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Imposing charges and assessing financial resources |
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14 | Power of local authority to charge |
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(a) | may make a charge for meeting needs under sections 18 to 20, and |
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(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 |
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the charge it makes under paragraph (a)) for putting in place the |
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arrangements for meeting those needs. |
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(2) | The power to make a charge under subsection (1) for meeting needs under |
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section 18 is subject to section 15. |
| 10 |
(3) | The power to make a charge under subsection (1) for meeting a carer’s needs |
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for support under section 20 by providing care and support to the adult |
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needing care may not be exercised so as to charge the carer. |
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(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 |
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charge under subsection (1). |
| |
(6) | Regulations may prohibit a local authority from making a charge under |
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subsection (1); and the regulations may (in reliance on section 121(6)) prohibit |
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a local authority from doing so where, for example, the care and support or the |
| 20 |
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(a) | is of a specified type; |
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(b) | is provided in specified circumstances; |
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(c) | is provided to an adult of a specified description; |
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(d) | is provided for a specified period only. |
| 25 |
(7) | A local authority may not make a charge under subsection (1) if the income of |
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the adult concerned would, after deduction of the amount of the charge, fall |
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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, |
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or as having income that would not, fall below the amount specified in the |
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regulations if a charge were to be made. |
| 35 |
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(1) | A local authority may not make a charge under section 14 for meeting an |
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adult’s needs under section 18 if the total of the costs accrued in meeting the |
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adult’s eligible needs after the commencement of this section exceeds the cap |
| |
| 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 |
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authority of having done so (as reckoned from the costs specified in the |
| |
personal budget for meeting those needs (see section 26)); |
| |
|
| |
|
| |
|
(b) | in so far as another local authority met the needs, to the cost to that |
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other local authority of having done so (as reckoned from the costs so |
| |
specified for meeting those needs); |
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(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 |
| |
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(3) | An adult’s needs are “eligible needs” if, at the time they were met— |
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(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 |
| |
| |
(4) | The “cap on care costs” is the amount specified as such in regulations; and the |
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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. |
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(5) | The total of the costs accrued in meeting an adult’s eligible needs after the |
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commencement of this section (as referred to in subsection (1)) is referred to in |
| |
this Part as the adult’s “accrued costs”. |
| 20 |
(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. |
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(7) | Where the cost to a local authority of meeting an adult’s needs under section |
| 25 |
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. |
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(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). |
| 40 |
(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 |
| 45 |
| |
|
| |
|
| |
|
(b) | each subsequent period of 12 months. |
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(5) | The duty under subsection (1) does not restrict the exercise of the power to |
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make regulations under section 15(4). |
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17 | Assessment of financial resources |
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(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 |
| |
| |
(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. |
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(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 |
| |
| 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. |
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(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, |
| |
| |
(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 |
| |
| |
(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 |
| |
(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 |
| |
| |
(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 |
|
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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— |
| |
| |
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(12) | The regulations may make provision— |
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(a) | for treating, or not treating, amounts of a specified type as income or as |
| 15 |
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(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. |
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Duties and powers to meet needs |
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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 |
| |
| 35 |
(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 |
| |
| |
(b) | the adult nonetheless asks the authority to meet the adult’s needs. |
| 40 |
(4) | Condition 3 is met if— |
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(a) | the adult lacks capacity to arrange for the provision of care and |
| |
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|
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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. |
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(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— |
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(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. |
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(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 |
| |
| 10 |
(a) | the authority is prohibited by regulations under section 14 from |
| |
| |
(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 |
| |
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(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 |
| |
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(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). |
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(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, |
| |
|
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|
| |
|
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
(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 |
| |
| |
(b) | the authority is entitled to make such a charge but decides not to do so. |
| |
|
| |
|
| |
|
(10) | The reference in subsection (1)(c) to there being no charge under section 14 for |
| |
meeting an adult’s needs for care and support under section 14 is to be |
| |
construed in accordance with section 18(6). |
| |
21 | 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 |
| |
| |
(a) | because the adult is destitute, or |
| |
(b) | because of the physical effects, or anticipated physical effects, of being |
| 10 |
| |
(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— |
| |
|
| |
|