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
64

Review of funding provisions
72
Five-yearly review by Secretary of State
(1)
The Secretary of State must review—
(a)
the level at which the cap on care costs is for the time being set under
regulations under section 15(4),
5
(b)
the level at which the amount attributable to an adult’s daily living
costs is for the time being set under regulations under section 15(8), and
(c)
the level at which the financial limit is for the time being set under
regulations under section 17(8).
(2)
In carrying out the review, the Secretary of State must have regard to—
10
(a)
the financial burden on the state of each of those matters being at the
level in question,
(b)
the financial burden on local authorities of each of those matters being
at the level in question,
(c)
the financial burden on adults who have needs for care and support of
15
each of those matters being at the level in question,
(d)
the length of time for which people can reasonably be expected to live
in good health,
(e)
changes in the ways or circumstances in which adults’ needs for care
and support are being or are likely to be met,
20
(f)
changes in the prevalence of conditions for which the provision of care
and support is or is likely to be required, and
(g)
such other factors as the Secretary of State considers relevant.
(3)
The Secretary of State must prepare and publish a report on the outcome of the
review.
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(4)
The first report must be published before the end of the period of five years
beginning with the day on which section 15 comes into force.
(5)
Each subsequent report must be published before the end of the period of five
years beginning with the day on which the previous report was published.
(6)
The Secretary of State may arrange for some other person to carry out the
30
whole or part of a review under this section on the Secretary of State’s behalf.
(7)
The Secretary of State must lay before Parliament a report prepared under this
section.
Miscellaneous
73
Discharge of hospital patients with care and support needs
35
Schedule 3 (which includes provision about the discharge of hospital patients
with care and support needs) has effect.
74
After-care under the Mental Health Act 1983
(1)
In section 117 of the Mental Health Act 1983 (after-care), in subsection (2), after
“to provide” insert “or arrange for the provision of”.
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(2)
In subsection (2D) of that section, for the words from “as if” to the end
substitute “as if the words “provide or” were omitted.”
(3)
In subsection (3) of that section, after “means the local social services authority”
insert “—
(a)
if, immediately before being detained, the person concerned
5
was ordinarily resident in England, for the area in England in
which he was ordinarily resident;
(b)
if, immediately before being detained, the person concerned
was ordinarily resident in Wales, for the area in Wales in which
he was ordinarily resident; or
10
(c)
in any other case”.
(4)
After that subsection insert—
“(4)
Where there is a dispute about where a person was ordinarily resident
for the purposes of subsection (3) above—
(a)
if the dispute is between local social services authorities in
15
England, section 40 of the Care Act 2013 applies to the dispute
as it applies to a dispute about where a person was ordinarily
resident for the purposes of Part 1 of that Act;
(b)
if the dispute is between local social services authorities in
Wales, section 164 of the Social Services and Well-being (Wales)
20
Act 2013 applies to the dispute as it applies to a dispute about
where a person was ordinarily resident for the purposes of that
Act;
(c)
if the dispute is between a local social services authority in
England and a local social services authority in Wales, it is to be
25
determined by the Secretary of State or the Welsh Ministers.
(5)
The Secretary of State and the Welsh Ministers shall make and publish
arrangements for determining which of them is to determine a dispute
under subsection (4)(c); and the arrangements may, in particular,
provide for the dispute to be determined by whichever of them agree is
30
to do so.”
(5)
After subsection (5) insert—
“(6)
In this section, “after-care services”, in relation to a person, means
services which have both of the following purposes—
(a)
meeting a need arising from or related to the person’s mental
35
disorder; and
(b)
reducing the risk of a deterioration of the person’s mental
condition (and, accordingly, reducing the risk of the person
requiring admission to a hospital again for treatment for mental
disorder).”
40
(6)
After section 117 of that Act insert—
“117A
After-care: preference for particular accommodation
(1)
The Secretary of State may by regulations provide that where—
(a)
the local social services authority under section 117 is, in
discharging its duty under subsection (2) of that section,
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providing or arranging for the provision of accommodation for
the person concerned;

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(b)
the person concerned expresses a preference for particular
accommodation; and
(c)
any prescribed conditions are met,

the local social services authority must provide or arrange for the
provision of the person’s preferred accommodation.
5
(2)
Regulations under this section may provide for the person concerned,
or a person of a prescribed description, to pay for some or all of the
additional cost in prescribed cases.
(3)
In subsection (2), “additional cost” means the cost of providing or
arranging for the provision of the person’s preferred accommodation
10
less the amount that the local social services authority would expect to
be the usual cost of providing or arranging for the provision of
accommodation of that kind.
(4)
The power to make regulations under this section—
(a)
is exercisable only in relation to local social services authorities
15
in England;
(b)
includes power to make different provision for different cases
or areas.”
(7)
The ways in which a local authority may discharge its duty under section 117
of the Mental Health Act 1983 include by making direct payments; and for that
20
purpose Part 1 of Schedule 4 (which includes modifications of the provisions
of this Part relating to direct payments) has effect.
(8)
In section 37 of the Social Services and Well-being (Wales) Act 2013 (direct
payments: further provision), at the end insert—
“(11)
The ways in which a local authority may discharge its duty under
25
section 117 of the Mental Health Act 1983 include by making direct
payments; and for that purpose Schedule A1 (which includes
modifications of sections 34 and 35 and this section) has effect.”
(9)
Before Schedule 1 to that Act insert the Schedule A1 contained in Part 2 of
Schedule 4 to this Act.
30
(10)
In section 163 of that Act (ordinary residence), after subsection (4) insert—
“(4A)
A person who is being provided with accommodation under section
117 of the Mental Health Act 1983 (after-care) is to be treated for the
purposes of this Act as ordinarily resident in the area of the local
authority, or the local authority in England, on which the duty to
35
provide that person with services under that section is imposed.”
(11)
In consequence of subsections (7) to (9), in subsection (2C) of section 117 of the
Mental Health Act 1983—
(a)
in paragraph (a), for “regulations under section 57 of the Health and
Social Care Act 2001 or” substitute “—
40
(i)
sections 31 to 33 of the Care Act 2013 (as applied
by Schedule 4 to that Act),
(ii)
sections 34, 35 and 37 of the Social Services and
Well-being (Wales) Act 2013 (as applied by
Schedule A1 to that Act), or
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(iii)
regulations under”,

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(b)
in paragraph (b), after “apart from” insert “those sections (as so
applied) or”.
(12)
In the case of a person who, immediately before the commencement of
subsections (3) and (4), is being provided with after-care services under section
117 of the Mental Health Act 1983, the amendments made by those subsections
5
do not apply while those services are continuing to be provided to that person.
(13)
In section 145 of the Mental Health Act 1983 (interpretation), for the definition
of “local social services authority” substitute—
““local social services authority” means—
(a)
an authority in England which is a local authority for the
10
purposes of Part 1 of the Care Act 2013, or
(b)
an authority in Wales which is a local authority for the
purposes of the Social Services and Well-being (Wales)
Act 2013.”
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Prisoners and persons in approved premises etc.
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(1)
In its application to an adult who is detained in prison, this Part has effect as if
references to being ordinarily resident in an area were references to being
detained in prison in that area.
(2)
In its application to an adult who is residing in approved premises, this Part
has effect as if references to being ordinarily resident in an area were references
20
to being resident in approved premises in that area.
(3)
In its application to an adult who is residing in any other premises because a
requirement to do so has been imposed on the adult as a condition of the grant
of bail in criminal proceedings, this Part has effect as if references to being
ordinarily resident in an area were references to being resident in premises in
25
that area for that reason.
(4)
The power under section 30 (preference for particular accommodation) may
not be exercised in the case of an adult who is detained in prison or residing in
approved premises except for the purpose of making provision with respect to
accommodation for the adult—
30
(a)
on his or her release from prison (including temporary release), or
(b)
on ceasing to reside in approved premises.
(5)
Sections 31 to 33 (direct payments) do not apply in the case of an adult who,
having been convicted of an offence, is—
(a)
detained in prison, or
35
(b)
residing in approved premises.
(6)
Sections 37 and 38 (continuity of care), in their application to an adult who is
detained in prison or residing in approved premises, also apply where it is
decided that the adult is to be detained in prison, or is to reside in approved
premises, in the area of another local authority; and accordingly—
40
(a)
references to the adult’s intention to move are to be read as references
to that decision, and
(b)
references to carers are to be ignored.
(7)
Sections 42 and 47 (safeguarding: enquiry by local authority and protection of
property) do not apply in the case of an adult who is—
45
(a)
detained in prison, or

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(b)
residing in approved premises.
(8)
An SAB’s objective under section 43(2) does not include helping and protecting
adults who are detained in prison or residing in approved premises; but an
SAB may nonetheless provide advice or assistance to any person for the
purpose of helping and protecting such adults in its area in cases of the kind
5
described in section 42(1) (adults with needs for care and support who are at
risk of abuse or neglect).
(9)
Section 44 (safeguarding adults reviews) does not apply to any case involving
an adult in so far as the case relates to any period during which the adult was—
(a)
detained in prison, or
10
(b)
residing in approved premises.
(10)
Regulations under paragraph 1(1)(d) of Schedule 2 (membership of
Safeguarding Adults Boards) may not specify the governor, director or
controller of a prison or a prison officer or prisoner custody officer.
(11)
“Prison” has the same meaning as in the Prison Act 1952 (see section 53(1) of
15
that Act); and—
(a)
a reference to a prison includes a reference to a young offender
institution, secure training centre or secure children’s home,
(b)
the reference in subsection (10) to the governor, director or controller of
a prison includes a reference to the governor, director or controller of a
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young offender institution, to the governor, director or monitor of a
secure training centre and to the manager of a secure children’s home,
and
(c)
the reference in that subsection to a prison officer or prisoner custody
officer includes a reference to a prison officer or prisoner custody
25
officer at a young offender institution, to an officer or custody officer at
a secure training centre and to a member of staff at a secure children’s
home.
(12)
“Approved premises” has the meaning given in section 13 of the Offender
Management Act 2007.
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(13)
“Bail in criminal proceedings” has the meaning given in section 1 of the Bail Act
1976.
(14)
For the purposes of this section—
(a)
a person who is temporarily absent from prison is to be treated as
detained in prison for the period of absence;
35
(b)
a person who is temporarily absent from approved premises is to be
treated as residing in approved premises for the period of absence;
(c)
a person who is temporarily absent from other premises in which the
person is required to reside as a condition of the grant of bail in criminal
proceedings is to be treated as residing in the premises for the period of
40
absence.
76
Registers of sight-impaired adults, disabled adults, etc.
(1)
A local authority must establish and maintain a register of sight-impaired and
severely sight-impaired adults who are ordinarily resident in its area.

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(2)
Regulations may specify descriptions of persons who are, or are not, to be
treated as being sight-impaired or severely sight-impaired for the purposes of
this section.
(3)
A local authority may establish and maintain one or more registers of adults to
whom subsection (4) applies, and who are ordinarily resident in the local
5
authority’s area, for the purposes in particular of—
(a)
planning the provision by the authority of services to meet needs for
care and support, and
(b)
monitoring changes over time in the number of adults in the authority’s
area with needs for care and support and the types of needs they have.
10
(4)
This subsection applies to an adult who—
(a)
has a disability,
(b)
has a physical or mental impairment which is not a disability but which
gives rise, or which the authority considers may in the future give rise,
to needs for care and support, or
15
(c)
comes within any other category of persons the authority considers
appropriate to include in a register of persons who have, or the
authority considers may in the future have, needs for care and support.
(5)
“Disability” has the meaning given by section 6 of the Equality Act 2010.
77
Guidance, etc.
20
(1)
A local authority must act under the general guidance of the Secretary of State
in the exercise of functions given to it by this Part or by regulations under this
Part.
(2)
Before issuing any guidance for the purposes of subsection (1), the Secretary of
State must consult such persons as the Secretary of State considers appropriate.
25
(3)
The Secretary of State must have regard to the general duty of local authorities
under section 1(1) (promotion of individual well-being)—
(a)
in issuing guidance for the purposes of subsection (1);
(b)
in making regulations under this Part.
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Delegation of local authority functions
30
(1)
A local authority may authorise a person to exercise on its behalf a function it
has under—
(a)
this Part or regulations under this Part (but see subsection (2)), or
(b)
section 117 of the Mental Health Act 1983 (after-care services).
(2)
The references in subsection (1)(a) to this Part do not include a reference to—
35
(a)
section 3 (promoting integration with health services etc.),
(b)
sections 6 and 7 (co-operating),
(c)
section 14 (charges),
(d)
sections 31 to 33 (making direct payments),
(e)
sections 42 to 47 (safeguarding adults at risk of abuse or neglect), or
40
(f)
this section.
(3)
An authorisation under this section may authorise an employee of the
authorised person to exercise the function to which the authorisation relates;

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and for that purpose, where the authorised person is a body corporate,
“employee” includes a director or officer of the body.
(4)
An authorisation under this section may authorise the exercise of the function
to which it relates—
(a)
either wholly or to the extent specified in the authorisation;
5
(b)
either generally or in cases, circumstances or areas so specified;
(c)
either unconditionally or subject to conditions so specified.
(5)
An authorisation under this section—
(a)
is for the period specified in the authorisation;
(b)
may be revoked by the local authority;
10
(c)
does not prevent the local authority from exercising the function to
which the authorisation relates.
(6)
Anything done or omitted to be done by or in relation to a person authorised
under this section in, or in connection with, the exercise or purported exercise
of the function to which the authorisation relates is to be treated for all
15
purposes as done or omitted to be done by or in relation to the local authority.
(7)
But subsection (6) does not apply—
(a)
for the purposes of the terms of any contract between the authorised
person and the local authority which relate to the function, or
(b)
for the purposes of any criminal proceedings brought in respect of
20
anything done or omitted to be done by the authorised person.
(8)
Schedule 15 to the Deregulation and Contracting Out Act 1994 (which permits
disclosure of information between local authorities and contractors where that
is necessary for the exercise of the functions concerned, even if that would
otherwise be unlawful) applies to an authorisation under this section as it
25
applies to an authorisation by virtue of an order under section 70(2) of that Act.
(9)
The Secretary of State may by order—
(a)
amend subsection (2) so as to add to or remove from the list a provision
of this Part;
(b)
amend subsection (1) so as to add to or remove from the list a provision
30
relating to care and support for adults or support for carers;
(c)
impose conditions or other restrictions on the exercise of the power
under subsection (1), whether by amending this section or otherwise.
(10)
The provision which may be made in an order under subsection (9) in reliance
on section 121(7) (supplementary etc. provision in orders under this Act)
35
includes, in particular, provision as to the rights and obligations of local
authorities and persons authorised under this section in light of the provision
made by the order.
(11)
“Function” includes a power to do anything that is calculated to facilitate, or is
conducive or incidental to, the exercise of a function.
40