Social Care Portability Bill (HL Bill 78)

1 Application of the duties

The duties under this Act apply where—

(a) a person (P) is ordinarily resident in a local authority (“the first

authority”);

(b) 5pursuant to a determination of need by the first authority under social

care enactments, P is in receipt of a care package (“the existing care

package”); and

(c) P wishes—

(i) to become ordinarily resident in another local authority (“the

10second authority”); and

(ii) to continue to receive a care package in the second authority.

2 First authority: duty to give notice

As soon as the first authority becomes aware that P has a firm intention of

becoming ordinarily resident in the second authority, it must give notice to the

15second authority.

3 Second authority: duty to make provision

(1) On receipt of a notice under section 2, the second authority must take steps to

put in place a care package to meet P’s care needs (“the new care package”).

(2) The new care package must be equivalent to the existing care package for the

20period prescribed by regulations under section 6.

4 First authority: duty to continue funding

(1) Until the new care package is in place, the first authority must continue to fund

the provision of a care package for P equivalent to the existing care package.

(2) The first authority is entitled to reimbursement by the second authority for any

5expenditure it incurs under subsection (1).

5 Co-operation between the authorities

(1) The first authority and the second authority (together “the authorities”) must

co-operate with one another to ensure that any arrangements under sections 3

and 4 (“the transitional arrangements”) are effective.

(2) 10In particular, the authorities must ensure that the transitional arrangements—

(a) are made with the involvement and consent of P and any person with

parental responsibility for P;

(b) comply with any regulations made under section 6; and

(c) accord with any guidance or directions issued by the Secretary of State

15or the Welsh Ministers under section 7 (local authorities to exercise

social services functions under guidance of Secretary of State) or 7A

(directions by the Secretary of State as to exercise of social services

functions) of the Local Authority Social Services Act 1970 in relation to

the portability of care packages.

(3) 20In exercising their duties under this Act, the authorities must have regard to

the following principles—

(a) the welfare of P is paramount;

(b) the transitional arrangements should be timely and seamless;

(c) P’s care needs should not be adversely affected by any dispute between

25the authorities or between one or both of the authorities and another

party;

(d) the dignity, choice and control of P should be respected during the

transitional arrangements.

6 Regulations

(1) 30The Secretary of State and the Welsh Ministers may make regulations in

relation to the performance of the authorities’ duties.

(2) Regulations under subsection (1) may, in particular—

(a) prescribe the form and content of a notice under section 2;

(b) prescribe the period by which the second authority is to have a new

35care package in place for P;

(c) prescribe the period for which the new care package is to be equivalent

to the existing care package;

(d) prescribe the period for which the first authority is to retain funding

responsibility for P’s care needs;

(e) 40prescribe the basis of reimbursement by the second authority of any

expenditure by the first authority under section 4;

(f) provide for the payment of interest on any sums so reimbursed; and

(g) provide for the resolution of any dispute between the authorities as to

their respective funding responsibilities, including responsibility for

45any new or changed social care needs that P may acquire.

(3) Regulations under subsection (1) are to be made by statutory instrument—

(a) in relation to England, by the Secretary of State; and

(b) in relation to Wales, by the Welsh Ministers.

(4) A statutory instrument containing regulations is subject to annulment in

5pursuance of a resolution of either House of Parliament or, in relation to Wales,

the National Assembly of Wales.

7 Interpretation

In this Act—

• “care package” means—

  (a)

  10community care services for P within the meaning of section
  
  46(3) (local authority plans for community care services) of the
  
  National Health Service and Community Care Act 1990;

  (b)

  care services for P under section 17 (provision of services for
  
  children in need, their families and others) of the Children Act
  
  151989;

  (c)

  direct payments to P under section 57 (direct payments) of the
  
  Health and Social Care Act 2001;

  (d)

  direct payments to P, or a person with parental responsibility
  
  for P, under section 17A (direct payments) of the Children Act
  
  201989; or

  (e)

  a combination of these;

• “equivalent” means having the same outcome;

• “local authority” means—

  (a)

  a unitary authority in England;

  (b)

  25a county council in England;

  (c)

  a metropolitan district council in England;

  (d)

  a non-metropolitan district council in England for an area for
  
  which there is no county council;

  (e)

  a London borough council;

  (f)

  30the Common Council of the City of London;

  (g)

  the Council of the Isles of Scilly;

  (h)

  a county council or county borough council in Wales;

• “social care enactments” means—

  (a)

  section 2 (provision of welfare services) of the Chronically Sick
  
  35and Disabled Persons Act 1970;

  (b)

  section 4 (services under section 2 of the 1970 Act: duty to
  
  consider needs of disabled persons) of the Disabled Persons
  
  (Services, Consultation and Representation) Act 1986;

  (c)

  section 17 (provision of services for children in need, their
  
  40families and others) of the Children Act 1989;

  (d)

  section 47 (assessment of needs for community care services) of
  
  the National Health Service and Community Care Act 1990.

8 Extent

(1) This Act extends only to England and Wales.

(2) The Secretary of State may by order made by statutory instrument provide that

this Act shall have effect in its application to the Isles of Scilly with such

modifications as may be specified in the order.

(3) The statutory instrument containing an order under subsection (2) is subject to

5annulment in pursuance of a resolution of either House of Parliament.

9 Commencement

(1) This Act comes into force on such day as may be appointed by order made by

statutory instrument.

(2) An order under subsection (1) is to be made—

(a) 10in relation to England, by the Secretary of State; and

(b) in relation to Wales, by the Welsh Ministers.

(3) An order under subsection (1) may include incidental, consequential,

supplementary or transitional provision.

10 Short title

15This Act may be cited as the Social Care Portability Act 2011.