Care Act s31-40

Section 31 – Adults with capacity to request direct payments

(1)  This section applies where—

(a)  a personal budget for an adult specifies an amount which the local authority must pay towards the cost of meeting the needs to which the
personal budget relates, and
(b)  the adult requests the local authority to meet some or all of those needs by making payments to the adult or a person nominated by the adult.

(2)  If conditions 1 to 4 are met, the local authority must, subject to regulations under section 33, make the payments to which the request relates to the adult or nominated person.

(3)  A payment under this section is referred to in this Part as a “direct payment”.

(4)  Condition 1 is that—

(a)  the adult has capacity to make the request, and
(b)  where there is a nominated person, that person agrees to receive the payments.

(5)  Condition 2 is that—

(a)  the local authority is not prohibited by regulations under section 33 from meeting the adult’s needs by making direct payments to the adult
or nominated person, and
(b)  if regulations under that section give the local authority discretion to decide not to meet the adult’s needs by making direct payments to the
adult or nominated person, it does not exercise that discretion.

(6)  Condition 3 is that the local authority is satisfied that the adult or nominated person is capable of managing direct payments—

(a)  by himself or herself, or
(b)  with whatever help the authority thinks the adult or nominated  person will be able to access.

(7)  Condition 4 is that the local authority is satisfied that making direct payments to the adult or nominated person is an appropriate way to meet the needs in question.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“As section 8 sets out, a direct payment is one of the ways in which needs may be met. A direct payment is a payment that a local authority can make to an adult to enable that person to arrange care and support to meet assessed eligible needs.

This section specifies conditions which must be met to receive a direct payment.  It relates to adults who have the capacity to request a direct payment.  Subsection (1) makes clear that a direct payment may not be made unless the local authority is required to contribute towards the costs of meeting the adult’s needs and the adult requests a direct payment to be made to the adult or to someone who is nominated by the adult to receive the direct payment.

Subsection (2) states that the local authority must agree to the request for and make a direct payment if the four conditions specified in subsections (4) to (7) are met (unless provisions in regulations made under section 33 provide otherwise).

The four conditions are:

  • in subsection (4) that the adult must have capacity to make the request for a direct payment, and that any person nominated to receive a direct payment of their behalf must agree to doing so;
    • in subsection (5) that the local authority is not prohibited by regulations made under section 33 from meeting the adult’s needs by making direct payments to the adult (or person nominated).  For example, these regulations may specify that some people will not be able to receive a direct payment, such as those undergoing some types of drug treatment;
    • in subsection (6) that the local authority must be satisfied that the adult (or anyone nominated on their behalf) is capable of managing a direct payment, either on their own or with whatever help is available to them (for instance from family members); and,
    • in subsection (7) that the local authority is satisfied that making direct payments (either to the adult or someone nominated) is an appropriate way of meeting the needs for care and support.”

 

Section 32 – Adults without capacity to request direct payments

(1)  This section applies where—

(a)  a personal budget for an adult specifies an amount which the local authority must pay towards the cost of meeting the needs to which the personal budget relates, and
(b)  the adult lacks capacity to request the local authority to meet any of those needs by making payments to the adult, but
(c)  an authorised person requests the local authority to meet some or all of those needs by making payments to the authorised person.

(2)  If conditions 1 to 5 are met, the local authority must, subject to regulations under section 33, make the payments to which the request relates to the authorised person.

(3)  A payment under this section is referred to in this Part as a “direct payment”.

(4)  A person is authorised for the purposes of this section if—

(a)  the person is authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support,
(b)  where the person is not authorised as mentioned in paragraph (a), a person who is so authorised agrees with the local authority that the person is a suitable person to whom to make direct payments, or
(c)  where the person is not authorised as mentioned in paragraph (a) and there is no person who is so authorised, the local authority considers that the person is a suitable person to whom to make direct payments.

(5)  Condition 1 is that, where the authorised person is not authorised as mentioned in subsection (4)(a) but there is at least one person who is so authorised, a person who is so authorised supports the authorised person’s request.

(6)  Condition 2 is that—

(a)  the local authority is not prohibited by regulations under section 33 from meeting the adult’s needs by making direct payments to the authorised person, and
(b)  if regulations under that section give the local authority discretion to decide not to meet the adult’s needs by making direct payments to the authorised person, it does not exercise that discretion.

(7)  Condition 3 is that the local authority is satisfied that the authorised person will act in the adult’s best interests in arranging for the provision of the care and support for which the direct payments under this section would be used.

(8)  Condition 4 is that the local authority is satisfied that the authorised person is capable of managing direct payments—

(a)  by himself or herself, or
(b)  with whatever help the authority thinks the authorised person will be able to access.

(9)  Condition 5 is that the local authority is satisfied that making direct payments to the authorised person is an appropriate way to meet the needs in question.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets out provisions in relation to adults who lack the capacity to request the local authority to meet some or all of their needs by making a direct payment. The section provides for the local authority to meet the needs of the adult by making direct payments to the authorised person.

Subsection (1) makes clear that a direct payment may not be made unless the local authority is required to contribute towards the costs of meeting the adult’s needs and an authorised person requests the local authority to meet some or all of the adult’s needs by making a direct payment to the authorised person.

By subsection (2) the local authority must make payments to an authorised person (defined in subsection (4), subject to any regulations specified under section 33 and provided that the five conditions (set out in subsections (5) to (9) are all met).

Subsection (4) sets out who is an “authorised person” for these purposes. An authorised person is either: someone who is authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support; or a person who the local authority and a person who is so authorised agree is a suitable person to receive the direct payments or; if there is no person authorised under the Mental Capacity Act to make decisions about the adult’s needs for care and support,  a person who the local authority considers is a suitable person to whom to make the payment.

Subsections (5) to (8) set out the conditions which must be met. They include that the local authority: is not prohibited by regulations from making direct payments to the authorised person: is satisfied that the authorised person will use the direct payment in the best interests of the adult to meet their care and support needs; is satisfied that the authorised person is able to manage the direct payment by themselves, or with whatever help they may have available to them; and, is satisfied that making a direct payment to the authorised person is an appropriate way of meeting the adult’s needs for care and support.”

 

Section 33 – Direct payments: further provision

(1)  Regulations must make further provision about direct payments.

(2)  The regulations may, in particular, specify—

(a)  cases or circumstances in which a local authority must not, or cases or circumstances in which it has the discretion to decide not to, meet needs by making direct payments;
(b)  conditions which a local authority may or must attach to the making of direct payments;
(c) matters to which a local authority may or must have regard when making a decision of a specified type in relation to direct payments;
(d)  steps which a local authority may or must take before, or after, making a decision of a specified type in relation to direct payments;
(e)  cases or circumstances in which an adult who lacks capacity to request the making of direct payments must or may nonetheless be regarded for the purposes of this Part or the regulations as having capacity to do so;
(f)  cases or circumstances in which an adult who no longer lacks capacity to make such a request must or may nonetheless be regarded for any of those purposes as lacking capacity to do so;
(g)  cases or circumstances in which a local authority making direct payments must review the making of those payments.

(3)  A direct payment is made on condition that it be used only to pay for arrangements under which the needs specified under section 25(2)(a) in the care and support plan or (as the case may be) the support plan are met.

(4)  In a case where one or more of conditions 1 to 4 in section 31 is no longer met or one or more of conditions 1 to 5 in section 32 is no longer met, the local authority must terminate the making of direct payments.

(5)  In a case where a condition specified under subsection (2)(b) or the condition mentioned in subsection (3) is breached, the local authority—

(a)  may terminate the making of direct payments, and
(b)  may require repayment of the whole or part of a direct payment (with section 69 accordingly applying to sums which the local authority requires to be repaid).
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section makes further provisions about direct payments.  Subsections (1) and (2) require the Secretary of State to make regulations, which may specify a number of further matters in relation to direct payments.  Subsection (3) makes clear that that a direct payment must only be used for the purpose of meeting the needs specified in the care and support or support plan.  Subsection (4) provides that the local authority must stop making direct payments if any of the conditions are no longer met.  Subsection (5) allows the local authority to stop making direct payments and to require repayment of direct payments it has already made if there is a breach of any condition imposed by the local authority as permitted by regulations made under subsections (2)(b) and (3) or if the direct payment is not used to pay for the needs specified in the care and support plan.”

 

Section 34 – Deferred payment agreements and loans

(1)  Regulations may, in such cases or circumstances and subject to such conditions as may be specified, require or permit a local authority to enter into a deferred payment agreement with an adult.

(2)  A “deferred payment agreement” is an agreement under which a local authority agrees not to require until the specified time either or both of the
following—

(a)  the payment of the specified part of the amounts due from an adult to the authority under such provision of this Part or of regulations under
this Part as is specified in regulations;
(b)  the repayment of the specified part of a loan made under the agreement by the authority to an adult for the purpose of assisting the adult to
obtain the provision of care and support for the adult.

(3)  The care and support mentioned in subsection (2)(b) includes care and support the provision of which—

(a)  the authority does not consider to be necessary to meet the adult’s needs;
(b)  is in addition to care and support which is being provided, arranged for, or paid for (in whole or in part) by the authority.

(4)  Regulations under subsection (1) may, in particular, prohibit a local authority from entering into, or permit it to refuse to enter into, a deferred payment agreement unless it obtains adequate security for the payment of the adult’s deferred amount.

(5)  Regulations may specify what constitutes adequate security for the purposes of subsection ( 4); they may, for example, specify—

(a)  an obligation on the adult to give the authority a charge over the adult’s legal or beneficial interest in the property which the adult occupies as his or her only or main residence (or in a property which the adult used to occupy as such) to secure payment of the adult’s deferred amount;
(b)  a guarantee from another person to pay the adult’s deferred amount.

(6)  A reference in this section or section 35 to an adult’s deferred amount, in relation to a deferred payment agreement, is a reference to the amount of
which the local authority agrees not to require payment or repayment until the specified time.

(7)  “Specified”, in relation to a time or a part of an amount, means specified in or determined in accordance with regulations; and the specified part of an amount may be 100%.

(8)  This section applies in relation to an agreement under which a local authority agrees to make a loan to an adult for the purpose of assisting the adult to obtain the provision of care and support for the adult as it applies in relation to a deferred payment agreement; and for that purpose—

(a)  the reference in subsection (3) to subsection (2)(b) is to be read as a reference to this subsection; and
(b)  the references in subsections (4) and (5) to payment of the adult’s deferred amount are to be read as references to repayment of the loan.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section provides for deferred payments agreements and loans. A deferred payment is usually made when a local authority is in a position to charge someone for care and support or related services under Part 1 but may also be made to help an adult (for example a person who makes their own care arrangements) to obtain care and support services which are not provided by a local authority under Part 1. In a deferred payment agreement the charges or loan advanced is repaid by the adult or from their estate at a later specified date, or on the happening of a specified event, such as the sale of property. The debt is normally secured against the person’s property to ensure repayment. Deferring payment can help people delay the need to sell their home or possessions.

Subsection (1) provides that regulations may specify when an authority may or must offer someone a deferred payment or loan.  Subsection (2) makes clear that a deferred payment agreement is an agreement where the sum or part of the sum owed to the local authority does not have to be repaid until a specified time.  Subsection (3) provides that a deferred payment agreement may include services that are not necessary to meet someone’s needs, for example preventive or extra services which may be in addition to the care and support the authority is providing.  Subsection (4) and (5) allows regulations to be made as to whether a local authority must have, and if so what will constitute security for the deferred payment. Adequate security may include a charge on the individual’s property or a guarantee from a third party.  Subsection (6) makes clear that a “deferred amount” is the amount which the adult does not have to repay until the time specified or determined in accordance with regulations.  Subsection (8) makes clear that the section also applies to a loan other than a deferred payment agreement which a local authority agrees to make to an adult to assist the adult to obtain care and support. It makes clear that the loan may be for care and support other than that which the authority considers is necessary for the purposes of meeting needs, for example preventive or extra services.”

 

Section 35 – Deferred payment agreements and loans: further provision

(1)  Regulations may require or permit a local authority to charge—

(a)  interest on an adult’s deferred amount;
(b)  such amount relating to the authority’s administrative costs as is specified in or determined in accordance with the regulations;
(c)  interest on an amount charged under paragraph (b).

(2)  The regulations may specify costs which are, or which are not, to be regarded as administrative costs for the purposes of subsection (1)(b).

(3)  The regulations may—

(a)  require or permit adequate security to be obtained for the payment of any interest or other amount referred to in subsection (1);
(b)  require or permit any such interest or other amount to be treated in the same way as the adult’s deferred amount;
(c)  specify what constitutes adequate security for the purposes of paragraph (a).

(4)  The authority may not charge interest under regulations made under subsection (1) or under a deferred payment agreement at a rate that exceeds  the rate specified in or determined in accordance with the regulations; the regulations may, for example, provide for a rate to be determined by reference to a specified interest rate or other specified criterion.

(5)  The regulations must enable the adult to terminate a deferred payment agreement by—

(a)  giving the authority notice, and
(b)  paying the authority the full amount for which the adult is liable with respect to the adult’s deferred amount and any interest or other amount charged under regulations made under subsection (1) or under the agreement.

(6)  The regulations may make other provision about the duration of a deferred payment agreement and for its termination by either party.

(7)  The regulations may make provision as to the rights and obligations of the authority and the adult where the adult disposes of any legal or beneficial interest in a property to which a deferred payment agreement relates and acquires a legal or beneficial interest in another property (whether or not it is in the area of that authority); they may, for example, make provision—

(a)  for the authority not to require payment of the amounts referred to in subsection (5)(b) until the time specified in or determined in accordance with the regulations;
(b)  for the adult to give the authority a charge over the adult’s legal or beneficial interest in the other property.

(8)  The regulations may—

(a)  require or permit terms or conditions of a specified description, or in a specified form, to be included in a deferred payment agreement;
(b)  permit such other terms or conditions as the authority considers appropriate to be included in such an agreement;
(c)  require statements or other information relating to specified matters, or in a specified form, to be included in such an agreement.

(9)  The regulations may make provision for the purpose of enabling local authorities to protect (for example, by registration) or enforce security obtained for the payment of the adult’s deferred amount or the payment of any interest or other amount referred to in subsection (1); and, for that purpose, the regulations may amend, repeal, revoke an enactment, or provide for an enactment to apply with specified modifications.

(10)  This section applies in relation to an agreement of the kind mentioned in section 34(8) as it applies in relation to a deferred payment agreement; and for that purpose—

(a)  the references in subsections (1), (3) and (5) to the adult’s deferred amount are to be read as references to the loan; and
(b)  the reference in subsection (9) to payment of the adult’s deferred amount is to be read as a reference to repayment of the loan.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“The section contains further provisions concerning conditions associated with deferred payments, including interest and administration charges, which may be imposed by regulations made under subsection (1) of section 34.

Subsection (1) enables regulations to be made to require or allow authorities to charge interest upon a deferred sum, an amount to cover their administrative costs and interest on those costs.

Subsection (2) enables regulations to be made to specify what costs are administration costs – for example the cost to a local authority of registering a charge at the Land Registry.

Subsection (3) enables regulations to be made to allow or require a local authority to add any interest or administrative costs to the charges or loan and obtain and specify what will constitute adequate security for the same.

Subsection (4) makes clear that a local authority may not charge interest at a rate which is higher than any rate specified in regulations.

Subsection (5) requires regulations to be made so that the adult is permitted to terminate the agreement before the date or occurrence of the event specified in the agreement by giving notice and repaying the sum in full to the authority.

Subsection (6) allows regulations to make other provision about the duration or termination of the agreement.

Subsection (7) allows for regulations to be made to address what may happen in a situation where somebody sells or otherwise disposes of property. For example in a case where the agreement provides that it must be repaid when an adult sells their home, regulations might allow the deferred payment agreement to continue rather than to be repaid in cases where a property is sold in order that a new property can be bought as a home for the adult or the adult’s partner and that new home can be used as security for the agreement.

Subsection (8) allows regulations to be made to require authorities to include terms and conditions of a specified type in a deferred payment agreement, to allow local authorities to include such terms and conditions and others which they think are appropriate and to require statements relating to specified matters or in a specified form to be included in the agreement. Regulations under this subsection may provide, for example, that the agreement must contain a term which entitles the adult to receive an annual statement showing the amount they owe under the agreement.   Subsection (9) allows regulations to be made to enable a local authority to protect or enforce the security it has obtained for the payment of the deferred amount or loan, and for this purpose to make necessary and appropriate amendments to legislation.  Subsection (10) makes clear that this section also applies to loan agreements.”

 

Section 36 – Alternative financial arrangements

(1)  Regulations may, in such cases or circumstances and subject to such conditions as may be specified, require or permit a local authority to enter into alternative financial arrangements of a specified description with an adult.

(2)  “Alternative financial arrangements” means arrangements which in the Secretary of State’s opinion—

(a)  equate in substance to a deferred payment agreement or an agreement of the kind mentioned in section 34(8), but
(b)  achieve a similar effect to an agreement of the kind in question without including provision for the payment of interest.

(3)  The regulations may make provision in connection with alternative financial arrangements to which they apply, including, in particular, provision of the kind that may (or must) be made in regulations under section 34 or 35 (apart from provision for the payment of interest).
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section provides for local authorities to enter into financial agreements of a similar nature to a deferred payment agreement but without interest charges attached: an ‘alternative financial arrangement’.  Subsection (1) enables regulations to be made to require or allow authorities to enter into an ‘alternative financial arrangement’ with an adult.  Subsection (2) defines an alternative financial arrangement as one which is in essence the same as a deferred payment agreement or loan (as set out in section 34) and that achieves a similar effect without charging interest.  Subsection (3) enables regulations to be made for alternative financial arrangements in relation to any issue on which it is also possible to make regulations for deferred payment agreements (as set out in sections 34 and 35) with the exception of the payment of interest.”

 

Section 37 – Notification, assessment, etc.

(1)  This section applies where—

(a)  an adult’s needs for care and support are being met by a local authority (“the first authority”) under section 18 or 19,
(b)  the adult notifies another local authority (“the second authority”) (or that authority is notified on the adult’s behalf) that the adult intends to move to the area of the second authority, and
(c)  the second authority is satisfied that the adult’s intention is genuine.

(2)  This section also applies where—

(a)  an adult is not having needs for care and support met under either of those sections but a local authority (“the first authority”) is nonetheless keeping a care account in the adult’s case,
(b)  the adult notifies another local authority (“the second authority”) (or that authority is notified on the adult’s behalf) that the adult intends to
move to the area of the second authority, and
(c)  the second authority is satisfied that the adult’s intention is genuine.

(3)  This section also applies where—

(a)  an adult’s needs for care and support are being met by a local authority (“the first authority”) under section 18 or 19 by the first authority arranging for the provision of accommodation in the area of another local authority (“the second authority”),
(b)  the adult notifies the second authority (or that authority is notified on the adult’s behalf) that the adult intends to move out of that accommodation but to remain, and be provided with care and support at home or in the community, in its area, and
(c)  the second authority is satisfied that the adult’s intention is genuine.

(4)  The second authority must—

(a)  provide the adult and, if the adult has or is proposing to have a carer, the carer with such information as it considers appropriate (in so far as
it would not do so under section 4), and
(b)  notify the first authority that it is satisfied as mentioned in subsection (1)(c), (2)(c) or (3)(c).

(5)  The first authority, having received the notification under subsection (4)(b), must provide the second authority with—

(a)  a copy of any care and support plan prepared for the adult,
(b)  a copy of any independent personal budget prepared for the adult,
(c)  in a case within subsection (2), a copy of the most recent needs assessment in the adult’s case,
(d)  if the first authority has been keeping a care account in the adult’s case, a copy of that account,
(e)  if the adult has a carer and that carer is to continue as the adult’s carer after the move, a copy of any support plan prepared for the carer, and
(f)  such other information relating to the adult and, if the adult has a carer (whether or not one with needs for support), such other information relating to the carer as the second authority may request.

(6)  The second authority must—

(a)  assess whether the adult has needs for care and support and, if the adult does, what those needs are, and
(b)  the adult has or is proposing to have a carer and it is appropriate to do so, assess whether the carer has or is likely to have needs for support and, if the carer does or is likely to, what those needs are or are likely to be.

(7)  In carrying out an assessment under subsection (6)(a) or (b), the second authority must have regard to the care and support plan provided under subsection (5)(a) or (as the case may be) the support plan provided under subsection (5)(e).

(8)  This Part—

(a)  applies to an assessment under subsection (6)(a) as it applies to a needs assessment, and
(b)  applies to an assessment under subsection (6)(b) as it applies to a carer’s assessment.

(9)  Pending the adult’s move, the first authority must keep in contact with the second authority in order to ascertain the progress that the second authority is making in preparing to meet—

(a)  any needs for care and support under section 18 or 19 in the adult’s case, and
(b)  where the adult is proposing to have a carer immediately after the move, any needs for support under section 20 in the carer’s case.

(10)  The first authority must keep the adult (and, where applicable, the carer) informed about its contact under subsection (9) with the second authority and must involve the adult (and, where applicable, the carer) in the contact.

(11)  Where the needs identified by an assessment under subsection (6)(a) carried out by the second authority are different from those specified in the care and support plan provided under subsection (5)(a), the second authority must provide a written explanation of the difference to—

(a)  the adult,
(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 provide the explanation.

(12)  Where the cost to the second authority of meeting the adult’s eligible needs is different from the cost to the first authority of doing so, the second authority must provide a written explanation of the difference to—

(a)  the adult,
(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 provide the explanation.

(13)  Where the needs identified by an assessment under subsection (6)(b) carried out by the second authority are different from those in the support plan provided under subsection (5)(e), the second authority must provide a written explanation of the difference to—

(a)  the carer,
(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 provide an explanation.

(14)  Regulations may specify steps which a local authority must take for the purpose of being satisfied as mentioned in subsection (1)(c), (2)(c) or (3)(c).

(15)  In this section—

(a)  an adult’s needs are “eligible needs” if they meet the eligibility criteria and are not being met by a carer,
(b)  a reference to moving to an area is a reference to moving to that area with a view to becoming ordinarily resident there, and
(c)  a reference to remaining in an area is a reference to remaining ordinarily resident there.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets out the duties that local authorities are under when an individual, and potentially their carer, notifies them that they intend to move from one local authority area to another.  It seeks to ensure that a person who moves local authority area does so with no interruption to their care.

Subsection (1) stipulates that the duties on the “first authority” and the “second authority” are triggered when they are notified by an adult who is receiving care and support that he or she wishes to move local authority area, and the “second authority” is satisfied that their intention to move is genuine.  Subsection (2) states that these duties also apply to local authorities where the “first authority” is keeping a care account on behalf of an individual who is funding their own care. This will allow for the person’s care account to be transferred to the “second authority”.  Subsection (3) applies where a person has their care and support arranged by the “first authority” and is residing in a care home in the “second authority’s” area.  If that person decides to leave the care home but remain resident in the “second authority’s” area the continuity of care duties apply.  Subsection (5) sets out the information the “first authority” must provide to the “second authority”. This includes the person’s care and support plan, and where the individual’s carer is moving, their support plan.  Subsection (6) states that when the “second authority” is satisfied of an individual’s intention to move they are under a duty to carry out an assessment of the needs of that individual, and potentially their carer. This assessment should be carried out before the individual moves.  This is the same duty as set out in section 9. Subsection (7) requires the “second authority” to take into account the “first authority’s” care and support plan when carrying out their assessment.  Subsection (9) requires the “first authority” to maintain contact with the “second authority” to ascertain how it is progressing towards putting services in place for the adult, and if necessary their carer, for the day of the move.  Subsection (10) requires the “first authority” to involve the adult or carer in the contact and keep him or her informed of progress.  Subsection (11) requires the “second authority” to give the adult a written explanation where it has assessed the adult as having different needs compared with the original care and support plan. Subsection (13) places a similar requirement on the “second authority” where the carer’s needs are assessed as different.  Subsection (12) requires the “second authority” to give an explanation where the cost of providing the care is different.”

 

Section 38 – Case where assessments not complete on day of move

(1)  If, on the day of the intended move as mentioned in section 37(1)(b), (2)(b) or (3)(b), the second authority has yet to carry out the assessment or assessments under section 37(6), or has done so but has yet to take the other steps required under this Part in the adult’s case, it must—

(a)  meet the adult’s needs for care and support, and the needs for support of any carer who is continuing as the adult’s carer, which the first authority has been meeting, and
(b)  where the first authority has been keeping a care account in the adult’s case, itself keep that account on the same basis as the first authority has
been keeping it.

(2)  The second authority is subject to the duty under subsection (1) until it has—

(a)  carried out the assessment or assessments under section 37(6), and
(b)  taken the other steps required under this Part in the adult’s case.

(3)  In deciding how to meet the adult’s needs for care and support under subsection (1), the second authority must involve—

(a)  the adult,
(b)  any carer who is continuing as the adult’s carer, 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 deciding how to meet the needs for support of any carer who is continuing as the adult’s carer, the second authority must involve—

(a)  the carer,
(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 second authority must take all reasonable steps to reach agreement with the adult or carer about how it should meet the needs in question.

(6)  The first authority is not required to meet the adult’s needs for care and support or, if the adult has a carer, such needs for support as the carer has, for so long as the second authority is subject to the duty under subsection (1).

(7)  Where, having complied with the duty under subsection (1), the second authority is not required to meet the adult’s needs for care and support under section 18 because the adult is still ordinarily resident in the area of the first authority, the second authority may recover from the first authority the costs it incurs in complying with the duty under subsection (1).

(8)  Regulations may specify matters to which the second authority must have regard in deciding how to perform the duty under subsection (1).
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section applies when the “second authority” has not carried out the assessment required under section 37(6) before the person moves into its area, or has done so, but has not taken the other steps required to meet the adult’s needs. Subsection (1) sets out that the “second authority” must meet the needs which the first authority had been meeting, from the day of the adult’s arrival in this area. This will ensure there is continuity of care when an individual, and potentially their carer, move.  It is also required to continue to update the person’s care account by the amount set by the “first authority”. Where the “first authority” has not been meeting the adult’s needs under section 18, but has provided an independent personal budget, the “second authority” must only continue the adult’s care account. Subsection (2) stipulates that the “second authority” must continue to meet the person’s, and potentially their carer’s, needs until it has carried out its own assessment.  Subsection (7) provides a power for the “second authority” to recover the costs of care from the “first authority” if it is deemed that the individual moving remains ordinarily resident in the area of the “first authority”.”

 

Section 39 – Where a person’s ordinary residence is

(1)  Where an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in regulations, and the adult is living in accommodation in England of a type so specified, the adult is to be treated for the purposes of this Part as ordinarily resident—

(a)  in the area in which the adult was ordinarily resident immediately before the adult began to live in accommodation of a type specified in the regulations, or
(b)  if the adult was of no settled residence immediately before the adult began to live in accommodation of a type so specified, in the area in which the adult was present at that time.

(2)  Where, before beginning to live in his or her current accommodation, the adult was living in accommodation of a type so specified (whether or not of the same type as the current accommodation), the reference in subsection (1)(a) to when the adult began to live in accommodation of a type so specified is a reference to the beginning of the period during which the adult has been living in accommodation of one or more of the specified types for consecutive periods.

(3)  The regulations may make provision for determining for the purposes of subsection (1) whether an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in the regulations.

(4)  An adult 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 Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed; and for that purpose—

(a)  “local authority in England” means a local authority for the purposes of this Part, and
(b)  “local authority in Wales” means a local authority for the purposes of the Social Services and Well-being (Wales) Act 2014.

(5)  An adult who is being provided with NHS accommodation is to be treated for the purposes of this Part as ordinarily resident—

(a)  in the area in which the adult was ordinarily resident immediately before the accommodation was provided, or
(b)  if the adult was of no settled residence immediately before the accommodation was provided, in the area in which the adult was
present at that time.

(6)  “NHS accommodation” means accommodation under—

(a)  the National Health Service Act 2006,
(b)  the National Health Service (Wales) Act 2006,
(c)  the National Health Service (Scotland) Act 1978, or
(d)  Article 5(1) of the Health and Personal Social Services (Northern Ireland) Order 1972.

(7)  The reference in subsection (1) to this Part does not include a reference to section 28 (independent personal budget).

(8)  Schedule 1 (which makes provision about cross-border placements to and from Wales, Scotland or Northern Ireland) has effect.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“The section defines where a person, who is being provided with accommodation to meet their care and support needs, is considered to be “ordinarily resident”. This is to help identify where responsibility lies for funding and/or provision of care.  For example, where a person who resides in the area of local authority A (and local authority A funds their care and support) enters a care home in the area of local authority B, their ordinary residence will remain with local authority A. Local authority A therefore retains responsibility for funding their care. They are considered “ordinarily resident” in the area of local authority A during their stay in the care home in local authority B.

The types of accommodation to which this provision applies will be set out in regulations. Detailed guidance will be made available to assist local authorities in deciding where a person is ordinarily resident in complex circumstances.

Subsection (5) applies the same principle to NHS accommodation. NHS accommodation means accommodation provided as part of the NHS under any relevant NHS legislation. It ensures that a stay in a hospital in England, Scotland, Wales or Northern Ireland will not affect a person’s ordinary residence.  This means that their care and support must continue to be provided by the local authority in whose area they were ordinarily resident before their hospital stay.

Subsection (4) provides that an adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 will be treated as ordinarily resident in the area of the local authority in England or Wales which is under a duty to provide the adult with services by virtue of that section.”

 

Section 40 – Disputes about ordinary residence or continuity of care

(1)  Any dispute about where an adult is ordinarily resident for the purposes of this Part, or any dispute between local authorities under section 37 about the application of that section, is to be determined by—

(a)  the Secretary of State, or
(b)  where the Secretary of State appoints a person for that purpose (the “appointed person”), that person.

(2)  The Secretary of State or appointed person may review a determination under subsection (1), provided that the review begins within 3 months of the date of the determination.

(3)  Having carried out a review under subsection (2), the Secretary of State or appointed person must—

(a)  confirm the original determination, or
(b)  substitute a different determination.

(4)  Regulations may make further provision about resolution of disputes of the type mentioned in subsection (1); the regulations may, for example, include—

(a)  provision for ensuring that care and support is provided to the adult while the dispute is unresolved;
(b)  provision requiring the local authorities in dispute to take specified steps before referring the dispute to the Secretary of State or (as the case may be) the appointed person;
(c)  provision about the procedure for referring the dispute to the Secretary of State or appointed person;
(d)  where a review of a determination has been carried out under subsection (2) and a different determination substituted, provision requiring a local authority to take specified steps (including paying specified amounts) in relation to the period before the determination was substituted.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“If two or more local authorities fall into dispute about where a person is ordinarily resident, and cannot resolve the question locally, the local authorities involved may request a determination of ordinary residence to be made by the Secretary of State or a person appointed by the Secretary of State. Details specifying the dispute resolution process will be set out in regulations and guidance.  Local authorities may request a review within three months of the original determination being made.”

 

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