Care Bill (HL Bill 45)

(3) The local authority which is required to meet needs under section 48(2)—

(a) must, in meeting needs under section 48(2) which were being met by
the authority which made the arrangements referred to in subsection
(1), co-operate with that authority;

(b) 5must, in meeting needs under section 48(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) may recover from the authority referred to in paragraph (a) or (b) (as
10the 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
(a) or (b) (as the case may be).

(4) 15Any 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 48 or of this section is to be resolved in accordance with paragraph 5 of
Schedule 1.

(5) “Local authority in Wales” and “local authority in Scotland” each have the
20meaning given in paragraph 9 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).

50 Temporary duty on local authority in Wales

(1) 25This 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) immediately before becoming unable to do so, was providing an adult
30with 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) by a local authority in Scotland discharging its duty under
35section 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
and Personal Social Services (Northern Ireland) Order 1972 or
40section 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) becomes unable to carry on or manage the establishment or agency
45because 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) under 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

(iii) by virtue of section 8 of the Carers and Direct Payments Act
5(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
those 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
10accommodation or other services.

(4) A local authority in Wales which is required to meet 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
15(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
referred to in subsection (2)(b), co-operate with that authority;

(c) 20may 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
with paragraph 5 of Schedule 1.

(6) 25“Local authority in Wales” and “local authority in Scotland” each have the
meaning given in paragraph 9 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 Scotland or a Health and
Social Care trust (as the case may be).

51 30Temporary 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)
Order 2003 in respect of an establishment or agency—

(a) becomes unable to carry on or manage the establishment or agency
35because 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
arrangements made—

(i) by a local authority meeting an adult’s needs for care and
40support 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
Social Services and Well-being (Wales) Act 2013, or

(iii) by a local authority in Scotland discharging its duty under
45section 12 or 13A of the Social Work (Scotland) Act 1968 or
section 25 of the Mental Health (Care and Treatment) (Scotland)
Act 2003.

(2) This 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—

(a) becomes unable to carry on or manage the establishment or agency
5because 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
Ireland, all or part of the cost of which was paid for by means of direct
payments made—

(i) 10under this Part of this Act,

(ii) under section 34 or 36 of the Social Services and Well-being
(Wales) Act 2013, or

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

(3) 15The 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
which were being met by the registered person by the provision of the
accommodation or other services.

(4) 20A 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
the authority which made the arrangements referred to in subsection
(1)(b), co-operate with that authority;

(b) 25must, 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
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
30the 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
with paragraph 5 of Schedule 1.

(6) “Local authority in Wales” and “local authority in Scotland” each have the
35meaning given in paragraph 9 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
Scotland (as the case may be).

52 Sections 48 to 51: supplementary

(1) 40An authority becomes subject to the duty under section 48(2), 50(3) or 51(3) as
soon as it becomes aware of the business failure.

(2) Section 8 (how to meet needs) applies to meeting needs under section 48(2) as
it applies to meeting needs under section 18.

(3) Section 20 of the Social Services and Well-being (Wales) Act 2013 (how to meet
45needs) applies to meeting needs under section 50(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
48(2), 50(3) or 51(3), an authority must involve—

(a) the adult,

(b) any carer that the adult has, and

(c) 5any 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) In deciding how to meet a carer’s needs for support under section 48(2), 50(3)
or 51(3), an authority must involve—

(a) 10the 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
take all reasonable steps to reach agreement with the adult or carer about how
it should meet the needs in question.

(7) 15Sections 21 to 23 (exceptions to duty to meet needs) apply to meeting needs
under section 48(2) as they apply to meeting needs under section 18.

(8) Sections 30 to 33 of the Social Services and Well-being (Wales) Act 2013
(exceptions to, and restrictions on, duty to meet needs) apply to meeting needs
under section 50(3) as they apply to meeting needs under section 21 of that Act.

(9) 20Where an adult whose case comes within section 48 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
group is to be treated as a relevant partner of the authority for the purposes of
sections 6 and 7.

(10) 25“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
carrying out its duty under section 48(2), it may request the registered care
provider, or such other person involved in the provider’s business as it
30considers appropriate, to provide it with specified information.

(12) Regulations must make provision as to the interpretation for the purposes of
sections 48, 50 and 51 and this section of references to business failure or to
being 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
35unable to do something because of business failure.

(13) Pending the commencement of Part 4 of the Social Services and Well-being
(Wales) Act 2013—

(a) a reference in section 49 or 51 to making arrangements to meet needs
under section 21 or 22 of that Act is to be read as a reference to making
40arrangements 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) section 117 of the Mental Health Act 1983, or

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

(b) 45a reference in section 49 or 51 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
Children Act 2000;

(c) a reference in section 49 or 51 to making direct payments under section
34 or 36 of that Act is to be read as a reference to making direct
5payments 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) Sections 21(1A) and (8) and 29(6) of the National Assistance Act
1948 apply to meeting needs under section 50(3) as they apply
to the exercise of functions under sections 21 and 29 of that Act
10by a local authority in Wales (within the meaning given in
paragraph 9 of Schedule 1).”

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

(a) sections 49(2)(b)(ii) and 50(2)(b)(ii) are to be read as if there were
15substituted for each of them—

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

(b) section 51(2)(b)(iii) is to be read as if there were substituted for it—

“(iii) under section 12B of the Social Work (Scotland)
20Act 1968.”.

Market oversight

53 Specifying criteria for application of market oversight regime

(1) Regulations must specify criteria for determining whether (subject to
regulations under subsection (4)) section 55 (financial sustainability
25assessment) 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
for adults.

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

(a) 30the amount of social care provided by a registered care provider,

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

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

(3) The Secretary of State must—

(a) 35at such times as the Secretary of State considers appropriate, review the
criteria for the time being specified in the regulations, and

(b) publish 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) 40Regulations may provide that section 55 does not apply, or applies only 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 that description would satisfy the criteria.

(5) Regulations may provide that section 55 applies, or applies to the extent
45specified, 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
that description would satisfy the criteria.

(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
5care providers are already subject to a regulatory regime comparable to that
provided for by sections 55 and 56; and regulations made in such
circumstances 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
10Act 2008.

54 Determining whether criteria apply to care provider

(1) The 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 53.

(2) 15If the Commission determines that the provider satisfies one or more of the
criteria, section 55 applies to that provider unless, or except in so far as,
regulations under section 53(4) provide that it does not apply.

(3) Where section 55 applies to a registered care provider (whether as a result of
subsection (2) or as a result of regulations under section 53(5)), the Commission
20must inform the provider accordingly.

55 Assessment of financial sustainability of care provider

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

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

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

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

(a) 35to co-operate with it in developing the plan, and

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

(4) Where 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
40arrangements).

(5) Regulations may make provision for enabling the Commission to obtain from
such 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).

(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
5business; and, having done so, it must publish guidance on the method it
expects to apply in making the assessment.

56 Informing 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 55 applies is likely to become unable
10to carry on the regulated activity in respect of which it is registered because of
business failure as mentioned in section 48.

(2) The Commission must inform the local authorities which it thinks will be
required to carry out the duty under section 48(2) if the provider becomes
unable to carry on the regulated activity in question.

(3) 15Where the Commission considers it necessary to do so for the purpose of
assisting a local authority to carry out the duty under section 48(2), it may
request the provider, or such other person involved in the provider’s business
as the Commission considers appropriate, to provide it with specified
information.

(4) 20Where (as a result of subsection (3) or otherwise) the Commission has
information about the provider’s business that it considers may assist a local
authority in carrying out the duty under section 48(2), the Commission must
give the information to the local authority.

(5) Regulations may make provision as to the circumstances in which the
25Commission 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
activity.

(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);
30and, having carried out that consultation, it must publish guidance on the
methods it expects to apply in making the assessment.

57 Sections 54 to 56: 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 54(1) and 55(1) are to
35be treated as regulatory functions of the Commission.

(2) For the purposes of that Part of that Act, the doing by the Commission of
anything for the purpose of assisting a local authority to carry out the duty
under section 48(2) is to be treated as one of the Commission’s regulatory
functions.

(3) 40For 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
care provider under or by virtue of any of sections 54 to 56 (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 54 to
56, have regard to the need to minimise the burdens it imposes on others.

Transition for children to adult care and support, etc.

58 Assessment of a child’s needs for care and support

(1) 5Where a local authority receives a request from a child or a parent or carer of a
child to assess the child’s needs for care and support and it appears to the
authority that the child is likely to have such needs after becoming 18, the
authority may, if it is satisfied that it would be of significant benefit to the child
to do so and if the consent condition is met, assess—

(a) 10whether the child has needs for care and support and, if so, what those
needs are, and

(b) whether the child is likely to have needs for care and support after
becoming 18 and, if so, what those needs are likely to be.

(2) An assessment under subsection (1) is referred to in this Part as a “child’s needs
15assessment”.

(3) Where the child makes the request mentioned in subsection (1), the consent
condition is met if the child has capacity or is competent to consent to a child’s
needs assessment being carried out.

(4) Where the child’s parent or carer makes the request mentioned in subsection
20(1), the consent condition is met if—

(a) the child has capacity or is competent to consent to a child’s needs
assessment being carried out and the child does so consent, or

(b) the child lacks capacity or is not competent so to consent but the
authority is satisfied that carrying out a child’s needs assessment
25would be in the child’s best interests.

(5) A local authority which decides not to comply with the request must give the
person who made the request—

(a) written reasons for its decision, and

(b) information and advice about what can be done to prevent or delay the
30development by the child of needs for care and support in the future.

(6) “Parent”, in relation to a child, includes—

(a) a parent of the child who does not have parental responsibility for the
child, and

(b) a person who is not a parent of the child but who has parental
35responsibility for the child.

(7) “Carer”, in relation to a child, means a person, other than a parent, who is
providing care for the child, whether or not under or by virtue of a contract or
as voluntary work.

(8) The reference to providing care includes a reference to providing practical or
40emotional support.

59 Child’s needs assessment: requirements etc.

(1) A child’s needs assessment must include an assessment of—

(a) the impact on the matters specified in section 1(2) of what the child’s
needs for care and support are likely to be after the child becomes 18,

(b) the outcomes that the child wishes to achieve in day-to-day life,

(c) whether, and if so to what extent, the provision of care and support
5could contribute to the achievement of those outcomes, and

(d) whether, and if so to what extent, other matters (including, in
particular, the child’s own capabilities and any support likely to be
available to the child from friends, family or others after the child
becomes 18) could contribute to the achievement of those outcomes.

(2) 10A local authority, in carrying out a child’s needs assessment, must involve—

(a) the child,

(b) the child’s parents and any carer that the child has, and

(c) any person whom the child or a parent or carer of the child requests the
local authority to involve.

(3) 15Having carried out a child’s needs assessment, a local authority must give the
person who made the request mentioned in section 58(1)—

(a) an indication as to whether any of the needs for care and support which
it thinks the child is likely to have after becoming 18 are likely to meet
the eligibility criteria (and, if so, which ones are likely to do so), and

(b) 20advice and information about—

(i) what can be done to meet or reduce the needs which it thinks
the child is likely to have after becoming 18;

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

(4) 25Where a person to whom a child’s needs assessment relates becomes 18, the
local authority must decide whether to treat the assessment as a needs
assessment; and if the authority decides to do so, this Part applies to the child’s
needs assessment as if it were a needs assessment that had been carried out
after the person had become 18.

(5) 30In considering what to decide under subsection (4), a local authority must have
regard to—

(a) when the child’s needs assessment was carried out, and

(b) whether it appears to the authority that the circumstances of the person
to whom the child’s needs assessment relates have changed in a way
35that might affect the assessment.

(6) “Parent” and “carer” each have the same meaning as in section 58.

60 Assessment of a child’s carer’s needs for support

(1) Where a local authority receives a request from a carer of a child receiving
services to assess the carer’s needs for support and it appears to the authority
40that the carer is likely to have such needs after the child becomes 18, the
authority must, if it is satisfied that it would be of significant benefit to the carer
to do so, assess—

(a) whether the carer has needs for support and, if so, what those needs
are, and

(b) 45whether the carer is likely to have needs for support after the child
becomes 18 and, if so, what those needs are likely to be.

(2) Where a local authority receives a request from a carer of a child who is not a
child receiving services to assess the carer’s needs for support and it appears
to the authority that the carer is likely to have such needs after the child
becomes 18, the authority may, if it is satisfied that it would be of significant
5benefit to the carer to do so, assess—

(a) whether the carer has needs for support and, if so, what those needs
are, and

(b) whether the carer is likely to have needs for support after the child
becomes 18 and, if so, what those needs are likely to be.

(3) 10An assessment under subsection (1) or (2) is referred to in this Part as a “child’s
carer’s assessment”.

(4) A local authority which decides not to comply with the request mentioned in
subsection (1) or (2) must give the carer who made the request—

(a) written reasons for its decision, and

(b) 15information and advice about what can be done to prevent or delay the
development by the carer of needs for support in the future.

(5) “Child receiving services” means a child—

(a) for whom, or for whose family or for a member of whose family,
services are being provided under section 17 of the Children Act 1989,

(b) 20for whom services are being provided under arrangements made
under section 2 of the Chronically Sick and Disabled Persons Act 1970
(welfare services),

(c) for whom services are being provided under section 117 of the Mental
Health Act 1983 (after-care services),

(d) 25for whom care is being provided under arrangements made under
paragraph 1 of Schedule 20 to the National Health Service Act 2006
(care of mothers), or

(e) for whom, or for whose family or for a member of whose family,
services are being provided under such enactment as may be specified
30in regulations.

(6) “Carer”, in relation to a child, means an adult (including one who is a parent of
the child, with “parent” having the meaning given in section 58) who provides
or intends to provide care for the child (but see subsection (7)).

(7) An adult is not a carer for the purposes of this section if the adult provides or
35intends to provide care—

(a) under or by virtue of a contract, or

(b) as voluntary work.

(8) But in a case where the local authority considers that the relationship between
the child and the adult providing or intending to provide care is such that it
40would be appropriate for the adult to be regarded as a carer, the adult is to be
regarded as such (and subsection (7) is therefore to be ignored in that case).

(9) The references to providing care include a reference to providing practical or
emotional support.

61 Child’s carer’s assessment: requirements etc.

(1) 45A child’s carer’s assessment must include an assessment of—