Care Bill (HL Bill 45)

(6) After 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
5discharging its duty under subsection (2) of that section,
providing or arranging for the provision of accommodation for
the person concerned;

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

(c) 10any prescribed conditions are met,

the 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
15additional cost in prescribed cases.

(3) In 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
20accommodation of that kind.

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

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

(b) includes power to make different provision for different cases
25or 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
purpose Schedule 4 (which includes modifications of the provisions of this Part
relating to direct payments) has effect.

(8) 30In the case of a person who, immediately before the commencement of
subsections (3) and (4), is being provided with after-care services under section
117 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.

72 Prisoners and persons in approved premises etc.

(1) 35In 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
40to 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
45that 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) 5on 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) 10residing 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) 15references 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) 20detained 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
25purpose 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) 30detained 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) 35“Prison” has the same meaning as in the Prison Act 1952 (see section 53(1) of
that 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
40a prison includes a reference to the governor, director or controller of a
young 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
45officer includes a reference to a prison officer or prisoner custody
officer 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) “Bail in criminal proceedings” has the meaning given in section 1 of the Bail Act
1976.

(14) 5For 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) a person who is temporarily absent from approved premises is to be
treated as residing in approved premises for the period of absence;

(c) 10a 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
absence.

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

(1) 15A 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
treated as being sight-impaired or severely sight-impaired for the purposes of
this section.

(3) 20A 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) planning the provision by the authority of services to meet needs for
care and support, and

(b) 25monitoring 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) has a disability,

(b) has a physical or mental impairment which is not a disability but which
30gives rise, or which the authority considers may in the future give rise,
to needs for care and support, or

(c) comes within any other category of persons the authority considers
appropriate to include in a register of persons who have, or the
authority considers may in the future have, needs for care and support.

(5) 35“Disability” has the meaning given by section 6 of the Equality Act 2010.

74 Guidance

(1) A local authority must act under the general guidance of the Secretary of State
in the exercise of functions given to it by this Part or by regulations under this
Part.

(2) 40Before issuing any guidance for the purposes of subsection (1), the Secretary of
State must consult such persons as the Secretary of State considers appropriate.

75 Delegation of local authority functions

(1) A local authority may authorise a person to exercise on its behalf a function it
has under—

(a) this Part or regulations under this Part (but see subsection (2)), or

(b) 5section 117 of the Mental Health Act 1983 (after-care services).

(2) The references in subsection (1)(a) to this Part do not include a reference to—

(a) section 3 (promoting integration with health services etc.),

(b) sections 6 and 7 (co-operating),

(c) section 14 (charges),

(d) 10sections 31 to 33 (making direct payments),

(e) sections 42 to 47 (safeguarding adults at risk of abuse or neglect), or

(f) this section.

(3) An authorisation under this section may authorise an employee of the
authorised person to exercise the function to which the authorisation relates;
15and for that purpose, where the authorised person is a body corporate,
“employee” includes a director or officer of the body.

(4) An authorisation under this section may authorise the exercise of the function
to which it relates—

(a) either wholly or to the extent specified in the authorisation;

(b) 20either generally or in cases, circumstances or areas so specified;

(c) either unconditionally or subject to conditions so specified.

(5) An authorisation under this section—

(a) is for the period specified in the authorisation;

(b) may be revoked by the local authority;

(c) 25does not prevent the local authority from exercising the function to
which the authorisation relates.

(6) Anything done or omitted to be done by or in relation to a person authorised
under this section in, or in connection with, the exercise or purported exercise
of the function to which the authorisation relates is to be treated for all
30purposes as done or omitted to be done by or in relation to the local authority.

(7) But subsection (6) does not apply—

(a) for the purposes of the terms of any contract between the authorised
person and the local authority which relate to the function, or

(b) for the purposes of any criminal proceedings brought in respect of
35anything done or omitted to be done by the authorised person.

(8) Schedule 15 to the Deregulation and Contracting Out Act 1994 (which permits
disclosure of information between local authorities and contractors where that
is necessary for the exercise of the functions concerned, even if that would
otherwise be unlawful) applies to an authorisation under this section as it
40applies to an authorisation by virtue of an order under section 70(2) of that Act.

(9) The Secretary of State may by order—

(a) amend subsection (2) so as to add to or remove from the list a provision
of this Part;

(b) amend subsection (1) so as to add to or remove from the list a provision
45relating to care and support for adults or support for carers;

(c) impose conditions or other restrictions on the exercise of the power
under subsection (1), whether by amending this section or otherwise.

(10) The provision which may be made in an order under subsection (9) in reliance
on section 112(7) (supplementary etc. provision in orders under this Act)
5includes, in particular, provision as to the rights and obligations of local
authorities and persons authorised under this section in light of the provision
made by the order.

(11) “Function” includes a power to do anything that is calculated to facilitate, or is
conducive or incidental to, the exercise of a function.

10General

76 Part 1: interpretation

(1) For the purposes of this Part, an expression in the first column of the following
table is defined or otherwise explained by the provision of this Act specified in
the second column.

(2) A reference in this Part to having or lacking capacity, or to a person’s best
interests, is to be interpreted in accordance with the Mental Capacity Act 2005.

(3) A reference in this Part to being authorised under the Mental Capacity Act 2005
is a reference to being authorised (whether in general or specific terms) as—

(a) 15a donee of a lasting power of attorney granted under that Act, or

(b) a deputy appointed by the Court of Protection under section 16(2)(b) of
that Act.

Part 2 Care standards

20Quality of services

77 Warning notice

(1) In section 29 of the Health and Social Care Act 2008 (warning notice), after
subsection (1) insert—

“(1A) But a warning notice under this section may not be given to an NHS
25trust established under section 25 of the National Health Service Act
2006 or an NHS foundation trust.”

(2) In subsections (2) and (3)(a) of that section, after “warning notice” insert “under
this section”.

(3) After that section insert—

“29A 30Warning notice: quality of health care

(1) If it appears to the Commission that the quality of health care provided
by an NHS trust established under section 25 of the National Health
Service Act 2006 or by an NHS foundation trust requires significant
improvement, the Commission may give the trust a warning notice.

(2) 35A warning notice under this section is a notice in writing—

(a) stating that the Commission has formed the view that the
quality of health care provided by the trust requires significant
improvement,

(b) specifying the health care concerned,

(c) 5giving the Commission’s reasons for its view, and

(d) requiring the trust to make a significant improvement to the
quality of the health care concerned within a specified time.

(3) Where a warning notice under this section imposes more than one
requirement under subsection (2)(d), it may specify different times for
10different requirements.

(4) The Commission must—

(a) where the notice specifies only one time under subsection
(2)(d), determine at the end of that time whether the
requirement has been complied with;

(b) 15where the notice specifies more than one time under subsection
(2)(d), determine at the end of the latest of those times, whether
the requirements have been complied with.

(5) Where, having carried out the duty under subsection (4), the
Commission is satisfied that a requirement to which the notice relates
20has not been complied with, it—

(a) must decide what action to take in relation to the trust, and

(b) in so deciding in the case of an NHS foundation trust, must
consider in particular whether to require Monitor to make an
order under section 65D(2) of the National Health Service Act
252006 (appointment of trust special administrator).”

(4) In each of the following provisions of that Act, after “section 29” insert “or
29A”—

(a) section 32(1)(a) (decisions against which appeal may not be made to the
First-tier tribunal),

(b) 30section 39(2)(c) (bodies required to be given certain notices), and

(c) section 89(1)(e) and (2) (publication of information relating to
enforcement action).

(5) In section 88(1)(d) of that Act (guidance issued by the Commission about
enforcement action), for “section 29” substitute “sections 29 and 29A”.

78 35Imposition of licence conditions on NHS foundation trusts

(1) Section 111 of the Health and Social Care Act 2012 (imposition by Monitor of
licence conditions on NHS foundation trusts during transitional period) is
amended as follows.

(2) After subsection (2) insert—

“(2A) 40Where a warning notice under section 29A of the Health and Social
Care Act 2008 is given to an NHS foundation trust, Monitor may
include in the trust’s licence such conditions as it considers appropriate
in connection with the matters to which the notice relates.”

(3) In subsections (3) to (5) and (7) to (9), after “subsection (1)” in each place it
45appears insert “or (2A)”.

79 Trust special administration: appointment of administrator

(1) In section 65D of the National Health Service Act 2006 (NHS foundation trusts:
appointment of trust special administrator), in subsection (1)—

(a) after “satisfied that” insert “—

(a)”, and

(b) at the end insert “, or

(b) there is a serious failure by an NHS foundation trust to
provide services that are of sufficient quality to be
provided under this Act and it is appropriate to make an
10order under subsection (2).”

(2) After that subsection insert—

“(1A) This section also applies if the Care Quality Commission—

(a) is satisfied that there is a serious failure by an NHS foundation
trust to provide services that are of sufficient quality to be
15provided under this Act and that it is appropriate to make an
order under subsection (2),

(b) informs the regulator that it is satisfied as mentioned in
paragraph (a) and gives the regulator its reasons for being so
satisfied, and

(c) 20requires the regulator to make an order under subsection (2).”

(3) In subsection (2) of that section, after “The regulator may” insert “or, where this
section applies as a result of subsection (1A), must”.

(4) After subsection (3) of that section insert—

“(3A) Before imposing a requirement as mentioned in subsection (1A)(c), the
25Care Quality Commission must—

(a) consult the Secretary of State and the regulator, and

(b) having done that, consult—

(i) the trust,

(ii) the Board, and

(iii) 30any other person to which the trust provides services
under this Act and which the Commission considers it
appropriate to consult.”

(5) In subsection (4) of that section, after “making an order under this section”
insert “(except where it is required to do so as a result of subsection (1A))”.

(6) 35In section 65N of that Act (guidance for trust special administrators), after
subsection (3) insert—

“(3A) Before publishing guidance under this section, the Secretary of State
must consult the Care Quality Commission.”

(7) In subsection (4) of that section, for “the reference in subsection (1) to the
40Secretary of State is to be read as a reference” substitute “the references in
subsections (1) and (3A) to the Secretary of State are to be read as references”.

(8) In paragraph 24 of Schedule 14 to the Health and Social Care Act 2012
(abolition of NHS trusts in England: consequential amendments to section 65N

of the National Health Service Act 2006), after sub-paragraph (2) insert—

“(2A) In subsection (3A), for “the Secretary of State” substitute “the
regulator”.”

80 Trust special administration: objective, consultation and reports

(1) 5In section 65DA of the National Health Service Act 2006 (objective of trust
special administration), in subsection (1), after paragraph (a) (but before the
following “and”) insert—

“(aa) that the services whose continuous provision is secured as
mentioned in paragraph (a) are of sufficient safety and quality
10to be provided under this Act,”.

(2) After subsection (5) of that section insert—

“(5A) Before publishing guidance under subsection (4)(c), the regulator must
consult the Care Quality Commission.”

(3) In section 65F of that Act (administrator’s draft report), in subsection (2)—

(a) 15omit the “and” preceding paragraph (b), and

(b) after that paragraph insert “, and

(c) the Care Quality Commission.”

(4) In subsection (5) of that section, in paragraph (a), for “65DA” substitute
“65DA(1)(a)”.

(5) 20After that subsection insert—

“(5A) Nor, in the case of an NHS foundation trust, may the administrator
provide the draft report to the regulator under subsection (1) without
having obtained from the Care Quality Commission a statement that it
considers that the recommendation in the draft report would achieve
25that part of the objective set out in section 65DA(1)(aa).”

(6) In subsection (6) of that section—

(a) after “Where the Board” insert “or the Care Quality Commission”,

(b) for “to that effect” substitute “to the effect mentioned in subsection (5)
or (5A)”, and

(c) 30after “, the Board” insert “or (as the case may be) the Commission”.

(7) In section 65G of that Act (consultation plan), in subsection (4), in paragraph
(a), for “65DA” substitute “65DA(1)(a)”.

(8) After that subsection insert—

“(4A) Nor may the administrator make a variation to the draft report
35following the consultation period without having obtained from the
Care Quality Commission a statement that it considers that the
recommendation in the draft report as so varied would achieve that
part of the objective set out in section 65DA(1)(aa).”

(9) In subsection (5) of that section—

(a) 40after “Where the Board” insert “or the Care Quality Commission”,

(b) for “to that effect” substitute “to the effect mentioned in subsection (4)
or (4A)”, and

(c) after “, the Board” insert “or (as the case may be) the Commission”.

(10) In section 65H of that Act (consultation requirements)—

(a) in subsection (7), after paragraph (b) insert—

“(ba) the Care Quality Commission;”, and

(b) in subsection (9), after “subsection (7)(b),” insert “(ba),”.

(11) 5In section 65KB of that Act (Secretary of State’s response to regulator’s
decision), in subsection (1), after paragraph (c) insert—

“(ca) that the Care Quality Commission has discharged its functions
for the purposes of this Chapter,”.

(12) In subsection (2) of that section, in paragraph (b), after “the regulator” insert
10“and the Care Quality Commission”.

(13) In section 65KD of that Act (Secretary of State’s response to re-submitted final
report), in subsection (3), for “(8)” substitute “(8A)”.

(14) After subsection (8) of that section insert—

“(8A) If the notice states that the Care Quality Commission has failed to
15discharge a function—

(a) the Care Quality Commission is to be treated for the purposes
of this Act as having failed to discharge the function, and

(b) the failure is to be treated for those purposes as significant (and
section 82 of the Health and Social Care Act 2008 applies
20accordingly).”

(15) In paragraph 15(4) of Schedule 14 to the Health and Social Care Act 2012
(abolition of NHS trusts in England: consequential amendments to section 65F
of the National Health Service Act 2006)—

(a) in the new subsection (2A) to be inserted by paragraph 15(4), in
25paragraph (a), for “65DA” substitute “65DA(1)(a)”,

(b) after that new subsection, insert—

“(2AA) Nor may the administrator provide the draft report to the
regulator under subsection (1) without having obtained from
the Care Quality Commission a statement that it considers that
30the recommendation in the draft report would achieve that part
of the objective set out in section 65DA(1)(aa).”, and

(c) in the new subsection (2B) to be inserted by paragraph 15(4)—

(i) after “Where the Board” insert “or the Care Quality
Commission”,

(ii) 35for “to that effect” substitute “to the effect mentioned in
subsection (2A) or (2AA)”, and

(iii) after “, the Board” insert “or (as the case may be) the
Commission”.

Care Quality Commission

81 40Restriction on applications for variation or removal of conditions

(1) Section 19 of the Health and Social Care Act 2008 (applications by registered
persons to the Care Quality Commission for variation or removal of
conditions, etc.) is amended as follows.