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Session 2013 - 14
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Care Bill [HL]


Care Bill [HL]
Part 1 — Care and support

14

 

Imposing charges and assessing financial resources

14      

Power of local authority to charge

(1)   

A 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

5

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

arrangements 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.

10

(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

needing 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.

15

(5)   

Regulations may make provision about the exercise of the power to make a

charge under subsection (1).

(6)   

Regulations may prohibit a local authority from making a charge under

subsection (1); and the regulations may (in reliance on section 121(6)) prohibit

a local authority from doing so where, for example, the care and support or the

20

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.

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(7)   

A 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; and the regulations may in

particular (in reliance on section 121(6)) specify—

(a)   

different amounts for different descriptions of care and support;

30

(b)   

different amounts for different descriptions of support.

(8)   

Regulations under subsection (7) may make provision as to cases or

circumstances in which an adult is to be treated as having income that would,

or as having income that would not, fall below the amount specified in the

regulations if a charge were to be made.

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15      

Cap on care costs

(1)   

A local authority may not make a charge under section 14 for meeting an

adult’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.

40

(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

authority of having done so (as reckoned from the costs specified in the

personal budget for meeting those needs (see section 26));

 
 

Care Bill [HL]
Part 1 — Care and support

15

 

(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)   

in 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

5

would otherwise have done so (as reckoned from the costs specified in

the independent personal budget for meeting those needs (see section

28).

(3)   

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

(a)   

they met the eligibility criteria,

10

(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)   

The “cap on care costs” is the amount specified as such in regulations; and the

regulations may in particular (in reliance on section 121(6))—

15

(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

commencement of this section (as referred to in subsection (1)) is referred to in

this Part as the adult’s “accrued costs”.

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(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

after the commencement of this section.

(7)   

Where the cost to a local authority of meeting an adult’s needs under section

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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)   

For 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.

30

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

section 15(4) to vary the cap on care costs by the percentage increase or

35

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

other records reflect the variation).

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(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)   

the period of 12 months beginning with the day on which section 15

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comes into force, and

 
 

Care Bill [HL]
Part 1 — Care and support

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(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      

Assessment of financial resources

(1)   

Where a local authority, having made a determination under section 13(1),

5

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)   

the level of the adult’s financial resources, and

(b)   

the amount (if any) which the adult would be likely to be able to pay

10

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)   

the level of the adult’s financial resources, and

(b)   

the amount (if any) which the adult would be likely to be able to pay

15

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

carer under section 14(1) for meeting at least some of the needs, it must

assess—

20

(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)   

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

25

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)   

the 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.

30

(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)   

Regulations must make provision about the carrying out of a financial

35

assessment.

(8)   

The regulations must make provision as to cases or circumstances in which, if

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—

40

(a)   

in 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.

45

 
 

Care Bill [HL]
Part 1 — Care and support

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(9)   

The regulations must make provision as to cases or circumstances in which, if

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.

5

(10)   

The level specified for the purposes of subsections (8) and (9) is referred to in

this Part as “the financial limit”; and the regulations may in particular (in

reliance on section 121(6)) specify—

(a)   

different levels for different descriptions of care and support;

(b)   

different levels for different levels of support.

10

(11)   

The regulations must make provision for—

(a)   

calculating income;

(b)   

calculating capital.

(12)   

The regulations may make provision—

(a)   

for treating, or not treating, amounts of a specified type as income or as

15

capital;

(b)   

as to cases or circumstances in which an adult is to be treated as having,

or as not having, financial resources above the financial limit.

(13)   

The regulations may make provision as to cases or circumstances in which a

local authority is to be treated as—

20

(a)   

having carried out a financial assessment in an adult’s case, and

(b)   

being satisfied on that basis that the adult’s financial resources exceed,

or that they do not exceed, the financial limit.

Duties and powers to meet needs

18      

Duty to meet needs for care and support

25

(1)   

A 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,

(b)   

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

30

(c)   

there is no charge under section 14 for meeting the needs or, in so far as

there 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.

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(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.

40

(4)   

Condition 3 is met if—

(a)   

the adult lacks capacity to arrange for the provision of care and

support, but

 
 

Care Bill [HL]
Part 1 — Care and support

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(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)   

A 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

5

area but of no settled residence, and

(b)   

the adult’s accrued costs exceed the cap on care costs.

(6)   

The 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—

10

(a)   

the authority is prohibited by regulations under section 14 from

making such a charge, or

(b)   

the 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.

15

19      

Power to meet needs for care and support

(1)   

A local authority, having carried out a needs assessment and (if required to do

so) 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

20

(b)   

the authority is satisfied that it is not required to meet the adult’s needs

under section 18.

(2)   

A 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,

25

(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)   

the 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

30

to it to be urgent (regardless of whether the adult is ordinarily resident in its

area) without having yet—

(a)   

carried out a needs assessment or a financial assessment, or

(b)   

made a determination under section 13(1).

(4)   

A local authority may meet an adult’s needs under subsection (3) where, for

35

example, the adult is terminally ill (within the meaning given in section 82(4)

of the Welfare Reform Act 2012).

(5)   

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

40

(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

or is present in its area but of no settled residence,

 
 

Care Bill [HL]
Part 1 — Care and support

19

 

(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

support to the adult needing care—

5

(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)   

Condition 1 is met if the local authority is satisfied on the basis of the financial

10

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

carried out that the carer’s financial resources are above the financial

15

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

carried out that the financial resources of the adult needing care are at

20

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)   

the local authority is satisfied on the basis of the financial assessment it

25

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)   

A local authority may meet a carer’s needs for support if it is satisfied that it is

30

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)   

A local authority may meet some or all of a carer’s needs for support in a way

35

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

carer’s needs for support but it does not prove feasible for it to do so by

40

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—

45

(a)   

the authority is prohibited by regulations under section 14 from

making such a charge, or

(b)   

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

 
 

Care Bill [HL]
Part 1 — Care and support

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(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      

Exception for persons subject to immigration control

(1)   

A local authority may not meet the needs for care and support of an adult to

5

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)   

because the adult is destitute, or

(b)   

because of the physical effects, or anticipated physical effects, of being

10

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

read as references to the local authority in question.

(3)   

But, until the commencement of section 44(6) of the Nationality, Immigration

15

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

section 95(5) and (7) and that paragraph to the Secretary of State being

read as references to the local authority in question.”

20

(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)   

For 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—

25

(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

and Asylum Act 1999 (“the 1999 Act”) (exclusion from benefits)

applies and whose needs for care and support have arisen, or

30

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

effects, of being destitute.”, and

(b)   

subsection (4) were omitted.

35

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

provided under the National Health Service Act 2006 unless—

(a)   

doing so would be merely incidental or ancillary to doing something

40

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)   

Regulations may specify—

 
 

 
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