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
60

Independent advocacy support
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Involvement in assessments, plans etc.
(1)
This section applies where a local authority is required by a relevant provision
to involve an individual in its exercise of a function.
(2)
The authority must, if the condition in subsection (4) is met, arrange for a
5
person who is independent of the authority (an “independent advocate”) to be
available to represent and support the individual for the purpose of facilitating
the individual’s involvement; but see subsection (5).
(3)
The relevant provisions are—
(a)
section 9(5)(a) and (b) (carrying out needs assessment);
10
(b)
section 10(7)(a) (carrying out carer’s assessment);
(c)
section 25(3)(a) and (b) (preparing care and support plan);
(d)
section 25(4)(a) and (b) (preparing support plan);
(e)
section 27(2)(b)(i) and (ii) (revising care and support plan);
(f)
section 27(3)(b)(i) and (ii) (revising support plan);
15
(g)
section 60(2)(a) and (b) (carrying out child’s needs assessment);
(h)
section 62(3)(a) (carrying out child’s carer’s assessment);
(i)
section 65(3)(a) and (b) (carrying out young carer’s assessment).
(4)
The condition is that the local authority considers that, were an independent
advocate not to be available, the individual would experience substantial
20
difficulty in doing one or more of the following—
(a)
understanding relevant information;
(b)
retaining that information;
(c)
using or weighing that information as part of the process of being
involved;
25
(d)
communicating the individual’s views, wishes or feelings (whether by
talking, using sign language or any other means).
(5)
The duty under subsection (2) does not apply if the local authority is satisfied
that there is a person—
(a)
who would be an appropriate person to represent and support the
30
individual for the purpose of facilitating the individual’s involvement,
and
(b)
who is not engaged in providing care or treatment for the individual in
a professional capacity or for remuneration.
(6)
For the purposes of subsection (5), a person is not to be regarded as an
35
appropriate person unless—
(a)
where the individual has capacity or is competent to consent to being
represented and supported by that person, the individual does so
consent, or
(b)
where the individual lacks capacity or is not competent so to consent,
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the local authority is satisfied that being represented and supported by
that person would be in the individual’s best interests.
(7)
Regulations may make provision in connection with the making of
arrangements under subsection (2); the regulations may in particular—
(a)
specify requirements that must be met for a person to be independent
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for the purposes of subsection (2);

Care Bill [HL]
Part 1 — Care and support
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(b)
specify matters to which a local authority must have regard in deciding
whether an individual would experience substantial difficulty of the
kind mentioned in subsection (4);
(c)
specify circumstances in which the exception in subsection (5) does not
apply;
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(d)
make provision as to the manner in which independent advocates are
to perform their functions;
(e)
specify circumstances in which, if an assessment under this Part is
combined with an assessment under this Part that relates to another
person, each person may or must be represented and supported by the
10
same independent advocate or by different independent advocates;
(f)
provide that an independent advocate may, in such circumstances or
subject to such conditions as may be specified, examine and take copies
of relevant records relating to the individual.
(8)
This section does not restrict the provision that may be made under any other
15
provision of this Act.
(9)
“Relevant record” means—
(a)
a health record (within the meaning given in section 68 of the Data
Protection Act 1998 (as read with section 69 of that Act)),
(b)
a record of, or held by, a local authority and compiled in connection
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with a function under this Part or a social services function (within the
meaning given in section 1A of the Local Authority Social Services Act
1970),
(c)
a record held by a person registered under Part 2 of the Care Standards
Act 2000 or Chapter 2 of Part 1 of the Health and Social Care Act 2008,
25
or
(d)
a record of such other description as may be specified in the
regulations.
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Safeguarding enquiries and reviews
(1)
This section applies where there is to be—
30
(a)
an enquiry under section 42(2),
(b)
a review under section 44(1) of a case in which condition 2 in section
44(3) is met or a review under section 44(4).
(2)
The relevant local authority must, if the condition in subsection (3) is met,
arrange for a person who is independent of the authority (an “independent
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advocate”) to be available to represent and support the adult to whose case the
enquiry or review relates for the purpose of facilitating his or her involvement
in the enquiry or review; but see subsections (4) and (6).
(3)
The condition is that the local authority considers that, were an independent
advocate not to be available, the individual would experience substantial
40
difficulty in doing one or more of the following—
(a)
understanding relevant information;
(b)
retaining that information;
(c)
using or weighing that information as part of the process of being
involved;
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(d)
communicating the individual’s views, wishes or feelings (whether by
talking, using sign language or any other means).

Care Bill [HL]
Part 1 — Care and support
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(4)
The duty under subsection (2) does not apply if the local authority is satisfied
that there is a person—
(a)
who would be an appropriate person to represent and support the
adult for the purpose of facilitating the adult’s involvement, and
(b)
who is not engaged in providing care or treatment for the adult in a
5
professional capacity or for remuneration.
(5)
For the purposes of subsection (4), a person is not to be regarded as an
appropriate person unless—
(a)
where the adult has capacity to consent to being represented and
supported by that person, the adult does so consent, or
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(b)
where the adult lacks capacity so to consent, the local authority is
satisfied that being represented and supported by that person would be
in the adult’s best interests.
(6)
If the enquiry or review needs to begin as a matter of urgency, it may do so
even if the authority has not yet been able to comply with the duty under
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subsection (2) (and the authority continues to be subject to the duty).
(7)
“Relevant local authority” means—
(a)
in a case within subsection (1)(a), the authority making the enquiry or
causing it to be made;
(b)
in a case within subsection (1)(b), the authority which established the
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SAB arranging the review.
Enforcement of debts
70
Recovery of charges, interest etc.
(1)
Any sum due to a local authority under this Part is recoverable by the authority
as a debt due to it.
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(2)
But subsection (1) does not apply in a case where a deferred payment
agreement could, in accordance with regulations under section 34(1), be
entered into, unless—
(a)
the local authority has sought to enter into such an agreement with the
adult from whom the sum is due, and
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(b)
the adult has refused.
(3)
A sum is recoverable under this section—
(a)
in a case in which the sum becomes due to the local authority on or after
the commencement of this section, within six years of the date the sum
becomes due;
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(b)
in any other case, within three years of the date on which it becomes
due.
(4)
Where a person misrepresents or fails to disclose (whether fraudulently or
otherwise) to a local authority any material fact in connection with the
provisions of this Part, the following sums are due to the authority from the
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person—
(a)
any expenditure incurred by the authority as a result of the
misrepresentation or failure, and
(b)
any sum recoverable under this section which the authority has not
recovered as a result of the misrepresentation or failure.
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(5)
The costs incurred by a local authority in recovering or seeking to recover a
sum due to it under this Part are recoverable by the authority as a debt due to it.
(6)
Regulations may—
(a)
make provision for determining the date on which a sum becomes due
to a local authority for the purposes of this section;
5
(b)
specify cases or circumstances in which a sum due to a local authority
under this Part is not recoverable by it under this section;
(c)
specify cases or circumstances in which a local authority may charge
interest on a sum due to it under this Part;
(d)
where interest is chargeable, provide that it—
10
(i)
must be charged at a rate specified in or determined in
accordance with the regulations, or
(ii)
may not be charged at a rate that exceeds the rate specified in or
determined in accordance with the regulations.
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Transfer of assets to avoid charges
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(1)
This section applies in a case where an adult’s needs have been or are being
met by a local authority under sections 18 to 20 and where—
(a)
the adult has transferred an asset to another person (a “transferee”),
(b)
the transfer was undertaken with the intention of avoiding charges for
having the adult’s needs met, and
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(c)
either the consideration for the transfer was less than the value of the
asset or there was no consideration for the transfer.
(2)
The transferee is liable to pay to the local authority an amount equal to the
difference between—
(a)
the amount the authority would have charged the adult were it not for
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the transfer of the asset, and
(b)
the amount it did in fact charge the adult.
(3)
But the transferee is not liable to pay to the authority an amount which exceeds
the benefit accruing to the transferee from the transfer.
(4)
Where an asset has been transferred to more than one transferee, the liability
30
of each transferee is in proportion to the benefit accruing to that transferee from
the transfer.
(5)
“Asset” means anything which may be taken into account for the purposes of
a financial assessment.
(6)
The value of an asset (other than cash) is the amount which would have been
35
realised if it had been sold on the open market by a willing seller at the time of
the transfer, with a deduction for—
(a)
the amount of any incumbrance on the asset, and
(b)
a reasonable amount in respect of the expenses of the sale.
(7)
Regulations may specify cases or circumstances in which liability under
40
subsection (2) does not arise.