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
47

(c)
a reference in section 50 or 52 to making direct payments under section
34 or 36 of that Act is to be read as a reference to making direct
payments 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
5
1948 apply to meeting needs under section 51(3) as they apply
to the exercise of functions under sections 21 and 29 of that Act
by a local authority in Wales (within the meaning given in
paragraph 12 of Schedule 1).”
(14)
Pending the commencement of section 5 of the Social Care (Self-directed
10
Support) (Scotland) Act 2013—
(a)
sections 50(2)(b)(ii) and 51(2)(b)(ii) are to be read as if there were
substituted for each of them—
“(ii)
under section 12B of the Social Work (Scotland)
Act 1968,”, and
15
(b)
section 52(2)(b)(iii) is to be read as if there were substituted for it—
“(iii)
under section 12B of the Social Work (Scotland)
Act 1968.”.
Market oversight
54
Specifying criteria for application of market oversight regime
20
(1)
Regulations must specify criteria for determining whether (subject to
regulations under subsection (4)) section 56 (financial sustainability
assessment) 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.
25
(2)
In specifying the criteria, the Secretary of State must have regard to the
following in particular—
(a)
the 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
30
provision of particular types of care.
(3)
The Secretary of State must—
(a)
at 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
35
(2), and any other matters to which the Secretary of State has regard in
specifying the criteria, are to be measured.
(4)
Regulations may provide that section 56 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
40
provider of that description would satisfy the criteria.
(5)
Regulations may provide that section 56 applies, or applies 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.
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Care Bill [HL]
Part 1 — Care and support
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(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
care providers are already subject to a regulatory regime comparable to that
provided for by sections 56 and 57; and regulations made in such
circumstances may, for example, make provision requiring specified persons
5
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
Act 2008.
55
Determining whether criteria apply to care provider
(1)
The Care Quality Commission must determine, in the case of each registered
10
care provider, whether the provider satisfies one or more of the criteria
specified in regulations under section 54.
(2)
If the Commission determines that the provider satisfies one or more of the
criteria, section 56 applies to that provider unless, or except in so far as,
regulations under section 54(4) provide that it does not apply.
15
(3)
Where section 56 applies to a registered care provider (whether as a result of
subsection (2) or as a result of regulations under section 54(5)), the Commission
must inform the provider accordingly.
56
Assessment of financial sustainability of care provider
(1)
Where this section applies to a registered care provider, the Care Quality
20
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)
Where 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—
25
(a)
require the provider to develop a plan for how to mitigate or eliminate
the risk;
(b)
arrange for, or require the provider to arrange for, a person with
appropriate professional expertise to carry out an independent review
of the business.
30
(3)
Where the Commission imposes a requirement on a care provider under
subsection (2)(a), it may also require the provider—
(a)
to 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
35
recover from the provider such costs as the Commission incurs in connection
with the arrangements (other than its administrative costs in making the
arrangements).
(5)
Regulations may make provision for enabling the Commission to obtain from
such persons as it considers appropriate information which the Commission
40
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).

Care Bill [HL]
Part 1 — Care and support
49

(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
business; and, having done so, it must publish guidance on the method it
expects to apply in making the assessment.
57
Informing local authorities where failure of care provider likely
5
(1)
This section applies where the Care Quality Commission is satisfied that a
registered care provider to which section 56 applies is likely to become unable
to carry on the regulated activity in respect of which it is registered because of
business failure as mentioned in section 49.
(2)
The Commission must inform the local authorities which it thinks will be
10
required to carry out the duty under section 49(2) if the provider becomes
unable to carry on the regulated activity in question.
(3)
Where the Commission considers it necessary to do so for the purpose of
assisting a local authority to carry out the duty under section 49(2), it may
request the provider, or such other person involved in the provider’s business
15
as the Commission considers appropriate, to provide it with specified
information.
(4)
Where (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 49(2), the Commission must
20
give the information to the local authority.
(5)
Regulations may make provision as to the circumstances in which the
Commission 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.
25
(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);
and, having carried out that consultation, it must publish guidance on the
methods it expects to apply in making the assessment.
58
Sections 55 to 57: supplementary
30
(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 55(1) and 56(1) are to
be 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
35
under section 49(2) is to be treated as one of the Commission’s regulatory
functions.
(3)
For 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 55 to 57 (or by virtue of
40
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 55 to
57, have regard to the need to minimise the burdens it imposes on others.

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Transition for children to adult care and support, etc.
59
Assessment of a child’s needs for care and support
(1)
Where it appears to a local authority that a child is likely to have needs for care
and support after becoming 18, the authority must, if it is satisfied that it would
be of significant benefit to the child to do so and if the consent condition is met,
5
assess—
(a)
whether 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.
10
(2)
An assessment under subsection (1) is referred to in this Part as a “child’s needs
assessment”.
(3)
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
15
(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
would be in the child’s best interests.
(4)
Where a child refuses a child’s needs assessment and the consent condition is
accordingly not met, the local authority must nonetheless carry out the
20
assessment if the child is experiencing, or is at risk of, abuse or neglect.
(5)
Where a local authority, having received a request to carry out a child’s
assessment from the child concerned or a parent or carer of the child, decides
not to comply with the request, it must give the person who made the
request—
25
(a)
written reasons for its decision, and
(b)
information and advice about what can be done to prevent or delay the
development 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
30
child, and
(b)
a person who is not a parent of the child but who has parental
responsibility 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
35
as voluntary work.
(8)
The reference to providing care includes a reference to providing practical or
emotional support.
60
Child’s needs assessment: requirements etc.
(1)
A child’s needs assessment must include an assessment of—
40
(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, and

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(c)
whether, and if so to what extent, the provision of care and support
could contribute to the achievement of those outcomes.
(2)
A 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
5
(c)
any person whom the child or a parent or carer of the child requests the
local authority to involve.
(3)
When carrying out a child’s needs assessment, a local authority must also
consider whether, and if so to what extent, matters other than the provision of
care and support could contribute to the achievement of the outcomes that the
10
child wishes to achieve in day-to-day life.
(4)
Having carried out a child’s needs assessment, a local authority must give the
child—
(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
15
the eligibility criteria (and, if so, which ones are likely to do so), and
(b)
advice 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
20
child of needs for care and support in the future.
(5)
But in a case where the child is not competent or lacks capacity to understand
the things which the local authority is required to give under subsection (4),
that subsection is to have effect as if for “must give the child” there were
substituted “must give the child’s parents”.
25
(6)
Where 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.
30
(7)
In considering what to decide under subsection (6), 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
35
that might affect the assessment.
(8)
“Parent” and “carer” each have the same meaning as in section 59.
61
Assessment of a child’s carer’s needs for support
(1)
Where it appears to a local authority that a carer of a child is likely to have
needs for support after the child becomes 18, the authority must, if it is satisfied
40
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)
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.
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(2)
An assessment under subsection (1) is referred to in this Part as a “child’s
carer’s assessment”.
(3)
Where a child’s carer refuses a child’s carer’s assessment, the local authority is
not required to carry out the assessment (and subsection (1) does not apply in
the carer’s case).
5
(4)
Where, having refused a child’s carer’s assessment, a child’s carer requests the
assessment, subsection (1) applies in the carer’s case (and subsection (3) does
not).
(5)
Where a child’s carer has refused a child’s carer’s assessment and the local
authority concerned thinks that the carer’s needs or circumstances have
10
changed, subsection (1) applies in the carer’s case (but subject to further refusal
as mentioned in subsection (3)).
(6)
Where a local authority, having received a request to carry out a child’s carer’s
assessment from the carer concerned, decides not to comply with the request,
it must give the carer—
15
(a)
written reasons for its decision, and
(b)
information and advice about what can be done to prevent or delay the
development by the carer of needs for support in the future.
(7)
“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 59) who provides
20
or intends to provide care for the child (but see subsection (8)).
(8)
An adult is not a carer for the purposes of this section if the adult provides or
intends to provide care—
(a)
under or by virtue of a contract, or
(b)
as voluntary work.
25
(9)
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
would be appropriate for the adult to be regarded as a carer, the adult is to be
regarded as such (and subsection (8) is therefore to be ignored in that case).
(10)
The references to providing care include a reference to providing practical or
30
emotional support.
62
Child’s carer’s assessment: requirements etc.
(1)
A child’s carer’s assessment must include an assessment of—
(a)
whether the carer is able to provide care for the child and is likely to
continue to be able to do so after the child becomes 18,
35
(b)
whether the carer is willing to do so and is likely to continue to be
willing to do so after the child becomes 18,
(c)
the impact on the matters specified in section 1(2) of what the carer’s
needs for support are likely to be after the child becomes 18,
(d)
the outcomes that the carer wishes to achieve in day-to-day life, and
40
(e)
whether, and if so to what extent, the provision of support could
contribute to the achievement of those outcomes.
(2)
A local authority, in carrying out a child’s carer’s assessment, must have
regard to—
(a)
whether the carer works or wishes to do so, and
45

Care Bill [HL]
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(b)
whether the carer is participating in or wishes to participate in
education, training or recreation.
(3)
A local authority, in carrying out a child’s carer’s assessment, must involve—
(a)
the carer, and
(b)
any person whom the carer asks the local authority to involve.
5
(4)
When carrying out a child’s carer’s assessment, a local authority must also
consider whether, and if so to what extent, matters other than the provision of
support could contribute to the achievement of the outcomes that the carer
wishes to achieve in day-to-day life.
(5)
Having carried out a child’s carer’s assessment, a local authority must give the
10
carer—
(a)
an indication as to whether any of the needs for support which it thinks
the carer is likely to have after the child becomes 18 are likely to meet
the eligibility criteria (and, if so, which ones are likely to do so), and
(b)
advice and information about—
15
(i)
what can be done to meet or reduce the needs which it thinks
the carer is likely to have after the child becomes 18;
(ii)
what can be done to prevent or delay the development by the
carer of needs for support in the future.
(6)
“Carer” has the same meaning as in section 61.
20
63
Power to meet child’s carer’s needs for support
(1)
Where a local authority, having carried out a child’s carer’s assessment, is
satisfied that the carer has needs for support, it may meet such of those needs
as it considers appropriate.
(2)
Regulations may make provision in connection with the exercise of the power
25
under subsection (1); the regulations may, in particular, provide for provisions
of this Part to apply with such modifications as may be specified.
(3)
In deciding whether or how to exercise the power under subsection (1), a local
authority must have regard to any services being provided to the carer under
section 17 of the Children Act 1989.
30
64
Assessment of a young carer’s needs for support
(1)
Where it appears to a local authority that a young carer is likely to have needs
for support after becoming 18, the authority must, if it is satisfied that it would
be of significant benefit to do so and if the consent condition is met, assess—
(a)
whether the young carer has needs for support and, if so, what those
35
needs are, and
(b)
whether the young carer is likely to have needs for 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 “young
carer’s assessment”.
40
(3)
The consent condition is met if—
(a)
the young carer has capacity or is competent to consent to a young
carer’s assessment being carried out and the young carer does so
consent, or