Care Bill (HL Bill 1)
PART 1 continued
Contents page 1-9 10-19 20-29 30-39 40-49 50-59 60-69 70-79 80-89 90-99 100-109 110-119 120-125 Last page
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(9)
The regulations may make provision for the purpose of enabling local
authorities to protect (for example, by registration) or enforce security obtained
for the payment of the adult’s deferred amount or the payment of any interest
or other amount referred to in subsection (1); and, for that purpose, the
5regulations may amend, repeal, revoke or otherwise modify an enactment.
(10)
This section applies in relation to an agreement of the kind mentioned in
section 34(8) as it applies in relation to a deferred payment agreement; and for
that purpose—
(a)
the references in subsections (1), (3) and (5) to the adult’s deferred
10amount are to be read as references to the loan; and
(b)
the reference in subsection (9) to payment of the adult’s deferred
amount is to be read as a reference to repayment of the loan.
Continuity of care and support when adult moves
36 Notification, assessment, etc.
(1) 15This section applies where—
(a)
an adult’s needs for care and support are being met by a local authority
(“the first authority”) under section 18 or 19,
(b)
the adult notifies another local authority (“the second authority”) (or
that authority is notified on the adult’s behalf) that the adult intends to
20move to the area of the second authority, and
(c) the second authority is satisfied that the adult’s intention is genuine.
(2) This section also applies where—
(a)
an adult is not having needs for care and support met under either of
those sections but a local authority (“the first authority”) is nonetheless
25keeping a care account in the adult’s case,
(b)
the adult notifies another local authority (“the second authority”) (or
that authority is notified on the adult’s behalf) that the adult intends to
move to the area of the second authority, and
(c) the second authority is satisfied that the adult’s intention is genuine.
(3) 30This section also applies where—
(a)
an adult’s needs for care and support are being met by a local authority
(“the first authority”) under section 18 or 19 by the first authority
arranging for the provision of accommodation in the area of another
local authority (“the second authority”),
(b)
35the adult notifies the second authority (or that authority is notified on
the adult’s behalf) that the adult intends to move out of that
accommodation but to remain, and be provided with care and support
at home or in the community, in its area, and
(c) the second authority is satisfied that the adult’s intention is genuine.
(4) 40The second authority must—
(a)
provide the adult and, if the adult has or is proposing to have a carer,
the carer with such information as it considers appropriate (in so far as
it would not do so under section 4), and
(b)
notify the first authority that it is satisfied as mentioned in subsection
45(1)(c), (2)(c) or (3)(c).
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(5)
The first authority, having received the notification under subsection (4)(b),
must provide the second authority with—
(a) a copy of any care and support plan prepared for the adult,
(b) a copy of any independent personal budget prepared for the adult,
(c)
5in a case within subsection (2), a copy of the most recent needs
assessment in the adult’s case,
(d)
if the first authority has been keeping a care account in the adult’s case,
a copy of that account,
(e)
if the adult has a carer and that carer is to continue as the adult’s carer
10after the move, a copy of any support plan prepared for the carer, and
(f)
such other information relating to the adult and, if the adult has a carer
(whether or not one with needs for support), such other information
relating to the carer as the second authority may request.
(6) The second authority must—
(a)
15assess whether the adult has needs for care and support and, if the
adult does, what those needs are, and
(b)
where the adult has or is proposing to have a carer and it is appropriate
to do so, assess whether the carer has or is likely to have needs for
support and, if the carer does or is likely to, what those needs are or are
20likely to be.
(7)
In carrying out an assessment under subsection (6)(a) or (b), the second
authority must have regard to the care and support plan provided under
subsection (5)(a) or (as the case may be) the support plan provided under
subsection (5)(e).
(8) 25This Part—
(a)
applies to an assessment under subsection (6)(a) as it applies to a needs
assessment, and
(b)
applies to an assessment under subsection (6)(b) as it applies to a
carer’s assessment.
(9)
30Where the needs identified by an assessment under subsection (6)(a) carried
out by the second authority are different from those specified in the care and
support plan provided under subsection (5)(a), the second authority must
provide a written explanation of the difference to—
(a) the adult,
(b) 35any 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 provide the
explanation.
(10)
Where the cost to the second authority of meeting the adult’s eligible needs is
different from the cost to the first authority of doing so, the second authority
40must provide a written explanation of the difference to—
(a) the adult,
(b) any 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 provide the
explanation.
(11)
45Where the needs identified by an assessment under subsection (6)(b) carried
out by the second authority are different from those in the support plan
provided under subsection (5)(e), the second authority must provide a written
explanation of the difference to—
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(a) the carer,
(b) the adult needing care, if the carer asks the authority to do so, and
(c)
any other person to whom the carer asks the authority to provide an
explanation.
(12)
5Regulations may specify steps which a local authority must take for the
purpose of being satisfied as mentioned in subsection (1)(c), (2)(c) or (3)(c).
(13) In this section—
(a)
an adult’s needs are “eligible needs” if they meet the eligibility criteria
and are not being met by a carer,
(b)
10a reference to moving to an area is a reference to moving to that area
with a view to becoming ordinarily resident there, and
(c)
a reference to remaining in an area is a reference to remaining
ordinarily resident there.
37 Case where assessments not complete on day of move
(1)
15If, on the day of the intended move as mentioned in section 36(1)(b), (2)(b) or
(3)(b), the second authority has yet to carry out the assessment or assessments
under section 36(6), or has done so but has yet to take the other steps required
under this Part in the adult’s case, it must—
(a)
meet the adult’s needs for care and support, and the needs for support
20of any carer who is continuing as the adult’s carer, which the first
authority has been meeting, and
(b)
where the first authority has been keeping a care account in the adult’s
case, itself keep that account on the same basis as the first authority has
been keeping it.
(2) 25The second authority is subject to the duty under subsection (1) until it has—
(a) carried out the assessment or assessments under section 36(6), and
(b) taken the other steps required under this Part in the adult’s case.
(3)
In deciding how to meet the adult’s needs for care and support under
subsection (1), the second authority must involve—
(a) 30the adult,
(b) any carer who is continuing as the adult’s carer, 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.
(4)
35In deciding how to meet the needs for support of any carer who is continuing
as the adult’s carer, the second authority must involve—
(a) the carer,
(b) the adult needing care, if the carer asks the authority to do so, and
(c) any other person whom the carer asks the authority to involve.
(5)
40In performing the duty under subsection (3)(a) or (4)(a), the second authority
must take all reasonable steps to reach agreement with the adult or carer about
how it should meet the needs in question.
(6)
The first authority is not required to meet the adult’s needs for care and
support or, if the adult has a carer, such needs for support as the carer has, for
45so long as the second authority is subject to the duty under subsection (1).
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(7)
Where, having complied with the duty under subsection (1), the second
authority is not required to meet the adult’s needs for care and support under
section 18 because the adult is still ordinarily resident in the area of the first
authority, the second authority may recover from the first authority the costs it
5incurs in complying with the duty under subsection (1).
(8)
Regulations may specify matters to which the second authority must have
regard in deciding how to perform the duty under subsection (1).
Establishing where a person lives, etc.
38 Where a person’s ordinary residence is
(1)
10Where an adult has needs for care and support which can be met only if the
adult is living in accommodation of a type specified in regulations, and the
adult is living in accommodation in England of a type so specified, the adult is
to be treated for the purposes of this Part as ordinarily resident—
(a)
in the area in which the adult was ordinarily resident immediately
15before the adult began to live in accommodation of a type specified in
the regulations, or
(b)
if the adult was of no settled residence immediately before the adult
began to live in accommodation of a type so specified, in the area in
which the adult was present at that time.
(2)
20Where, before beginning to live in his or her current accommodation, the adult
was living in accommodation of a type so specified (whether or not of the same
type as the current accommodation), the reference in subsection (1)(a) to when
the adult began to live in accommodation of a type so specified is a reference
to the beginning of the period during which the adult has been living in
25accommodation of one or more of the specified types for consecutive periods.
(3)
The regulations may make provision for determining for the purposes of
subsection (1) whether an adult has needs for care and support which can be
met only if the adult is living in accommodation of a type specified in the
regulations.
(4)
30An adult 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 Part
as ordinarily resident in the area of the local authority on which the duty to
provide the adult with services under that section is imposed.
(5)
An adult who is being provided with accommodation under the National
35Health Service Act 2006 is to be treated for the purposes of this Part as
ordinarily resident—
(a)
in the area in which the adult was ordinarily resident immediately
before the accommodation was provided, or
(b)
if the adult was of no settled residence immediately before the
40accommodation was provided, in the area in which the adult was
present at that time.
(6)
Schedule 1 (which makes provision about cross-border placements to and from
Wales, Scotland or Northern Ireland) has effect.
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39 Disputes about ordinary residence or continuity of care
(1)
Any dispute about where an adult is ordinarily resident for the purposes of this
Part, or any dispute between local authorities under section 36 about the
application of that section, is to be determined by—
(a) 5the Secretary of State, or
(b)
where the Secretary of State appoints a person for that purpose (the
“appointed person”), that person.
(2)
The Secretary of State or appointed person may review a determination under
subsection (1), provided that the review begins within 3 months of the date of
10the determination.
(3)
Having carried out a review under subsection (2), the Secretary of State or
appointed person must—
(a) confirm the original determination, or
(b) substitute a different determination.
(4)
15Regulations may make further provision about resolution of disputes of the
type mentioned in subsection (1); the regulations may, for example, include—
(a)
provision for ensuring that care and support is provided to the adult
while the dispute is unresolved;
(b)
provision requiring the local authorities in dispute to take specified
20steps before referring the dispute to the Secretary of State or (as the case
may be) the appointed person;
(c)
provision about the procedure for referring the dispute to the Secretary
of State or appointed person;
(d)
where a review of a determination has been carried out under
25subsection (2) and a different determination substituted, provision
requiring a local authority to take specified steps (including paying
specified amounts) in relation to the period before the determination
was substituted.
40 Financial adjustments between local authorities
(1) 30This section applies where—
(a)
a local authority has been meeting an adult’s needs for care and
support, but
(b)
it transpires (whether following the determination of a dispute under
section 39 or otherwise) that the adult was, for some or all of the time
35that the authority has been meeting the adult’s needs, ordinarily
resident in the area of another local authority.
(2) This section also applies where—
(a) a local authority has been meeting a carer’s needs for support, but
(b)
it transpires (whether following the determination of a dispute under
40section 39 or otherwise) that the adult needing care was, for some or all
of the time that the authority has been meeting the carer’s needs,
ordinarily resident in the area of another local authority.
(3)
The local authority concerned may recover from the other local authority the
amount of any payments it made towards meeting the needs in question at a
45time when the other local authority was instead liable to meet them under
section 18 or 20(1) (as the case may be).
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(4)
Subsection (3) does not apply to payments which are the subject of a deferred
payment agreement entered into by the local authority in question, unless it
agrees with the other local authority to assign its rights and obligations under
the deferred payment agreement to that other authority.
(5)
5Any period during which a local authority was meeting the needs in question
under section 19 or 20(6) is to be disregarded for the purposes of this section.
Safeguarding adults at risk of abuse or neglect
41 Enquiry by local authority
(1)
This section applies where a local authority has reasonable cause to suspect
10that an adult in its area (whether or not ordinarily resident there)—
(a)
has needs for care and support (whether or not the authority is meeting
any of those needs),
(b) is experiencing, or is at risk of, abuse or neglect, and
(c)
as a result of those needs is unable to protect himself or herself against
15the abuse or neglect or the risk of it.
(2)
The local authority must make (or cause to be made) whatever enquiries it
thinks necessary to enable it to decide whether any action should be taken in
the adult’s case (whether under this Part or otherwise) and, if so, what and by
whom.
(3)
20“Abuse” includes financial abuse; and for that purpose “financial abuse”
includes—
(a) having money or other property stolen,
(b) being defrauded,
(c) being put under pressure in relation to money or other property, and
(d) 25having money or other property misused.
42 Safeguarding Adults Boards
(1)
Each local authority must establish a Safeguarding Adults Board (an “SAB”)
for its area.
(2)
The objective of an SAB is to help and protect adults in its area in cases of the
30kind described in section 41(1).
(3)
The way in which an SAB must seek to achieve its objective is by co-ordinating
and ensuring the effectiveness of what each of its members does.
(4)
An SAB may do anything which appears to it to be necessary or desirable for
the purpose of achieving its objective.
(5)
35Schedule 2 (which includes provision about the membership, funding and
other resources, strategy and annual report of an SAB) has effect.
(6)
Where two or more local authorities exercise their respective duties under
subsection (1) by establishing an SAB for their combined area—
(a)
a reference in this section, section 43 or Schedule 2 to the authority
40establishing the SAB is to be read as a reference to the authorities
establishing it, and
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(b)
a reference in this section, that section or that Schedule to the SAB’s
area is to be read as a reference to the combined area.
43 Safeguarding adults reviews
(1)
An SAB must arrange for there to be a review of a case involving an adult in its
5area with needs for care and support (whether or not the local authority has
been meeting any of those needs) if—
(a)
there is reasonable cause for concern about how the SAB, members of it
or other persons with relevant functions worked together to safeguard
the adult, and
(b) 10condition 1 or 2 is met.
(2) Condition 1 is met if—
(a) the adult has died, and
(b)
the SAB knows or suspects that the death resulted from abuse or
neglect (whether or not it knew about or suspected the abuse or neglect
15before the adult died).
(3) Condition 2 is met if—
(a) the adult is still alive, and
(b)
the SAB knows or suspects that the adult has experienced serious abuse
or neglect.
(4)
20An SAB may arrange for there to be a review of any other case involving an
adult in its area with needs for care and support (whether or not the local
authority has been meeting any of those needs).
(5)
Each member of the SAB must co-operate in and contribute to the carrying out
of a review under this section with a view to—
(a) 25identifying the lessons to be learnt from the adult’s case, and
(b) applying those lessons to future cases.
44 Supply of information
(1)
If an SAB requests a person to supply information to it, or to some other person
specified in the request, the person to whom the request is made must comply
30with the request if—
(a) conditions 1 and 2 are met, and
(b) condition 3 or 4 is met.
(2)
Condition 1 is that the request is made for the purpose of enabling or assisting
the SAB to exercise its functions.
(3)
35Condition 2 is that the request is made to a person whose functions or activities
the SAB considers to be such that the person is likely to have information
relevant to the exercise of a function by the SAB.
(4) Condition 3 is that the information relates to—
(a) the person to whom the request is made,
(b) 40a function or activity of that person, or
(c)
a person in respect of whom that person exercises a function or engages
in an activity.
(5) Condition 4 is that the information—
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(a)
is information requested by the SAB from a person to whom
information was supplied in compliance with another request under
this section, and
(b) is the same as, or is derived from, information so supplied.
(6)
5Information may be used by the SAB, or other person to whom it is supplied
under subsection (1), only for the purpose of enabling or assisting the SAB to
exercise its functions.
45 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
10power to remove a person in need of care from home) ceases to apply to
persons in England.
46 Protecting 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
1519 in a way that involves the provision of accommodation, or is
admitted to hospital (or both), and
(b)
it 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
20protect or deal with the property, and
(ii) no suitable arrangements have been or are being made.
(2)
The 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)
25may at all reasonable times and on reasonable notice enter any
premises which the adult was living in immediately before being
provided 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) 30A 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
lacks 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
35authorised, the local authority is satisfied that exercising the power
would be in the adult’s best interests.
(5)
Where 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)
40A person who, without reasonable excuse, obstructs the exercise of the power
under subsection (3)(a)—
(a) commits an offence, and
(b)
is liable on summary conviction to a fine not exceeding level 4 on the
standard scale.
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(7)
A local authority may recover from an adult whatever reasonable expenses the
authority incurs under this section in the adult’s case.
Provider failure
47 Temporary duty on local authority
(1)
5This 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
unable 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
10is 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
activity, being met by the carrying on of that activity in the authority’s area by
the provider.
(3)
15A 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)
whether the authority has carried out a needs assessment, a carer’s
assessment or a financial assessment;
(c) 20whether any of the needs meet the eligibility criteria.
(4)
Subsection (2) does not require a local authority to meet an adult’s needs in so
far as they were, immediately before the provider became unable to carry on
the regulated activity in question, being met by—
(a)
the provision by that provider of accommodation under arrangements
25of the kind referred to in paragraph 2 of Schedule 1 (cross-border
placements from Wales), and
(b) the provision of anything else by that provider.
(5)
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.
(6)
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.
(7)
35If 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
under arrangements made by the authority in whose area the adult is
ordinarily resident, co-operate with that authority (in so far as it is not
40already required to do so by section 6);
(b)
may recover from the authority in whose area the adult is ordinarily
resident the amount of any payments it makes towards meeting those
of the adult’s or carer’s needs referred to in paragraph (a).
(8)
Any dispute between local authorities about the application of this section is to
45be determined under section 39 as if it were a dispute of the type mentioned in
subsection (1) of that section.
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(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.
(10)
The reference in subsection (7)(a) to the authority in whose area an adult is
5ordinarily resident is—
(a)
if the adult is ordinarily resident in Scotland, a reference to the local
authority in Scotland (as defined by paragraph 8 of Schedule 1);
(b)
if the adult is ordinarily resident in Northern Ireland, a reference to the
Health and Social Care trust.
48 10Temporary duty on local authority: placements to and from 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)
15immediately before becoming unable to do so, was providing an adult
with accommodation in Wales under arrangements of the kind referred
to in paragraph 1 of Schedule 1 to this Act (cross-border placements
from England).
(2) This section also applies where a registered care provider—
(a)
20becomes unable to carry on the regulated activity in respect of which it
is registered because of business failure, and
(b)
immediately before becoming unable to do so, was providing an adult
with accommodation in England under arrangements of the kind
referred to in paragraph 2 of Schedule 1 (cross-border placements from
25Wales).
(3)
The authority in whose area the accommodation is situated must for so long as
it considers necessary meet those of the adult’s needs for care and support
which were being met by the registered person (including needs which were
being met otherwise than by the provision of accommodation).
(4) 30An authority which is required to meet an adult’s needs under subsection (3)—
(a)
must, in meeting needs under that subsection which were being met by
the authority which made the arrangements referred to in subsection
(1) or (2) (as the case may be), co-operate with that authority;
(b)
may recover from that authority the amount of any payments it makes
35towards meeting those of the adult’s needs referred to in paragraph (a);
(c)
may recover from the adult the amount of any payments it makes
towards meeting those of the adult’s needs other than those referred to
in paragraph (a).
(5)
Any dispute about the application of this section is to be resolved in accordance
40with paragraph 5 of Schedule 1.
(6)
The reference to the authority in whose area the accommodation is situated
is—
(a)
in the case of accommodation in England, a reference to the local
authority in England (as defined by paragraph 8 of Schedule 1);
(b)
45in the case of accommodation in Wales, a reference to the local
authority in Wales (as defined by that paragraph).