Care Bill (HL Bill 1)

(a) the adult lacks capacity to refuse the assessment and the authority is
satisfied that carrying out the assessment would be in the adult’s best
interests, or

(b) the adult is experiencing, or is at risk of, abuse or neglect.

(3) 5Where, having refused a needs assessment, an adult requests the assessment,
section 9(1) applies in the adult’s case (and subsection (1) above does not).

(4) Where an adult has refused a needs assessment and the local authority
concerned thinks that the adult’s needs or circumstances have changed, section
9(1) applies in the adult’s case (but subject to further refusal as mentioned in
10subsection (1) above).

(5) Where a carer refuses a carer’s assessment, the local authority concerned is not
required to carry out the assessment (and section 10(1) does not apply in the
carer’s case).

(6) Where, having refused a carer’s assessment, a carer requests the assessment,
15section 10(1) applies in the carer’s case (and subsection (5) above does not).

(7) Where a carer has refused a carer’s assessment and the local authority
concerned thinks that the needs or circumstances of the carer or the adult
needing care have changed, section 10(1) applies in the carer’s case (but subject
to further refusal as mentioned in subsection (5) above).

12 20Assessments under sections 9 and 10: further provision

(1) Regulations must make further provision about carrying out a needs or carer’s
assessment; the regulations may, in particular—

(a) require the local authority, in carrying out the assessment, to have
regard to the needs of the family of the adult to whom the assessment
25relates;

(b) specify other matters to which the local authority must have regard in
carrying out the assessment (including, in particular, the matters to
which it must have regard in seeking to ensure that the assessment is
carried out in an appropriate and proportionate manner);

(c) 30specify steps that the local authority must take for the purpose of
ensuring that the assessment is carried out in an appropriate and
proportionate manner;

(d) specify circumstances in which a specified person or person of a
specified description may carry out the assessment jointly with or on
35behalf of the local authority;

(e) specify circumstances in which the adult to whom the assessment
relates may carry out the assessment jointly with the local authority;

(f) specify circumstances in which the local authority must, before
carrying out the assessment or when doing so, consult a person who
40has expertise in a specified matter;

(g) specify circumstances in which the local authority must refer the adult
concerned for an assessment of eligibility for NHS continuing
healthcare.

(2) The regulations may include provision for facilitating the carrying out of a
45needs or carer’s assessment in circumstances specified under subsection (1)(d)
or (e); they may, for example, give the local authority power to provide the
person carrying out the assessment—

(a) in the case of a needs assessment, with information about the adult to
whom the assessment relates;

(b) in the case of a carer’s assessment, with information about the carer to
whom the assessment relates and about the adult needing care;

(c) 5in either case, with whatever resources, or with access to whatever
facilities, the authority thinks will be required to carry out the
assessment.

(3) The local authority must give a written record of a needs assessment to—

(a) the adult to whom the assessment relates,

(b) 10any carer that the adult has, if the adult asks the authority to do so, and

(c) any other person to whom the adult asks the authority to give a copy.

(4) The local authority must give a written record of a carer’s assessment to—

(a) the carer to whom the assessment relates,

(b) the adult needing care, if the carer asks the authority to do so, and

(c) 15any other person to whom the carer asks the authority to give a copy.

(5) A local authority may, where an adult has a carer, combine a needs assessment
with a carer’s assessment only if the adult needing care and the carer agree.

(6) Where a local authority is carrying out a needs or carer’s assessment, and there
is some other assessment being or about to be carried out in the case of the
20adult to whom the assessment relates or of any carer the person has, the local
authority may carry out that other assessment—

(a) on behalf of or jointly with the body responsible for carrying it out, or

(b) if that body has arranged to carry out the other assessment jointly with
another person, jointly with that body and the other person.

(7) 25A reference to a needs or carer’s assessment includes a reference to a needs or
carer’s assessment (as the case may be) which forms part of a combined
assessment under subsection (5).

(8) A reference to an assessment includes a reference to part of an assessment.

(9) “NHS continuing health care” is to be construed in accordance with standing
30rules under section 6E of the National Health Service Act 2006.

13 The eligibility criteria

(1) Where a local authority is satisfied on the basis of a needs or carer’s assessment
that an adult has needs for care and support or that a carer has needs for
support, it must determine whether any of the needs meet the eligibility
35criteria (see subsection (7)).

(2) Having made a determination under subsection (1), the local authority must—

(a) give the adult concerned a written record of the determination and the
reasons for it, and

(b) consider whether he or she would benefit from the provision of
40anything under section 2 or 4 or from the provision of anything else
which may be available in the community.

(3) Where at least some of an adult’s needs for care and support meet the
eligibility criteria, the local authority must—

(a) consider what could be done to meet those needs that do,

(b) ascertain whether the adult wants to have those needs met by the local
authority in accordance with this Part, and

(c) establish whether the adult is ordinarily resident in the local authority’s
area.

(4) 5Where at least some of a carer’s needs for support meet the eligibility criteria,
the local authority must—

(a) consider what could be done to meet those needs that do, and

(b) establish whether the adult needing care is ordinarily resident in the
local authority’s area.

(5) 10Where none of the needs of the adult concerned meet the eligibility criteria, the
local authority must give him or her written advice and information about—

(a) what can be done to meet or reduce the needs;

(b) what can be done to prevent or delay the development of needs for care
and support, or the development of needs for support, in the future.

(6) 15Regulations may make provision about the making of the determination under
subsection (1).

(7) Needs meet the eligibility criteria if—

(a) they are of a description specified in regulations, or

(b) they form part of a combination of needs of a description so specified.

(8) 20The regulations may, in particular, describe needs by reference to—

(a) the effect that the needs have on the adult concerned;

(b) the adult’s circumstances.

Imposing charges and assessing financial resources

14 Power of local authority to charge

(1) 25A local authority—

(a) may make a charge for meeting needs under sections 18 to 20, and

(b) where it is meeting needs because Condition 2 in section 18 or
Condition 2 or 4 in section 20 is met, may make a charge (in addition to
the charge it makes under paragraph (a)) for putting in place the
30arrangements for meeting those needs.

(2) The power to make a charge under subsection (1) for meeting needs under
section 18 is subject to section 15.

(3) The power to make a charge under subsection (1) for meeting a carer’s needs
for support under section 20 by providing care and support to the adult
35needing care may not be exercised so as to charge the carer.

(4) A charge under subsection (1)(a) may cover only the cost that the local
authority incurs in meeting the needs to which the charge applies.

(5) Regulations may make provision about the exercise of the power to make a
charge under subsection (1).

(6) 40Regulations may prohibit a local authority from making a charge under
subsection (1); and the regulations may (in reliance on section 109(6)) prohibit
a local authority from doing so where, for example, the care and support or the
support—

(a) is of a specified type;

(b) is provided in specified circumstances;

(c) is provided to an adult of a specified description;

(d) is provided for a specified period only.

(7) 5A local authority may not make a charge under subsection (1) if the income of
the adult concerned would, after deduction of the amount of the charge, fall
below such amount as is specified in regulations.

15 Cap on care costs

(1) A local authority may not make a charge under section 14 for meeting an
10adult’s needs under section 18 if the total of the costs accrued in meeting the
adult’s eligible needs after the commencement of this section exceeds the cap
on care costs.

(2) The reference to costs accrued in meeting eligible needs is a reference—

(a) in so far as the local authority met those needs, to the cost to the local
15authority of having done so (as reckoned from the costs specified in the
personal budget for meeting those needs (see section 26));

(b) in so far as another local authority met the needs, to the cost to that
other local authority of having done so (as reckoned from the costs so
specified for meeting those needs);

(c) 20in so far as a person other than a local authority met the needs, to what
the cost of doing so would have been to the local authority which
would otherwise have done so (as reckoned from the costs specified in
the independent personal budget for meeting those needs (see section
28).

(3) 25An adult’s needs are “eligible needs” if, at the time they were met—

(a) they met the eligibility criteria,

(b) they were not being met by a carer, and

(c) the adult was ordinarily resident or present in the area of a local
authority.

(4) 30The “cap on care costs” is the amount specified as such in regulations; and the
regulations may in particular (in reliance on section 109(6))—

(a) specify different amounts for persons of different age groups;

(b) specify zero as the amount for persons of a specified description.

(5) The total of the costs accrued in meeting an adult’s eligible needs after the
35commencement of this section (as referred to in subsection (1)) is referred to in
this Part as the adult’s “accrued costs”.

(6) Where the costs accrued include daily living costs, the amount attributable to
the daily living costs is to be disregarded in working out for the purposes of
subsection (1) the total of the costs accrued in meeting an adult’s eligible needs
40after the commencement of this section.

(7) Where the cost to a local authority of meeting an adult’s needs under section
18 includes daily living costs, and the accrued costs exceed the cap on care costs
(with the result that subsection (1) applies), the local authority may nonetheless
make a charge to cover the amount attributable to those daily living costs.

(8) 45For the purposes of this Part, the amount attributable to an adult’s daily living
costs is the amount specified in, or determined in accordance with, regulations.

16 Cap on care costs: annual adjustment

(1) Where it appears to the Secretary of State that the level of average earnings in
England is different at the end of a review period from what it was at the
beginning of that period, the Secretary of State must make regulations under
5section 15(4) to vary the cap on care costs by the percentage increase or
decrease by which that level has changed.

(2) If a variation is made under subsection (1), each adult’s accrued costs are to be
varied by the same percentage with effect from when the variation itself takes
effect (and local authorities must accordingly ensure that care accounts and
10other records reflect the variation).

(3) The “level of average earnings in England” means the amount which
represents the average annual earnings in England estimated in such manner
as the Secretary of State thinks fit.

(4) “Review period” means—

(a) 15the period of 12 months beginning with the day on which section 15
comes into force, and

(b) each subsequent period of 12 months.

(5) The duty under subsection (1) does not restrict the exercise of the power to
make regulations under section 15(4).

17 20Assessment of financial resources

(1) Where a local authority, having made a determination under section 13(1),
thinks that, if it were to meet an adult’s needs for care and support, it would
charge the adult under section 14(1) for meeting at least some of the needs, it
must assess—

(a) 25the level of the adult’s financial resources, and

(b) the amount (if any) which the adult would be likely to be able to pay
towards the cost of meeting the needs for care and support.

(2) Where a local authority thinks that, in meeting an adult’s needs for care and
support, it would make a charge under section 15(7), it must assess—

(a) 30the level of the adult’s financial resources, and

(b) the amount (if any) which the adult would be likely to be able to pay
towards the amount attributable to the adult’s daily living costs.

(3) Where a local authority, having made a determination under section 13(1),
thinks that, if it were to meet a carer’s needs for support, it would charge the
35carer under section 14(1) for meeting at least some of the needs, it must
assess—

(a) the level of the carer’s financial resources, and

(b) the amount (if any) which the carer would be likely to be able to pay
towards the cost of meeting the needs for support.

(4) 40Where a local authority, having made a determination under section 13(1),
thinks that, if it were to meet a carer’s needs for support, it would charge the
adult needing care under section 14(1) for meeting at least some of the needs,
it must assess—

(a) the level of the financial resources of the adult needing care, and

(b) 45the amount (if any) which the adult needing care would be likely to be
able to pay towards the cost of meeting the carer’s needs for support.

(5) An assessment under this section is referred to in this Part as a “financial
assessment”.

(6) A local authority, having carried out a financial assessment, must give a
written record of the assessment to the adult to whom it relates.

(7) 5Regulations must make provision about the carrying out of a financial
assessment.

(8) The regulations must provide that where the financial resources of an adult
who has needs for care and support (whether in terms of income, capital or a
combination of both) exceed a specified level, a local authority will not—

(a) 10in a case where the adult’s accrued costs do not exceed the cap on care
costs, pay towards the cost of the provision of care and support for the
adult;

(b) in a case where the adult’s accrued costs exceed the cap on care costs,
pay towards the amount attributable to the adult’s daily living costs.

(9) 15The regulations must provide that where the financial resources of a carer who
has needs for support or of the adult needing care (whether in terms of income,
capital or a combination of both) exceed a specified level, a local authority will
not pay towards the cost of the provision of support for the carer.

(10) The level specified for the purposes of subsections (8) and (9) is referred to in
20this Part as “the financial limit”; and the regulations may in particular (in
reliance on section 109(6)) specify—

(a) different levels for different descriptions of care and support;

(b) different levels for different levels of support.

(11) The regulations must make provision for—

(a) 25calculating income;

(b) calculating capital.

(12) The regulations may make provision for—

(a) treating, or not treating, amounts of a specified type as income or as
capital;

(b) 30cases or circumstances in which an adult is to be treated as having
financial resources at or above the financial limit.

Duties and powers to meet needs

18 Duty to meet needs for care and support

(1) A local authority, having made a determination under section 13(1), must meet
35the adult’s needs for care and support which meet the eligibility criteria if—

(a) the adult is ordinarily resident in the authority’s area or is present in its
area but of no settled residence,

(b) the adult’s accrued costs do not exceed the cap on care costs, and

(c) there is no charge under section 14 for meeting the needs or, in so far as
40there is, condition 1, 2 or 3 is met.

(2) Condition 1 is met if the local authority is satisfied on the basis of the financial
assessment it carried out that the adult’s financial resources are at or below the
financial limit.

(3) Condition 2 is met if—

(a) the local authority is satisfied on the basis of the financial assessment it
carried out that the adult’s financial resources are above the financial
limit, but

(b) the adult nonetheless asks the authority to meet the adult’s needs.

(4) 5Condition 3 is met if—

(a) the adult lacks capacity to arrange for the provision of care and
support, but

(b) there is no person authorised to do so under the Mental Capacity Act
2005 or otherwise in a position to do so on the adult’s behalf.

(5) 10A local authority, having made a determination under section 13(1), must meet
the adult’s needs for care and support which meet the eligibility criteria if—

(a) the adult is ordinarily resident in the authority’s area or is present in its
area but of no settled residence, and

(b) the adult’s accrued costs exceed the cap on care costs.

(6) 15The reference in subsection (1) to there being no charge under section 14 for
meeting an adult’s needs for care and support is a reference to there being no
such charge because—

(a) the authority is prohibited by regulations under section 14 from
making such a charge, or

(b) 20the authority is entitled to make such a charge but decides not to do so.

(7) The duties under subsections (1) and (5) do not apply to such of the adult’s
needs as are being met by a carer.

19 Power to meet needs for care and support

(1) A local authority, having carried out a needs assessment and (if required to do
25so) a financial assessment, may meet an adult’s needs for care and support if—

(a) the adult is ordinarily resident in the authority’s area or is present in its
area but of no settled residence, and

(b) the authority is satisfied that it is not required to meet the adult’s needs
under section 18.

(2) 30A local authority, having made a determination under section 13(1), may meet
an adult’s needs for care and support which meet the eligibility criteria if—

(a) the adult is ordinarily resident in the area of another local authority,

(b) there is no charge under section 14 for meeting the needs or, in so far as
there is such a charge, condition 1, 2 or 3 in section 18 is met, and

(c) 35the authority has notified the other local authority of its intention to
meet the needs.

(3) A local authority may meet an adult’s needs for care and support which appear
to it to be urgent (regardless of whether the adult is ordinarily resident in its
area) without having yet—

(a) 40carried out a needs assessment or a financial assessment, or

(b) made a determination section 13(1).

(4) The reference in subsection (2) to there being no charge under section 14 for
meeting an adult’s needs is to be construed in accordance with section 18(6).

20 Duty and power to meet a carer’s needs for support

(1) A local authority, having made a determination under section 13(1), must meet
a carer’s needs for support which meet the eligibility criteria if—

(a) the adult needing care is ordinarily resident in the local authority’s area
5or is present in its area but of no settled residence,

(b) in so far as meeting the carer’s needs involves the provision of support
to the carer, there is no charge under section 14 for meeting the needs
or, in so far as there is, condition 1 or 2 is met, and

(c) in so far as meeting the carer’s needs involves the provision of care and
10support to the adult needing care—

(i) there is no charge under section 14 for meeting the needs and
the adult needing care agrees to the needs being met in that
way, or

(ii) in so far as there is such a charge, condition 3 or 4 is met.

(2) 15Condition 1 is met if the local authority is satisfied on the basis of the financial
assessment it carried out that the carer’s financial resources are at or below the
financial limit.

(3) Condition 2 is met if—

(a) the local authority is satisfied on the basis of the financial assessment it
20carried out that the carer’s financial resources are above the financial
limit, but

(b) the carer nonetheless asks the authority to meet the needs in question.

(4) Condition 3 is met if—

(a) the local authority is satisfied on the basis of the financial assessment it
25carried out that the financial resources of the adult needing care are at
or below the financial limit, and

(b) the adult needing care agrees to the authority meeting the needs in
question by providing care and support to him or her.

(5) Condition 4 is met if—

(a) 30the local authority is satisfied on the basis of the financial assessment it
carried out that the financial resources of the adult needing care are
above the financial limit, but

(b) the adult needing care nonetheless asks the authority to meet the needs
in question by providing care and support to him or her.

(6) 35A local authority may meet a carer’s needs for support if it is satisfied that it is
not required to meet the carer’s needs under this section; but, in so far as
meeting the carer’s needs involves the provision of care and support to the
adult needing care, it may do so only if the adult needing care agrees to the
needs being met in that way.

(7) 40A local authority may meet some or all of a carer’s needs for support in a way
which involves the provision of care and support to the adult needing care,
even if the authority would not be required to meet the adult’s needs for care
and support under section 18.

(8) Where a local authority is required by this section to meet some or all of a
45carer’s needs for support but it does not prove feasible for it to do so by
providing care and support to the adult needing care, it must, so far as it is
feasible to do so, identify some other way in which to do so.

(9) The reference in subsection (1)(b) to there being no charge under section 14 for
meeting a carer’s needs for support under section 14 is a reference to there
being no such charge because—

(a) the authority is prohibited by regulations under section 14 from
5making such a charge, or

(b) the authority is entitled to make such a charge but decides not to do so.

(10) The reference in subsection (1)(c) to there being no charge under section 14 for
meeting an adult’s needs for care and support under section 14 is to be
construed in accordance with section 18(6).

21 10Exception for persons subject to immigration control

(1) A local authority may not meet the needs for care and support of an adult to
whom section 115 of the Immigration and Asylum Act 1999 (“the 1999 Act”)
(exclusion from benefits) applies and whose needs for care and support have
arisen solely—

(a) 15because the adult is destitute, or

(b) because of the physical effects, or anticipated physical effects, of being
destitute.

(2) For the purposes of subsection (1), section 95(2) to (7) of the 1999 Act applies
but with the references in section 95(4) and (5) to the Secretary of State being
20read as references to the local authority in question.

(3) But, until the commencement of section 44(6) of the Nationality, Immigration
and Asylum Act 2002, subsection (2) is to have effect as if it read as follows—

“(2) For the purposes of subsection (1), section 95(3) and (5) to (8) of, and
paragraph 2 of Schedule 8 to, the 1999 Act apply but with references in
25section 95(5) and (7) and that paragraph to the Secretary of State being
read as references to the local authority in question.”

(4) The reference in subsection (1) to meeting an adult’s needs for care and support
includes a reference to providing care and support to the adult in order to meet
a carer’s needs for support.

(5) 30For the purposes of its application in relation to the duty in section 2(1)
(preventing needs for care and support), this section is to be read as if—

(a) for subsection (1) there were substituted—

“(1) A local authority may not perform the duty under section 2(1)
in relation to an adult to whom section 115 of the Immigration
35and Asylum Act 1999 (“the 1999 Act”) (exclusion from benefits)
applies and whose needs for care and support have arisen, or
for whom such needs may in the future arise, solely—

(a) because the adult is destitute, or

(b) because of the physical effects, or anticipated physical
40effects, of being destitute.”, and

(b) subsection (4) were omitted.

22 Exception for provision of health services

(1) A local authority may not meet needs under sections 18 to 20 by providing or
arranging for the provision of a service or facility that is required to be
45provided under the National Health Service Act 2006 unless—

(a) doing so would be merely incidental or ancillary to doing something
else to meet needs under those sections, and

(b) the service or facility in question would be of a nature that the local
authority could be expected to provide.

(2) 5Regulations may specify—

(a) types of services or facilities which, despite subsection (1), may be
provided or the provision of which may be arranged by a local
authority, or circumstances in which such services or facilities may be
so provided or the provision of which may be so arranged;

(b) 10types of services or facilities which may not be provided or the
provision of which may not be arranged by a local authority, or
circumstances in which such services or facilities may not be so
provided or the provision of which may not be so arranged;

(c) services or facilities, or a method for determining services or facilities,
15the provision of which is, or is not, to be treated as meeting the
conditions in subsection (1)(a) and (b).

(3) A local authority may not meet needs under sections 18 to 20 by providing or
arranging for the provision of nursing care by a registered nurse.

(4) But a local authority may, despite the prohibitions in subsections (1) and (3),
20arrange for the provision of accommodation together with the provision of
nursing care by a registered nurse if—

(a) the authority has obtained consent for it to arrange for the provision of
the nursing care from whichever clinical commissioning group
regulations require, or

(b) 25the case is urgent and the arrangements for accommodation are only
temporary.

(5) In a case to which subsection (4)(b) applies, as soon as is feasible after the
temporary arrangements are made, the local authority must seek to obtain the
consent mentioned in subsection (4)(a).

(6) 30Regulations may require a local authority—

(a) to be involved in the specified manner in processes for assessing a
person’s needs for health care and for deciding how those needs should
be met;

(b) to make arrangements for determining disputes between the authority
35and a clinical commissioning group or the National Health Service
Commissioning Board about whether or not a service or facility is
required to be provided under the National Health Service Act 2006.

(7) Nothing in this section affects what a local authority may do under the
National Health Service Act 2006, including entering into arrangements under
40regulations under section 75 of that Act (arrangements with NHS bodies).

(8) A reference to the provision of nursing care by a registered nurse is a reference
to the provision by a registered nurse of a service involving—

(a) the provision of care, or

(b) the planning, supervision or delegation of the provision of care,

45other than a service which, having regard to its nature and the circumstances
in which it is provided, does not need to be provided by a registered nurse.

(9) Where, in a case within subsection (4), the National Health Service
Commissioning Board has responsibility for arranging for the provision of the