Care Bill [HL]

House of Lords

Session 2013 - 14
Internet Publications
Other Bills before Parliament

Care Bill [HL]

Care Bill [HL]
Part 1 — Care and support
40

46
Abolition of local authority’s power to remove persons in need of care
Section 47 of the National Assistance Act 1948 (which gives a local authority
power to remove a person in need of care from home) ceases to apply to
persons in England.
47
Protecting property of adults being cared for away from home
5
(1)
This section applies where—
(a)
an adult is having needs for care and support met under section 18 or
19 in a way that involves the provision of accommodation, or is
admitted to hospital (or both), and
(b)
it appears to a local authority that there is a danger of loss or damage to
10
movable property of the adult’s in the authority’s area because—
(i)
the adult is unable (whether permanently or temporarily) to
protect or deal with the property, and
(ii)
no suitable arrangements have been or are being made.
(2)
The local authority must take reasonable steps to prevent or mitigate the loss
15
or damage.
(3)
For the purpose of performing that duty, the local authority—
(a)
may at all reasonable times and on reasonable notice enter any
premises which the adult was living in immediately before being
provided with accommodation or admitted to hospital, and
20
(b)
may deal with any of the adult’s movable property in any way which
is reasonably necessary for preventing or mitigating loss or damage.
(4)
A local authority may not exercise the power under subsection (3)(a) unless—
(a)
it has obtained the consent of the adult concerned or, where the adult
lacks capacity to give consent, the consent of a person authorised under
25
the Mental Capacity Act 2005 to give it on the adult’s behalf, or
(b)
where the adult lacks capacity to give consent and there is no person so
authorised, the local authority is satisfied that exercising the power
would be in the adult’s best interests.
(5)
Where a local authority is proposing to exercise the power under subsection
30
(3)(a), the officer it authorises to do so must, if required, produce valid
documentation setting out the authorisation to do so.
(6)
A person who, without reasonable excuse, obstructs the exercise of the power
under subsection (3)(a)—
(a)
commits an offence, and
35
(b)
is liable on summary conviction to a fine not exceeding level 4 on the
standard scale.
(7)
A local authority may recover from an adult whatever reasonable expenses the
authority incurs under this section in the adult’s case.

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Part 1 — Care and support
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Public functions under the Human Rights Act 1998
48
Provision of “care and support services”
(1)
A person (“P”) who provides regulated “social care” is to be taken for the
purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (acts of
public authorities) to be exercising a function of a public nature in doing so.
5
(2)
This section applies to persons providing services regulated by the Care
Quality Commission.
(3)
In this section “social care” has the same meaning as in the Health and Social
Care Act 2008.
Provider failure
10
49
Temporary duty on local authority
(1)
This section applies where a person registered under Chapter 2 of Part 1 of the
Health and Social Care Act 2008 (a “registered care provider”) in respect of the
carrying on of a regulated activity (within the meaning of that Part) becomes
unable to carry on that activity because of business failure.
15
(2)
A local authority must for so long as it considers necessary (and in so far as it
is not already required to do so) meet those of an adult’s needs for care and
support and those of a carer’s needs for support which were, immediately
before the registered care provider became unable to carry on the regulated
activity, being met by the carrying on of that activity in the authority’s area by
20
the provider.
(3)
A local authority is accordingly required to meet needs under subsection (2)
regardless of—
(a)
whether the relevant adult is ordinarily resident in its area;
(b)
whether the authority has carried out a needs assessment, a carer’s
25
assessment or a financial assessment;
(c)
whether any of the needs meet the eligibility criteria.
(4)
Where a local authority is meeting needs under subsection (2), it is not required
to carry out a needs assessment, a carer’s assessment or a financial assessment
or to determine whether any of the needs meet the eligibility criteria.
30
(5)
A local authority may make a charge for meeting needs under subsection (2)
(except in so far as doing so involves the provision of information or advice);
and a charge under this subsection may cover only the cost that the local
authority incurs in meeting the needs to which the charge applies.
(6)
Subsection (5) does not apply if section 50 (cross-border cases) applies (see
35
subsection (3) of that section).
(7)
If the relevant adult is not ordinarily resident in the area of the local authority
which is required to meet needs under subsection (2), that authority—
(a)
must, in meeting needs under that subsection which were being met
under arrangements made by another local authority, co-operate with
40
that authority (in so far as it is not already required to do so by
section 6);

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(b)
must, in meeting needs under that subsection which were being met
under arrangements all or part of the cost of which was paid for by
another local authority by means of direct payments, co-operate with
that authority (in so far as it is not already required to do so by
section 6);
5
(c)
may recover from the other local authority mentioned 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.
(8)
Any dispute between local authorities about the application of this section is to
be determined under section 40 as if it were a dispute of the type mentioned in
10
subsection (1) of that section.
(9)
“The relevant adult” means—
(a)
in a case involving an adult’s needs for care and support, that adult;
(b)
in a case involving a carer’s needs for support, the adult needing care.
50
Section 49: cross-border cases
15
(1)
This section applies where, in a case within section 49, immediately before the
registered care provider became unable to carry on the regulated activity, some
or all of the adult’s needs for care and support or the carer’s needs for support
were being met by the carrying on of that activity by the provider under
arrangements made—
20
(a)
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,
(b)
by a local authority in Scotland discharging its duty under section 12 or
13A of the Social Work (Scotland) Act 1968 or section 25 of the Mental
25
Health (Care and Treatment) (Scotland) Act 2003, or
(c)
by a Health and Social Care trust under Article 15 of the Health and
Personal Social Services (Northern Ireland) Order 1972 or section 2 of
the Carers and Direct Payments Act (Northern Ireland) 2002.
(2)
This section also applies where, in a case within section 49—
30
(a)
immediately before the registered care provider became unable to carry
on the regulated activity, some or all of the adult’s needs for care and
support or the carer’s needs for support were being met by the carrying
on of that activity by the provider, and
(b)
all or part of the cost of the accommodation or other services provided
35
by the provider to meet those needs was paid for by means of direct
payments made—
(i)
under section 34 or 36 of the Social Services and Well-being
(Wales) Act 2013,
(ii)
as a result of the choice made by the adult pursuant to section 5
40
of the Social Care (Self-directed Support) (Scotland) Act 2013, or
(iii)
by virtue of section 8 of the Carers and Direct Payments Act
(Northern Ireland) 2002.
(3)
The local authority which is required to meet needs under section 49(2)—
(a)
must, in meeting needs under section 49(2) which were being met by
45
the authority which made the arrangements referred to in subsection
(1), co-operate with that authority;

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(b)
must, in meeting needs under section 49(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
5
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;
(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).
10
(4)
Any 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 49 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
15
meaning given in paragraph 12 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).
51
Temporary duty on local authority in Wales
20
(1)
This section applies where a person registered under Part 2 of the Care
Standards Act 2000 in respect of an establishment or agency—
(a)
becomes unable to carry on or manage the establishment or agency
because of business failure, and
(b)
immediately before becoming unable to do so, was providing an adult
25
with 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
30
section 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
35
section 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
40
because 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,
45
(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

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(iii)
by virtue of section 8 of the Carers and Direct Payments Act
(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
5
which were being met by the registered person by the provision of the
accommodation 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
10
the authority which made the arrangements referred to in subsection
(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
15
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
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
20
with paragraph 5 of Schedule 1.
(6)
“Local authority in Wales” and “local authority in Scotland” each have the
meaning given in paragraph 12 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
25
Social Care trust (as the case may be).
52
Temporary 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—
30
(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
with accommodation or other services in Northern Ireland under
arrangements made—
35
(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 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
40
(iii)
by a local authority in Scotland discharging its duty under
section 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
45
and Personal Social Services (Quality, Improvement and Regulation)
(Northern Ireland) Order 2003 in respect of an establishment or agency—

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(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, 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
5
payments made—
(i)
under 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
10
of the Social Care (Self-directed Support) (Scotland) Act 2013.
(3)
The 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
15
accommodation or other services.
(4)
A 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
20
(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;
25
(c)
may 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.
30
(6)
“Local authority in Wales” and “local authority in Scotland” each have the
meaning given in paragraph 12 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).
35
53
Sections 49 to 52: supplementary
(1)
An authority becomes subject to the duty under section 49(2), 51(3) or 52(3) as
soon as it becomes aware of the business failure.
(2)
Section 8 (how to meet needs) applies to meeting needs under section 49(2) as
it applies to meeting needs under section 18.
40
(3)
Section 20 of the Social Services and Well-being (Wales) Act 2013 (how to meet
needs) applies to meeting needs under section 51(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
49(2), 51(3) or 52(3), an authority must involve—
45
(a)
the adult,

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(b)
any carer that the adult has, and
(c)
any person whom the adult asks the authority to involve or, where the
adult lacks capacity to ask the authority to do that, any person who
appears to the authority to be interested in the adult’s welfare.
(5)
In deciding how to meet a carer’s needs for support under section 49(2), 51(3)
5
or 52(3), an authority must involve—
(a)
the 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
10
it should meet the needs in question.
(7)
Sections 21 to 23 (exceptions to duty to meet needs) apply to meeting needs
under section 49(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
15
under section 51(3) as they apply to meeting needs under section 21 of that Act.
(9)
Where an adult whose case comes within section 49 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
20
sections 6 and 7.
(10)
“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 49(2), it may request the registered care
25
provider, or such other person involved in the provider’s business as it
considers appropriate, to provide it with specified information.
(12)
Regulations must make provision as to the interpretation for the purposes of
sections 49, 51 and 52 and this section of references to business failure or to
being unable to do something because of business failure; and the regulations
30
may, in particular, specify circumstances in which a person is to be treated as
unable 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 50 or 52 to making arrangements to meet needs
35
under section 21 or 22 of that Act is to be read as a reference to making
arrangements 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
40
(iv)
Schedule 15 to the National Health Service (Wales) Act 2006;
(b)
a reference in section 50 or 52 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;
45