Care Act s21-30

Section 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 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 solely—

(a)  because the adult is destitute, or
(b)  because of the physical effects, or anticipated physical effects, of being destitute.

(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 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.”

(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—

(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 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.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section applies in relation to adults who are subject to immigration control within the meaning of section 115 of the Immigration and Asylum Act 1999. As a result, a local authority may not meet the care and support needs of such an adult which arise solely because the adult is destitute, or because of the physical effects or anticipated physical effects, of being destitute. It replaces existing exclusions set out in: for example, sections 21(1A) and (1B) of the National Assistance Act 1948, section 45(4A) Health Services and Public Health Act 1968.”

 

Section 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 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—

(a)  types of services or facilities which, despite subsection (1), may be provided or the provision of which may be arranged by a local authority, or circumstances in which such services or facilities may be so provided or the provision of which may be so arranged;
(b)  types of services or facilities which may not be provided or the provision of which may not be arranged by a local authority, or circumstances in which such services or facilities may not be so provided or the provision of which may not be so arranged;
(c)  services or facilities, or a method for determining services or facilities, the provision of which is, or is not, to be treated as meeting the conditions in subsection (1)(a) and (b).

(3)  A local authority may not meet needs under sections 18 to 20 by providing or arranging for the provision of nursing care by a registered nurse.

(4)  But a local authority may, despite the prohibitions in subsections (1) and (3), arrange for the provision of accommodation together with the provision of nursing care by a registered nurse if—

(a)  the authority has obtained consent for it to arrange for the provision of the nursing care from whichever clinical commissioning group regulations require, or
(b)  the case is urgent and the arrangements for accommodation are only temporary.

(5)  In a case to which subsection (4)(b) applies, as soon as is feasible after the temporary arrangements are made, the local authority must seek to obtain the consent mentioned in subsection (4)(a).

(6)  Regulations may require a local authority—

(a)  to be involved in the specified manner in processes for assessing a person’s needs for health care and for deciding how those needs should
be met;
(b)  to make arrangements for determining disputes between the authority and a clinical commissioning group or the National Health Service
Commissioning Board about whether or not a service or facility is required to be  provided under the National Health Service Act 2006.

(7)  Nothing in this section affects what a local authority may do under the National Health Service Act 2006, including entering into arrangements under
regulations under section 75 of that Act (arrangements with NHS bodies).

(8)  A reference to the provision of nursing care by a registered nurse is a reference to the provision by a registered nurse of a service involving—

(a)  the provision of care, or
(b)  the planning, supervision or delegation of the provision of care, other than a service which, having regard to its nature and the circumstances in which it is provided, does not need to be provided by a registered nurse.

(9) Where, in a case within subsection (4), the National Health Service Commissioning Board has responsibility for arranging for the provision of the
nursing care, the reference in paragraph (a) of that subsection to a clinical commissioning group is to be read as a reference to the Board.

(10)  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
references to meeting needs under sections 18 to 20 were references to performing the duty under section 2(1).
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“In meeting an adult’s needs for care and support, or a carer’s needs for support, a local authority may not provide healthcare services which are the responsibility of the NHS. This section sets out the limits on what a local authority may provide by way of healthcare and so, in effect, sets the boundary between the responsibilities of local authorities for the provision of care and support, and those of the NHS for the provision of health care. This replaces provisions in sections 21(8) and 29(6) of the National Assistance Act 1948 and section 49 of the Health and Social Care Act 2001.

Subsection (1) stipulates that a local authority cannot meet care and support needs by providing services of a type which is required to be provided under the NHS Act 2006. Schedule 1, which deals with cross-border placements, provides that this also applies where a local authority is meeting needs by arranging for the provision of accommodation in Wales, Scotland or Northern Ireland. This includes all healthcare services which the NHS is required to provide, for instance primary medical, dental and ophthalmic services, by clinical commissioning groups, the NHS Commissioning Board, or any other NHS body.  However, subsection (1) provides that a local authority may provide some healthcare services in certain circumstances, that is, where the service provided is minor and accompanies some other care and support service which the local authority is permitted to provide and is of a nature that a local authority would be expected to provide. This reflects what has become known as the “quantity and quality test”, arising out of the case of R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 (“Coughlan”).

In the Coughlan case, which related particularly to the provision of nursing services, the court considered the effect of the prohibition, in section 21(8) of the National Assistance Act 1948, on a local authority providing health services. As part of its consideration of the question of where the line between local authority services and health services was to be drawn (a line the court concluded was difficult to draw precisely) the court suggested that, as a very general indication, if the nursing services were (i) merely incidental or ancillary to the provision of the service the local authority was under a duty to provide, and (ii) of a nature which a local authority might be expected to provide, then such nursing services could be provided by the local authority. This test, looking at (i) the quantity of the service provided and (ii) the quality of the service provided, has been adopted and developed by the courts as a helpful indicator of the distinction between health and social care provision and it continues to form a fundamental part of the current policy framework underpinning the provision of NHS continuing healthcare.

Subsection (2) confers power to make provision in regulations about the types of services which may, or may not, be provided by local authorities, and in which circumstances.  Subsection (3) provides a further restriction, which is that a local authority cannot provide or arrange the provision of nursing care by a registered nurse. This kind of nursing care is something that may only be provided by the NHS.

However, subsections (4) and (5) provide that the local authority may arrange the provision of accommodation which includes the provision of nursing care by a registered nurse (a term that is defined in subsection (8)), provided it has first obtained
the agreement of the relevant NHS body (being the body that would be responsible for meeting the cost of that nursing element) or, where it has to arrange the provision of such accommodation as a matter of urgency, provided it obtains the agreement of the relevant NHS body as soon as possible afterwards. The relevant body will usually be a clinical commissioning group. However, as subsection (9) acknowledges, it may in certain circumstances be the NHS Commissioning Board.

Subsection (6) sets out other matters which may be provided for in regulations.  These include detailing the steps which the local authority must take to contribute to an assessment as to whether an adult requires healthcare services and requiring the establishment of a process for dealing with disputes between local authorities and NHS bodies, should there be a disagreement over the responsibility for providing a particular service in an individual case.  As this section makes clear, local authorities generally may not provide healthcare services (which are for the NHS to provide under the NHS Act 2006). However, subsection (7) clarifies that this section does not prohibit local authorities from doing anything that they, as local authorities, have the power to do under the NHS Act 2006. This includes, in particular, entering into partnership arrangements with NHS bodies under section 75 of the NHS Act 2006.

The restrictions imposed by this section also apply where a local authority is doing anything in discharge of its duty under section 2 aimed at preventing, delaying or reducing needs.”

 

Section 23 – Exception for provision of housing etc.

(1)  A local authority may not meet needs under sections 18 to 20 by doing anything which it or another local authority is required to do under—

(a)  the Housing Act 1996, or
(b)  any other enactment specified in regulations.

(2)  “Another local authority” includes a district council for an area in England for which there is also a county council.

(3)  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, in
subsection (1), for “meet needs under sections 18 to 20” there were substituted “perform the duty under section 2(1)”.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets out the boundary in law between local authorities’ care and support functions, and their housing functions. Together with section 22 it replaces provision in section 21(8) of the National Assistance Act 1948.

This section prevents local authorities from meeting needs for care and support by doing anything which they or another local authority are required to do under the Housing Act 1996 (to generally provide housing), or under any other enactment added in regulations.  This section does not prevent local authorities in their care and support role from providing more specific services (such as housing adaptations), or from working jointly with housing authorities.”

 

Section 24 – The steps for the local authority to take

(1)  Where a local authority is required to meet needs under section 18 or 20(1), or decides to do so under section 19(1) or (2) or 20(6), it must—

(a)  prepare a care and support plan or a support plan for the adult concerned,
(b)  tell the adult which (if any) of the needs that it is going to meet may be met by direct payments, and
(c) help the adult with deciding how to have the needs met.

(2)  Where a local authority has carried out a needs or carer’s assessment but is not required to meet needs under section 18 or 20(1), and does not decide to do so under section 19(1) or (2) or 20(6), it must give the adult concerned—

(a)  its written reasons for not meeting the needs, and
(b)  (unless it has already done so under section 13(5)) advice and information about—

(i)  what can be done to meet or reduce the needs;
(ii)  what can be done to prevent or delay the development by the adult concerned of needs for care and support or of needs for support in the future.

(3)  Where a local authority is not going to meet an adult’s needs for care and support, it must nonetheless prepare an independent personal budget for the adult (see section 28) if—

(a)  the needs meet the eligibility criteria,
(b)  at least some of the needs are not being met by a carer, and
(c)  the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets out the steps local authorities must take after carrying out the needs assessment or carer’s assessment (and the financial assessment where relevant).

Subsection (1) requires a local authority which has a duty under section 18 or section 20 or has exercised its discretion under section 19 or section 20 to meet needs for care and support to do the following: Prepare a care and support plan for an adult with needs for care and support, or a support plan for a carer (as specified in section 25).  Inform the adult which of their needs it will meet and where direct payments may be used to meet needs.  Help the adult in deciding how to have the needs met.

Subsection (2) requires the local authority to provide those whose needs it is not required to meet, and has decided not to meet, with the following:  A written explanation of the reasons why it is not going to meet the needs (e.g.; this could be the adult is ordinarily resident elsewhere, or their needs are being met by a carer).  Information and advice in writing on how the adult can meet or reduce their needs independently, including information on how the adult can prevent or delay their needs (unless the adult or carer has received such advice already as required by section 13).

Subsection (3) applies where the adult has eligible needs for care and support, but the local authority does not have a duty to meet these needs (because, for example, the adult does not want to have their needs met by the local authority). It requires the local authority to prepare an independent personal budget (as required by section 28).”

 

Section 25 – Care and support plan, support plan

(1)  A care and support plan or, in the case of a carer, a support plan is a document prepared by a local authority which—

(a)  specifies the needs identified by the needs assessment or carer’s assessment,
(b)  specifies whether, and if so to what extent, the needs meet the eligibility criteria,
(c)  specifies the needs that the local authority is going to meet and how it is going to meet them,
(d)  specifies to which of the matters referred to in section 9(4) the provision of care and support could be relevant or to which of the matters referred to in section 10(5) and (6) the provision of support could be relevant,
(e)  includes the personal budget for the adult concerned (see section 26), and
(f)  includes advice and information about—

(i)  what can be done to meet or reduce the needs in question;
(ii) what can be done to prevent or delay the development of needs for care and support or of needs for support in the future.

(2)  Where some or all of the needs are to be met by making direct payments, the plan must also specify—

(a)  the needs which are to be so met, and
(b)  the amount and frequency of the direct payments.

(3)  In preparing a care and support plan, the local authority must involve—

(a)  the adult for whom it is being prepared,
(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.

(4)  In preparing a support plan, the local authority must involve—

(a)  the carer for whom it is being prepared,
(b)  the adult needing care, if the carer asks the authority to do so, and
(c)  any other person whom the carer asks the authority to involve.

(5)  In performing the duty under subsection (3)(a) or (4)(a), the local authority must take all reasonable steps to reach agreement with the adult or carer for whom the plan is being prepared about how the authority should meet the needs in question.

(6)  In seeking to ensure that the plan is proportionate to the needs to be met, the local authority must have regard in particular—

(a) in the case of a care and support plan, to the matters referred to in section 9(4);
(b)  in the case of a support plan, to the matters referred to in section 10(5) and (6).

(7) The local authority may authorise a person (including the person for whom the plan is to be prepared) to prepare the plan jointly with the authority.

(8)  The local authority may do things to facilitate the preparation of the plan in a case within subsection (7); it may, for example, provide a person authorised under that subsection with—

(a)  in the case of a care and support plan, information about the adult for whom the plan is being prepared;
(b)  in the case of a support plan, information about the carer and the adult needing care;
(c)  in either case, whatever resources, or access to whatever facilities, the authority thinks are required to prepare the plan.

(9)  The local authority must give a copy of a care and support plan to—

(a)  the adult for whom it has been prepared,
(b)  any carer that the adult has, if the adult asks the authority to do so, and
(c)  any other person to whom the adult asks the authority to give a copy.

(10)  The local authority must give a copy of a support plan to—

(a)  the carer for whom it has been prepared,
(b)  the adult needing care, if the carer asks the authority to do so, and
(c)  any other person to whom the carer asks the authority to give a copy.

(11)  A local authority may combine a care and support plan or a support plan with a plan (whether or not prepared by it and whether or not under this Part) relating to another person only if the adult for whom the care and support plan or the support plan is being prepared agrees and—

(a)  where the combination would include a plan prepared for another adult, that other adult agrees;
(b)  where the combination would include a plan prepared for a child (including a young carer), the consent condition is met in relation to the child.

(12)  The consent condition is met in relation to a child if—

(a)  the child has capacity or is competent to agree to the plans being combined and does so agree, or
(b)  the child lacks capacity or is not competent so to agree but the local authority is satisfied that the combining the plans would be in the
child’s best interests.

(13)  Regulations may specify cases or circumstances in which such of paragraphs (a) to (f) of subsection (1) and paragraphs (a) and (b) of subsection (2) as are specified do not apply.

(14)  The regulations may in particular specify that the paragraphs in question do not apply as regards specified needs or matters.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets out the information and details which must be specified in the care and support plan (or in the case of a carer, the support plan) provided under section 24.

Subsection (1) provides that the needs identified in the needs or carers assessment must be specified in the plan and also whether and if so the extent to which the needs meet the eligibility criteria. It requires the plan to specify the needs the local authority will meet and to state how it will meet them, and to specify to which of the various relevant matters covered in the assessment, including the outcomes which the person wishes to achieve in day to day life.

It must also include the personal budget for the adult and information and advice about how to prevent, delay or reduce the adult’s needs for care and support or the carer’s need for support.

If the individual’s needs are met by a direct payment, subsection (2) requires that the plan must specify the needs that will be met by the direct payment, and the amount and frequency of the direct payment.

The purpose of subsections (3) and (4) is to ensure that all relevant people are involved in the preparation of and agreement to the plan. Subsection (3) requires the local authority to involve the adult, any carer they may have, and anyone else the adult may ask to be involved in the development of the care and support plan. Where a person lacks capacity the local authority must also involve any person who appears to be interested in the individual’s welfare.  Subsection (4) requires the local authority to involve the carer, the adult receiving care, and anyone else the adult may ask to be involved in the development of the support plan.  Subsection (5) requires the local authority to take all reasonable steps to reach agreement with the person for whom the plan is being prepared about how the local authority is going to meet their needs. The local authority may be required to make an advocate available to support the person, see section 68.

Subsection (6) provides for this by requiring the local authority to have regard to various matters covered by the assessment such as the outcomes of the adult or the carer wishes to achieve.  Subsection (7) allows the local authority to jointly prepare the plan with another person, including the adult or carer who the plan is being prepared for.

Subsection (8) requires the local authority to facilitate the development of the plan by providing such a person with information, resources and access to facilities.

Subsection (11) allows the local authority to combine a care and support plan or a support plan with any other plan, where those to whom the plans relate agree (or where one of the plans relates to a child who lacks capacity or is not competent to agree, the local authority is satisfied that combining the plans is in the child’s best interests).  This would allow for a combined care and support plan, for instance to reflect the needs of a family more holistically.”

 

Section 26 – Personal budget

(1)  A personal budget for an adult is a statement which specifies—

(a)  the cost to the local authority of meeting those of the adult’s needs which it is required or decides to meet as mentioned in section 24(1),
(b)  the amount which, on the basis of the financial assessment, the adult must pay towards that cost, and
(c)  if on that basis the local authority must itself pay towards that cost, the amount which it must pay.

(2)  In the case of an adult with needs for care and support which the local authority is required to meet under section 18, the personal budget must also specify—

(a)  the cost to the local authority of meeting the adult’s needs under that section, and
(b)  where that cost includes daily living costs—

(i)  the amount attributable to those daily living costs, and
(ii)  the balance of the cost referred to in paragraph (a).

(3)  A personal budget for an adult may also specify other amounts of public money that are available in the adult’s case including, for example, amounts available for spending on matters relating to housing, health care or welfare.

(4)  Regulations may make provision for excluding costs to a local authority from a personal budget if the costs are incurred in meeting needs for which the authority—

(a)  does not make a charge, or
(b)  is not permitted to make a charge.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section defines a personal budget as a statement and sets out the financial information which must be included in the statement.

Subsection (1) makes clear that the total amount which it costs the local authority to meet the needs which it must or has decided to meet must be set out in a statement and broken down so that the adult can see from the statement the amount if any which the adult must pay towards that cost and the amount if any which the local authority must pay. The amount the adult must pay is calculated on the basis of the financial assessment carried out under section 17.

Subsection (2) requires the total cost to the local authority of meeting eligible needs which it is required to meet under section 18 to be broken down so that the adult can see from the statement how much of that is attributable to daily living costs.

This is because daily living costs do not count for the purposes of working out whether costs accrued in meeting adult’s eligible needs have exceeded the cap on care costs, and where they have, this will allow the adult and local authority to distinguish what the adult must pay for their daily living costs and what the local authority must pay to meet the care costs.

Subsection (3) provides that the personal budget may specify other amounts of public money that are available to the person for spending on matters including those relating to housing, healthcare or welfare.”

 

Section 27 – Review of care and support plan or of support plan

(1)  A local authority must—

(a)  keep under review generally care and support plans, and support plans, that it has prepared, and
(b)  on a reasonable request by or on behalf of the adult to whom a care and support plan relates or the carer to whom a support plan relates, review
the plan.

(2)  A local authority may revise a care and support plan; and in deciding whether or how to do so, it—

(a)  must have regard in particular to the matters referred to in section 9(4) (and specified in the plan under section 25(1)(d)), and
(b)  must involve—

(i)  the adult to whom the plan relates,
(ii)  any carer that the adult has, and
(iii)  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.

(3)  A local authority may revise a support plan; and in deciding whether or how to do so, it—

(a)  must have regard in particular to the matters referred to in section 10(5) and (6) (and specified in the plan under section 25(1)(d)), and
(b)  must involve—

(i)  the carer to whom the plan relates,
(ii)  the adult needing care, if the carer asks the authority to do so, and
(iii)  any other person whom the carer asks the authority to involve.

(4)  Where a local authority is satisfied that circumstances have changed in a way that affects a care and support plan or a support plan, the authority must—

(a)  to the extent it thinks appropriate, carry out a needs or carer’s assessment, carry out a financial assessment and make a determination
under section 13(1), and
(b)  revise the care and support plan or support plan accordingly.

(5)  Where, in a case within subsection (4), the local authority is proposing to change how it meets the needs in question, it must, in performing the duty
under subsection (2)(b)(i) or (3)(b)(i), take all reasonable steps to reach agreement with the adult concerned about how it should meet those needs.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section requires the local authority to ensure the care and support plan (or support plan) remains an accurate, up-to-date reflection of the person’s needs and the outcomes they wish to achieve and the services arranged to meet these needs and outcomes. This section applies to care and support plans for adults needing care and support, and support plans for carers. The local authority must review the plan on a reasonable request by the adult to whom it relates.

Subsection (2) states that the local authority may revise the care and support plan, and when doing so must have regard to the outcomes the individual identified in the assessment and other relevant matters identified in the assessment and listed in section 9(4).

When revising the plan the local authority must involve the adult, any carer they may have, and anyone else the adult may ask to be involved. Where a person lacks capacity the local authority must also involve any person who appears to be interested in the individual’s welfare. Subsection (3) places similar requirements on the local authority when reviewing a carer’s support plan.

Subsection (4) states that where the local authority is satisfied that the person’s circumstances, for example their needs or finances, have changed in a way that affects their care and support plan or support plan, the local authority must, where it thinks appropriate, carry out a new needs or carer’s assessment, and a new financial assessment (or both) and consider whether the person’s needs meet the eligibility criteria. The local authority must then revise the care and support plan or support plan as appropriate. This will ensure that the individual’s care and support package, and the level to which the local authority contributes to it are up-to-date and in line with the outcomes of the care and support plan review.

Subsection (5) states that, as with the care and support plan, the local authority must involve the user of care services and carer and take all reasonable steps to reach agreement with the person for whom the plan is being prepared if there is to be a change in how the person’s needs are met.”

 

Section 28 – Independent personal budget

(1)  An independent personal budget is a statement which specifies what the cost would be to the local authority concerned (see section 24(3)) of meeting the adult’s eligible needs for care and support.

(2)  Where the amount referred to in subsection (1) includes daily living costs, the independent personal budget for the adult must specify—

(a)  the amount attributable to those daily living costs, and
(b)  the balance of the amount referred to in subsection (1).

(3)  An adult’s needs are “eligible needs” if, at the time they were met—

(a)  they met the eligibility criteria,
(b) they were not being met by a carer, and
(c)  the adult was ordinarily resident or present in the area of the local authority.

(4)  A local authority must—

(a)  keep under review generally independent personal budgets that it has prepared, and
(b)  on a reasonable request by or on behalf of the adult to whom an independent personal budget relates, review the independent personal
budget.

(5)  A local authority may revise an independent personal budget; and in deciding whether or how to do so, it must, in so far as it is feasible to do so, involve—

(a)  the adult to whom the independent personal budget relates,
(b)  any carer that the adult has, and
(c)  any other 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.

(6)  Where a local authority is satisfied that the circumstances of the adult to whom an independent personal budget applies have changed in a way that affects the independent personal budget, the authority must—

(a)  to the extent it thinks appropriate, carry out a needs assessment and make a determination under section 13(1), and
(b)  revise the independent personal budget accordingly.

(7)  Where, in a case within subsection (6), an adult refuses a needs assessment and the local authority thinks that the adult’s refusal is unreasonable, it need no longer keep an up-to-date care account in the adult’s case.

(8)  Having reviewed an independent personal budget, a local authority must—

(a)  if it revises the independent personal budget, notify the adult to whom the independent personal budget relates of the revisions and provide
an explanation of the effect of each revision, or
(b)  if it does not revise the independent personal budget, notify the adult accordingly.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section establishes the concept of independent personal budgets for adults who have eligible needs, and who choose not to have these needs met by their local authority. Such persons will not have personal budgets under section 26 because the local authority is not under a duty to prepare a care and support plan for them, so a separate mechanism is needed to record their care costs for the purposes of measuring progress towards the costs cap.  The independent budget is a statement recording how much of the adult’s spending on care will count towards the cap. This amount will be equivalent to what it would cost the local authority to purchase care and support that meets their eligible needs.

Subsection (1) defines the independent personal budget as a statement that shows the amount that it would cost the local authority to meet the adult’s eligible needs. The independent personal budget is equivalent to what it would cost the local authority to purchase the care for the individual, if it were doing so under section 18.

Subsection (2) requires the independent personal budget to specify how much of the total represents daily living costs (see section 15) and the remaining amount of the independent personal budget that is for care costs and therefore contributes towards someone’s progress towards the cap. Local authorities are required to keep the independent personal budget under review, and if the person asks for it to be reviewed, must do so if the request is reasonable (subsection (4)).

If the local authority considers the adult’s circumstances to have changed in a way that might affect the independent personal budget, then they must, if appropriate, carry out a new needs assessment and revise the independent personal budget (subsection (6)).  If an adult refuses a reasonable request to be re-assessed, then their independent personal budget will cease counting towards their accrued costs and the local authority will not have to keep their care account up to date (subsection (7)).  Following a review, the local authority must notify the adult of the outcome and if the independent personal budget has changed, must explain why (subsection (8)).”

 

Section 29 – Care account

(1)  Where an adult has needs for care and support which meet the eligibility criteria, the local authority in whose area the adult is ordinarily resident or, if the adult is of no settled residence, in whose area the adult is present—

(a)  must keep an up-to-date record of the adult’s accrued costs (a “care account”), and
(b)  once those costs exceed the cap on care costs, must inform the adult.

(2)  Where a local authority which has been keeping a care account is no longer required to do so, it must nonetheless retain the account that it has kept so far until—

(a)  the end of the period of 99 years beginning with the day on which it last updated the account, or
(b)  where the adult dies, the local authority becomes aware of the death.

(3)  A care account must specify such amount as is attributable to the adult’s daily living costs.

(4)  A local authority which is keeping a care account must, at such times as regulations may specify, provide the adult concerned with a statement
which—

(a)  sets out the adult’s accrued costs, and
(b)  includes such other matters as regulations may specify.

(5)  Regulations may specify circumstances in which the duty under subsection (4) does not apply.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section requires local authorities to keep a care account for adults whose care costs are counted towards the costs cap. The purpose of the account is to maintain a record of the adult’s total accrued care costs, and progress towards the costs cap.

Subsection (1) requires the local authority to keep a record of the accrued costs of an adult. It also requires the local authority to inform the adult if the level of accrued costs in their care account reaches the cap.  If an adult moves to another local authority’s area, the local authority from which the adult is moving must retain the record of their care account up to the point they left for either 99 years, or until they are notified that the person has died (subsection (2)).  Where the care account includes daily living costs, these must be specified separately (subsection (3)).

Subsection (4) provides a regulation making power that will require the local authority to provide adults with a regular statement of their care account. We anticipate that this will be an annual requirement and will show the adult how they are progressing towards the cap.”

 

Section 30 – Cases where adult expresses preference for particular accommodation

(1)  Regulations may provide that where—

(a)  a local authority is going to meet needs under sections 18 to 20 by providing or arranging for the provision of accommodation of a specified type,
(b)  the adult for whom the accommodation is going to be provided expresses a preference for particular accommodation of that type, and
(c)  specified conditions are met,

the local authority must provide or arrange for the provision of the preferred accommodation.

(2)  The regulations may provide for the adult or a person of a specified description to pay for some or all of the additional cost in specified cases or circumstances.

(3)  “Additional cost” means the cost of providing or arranging for the provision of the preferred accommodation less that part of the amount specified in the personal budget for the purposes of section 26(1)(a) that relates to the provision of accommodation of that type.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section provides powers regarding the choice of accommodation, and other matters. It sets out some further factors to be considered when it has been determined that an individual’s needs would be best met through the provision of care and support in a care home or other type of accommodation.

As subsection (1) sets out, regulations may require a local authority to meet an individual’s preference for specific accommodation. For example, an individual may want to be in a care home close to a relative in another local authority area. Conditions may be imposed in the regulations, for example, that the local authority is satisfied that the preferred care home is able to provide appropriate care and support to meet the person’s needs.  In some instances, the local authority may incur additional costs when making arrangements with the preferred care home or other accommodation. An individual, for example, may wish to be placed in a care home that costs more than the amount specified as the cost of meeting the needs in the personal budget. Subsection (2) sets out that the regulations may allow the individual, or someone acting on their behalf, to make an additional payment to the local authority to cover the difference between the cost of their preferred accommodation, and the amount specified in the personal budget.”

 

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