Care Bill (HC Bill 168)

(4) The condition is that the local authority considers that, were an independent
advocate not to be available, the individual would experience substantial
difficulty in doing one or more of the following—

(a) understanding relevant information;

(b) 5retaining that information;

(c) using or weighing that information as part of the process of being
involved;

(d) communicating the individual’s views, wishes or feelings (whether by
talking, using sign language or any other means).

(5) 10The duty under subsection (2) does not apply if the local authority is satisfied
that there is a person—

(a) who would be an appropriate person to represent and support the
individual for the purpose of facilitating the individual’s involvement,
and

(b) 15who is not engaged in providing care or treatment for the individual in
a professional capacity or for remuneration.

(6) For the purposes of subsection (5), a person is not to be regarded as an
appropriate person unless—

(a) where the individual has capacity or is competent to consent to being
20represented and supported by that person, the individual does so
consent, or

(b) where the individual lacks capacity or is not competent so to consent,
the local authority is satisfied that being represented and supported by
that person would be in the individual’s best interests.

(7) 25Regulations may make provision in connection with the making of
arrangements under subsection (2); the regulations may in particular—

(a) specify requirements that must be met for a person to be independent
for the purposes of subsection (2);

(b) specify matters to which a local authority must have regard in deciding
30whether an individual would experience substantial difficulty of the
kind mentioned in subsection (4);

(c) specify circumstances in which the exception in subsection (5) does not
apply;

(d) make provision as to the manner in which independent advocates are
35to perform their functions;

(e) specify circumstances in which, if an assessment under this Part is
combined with an assessment under this Part that relates to another
person, each person may or must be represented and supported by the
same independent advocate or by different independent advocates;

(f) 40provide that an independent advocate may, in such circumstances or
subject to such conditions as may be specified, examine and take copies
of relevant records relating to the individual.

(8) This section does not restrict the provision that may be made under any other
provision of this Act.

(9) 45“Relevant record” means—

(a) a health record (within the meaning given in section 68 of the Data
Protection Act 1998 (as read with section 69 of that Act)),

(b) a record of, or held by, a local authority and compiled in connection
with a function under this Part or a social services function (within the

meaning given in section 1A of the Local Authority Social Services Act
1970),

(c) a record held by a person registered under Part 2 of the Care Standards
Act 2000 or Chapter 2 of Part 1 of the Health and Social Care Act 2008,
5or

(d) a record of such other description as may be specified in the
regulations.

68 Safeguarding enquiries and reviews

(1) This section applies where there is to be—

(a) 10an enquiry under section 42(2),

(b) a review under section 44(1) of a case in which condition 2 in section
44(3) is met or a review under section 44(4).

(2) The relevant local authority must, if the condition in subsection (3) is met,
arrange for a person who is independent of the authority (an “independent
15advocate”) to be available to represent and support the adult to whose case the
enquiry or review relates for the purpose of facilitating his or her involvement
in the enquiry or review; but see subsections (4) and (6).

(3) The condition is that the local authority considers that, were an independent
advocate not to be available, the individual would experience substantial
20difficulty in doing one or more of the following—

(a) understanding relevant information;

(b) retaining that information;

(c) using or weighing that information as part of the process of being
involved;

(d) 25communicating the individual’s views, wishes or feelings (whether by
talking, using sign language or any other means).

(4) The duty under subsection (2) does not apply if the local authority is satisfied
that there is a person—

(a) who would be an appropriate person to represent and support the
30adult for the purpose of facilitating the adult’s involvement, and

(b) who is not engaged in providing care or treatment for the adult in a
professional capacity or for remuneration.

(5) For the purposes of subsection (4), a person is not to be regarded as an
appropriate person unless—

(a) 35where the adult has capacity to consent to being represented and
supported by that person, the adult does so consent, or

(b) where the adult lacks capacity so to consent, the local authority is
satisfied that being represented and supported by that person would be
in the adult’s best interests.

(6) 40If the enquiry or review needs to begin as a matter of urgency, it may do so
even if the authority has not yet been able to comply with the duty under
subsection (2) (and the authority continues to be subject to the duty).

(7) “Relevant local authority” means—

(a) in a case within subsection (1)(a), the authority making the enquiry or
45causing it to be made;

(b) in a case within subsection (1)(b), the authority which established the
SAB arranging the review.

Enforcement of debts

69 Recovery of charges, interest etc.

(1) Any sum due to a local authority under this Part is recoverable by the authority
as a debt due to it.

(2) 5But subsection (1) does not apply in a case where a deferred payment
agreement could, in accordance with regulations under section 34(1), be
entered into, unless—

(a) the local authority has sought to enter into such an agreement with the
adult from whom the sum is due, and

(b) 10the adult has refused.

(3) A sum is recoverable under this section—

(a) in a case in which the sum becomes due to the local authority on or after
the commencement of this section, within six years of the date the sum
becomes due;

(b) 15in any other case, within three years of the date on which it becomes
due.

(4) Where a person misrepresents or fails to disclose (whether fraudulently or
otherwise) to a local authority any material fact in connection with the
provisions of this Part, the following sums are due to the authority from the
20person—

(a) any expenditure incurred by the authority as a result of the
misrepresentation or failure, and

(b) any sum recoverable under this section which the authority has not
recovered as a result of the misrepresentation or failure.

(5) 25The costs incurred by a local authority in recovering or seeking to recover a
sum due to it under this Part are recoverable by the authority as a debt due to it.

(6) Regulations may—

(a) make provision for determining the date on which a sum becomes due
to a local authority for the purposes of this section;

(b) 30specify cases or circumstances in which a sum due to a local authority
under this Part is not recoverable by it under this section;

(c) specify cases or circumstances in which a local authority may charge
interest on a sum due to it under this Part;

(d) where interest is chargeable, provide that it—

(i) 35must be charged at a rate specified in or determined in
accordance with the regulations, or

(ii) may not be charged at a rate that exceeds the rate specified in or
determined in accordance with the regulations.

70 Transfer of assets to avoid charges

(1) 40This section applies in a case where an adult’s needs have been or are being
met by a local authority under sections 18 to 20 and where—

(a) the adult has transferred an asset to another person (a “transferee”),

(b) the transfer was undertaken with the intention of avoiding charges for
having the adult’s needs met, and

(c) either the consideration for the transfer was less than the value of the
asset or there was no consideration for the transfer.

(2) The transferee is liable to pay to the local authority an amount equal to the
difference between—

(a) 5the amount the authority would have charged the adult were it not for
the transfer of the asset, and

(b) the amount it did in fact charge the adult.

(3) But the transferee is not liable to pay to the authority an amount which exceeds
the benefit accruing to the transferee from the transfer.

(4) 10Where an asset has been transferred to more than one transferee, the liability
of each transferee is in proportion to the benefit accruing to that transferee from
the transfer.

(5) “Asset” means anything which may be taken into account for the purposes of
a financial assessment.

(6) 15The value of an asset (other than cash) is the amount which would have been
realised if it had been sold on the open market by a willing seller at the time of
the transfer, with a deduction for—

(a) the amount of any incumbrance on the asset, and

(b) a reasonable amount in respect of the expenses of the sale.

(7) 20Regulations may specify cases or circumstances in which liability under
subsection (2) does not arise.

Review of funding provisions

71 Five-yearly review by Secretary of State

(1) The Secretary of State must review—

(a) 25the level at which the cap on care costs is for the time being set under
regulations under section 15(4),

(b) the level at which the amount attributable to an adult’s daily living
costs is for the time being set under regulations under section 15(8), and

(c) the level at which the financial limit is for the time being set under
30regulations under section 17(8).

(2) In carrying out the review, the Secretary of State must have regard to—

(a) the financial burden on the state of each of those matters being at the
level in question,

(b) the financial burden on local authorities of each of those matters being
35at the level in question,

(c) the financial burden on adults who have needs for care and support of
each of those matters being at the level in question,

(d) the length of time for which people can reasonably be expected to live
in good health,

(e) 40changes in the ways or circumstances in which adults’ needs for care
and support are being or are likely to be met,

(f) changes in the prevalence of conditions for which the provision of care
and support is or is likely to be required, and

(g) such other factors as the Secretary of State considers relevant.

(3) The Secretary of State must prepare and publish a report on the outcome of the
review.

(4) The first report must be published before the end of the period of five years
beginning with the day on which section 15 comes into force.

(5) 5Each subsequent report must be published before the end of the period of five
years beginning with the day on which the previous report was published.

(6) The Secretary of State may arrange for some other person to carry out the
whole or part of a review under this section on the Secretary of State’s behalf.

(7) The Secretary of State must lay before Parliament a report prepared under this
10section.

Appeals

72 Part 1 appeals

(1) Regulations may make provision for appeals against decisions taken by a local
authority in the exercise of functions under this Part in respect of an individual
15(including decisions taken before the coming into force of the first regulations
made under this subsection).

(2) The regulations may in particular make provision about—

(a) who may (and may not) bring an appeal;

(b) grounds on which an appeal may be brought;

(c) 20pre-conditions for bringing an appeal;

(d) how an appeal is to be brought and dealt with (including time limits);

(e) who is to consider an appeal;

(f) matters to be taken into account (and disregarded) by the person or
body considering an appeal;

(g) 25powers of the person or body deciding an appeal;

(h) what action is to be taken by a local authority as a result of an appeal
decision;

(i) providing information about the right to bring an appeal, appeal
procedures and other sources of information and advice;

(j) 30representation and support for an individual bringing or otherwise
involved in an appeal.

(3) Provision about pre-conditions for bringing an appeal may require specified
steps to have been taken before an appeal is brought.

(4) Provision about how an appeal is to be dealt with may include provision for—

(a) 35the appeal to be treated as, or as part of, an appeal brought or complaint
made under another procedure;

(b) the appeal to be considered with any such appeal or complaint.

(5) Provision about who is to consider an appeal may include provision—

(a) establishing, or requiring or permitting the establishment of, a panel or
40other body to consider an appeal;

(b) requiring an appeal to be considered by, or by persons who include,
persons with a specified description of expertise or experience.

(6) Provision about representation and support for an individual may include
provision applying any provision of or made under section 67, with or without
modifications.

(7) The regulations may make provision for—

(a) 5an appeal brought or complaint made under another procedure to be
treated as, or as part of, an appeal brought under the regulations;

(b) an appeal brought or complaint made under another procedure to be
considered with an appeal brought under the regulations;

(c) matters raised in an appeal brought under the regulations to be taken
10into account by the person or body considering an appeal brought or
complaint made under another procedure.

(8) The regulations may include provision conferring functions on a person or
body established by or under an Act (including an Act passed after the passing
of this Act); for that purpose, the regulations may amend, repeal, revoke or
15otherwise modify an enactment.

(9) Regulations may make provision, in relation to a case where an appeal is
brought under regulations under subsection (1)—

(a) for any provision of this Part to apply, for a specified period, as if a
decision (“the interim decision”) differing from the decision appealed
20against had been made;

(b) as to what the terms of the interim decision are, or as to how and by
whom they are to be determined;

(c) for financial adjustments to be made following a decision on the appeal.

(10) The period specified under subsection (9)(a) may not begin earlier than the
25date on which the decision appealed against was made, or end later than the
date on which the decision on the appeal takes effect.

Miscellaneous

73 Discharge of hospital patients with care and support needs

Schedule 3 (which includes provision about the discharge of hospital patients
30with care and support needs) has effect.

74 After-care under the Mental Health Act 1983

(1) In section 117 of the Mental Health Act 1983 (after-care), in subsection (2), after
“to provide” insert “or arrange for the provision of”.

(2) In subsection (2D) of that section, for the words from “as if” to the end
35substitute “as if the words “provide or” were omitted.”

(3) In subsection (3) of that section, after “means the local social services authority”
insert “—

(a) if, immediately before being detained, the person concerned
was ordinarily resident in England, for the area in England in
40which he was ordinarily resident;

(b) if, immediately before being detained, the person concerned
was ordinarily resident in Wales, for the area in Wales in which
he was ordinarily resident; or

(c) in any other case”.

(4) After that subsection insert—

“(4) Where there is a dispute about where a person was ordinarily resident
for the purposes of subsection (3) above—

(a) if the dispute is between local social services authorities in
5England, section 40 of the Care Act 2014 applies to the dispute
as it applies to a dispute about where a person was ordinarily
resident for the purposes of Part 1 of that Act;

(b) if the dispute is between local social services authorities in
Wales, section 164 of the Social Services and Well-being (Wales)
10Act 2014 applies to the dispute as it applies to a dispute about
where a person was ordinarily resident for the purposes of that
Act;

(c) if the dispute is between a local social services authority in
England and a local social services authority in Wales, it is to be
15determined by the Secretary of State or the Welsh Ministers.

(5) The Secretary of State and the Welsh Ministers shall make and publish
arrangements for determining which of them is to determine a dispute
under subsection (4)(c); and the arrangements may, in particular,
provide for the dispute to be determined by whichever of them they
20agree is to do so.”

(5) After subsection (5) insert—

“(6) In this section, “after-care services”, in relation to a person, means
services which have both of the following purposes—

(a) meeting a need arising from or related to the person’s mental
25disorder; and

(b) reducing the risk of a deterioration of the person’s mental
condition (and, accordingly, reducing the risk of the person
requiring admission to a hospital again for treatment for mental
disorder).”

(6) 30After section 117 of that Act insert—

“117A After-care: preference for particular accommodation

(1) The Secretary of State may by regulations provide that where—

(a) the local social services authority under section 117 is, in
discharging its duty under subsection (2) of that section,
35providing or arranging for the provision of accommodation for
the person concerned;

(b) the person concerned expresses a preference for particular
accommodation; and

(c) any prescribed conditions are met,

40the local social services authority must provide or arrange for the
provision of the person’s preferred accommodation.

(2) Regulations under this section may provide for the person concerned,
or a person of a prescribed description, to pay for some or all of the
additional cost in prescribed cases.

(3) 45In subsection (2), “additional cost” means the cost of providing or
arranging for the provision of the person’s preferred accommodation
less the amount that the local social services authority would expect to

be the usual cost of providing or arranging for the provision of
accommodation of that kind.

(4) The power to make regulations under this section—

(a) is exercisable only in relation to local social services authorities
5in England;

(b) includes power to make different provision for different cases
or areas.”

(7) The ways in which a local authority may discharge its duty under section 117
of the Mental Health Act 1983 include by making direct payments; and for that
10purpose Part 1 of Schedule 4 (which includes modifications of the provisions
of this Part relating to direct payments) has effect.

(8) In section 37 of the Social Services and Well-being (Wales) Act 2014 (direct
payments: further provision), at the end insert—

“(11) The ways in which a local authority may discharge its duty under
15section 117 of the Mental Health Act 1983 include by making direct
payments; and for that purpose Schedule A1 (which includes
modifications of sections 34 and 35 and this section) has effect.”

(9) Before Schedule 1 to that Act insert the Schedule A1 contained in Part 2 of
Schedule 4 to this Act.

(10) 20In section 163 of that Act (ordinary residence), after subsection (4) insert—

“(4A) A person who is being provided with accommodation under section
117 of the Mental Health Act 1983 (after-care) is to be treated for the
purposes of this Act as ordinarily resident in the area of the local
authority, or the local authority in England, on which the duty to
25provide that person with services under that section is imposed.”

(11) In consequence of subsections (7) to (9), in subsection (2C) of section 117 of the
Mental Health Act 1983—

(a) in paragraph (a), for “regulations under section 57 of the Health and
Social Care Act 2001 or” substitute “—

(i) 30sections 31 to 33 of the Care Act 2014 (as applied
by Schedule 4 to that Act),

(ii) sections 34, 35 and 37 of the Social Services and
Well-being (Wales) Act 2014 (as applied by
Schedule A1 to that Act), or

(iii) 35regulations under”,

(b) in paragraph (b), after “apart from” insert “those sections (as so
applied) or”.

(12) In the case of a person who, immediately before the commencement of
subsections (3) and (4), is being provided with after-care services under section
40117 of the Mental Health Act 1983, the amendments made by those subsections
do not apply while those services are continuing to be provided to that person.

(13) In section 145 of the Mental Health Act 1983 (interpretation), for the definition
of “local social services authority” substitute—

• ““local social services authority” means—

  (a)

  45an authority in England which is a local authority for the
  purposes of Part 1 of the Care Act 2014, or

  Care BillPage 68

  (b)

  an authority in Wales which is a local authority for the
  purposes of the Social Services and Well-being (Wales)
  Act 2014.”

75 Prisoners and persons in approved premises etc.

(1) 5In its application to an adult who is detained in prison, this Part has effect as if
references to being ordinarily resident in an area were references to being
detained in prison in that area.

(2) In its application to an adult who is residing in approved premises, this Part
has effect as if references to being ordinarily resident in an area were references
10to being resident in approved premises in that area.

(3) In its application to an adult who is residing in any other premises because a
requirement to do so has been imposed on the adult as a condition of the grant
of bail in criminal proceedings, this Part has effect as if references to being
ordinarily resident in an area were references to being resident in premises in
15that area for that reason.

(4) The power under section 30 (preference for particular accommodation) may
not be exercised in the case of an adult who is detained in prison or residing in
approved premises except for the purpose of making provision with respect to
accommodation for the adult—

(a) 20on his or her release from prison (including temporary release), or

(b) on ceasing to reside in approved premises.

(5) Sections 31 to 33 (direct payments) do not apply in the case of an adult who,
having been convicted of an offence, is—

(a) detained in prison, or

(b) 25residing in approved premises.

(6) Sections 37 and 38 (continuity of care), in their application to an adult who is
detained in prison or residing in approved premises, also apply where it is
decided that the adult is to be detained in prison, or is to reside in approved
premises, in the area of another local authority; and accordingly—

(a) 30references to the adult’s intention to move are to be read as references
to that decision, and

(b) references to carers are to be ignored.

(7) Sections 42 and 47 (safeguarding: enquiry by local authority and protection of
property) do not apply in the case of an adult who is—

(a) 35detained in prison, or

(b) residing in approved premises.

(8) An SAB’s objective under section 43(2) does not include helping and protecting
adults who are detained in prison or residing in approved premises; but an
SAB may nonetheless provide advice or assistance to any person for the
40purpose of helping and protecting such adults in its area in cases of the kind
described in section 42(1) (adults with needs for care and support who are at
risk of abuse or neglect).

(9) Section 44 (safeguarding adults reviews) does not apply to any case involving
an adult in so far as the case relates to any period during which the adult was—

(a) 45detained in prison, or

(b) residing in approved premises.

(10) Regulations under paragraph 1(1)(d) of Schedule 2 (membership of
Safeguarding Adults Boards) may not specify the governor, director or
controller of a prison or a prison officer or prisoner custody officer.

(11) “Prison” has the same meaning as in the Prison Act 1952 (see section 53(1) of
5that Act); and—

(a) a reference to a prison includes a reference to a young offender
institution, secure training centre or secure children’s home,

(b) the reference in subsection (10) to the governor, director or controller of
a prison includes a reference to the governor, director or controller of a
10young offender institution, to the governor, director or monitor of a
secure training centre and to the manager of a secure children’s home,
and

(c) the reference in that subsection to a prison officer or prisoner custody
officer includes a reference to a prison officer or prisoner custody
15officer at a young offender institution, to an officer or custody officer at
a secure training centre and to a member of staff at a secure children’s
home.

(12) “Approved premises” has the meaning given in section 13 of the Offender
Management Act 2007.

(13) 20“Bail in criminal proceedings” has the meaning given in section 1 of the Bail Act
1976.

(14) For the purposes of this section—

(a) a person who is temporarily absent from prison is to be treated as
detained in prison for the period of absence;

(b) 25a person who is temporarily absent from approved premises is to be
treated as residing in approved premises for the period of absence;

(c) a person who is temporarily absent from other premises in which the
person is required to reside as a condition of the grant of bail in criminal
proceedings is to be treated as residing in the premises for the period of
30absence.

76 Registers of sight-impaired adults, disabled adults, etc.

(1) A local authority must establish and maintain a register of sight-impaired and
severely sight-impaired adults who are ordinarily resident in its area.

(2) Regulations may specify descriptions of persons who are, or are not, to be
35treated as being sight-impaired or severely sight-impaired for the purposes of
this section.

(3) A local authority may establish and maintain one or more registers of adults to
whom subsection (4) applies, and who are ordinarily resident in the local
authority’s area, for the purposes in particular of—

(a) 40planning the provision by the authority of services to meet needs for
care and support, and

(b) monitoring changes over time in the number of adults in the authority’s
area with needs for care and support and the types of needs they have.

(4) This subsection applies to an adult who—

(a) 45has a disability,