

(a) 10must, in meeting needs under that subsection which were being met by
the authority which made the arrangements referred to in subsection
(1)(b), co-operate with that authority;

(b) must, in meeting needs under subsection (3) which were being met by
the provision of accommodation or other services all or part of the cost
15of which was paid for by an authority by means of direct payments as
referred to in subsection (2)(b), co-operate with that authority;

(c) may recover from the authority referred to in paragraph (a) or (b) (as
the case may be) the cost it incurs in meeting those of the adult’s or
carer’s needs referred to in the paragraph in question.

(5) 20Any dispute about the application of this section is to be resolved in accordance
with paragraph 5 of Schedule 1.

(6) “Local authority in Wales” and “local authority in Scotland” each have the
meaning given in paragraph 12 of Schedule 1.

(7) The references in paragraphs (a) and (b) of subsection (4) to an authority are
25references to a local authority, a local authority in Scotland or a Health and
Social Care trust (as the case may be).

52 Temporary duty on Health and Social Care trust in Northern Ireland

(1) This section applies where a person registered under Part 3 of the Health and
Social Services (Quality, Improvement and Regulation) (Northern Ireland)
30Order 2003 in respect of an establishment or agency—

(a) becomes unable to carry on or manage the establishment or agency
because of business failure, and

(b) immediately before becoming unable to do so, was providing an adult
with accommodation or other services in Northern Ireland under
35arrangements made—

(i) by a local authority meeting an adult’s needs for care and
support or a carer’s needs for support under Part 1 of this Act,

(ii) by a local authority in Wales discharging its duty under section
21 or 26, or exercising its power under section 22 or 29, of the
40Social Services and Well-being (Wales) Act 2014, or

(iii) by a local authority in Scotland discharging its duty under
section 12 or 13A of the Social Work (Scotland) Act 1968 or
section 25 of the Mental Health (Care and Treatment) (Scotland)
Act 2003.

(2) 45This section also applies where a person registered under Part 3 of the Health
and Personal Social Services (Quality, Improvement and Regulation)
(Northern Ireland) Order 2003 in respect of an establishment or agency—

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(a) becomes unable to carry on or manage the establishment or agency
because of business failure, and

(b) immediately before becoming unable to do so, the person was
providing an adult with accommodation or other services in Northern
5Ireland, all or part of the cost of which was paid for by means of direct
payments made—

(i) under this Part of this Act,

(ii) under section 34 or 36 of the Social Services and Well-being
(Wales) Act 2014, or

(iii) 10as a result of the choice made by the adult pursuant to section 5
of the Social Care (Self-directed Support) (Scotland) Act 2013.

(3) The Health and Social Care trust in whose area the accommodation is situated
or the services were provided must for so long as it considers necessary meet
those of the adult’s needs for care and support or the carer’s needs for support
15which were being met by the registered person by the provision of the
accommodation or other services.

(4) A Health and Social Care trust which is required to meet needs under
subsection (3)

(a) must, in meeting needs under that subsection which were being met by
20the authority which made the arrangements referred to in subsection
(1)(b), co-operate with that authority;

(b) must, in meeting needs under subsection (3) which were being met by
the provision of accommodation or other services all or part of the cost
of which was paid for by an authority by means of direct payments as
25referred to in subsection (2)(b), co-operate with that authority;

(c) may recover from the authority referred to in paragraph (a) or (b) (as
the case may be) the cost it incurs in meeting those of the adult’s or
carer’s needs referred to in the paragraph in question.

(5) Any dispute about the application of this section is to be resolved in accordance
30with paragraph 5 of Schedule 1.

(6) “Local authority in Wales” and “local authority in Scotland” each have the
meaning given in paragraph 12 of Schedule 1.

(7) The references in paragraphs (a) and (b) of subsection (4) to an authority are
references to a local authority, a local authority in Wales or a local authority in
35Scotland (as the case may be).

53 Sections 49 to 52: supplementary

(1) An authority becomes subject to the duty under section 49(2), 51(3) or 52(3) as
soon as it becomes aware of the business failure.

(2) Section 8 (how to meet needs) applies to meeting needs under section 49(2) as
40it applies to meeting needs under section 18.

(3) Section 20 of the Social Services and Well-being (Wales) Act 2014 (how to meet
needs) applies to meeting needs under section 51(3) as it applies to meeting
needs under section 21 of that Act.

(4) In deciding how to meet an adult’s needs for care and support under section
4549(2), 51(3) or 52(3), an authority must involve—

(a) the adult,

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(b) any carer that the adult has, and

(c) any person whom the adult asks the authority to involve or, where the
adult lacks capacity to ask the authority to do that, any person who
appears to the authority to be interested in the adult’s welfare.

(5) 5In deciding how to meet a carer’s needs for support under section 49(2), 51(3)
or 52(3), an authority must involve—

(a) the carer, and

(b) any person whom the carer asks the authority to involve.

(6) In carrying out the duty under subsection (4)(a) or (5)(a), an authority must
10take all reasonable steps to reach agreement with the adult or carer about how
it should meet the needs in question.

(7) Sections 21 to 23 (exceptions to duty to meet needs) apply to meeting needs
under section 49(2) as they apply to meeting needs under section 18.

(8) Sections 30 to 33 of the Social Services and Well-being (Wales) Act 2014
15(exceptions to, and restrictions on, duty to meet needs) apply to meeting needs
under section 51(3) as they apply to meeting needs under section 21 of that Act.

(9) Where an adult whose case comes within section 49 is being provided with
NHS continuing healthcare under arrangements made by a clinical
commissioning group no part of whose area is in the local authority’s area, the
20group is to be treated as a relevant partner of the authority for the purposes of
sections 6 and 7.

(10) NHS continuing healthcare” is to be construed in accordance with standing
rules under section 6E of the National Health Service Act 2006.

(11) Where a local authority considers it necessary to do so for the purpose of
25carrying out its duty under section 49(2), it may request the registered care
provider, or such other person involved in the provider’s business as it
considers appropriate, to provide it with specified information.

(12) Regulations must make provision as to the interpretation for the purposes of
sections 49, 51 and 52 and this section of references to business failure or to
30being unable to do something because of business failure; and the regulations
may, in particular, specify circumstances in which a person is to be treated as
unable to do something because of business failure.

(13) Pending the commencement of Part 4 of the Social Services and Well-being
(Wales) Act 2014—

(a) 35a reference in section 50 or 52 to making arrangements to meet needs
under section 21 or 22 of that Act is to be read as a reference to making
arrangements or providing services under—

(i) Part 3 of the National Assistance Act 1948,

(ii) section 45 of the Health Services and Public Health Act 1968,

(iii) 40section 117 of the Mental Health Act 1983, or

(iv) Schedule 15 to the National Health Service (Wales) Act 2006;

(b) a reference in section 50 or 52 to making arrangements to meet needs
under section 26 or 29 of that Act is to be read as a reference to
providing services as referred to in section 2 of the Carers and Disabled
45Children Act 2000;

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(c) a reference in section 50 or 52 to making direct payments under section
34 or 36 of that Act is to be read as a reference to making direct
payments by virtue of section 57 of the Health and Social Care Act 2001;

(d) subsection (8) is to be read as if there were substituted for it—

(8) 5Sections 21(1A) and (8) and 29(6) of the National Assistance Act
1948 apply to meeting needs under section 51(3) as they apply
to the exercise of functions under sections 21 and 29 of that Act
by a local authority in Wales (within the meaning given in
paragraph 12 of Schedule 1).

(14) 10Pending the commencement of section 5 of the Social Care (Self-directed
Support) (Scotland) Act 2013—

(a) sections 50(2)(b)(ii) and 51(2)(b)(ii) are to be read as if there were
substituted for each of them—

(ii) under section 12B of the Social Work (Scotland)
15Act 1968,, and

(b) section 52(2)(b)(iii) is to be read as if there were substituted for it—

(iii) under section 12B of the Social Work (Scotland)
Act 1968..

Market oversight

54 20Specifying criteria for application of market oversight regime

(1) Regulations must specify criteria for determining whether (subject to
regulations under subsection (4)) section 56 (financial sustainability
assessment) applies to a registered care provider who is registered in respect
of the carrying on of a regulated activity relating to the provision of social care
25for adults.

(2) In specifying the criteria, the Secretary of State must have regard to the
following in particular—

(a) the amount of social care provided by a registered care provider,

(b) the geographical concentration of a registered care provider’s business,

(c) 30the extent to which a registered care provider specialises in the
provision of particular types of care.

(3) The Secretary of State must—

(a) at such times as the Secretary of State considers appropriate, review the
criteria for the time being specified in the regulations, and

(b) 35publish information about how the matters mentioned in subsection
(2), and any other matters to which the Secretary of State has regard in
specifying the criteria, are to be measured.

(4) Regulations may provide that section 56 does not apply, or applies only to the
extent specified, to a specified registered care provider or to a registered care
40provider of a specified description, regardless of whether that provider or a
provider of that description would satisfy the criteria.

(5) Regulations may provide that section 56 applies, or applies to the extent
specified, to a specified registered care provider or to a registered care provider
of a specified description, regardless of whether that provider or a provider of
45that description would satisfy the criteria.

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(6) The circumstances in which regulations may be made under subsection (4)
include those in which the Secretary of State is satisfied that certain registered
care providers are already subject to a regulatory regime comparable to that
provided for by sections 56 and 57; and regulations made in such
5circumstances may, for example, make provision requiring specified persons
to co-operate or to share information of a specified description.

(7) “Social care” has the same meaning as in Part 1 of the Health and Social Care
Act 2008.

55 Determining whether criteria apply to care provider

(1) 10The Care Quality Commission must determine, in the case of each registered
care provider, whether the provider satisfies one or more of the criteria
specified in regulations under section 54.

(2) If the Commission determines that the provider satisfies one or more of the
criteria, section 56 applies to that provider unless, or except in so far as,
15regulations under section 54(4) provide that it does not apply.

(3) Where section 56 applies to a registered care provider (whether as a result of
subsection (2) or as a result of regulations under section 54(5)), the Commission
must inform the provider accordingly.

56 Assessment of financial sustainability of care provider

(1) 20Where this section applies to a registered care provider, the Care Quality
Commission must assess the financial sustainability of the provider’s business
of carrying on the regulated activity in respect of which it is registered.

(2) Where the Commission, in light of an assessment under subsection (1),
considers that there is a significant risk to the financial sustainability of the
25provider’s business, it may—

(a) require the provider to develop a plan for how to mitigate or eliminate
the risk;

(b) arrange for, or require the provider to arrange for, a person with
appropriate professional expertise to carry out an independent review
30of the business.

(3) Where the Commission imposes a requirement on a care provider under
subsection (2)(a), it may also require the provider—

(a) to co-operate with it in developing the plan, and

(b) to obtain its approval of the finalised plan.

(4) 35Where the Commission arranges for a review under subsection (2)(b), it may
recover from the provider such costs as the Commission incurs in connection
with the arrangements (other than its administrative costs in making the
arrangements).

(5) Regulations may make provision for enabling the Commission to obtain from
40such persons as it considers appropriate information which the Commission
believes will assist it to assess the financial sustainability of a registered care
provider to which this section applies.

(6) Regulations may make provision about the making of the assessment required
by subsection (1).

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(7) The Commission may consult such persons as it considers appropriate on the
method for assessing the financial sustainability of a registered care provider’s
business; and, having done so, it must publish guidance on the method it
expects to apply in making the assessment.

57 5Informing local authorities where failure of care provider likely

(1) This section applies where the Care Quality Commission is satisfied that a
registered care provider to which section 56 applies is likely to become unable
to carry on the regulated activity in respect of which it is registered because of
business failure as mentioned in section 49.

(2) 10The Commission must inform the local authorities which it thinks will be
required to carry out the duty under section 49(2) if the provider becomes
unable to carry on the regulated activity in question.

(3) Where the Commission considers it necessary to do so for the purpose of
assisting a local authority to carry out the duty under section 49(2), it may
15request the provider, or such other person involved in the provider’s business
as the Commission considers appropriate, to provide it with specified
information.

(4) Where (as a result of subsection (3) or otherwise) the Commission has
information about the provider’s business that it considers may assist a local
20authority in carrying out the duty under section 49(2), the Commission must
give the information to the local authority.

(5) Regulations may make provision as to the circumstances in which the
Commission is entitled to be satisfied for the purposes of subsection (1) that a
registered care provider is likely to become unable to carry on a regulated
25activity.

(6) The Commission may consult such persons as it considers appropriate on the
methods to apply in assessing likelihood for the purposes of subsection (1);
and, having carried out that consultation, it must publish guidance on the
methods it expects to apply in making the assessment.

58 30Sections 55 to 57: supplementary

(1) For the purposes of Part 1 of the Health and Social Care Act 2008, the duties
imposed on the Care Quality Commission under sections 55(1) and 56(1) are to
be treated as regulatory functions of the Commission.

(2) For the purposes of that Part of that Act, the doing by the Commission of
35anything for the purpose of assisting a local authority to carry out the duty
under section 49(2) is to be treated as one of the Commission’s regulatory
functions.

(3) For the purposes of sections 17 and 18 of that Act (cancellation or suspension
of registration under Part 1 of that Act), a requirement imposed on a registered
40care provider under or by virtue of any of sections 55 to 57 (or by virtue of
subsection (1) or (2)) is to be treated as a requirement imposed by or under
Chapter 6 of Part 1 of that Act.

(4) The Commission must, in exercising any of its functions under sections 55 to
57, have regard to the need to minimise the burdens it imposes on others.

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