Care Act s51-60

Section 51 – Temporary duty on Health and Social Care trust in Northern Ireland

(1)  This section applies where a person registered under Part 3 of the Health and Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 in respect of an establishment or agency—

(a)  becomes unable to carry on or manage the establishment or agency because of business failure, and
(b)  immediately before becoming unable to do so, was providing an adult with accommodation or other services in Northern Ireland under
arrangements made—

(i)  by a local authority meeting an adult’s needs for care and support or a carer’s needs for support under Part 1 of this Act,
(ii)  by a local authority in Wales discharging its duty under section 35 or 40, or exercising its power under section 36 or 45, of the
Social Services and Well-being (Wales) Act 2014, or
(iii)  by a local authority in Scotland discharging its duty under section 12 or 13A of the Social Work (Scotland) Act 1968 or
section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

(2)  This section also applies where a person registered under Part 3 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 in respect of an establishment or agency—

(a)  becomes unable to carry on or manage the establishment or agency because of business failure, and
(b)  immediately before becoming unable to do so, the person was providing an adult with accommodation or other services in Northern
Ireland, all or part of the cost of which was paid for by means of direct payments made—

(i)  under this Part of this Act,
(ii)  under section 50 or 52 of the Social Services and Well-being (Wales) Act 2014, or
(iii)  as a result of the choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013.

(3)  The Health and Social Care trust in whose area the accommodation is situated or the services were provided must for so long as it considers necessary meet those of the adult’s needs for care and support or the carer’s needs for support which were being met by the registered person by the provision of the accommodation or other services.

(4)  A Health and Social Care trust which is required to meet needs under subsection (3)—

(a)  must, in meeting needs under that subsection which were being met by the authority which made the arrangements referred to in subsection
(1)(b), co-operate with that authority;
(b)  must, in meeting needs under subsection (3) which were being met by the provision of accommodation or other services all or part of the cost
of which was paid for by an authority by means of direct payments as referred to in subsection (2)(b), co-operate with that authority;
(c)  may recover from the authority referred to in paragraph (a) or (b) (as the case may be) the cost it incurs in meeting those of the adult’s or
carer’s needs referred to in the paragraph in question.

(5)  Any dispute about the application of this section is to be resolved in accordance with paragraph 5 of Schedule 1.

(6)  “Local authority in Wales” and “local authority in Scotland” each have the meaning given in paragraph 12 of Schedule 1.

(7)  The references in paragraphs (a) and (b) of subsection (4) to an authority are references to a local authority, a local authority in Wales or a local authority in Scotland (as the case may be).
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section places a provider failure duty on a Health and Social Care trust in Northern Ireland which is of equivalent effect to that which applies to a local authority in Wales under section 50. It applies where a person who is registered under Part 3 of the Health and Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 in respect of an agency or establishment becomes unable to carry on or manage their establishment because of business failure and only in relation to accommodation or services which were paid for with a direct payment, or provided under arrangements, made by an authority in England, Wales or Scotland.
Subsection (3) requires the trust where the service or accommodation was being provided to the adult to meet the needs for so long as it considers necessary.  Subsection (4) requires the trust to cooperate with the authority which made the arrangements or the direct payments and allows it to recover the costs it incurs in meeting the adult’s needs for the temporary period from that authority.  Subsection (5) provides that any dispute about the application of these provisions is to be resolved in accordance with the dispute resolution procedure in paragraph 5 of Schedule 1.”

 

Section 52 – Sections 48 to 51: supplementary

(1)  An authority becomes subject to the duty under section 48(2), 50(3) or 51(3) as soon as it becomes aware of the business failure.

(2)  Section 8 (how to meet needs) applies to meeting needs under section 48(2) as it applies to meeting needs under section 18.

(3)  Section 34 of the Social Services and Well-being (Wales) Act 2014 (how to meet needs) applies to meeting needs under section 50(3) as it applies to meeting needs under section 35 of that Act.

(4)  In deciding how to meet an adult’s needs for care and support under section 48(2), 50(3) or 51(3), an authority must involve—

(a)  the adult,
(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.

(5)  In deciding how to meet a carer’s needs for support under section 48(2), 50(3) or 51(3), an authority must involve—

(a)  the carer, and
(b)  any person whom the carer asks the authority to involve.

(6)  In carrying out the duty under subsection (4)(a) or (5)(a), an authority must take all reasonable steps to reach agreement with the adult or carer about how it should meet the needs in question.

(7)  Sections 21 to 23 (exceptions to duty to meet needs) apply to meeting needs under section 48(2) as they apply to meeting needs under section 18.

(8)  Sections 46 to 49 of the Social Services and Well-being (Wales) Act 2014 (exceptions to, and restrictions on, duty to meet needs) apply to meeting needs under section 50(3) as they apply to meeting needs under section 35 of that Act.

(9)  Where an adult whose case comes within section 48 is being provided with NHS continuing healthcare under arrangements made by a clinical
commissioning group no part of whose area is in the local authority’s area, the group is to be treated as a relevant partner of the authority for the purposes of sections 6 and 7.

(10)  “NHS continuing healthcare” is to be construed in accordance with standing rules under section 6E of the National Health Service Act 2006.

(11)  Where a local authority considers it necessary to do so for the purpose of carrying out its duty under section 48(2), it may request the registered care provider, or such other person involved in the provider’s business as it considers appropriate, to provide it with specified information.

(12)  Regulations must make provision as to the interpretation for the purposes of sections 48, 50 and 51 and this section of references to business failure or to being unable to do something because of business failure; and the regulations may, in particular, specify circumstances in which a person is to be treated as unable to do something because of business failure.

(13)  Pending the commencement of Part 4 of the Social Services and Well-being (Wales) Act 2014—
(a)  a reference in section 49 or 51 to making arrangements to meet needs under section 35 or 36 of that Act is to be read as a reference to making
arrangements or providing services under—
(i) Part 3 of the National Assistance Act 1948,
(ii) section 45 of the Health Services and Public Health Act 1968,
(iii) section 117 of the Mental Health Act 1983, or
(iv) Schedule 15 to the National Health Service (Wales) Act 2006;
(b)  a reference in section 49 or 51 to making arrangements to meet needs under section 40 or 45 of that Act is to be read as a reference to
providing services as referred to in section 2 of the Carers and Disabled Children Act 2000;
(c)  a reference in section 49 or 51 to making direct payments under section 50 or 52 of that Act is to be read as a reference to making direct
payments by virtue of section 57 of the Health and Social Care Act 2001;
(d)  subsection (8) is to be read as if there were substituted for it—

“(8)  Sections 21(1A) and (8) and 29(6) of the National Assistance Act 1948 apply to meeting needs under section 50(3) as they apply to the exercise of functions under sections 21 and 29 of that Act by a local authority in Wales (within the meaning given in paragraph 12 of Schedule 1).”

(14)  Pending the commencement of section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013—
(a)  sections 49(2)(b)(ii) and 50(2)(b)(ii) are to be read as if there were substituted for each of them—
“(ii) under section 12B of the Social Work (Scotland) Act 1968,”, and
(b)  section 51(2)(b)(iii) is to be read as if there were substituted for it—
“(iii) under section 12B of the Social Work (Scotland) Act 1968.”.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section provides a number of clarifications in relation to the duty on local authorities and Health and Social Care trusts set out in sections 48 to 51.  Subsection (2) makes clear an English local authority does not have to meet the needs in the same way as they were being met by the failed service provider but can meet them in any of the ways set out in section 8.  Subsection (3) applies the Welsh equivalent of section 8 to situations where an authority in Wales has a duty under section 50. There is no such provision for Northern Ireland because there is no provision equivalent to section 8 in Northern Irish legislation.

Subsection (4) explains that an authority must discuss how it will meet needs with the adult, their carer, and any person asked by the adult to act on their behalf, or, if the adult lacks capacity, any person whom the authority considers would be interested in the adult’s welfare. As with any public law duty this applies only to the extent that it is reasonable to do so. Subsection (5) makes similar provision for carers.  Subsection (7) makes clear that English local authorities do not have to meet needs which they are not permitted to meet under sections 21 to 23.  Subsection (8) applies similar exceptions in cases where a local authority in Wales is under a duty to meet needs.

Subsection (9) applies in cases where a failed provider in England is providing the adult with continuing healthcare which is commissioned by a clinical commissioning group which is not in the area of the local authority in which the care is being provided. It amends the definition of “relevant partner” in sections 6 and 7 to make clear that for the purposes of the duty in section 48 the co–operation provisions in those sections will apply in respect of the clinical commissioning group which commissioned the care, even though it is not in the area of the local authority.  Subsection (11) makes clear that a local authority in England may request from the failed provider, or such other person involved in the business, information that it must have in order to comply with the temporary duty under section 48(2).”

 
Section 53 – Specifying criteria for application of market oversight regime

(1)  Regulations must specify criteria for determining whether (subject to regulations under subsection (4)) section 55 (financial sustainability
assessment) applies to a registered care provider who is registered in respect of the carrying on of a regulated activity relating to the provision of social care for adults.

(2)  In specifying the criteria, the Secretary of State must have regard to the following in particular—

(a)  the amount of social care provided by a registered care provider,
(b)  the geographical concentration of a registered care provider’s business,
(c)  the extent to which a registered care provider specialises in the provision of particular types of care.

(3)  The Secretary of State must—

(a)  at such times as the Secretary of State considers appropriate, review the criteria for the time being specified in the regulations, and
(b)  publish information about how the matters mentioned in subsection (2), and any other matters to which the Secretary of State has regard in
specifying the criteria, are to be measured.

(4)  Regulations may provide that section 55 does not apply, or applies only to the extent specified, to a specified registered care provider or to a registered care provider of a specified description, regardless of whether that provider or a provider of that description would satisfy the criteria.

(5)  Regulations may provide that section 55 applies, or applies to the extent specified, to a specified registered care provider or to a registered care provider of a specified description, regardless of whether that provider or a provider of that description would [or would not?] satisfy the criteria.

(6)  The circumstances in which regulations may be made under subsection (4) include those in which the Secretary of State is satisfied that certain registered care providers are already subject to a regulatory regime comparable to that provided for by sections 55 and 56; and regulations made in such circumstances may, for example, make provision requiring specified persons to co-operate or to share information of a specified description.

(7)  “Social care” has the same meaning as in Part 1 of the Health and Social Care Act 2008.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section deals with the procedures for identifying those providers who are most difficult to replace, and will therefore be subject to central oversight.

Subsection (1) requires that regulations set out the criteria for entry into the central oversight regime.

Subsection (2) stipulates certain factors which may be regarded for the purposes of setting out the entry criteria. These are the provider’s size, its concentration in a particular area or areas, and its level of specialism.

Subsection (3) makes provision for the entry criteria to be kept under review and for the Secretary of State to publish information on how the size, concentration or specialism of a provider and on any other factors considered in setting out the criteria are to be measured.

Subsection (4) sets out that, by regulations, certain providers – who would otherwise, according to the criteria, be subject to central oversight – may be exempted from the oversight regime, or parts of the regime. The circumstances in which such regulations may be made include those in which the Secretary of State is satisfied that certain registered care providers are already subject to a regulatory regime comparable to the market oversight regime (subsection (6)).

Conversely, subsection (5) establishes that regulations may specify that the oversight regime, or parts of the regime, apply, or apply only to the extent specified, to certain providers who would otherwise not fall within the regime.”

 

Section 54 – Determining whether criteria apply to care provider

(1)  The Care Quality Commission must determine, in the case of each registered care provider, whether the provider satisfies one or more of the criteria specified in regulations under section 53.

(2)  If the Commission determines that the provider satisfies one or more of the
criteria, section 55 applies to that provider unless, or except in so far as,
regulations under section 53(4) provide that it does not apply.

(3)  Where section 55 applies to a registered care provider (whether as a result of
subsection (2) or as a result of regulations under section 53(5)), the Commission must inform the provider accordingly.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets out that it will be the responsibility of the Care Quality Commission (CQC) to identify which providers satisfy the criteria set out for entry into the regulatory regime (subsection (1)).

The market oversight regime will apply to those providers identified by the CQC as meeting the entry criteria (subsection (1)) and those providers who are required to comply with the oversight regime, or parts of the regime, by virtue of regulations made under section 53(5).

Subsection (2) clarifies that the oversight regime (or parts of the regime) do not apply to such providers identified by regulations made under section 53(4).  Subsection (3) provides that the CQC must inform the providers that satisfy the entry criteria that they are now subject to the oversight regime.

The CQC must also inform those providers who are subject to the oversight regime by virtue of regulations made under section 53(5) of the same.”

 

Section 55 – Assessment of financial sustainability of care provider

(1)  Where this section applies to a registered care provider, the Care Quality Commission must assess the financial sustainability of the provider’s business of carrying on the regulated activity in respect of which it is registered.

(2)  Where the Commission, in light of an assessment under subsection (1), considers that there is a significant risk to the financial sustainability of the provider’s business, it may—

(a)  require the provider to develop a plan for how to mitigate or eliminate the risk;
(b)  arrange for, or require the provider to arrange for, a person with appropriate professional expertise to carry out an independent review of the business.

(3)  Where the Commission imposes a requirement on a care provider under subsection (2)(a), it may also require the provider—

(a)  to co-operate with it in developing the plan, and
(b)  to obtain its approval of the finalised plan.

(4)  Where the Commission arranges for a review under subsection (2)(b), it may recover from the provider such costs as the Commission incurs in connection with the arrangements (other than its administrative costs in making the arrangements).

(5)  Regulations may make provision for enabling the Commission to obtain from such persons as it considers appropriate information which the Commission believes will assist it to assess the financial sustainability of a registered care provider to which this section applies.

(6)  Regulations may make provision about the making of the assessment required by subsection (1).

(7)  The Commission may consult such persons as it considers appropriate on the method for assessing the financial sustainability of a registered care provider’s business; and, having done so, it must publish guidance on the method it expects to apply in making the assessment.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets out the duty of the CQC to assess the financial sustainability of those providers which are subject to its regulatory regime with a view to identifying any threats that such providers may face to their financial sustainability.  This section also provides for the CQC’s response to situations where it is concerned that a provider’s financial sustainability is threatened.

Subsections (2)(a) and (3) set out that, where the CQC identifies a significant risk to financial sustainability, it can require the provider to develop a sustainability plan. This would set out the provider’s plans for mitigating or eliminating the risk. The CQC may require the provider, in developing the plan, to cooperate with it. The final plan may also be subject to the CQC’s approval.  Subsections (2)(b) and (4) allow the CQC, where it identifies a significant risk to financial sustainability, to organise, or require the provider to organise, an independent business review, and charge the costs of the review back to the provider. These costs do not include the administrative costs that the CQC may incur in organising such a review.

Subsection (5) sets out that regulations may make provision for enabling the CQC to obtain, from certain persons, information which may be helpful to the CQC in assessing the financial sustainability of the provider.  The type of information the CQC may need is likely to be information which relates to the finances of the care provider or which relates to the financial position of the particular entity – if the care provider is financially dependent on such entity. The type of person that may be described in such regulations may include companies within the same group as the provider, and companies that hold a significant ownership stake in the provider.

Subsection (6) provides that regulations may be made about the making of the CQC’s assessment of a provider’s financial sustainability.  Subsection (7) sets out that the CQC may consult on how to assess financial sustainability, and will publish guidance on the methods it expects to apply in making its assessments.”

 

Section 56 – Informing local authorities where failure of care provider likely

(1)  This section applies where the Care Quality Commission is satisfied that a registered care provider to which section 55 applies is likely to become unable to carry on the regulated activity in respect of which it is registered because of business failure as mentioned in section 48.

(2)  The Commission must inform the local authorities which it thinks will be required to carry out the duty under section 48(2) if the provider becomes unable to carry on the regulated activity in question.

(3)  Where the Commission considers it necessary to do so for the purpose of assisting a local authority to carry out the duty under section 48(2), it may request the provider, or such other person involved in the provider’s business as the Commission considers appropriate, to provide it with specified information.

(4)  Where (as a result of subsection (3) or otherwise) the Commission has information about the provider’s business that it considers may assist a local authority in carrying out the duty under section 48(2), the Commission must give the information to the local authority.

(5)  Regulations may make provision as to the circumstances in which the Commission is entitled to be satisfied for the purposes of subsection (1) that a registered care provider is likely to become unable to carry on a regulated activity.

(6)  The Commission may consult such persons as it considers appropriate on the methods to apply in assessing likelihood for the purposes of subsection (1); and, having carried out that consultation, it must publish guidance on the methods it expects to apply in making the assessment.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets out that the CQC must inform the relevant local authorities that a registered care provider (within the oversight regime) is likely to become unable to continue carrying on the regulated activity in respect of which it is registered.

The CQC will be required to inform all English local authorities which it thinks will be required to carry out the duty under section 48(2) if the provider becomes unable to continue carrying on the regulated activity in question (subsection (2)).

The CQC is not required to inform local authorities outside of England.

Subsection (3) sets out that the CQC may require from the service provider, and any other person involved in the provider’s business, any information that is necessary in order to assist local authorities in ensuring continuity of care. Subsection (4) requires the CQC to share with local authorities any information it has that would assist them in ensuring continuity of care.  Subsection (5) allows for regulations to make provision as to the circumstances in which the CQC may decide to inform local authorities about a provider.  Subsection (6) sets out that the CQC may consult on how it will assess a provider’s likelihood of becoming unable to continue carrying on the regulated activity, and publish guidance on how it will make this assessment.”

 

Section 57 – Sections 54 to 56: supplementary

(1)  For the purposes of Part 1 of the Health and Social Care Act 2008, the duties imposed on the Care Quality Commission under sections 54(1) and 55(1) are to be treated as regulatory functions of the Commission.

(2)  For the purposes of that Part of that Act, the doing by the Commission of anything for the purpose of assisting a local authority to carry out the duty
under section 48(2) is to be treated as one of the Commission’s regulatory functions.

(3)  For the purposes of sections 17 and 18 of that Act (cancellation or suspension of registration under Part 1 of that Act), a requirement imposed on a registered care provider under or by virtue of any of sections 54 to 56 (or by virtue of subsection (1) or (2)) is to be treated as a requirement imposed by or under Chapter 6 of Part 1 of that Act.

(4)  The Commission must, in exercising any of its functions under sections 54 to 56, have regard to the need to minimise the burdens it imposes on others.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“Subsection (1) sets out that the CQC’s functions of identifying which providers satisfy the entry criteria, and assessing the financial sustainability of care providers, are to be treated as “regulatory functions” of the CQC for the purposes of the 2008 Act.  This establishes that the CQC will be able to rely on its existing powers under the 2008 Act, such as requiring information and explanations from a provider (sections 64 and 65 of the 2008 Act). The CQC will also be able to rely on its enforcement powers, for instance under sections 64(4) and 65(4) of the 2008 Act.

Subsection (2) sets out that anything which the CQC may do to assist local authorities to ensure continuity of care is to be treated as one of the CQC’s “regulatory functions” for the purposes of the 2008 Act. This establishes that the CQC will be able to rely on its existing powers under the 2008 Act.  Subsection (3) establishes that the CQC may, when imposing requirements on providers as part of exercising the functions set out in sections 54 to 56, rely on sections 17 and 18 of the 2008 Act which provide for the cancellation or suspension of a care provider’s registration.  Subsection (4) provides that the CQC must seek to minimise the burdens it may impose on a provider in exercising any of its functions under sections 54 to 56.”

 

Section 58 – Assessment of a child’s needs for care and support

(1)  Where it appears to a local authority that a child is likely to have needs for care and support after becoming 18, the authority must, if it is satisfied that it would be of significant benefit to the child to do so and if the consent condition is met, assess—

(a)  whether the child has needs for care and support and, if so, what those needs are, and
(b)  whether the child is likely to have needs for care and support after becoming 18 and, if so, what those needs are likely to be.

(2)  An assessment under subsection (1) is referred to in this Part as a “child’s needs assessment”.

(3)  The consent condition is met if—

(a)  the child has capacity or is competent to consent to a child’s needs assessment being carried out and the child does so consent, or
(b)  the child lacks capacity or is not competent so to consent but the authority is satisfied that carrying out a child’s needs assessment
would be in the child’s best interests.

(4)  Where a child refuses a child’s needs assessment and the consent condition is accordingly not met, the local authority must nonetheless carry out the assessment if the child is experiencing, or is at risk of, abuse or neglect.

(5)  Where a local authority, having received a request to carry out a child’s assessment from the child concerned or a parent or carer of the child, decides not to comply with the request, it must give the person who made the request—

(a)  written reasons for its decision, and
(b)  information and advice about what can be done to prevent or delay the development by the child of needs for care and support in the future.

(6) “Parent”, in relation to a child, includes—

(a)  a parent of the child who does not have parental responsibility for the child, and
(b)  a person who is not a parent of the child but who has parental responsibility for the child.

(7)  “Carer”, in relation to a child, means a person, other than a parent, who is providing care for the child, whether or not under or by virtue of a contract or as voluntary work.

(8)  The reference to providing care includes a reference to providing practical or emotional support.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section provides a duty for local authorities to assess a child’s needs for care and support (as provided for by this Part), where it appears to a local authority that the child is likely to have needs for care and support after turning 18 and it considers there is significant benefit to the child in doing so. A child, or a parent or carer acting on their behalf, can request an assessment in advance of their 18th birthday and this may trigger an appearance of need for the purposes of this duty. Children have existing rights to assessment and support under the Children Act 1989, and this provision does not affect those rights.

If the child lacks capacity or is not competent to consent to an assessment, the local authority has to be satisfied that carrying it out is in the child’s best interests. In any other case, the local authority may not carry out an assessment where the child does not consent to it, but if a child who refuses an assessment is experiencing (or at risk of) abuse or neglect, the local authority must carry out an assessment.

A child does not have to be receiving any specific service under children’s legislation in order to receive or request this assessment.  Similarly, there is no restriction on the age of child assessed, or their proximity to their 18th birthday. The local authority must consider, in cases of request as well as other cases, whether the child is likely to have needs for care and support after turning 18 and whether there would be “significant benefit” to the child in undertaking the assessment, so that the authority is able to take all relevant circumstances into account in deciding whether to assess.

The purpose of this assessment would be to consider what needs for care and support the child may have at their 18th birthday, to support planning for transition to adult care and support. The local authority will therefore assess the child’s needs by reference to the adult care and support arrangements, and this power is not intended to
be used to assess needs for children’s services.

Where an assessment is carried out, the information provided to the child or their parent/carer should include an indication of whether they are likely to have eligible needs for care and support after their 18th birthday, and advice and information about what can be done to meet eligible needs and what can be done to prevent or delay the development of needs.

If the local authority does not comply with a request to carry out an assessment it must explain why in writing and provide information and advice about what can be done to prevent or delay the development of needs.”

 

Section 59 – Child’s needs assessment: requirements etc.

(1)  A child’s needs assessment must include an assessment of—

(a)  the impact on the matters specified in section 1(2) of what the child’s needs for care and support are likely to be after the child becomes 18,
(b)  the outcomes that the child wishes to achieve in day-to-day life, and
(c)  whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes.

(2)  A local authority, in carrying out a child’s needs assessment, must involve—

(a)  the child,
(b)  the child’s parents and any carer that the child has, and
(c)  any person whom the child or a parent or carer of the child requests the local authority to involve.

(3)  When carrying out a child’s needs assessment, a local authority must also consider whether, and if so to what extent, matters other than the provision of care and support could contribute to the achievement of the outcomes that the child wishes to achieve in day-to-day life.

(4)  Having carried out a child’s needs assessment, a local authority must give the child—

(a)  an indication as to whether any of the needs for care and support which it thinks the child is likely to have after becoming 18 are likely to meet
the eligibility criteria (and, if so, which ones are likely to do so), and
(b)  advice and information about—

(i)  what can be done to meet or reduce the needs which it thinks the child is likely to have after becoming 18;
(ii)  what can be done to prevent or delay the development by the child of needs for care and support in the future.

(5)  But in a case where the child is not competent or lacks capacity to understand the things which the local authority is required to give under subsection (4), that subsection is to have effect as if for “must give the child” there were substituted “must give the child’s parents”.

(6)  Where a person to whom a child’s needs assessment relates becomes 18, the local authority must decide whether to treat the assessment as a needs assessment; and if the authority decides to do so, this Part applies to the child’s needs assessment as if it were a needs assessment that had been carried out after the person had become 18.

(7)  In considering what to decide under subsection (6), a local authority must have regard to—

(a)  when the child’s needs assessment was carried out, and
(b)  whether it appears to the authority that the circumstances of the person to whom the child’s needs assessment relates have changed in a way
that might affect the assessment.

(8)  “Carer” has the same meaning as in section 58.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets requirements about the assessment of children under section 58 including consideration of the outcomes the child wants to achieve, and whether the provision of care and support will contribute to meeting these outcomes.  The section specifies that the assessment must involve the child, the child’s parents and any other person who the child or the child’s parent or carer wants to be involved.

The assessment must include an indication of whether the needs identified are likely to be eligible, advice and information about what can be done to meet any of the child’s needs and what can be done to prevent or delay the development of needs for care and support in the future. This information will normally be given to the child; or to their parents where the child lacks capacity to understand their options or express their wishes.

Once the young person becomes 18 the local authority must decide whether to treat this assessment as their needs assessment taking into account when the assessment was carried out and whether the young person’s circumstances have changed.  As with all assessments, a child’s needs assessment will need to consider whether other matters beyond the provision of services might help the child achieve their desired outcomes or prevent needs arising or increasing (similarly to section 9(6) ).

The local authority may combine a needs assessment with any other assessment it is carrying out of the child or another person only if the individuals agree or, if a child to whom an assessment relates lacks capacity or is not competent to consent, the local authority is satisfied it is in the child’s best interests. If carrying out a needs assessment the local authority can also carry out another agency’s assessment of the child or that of another relevant person (provided all parties consent to this) on behalf of the other agency or jointly with the other agency. The provisions relating to this are in section 65.”

 

Section 60 – Assessment of a child’s carer’s needs for support

(1)  Where it appears to a local authority that a carer of a child is likely to have needs for support after the child becomes 18, the authority must, if it is satisfied that it would be of significant benefit to the carer to do so, assess—

(a)  whether the carer has needs for support and, if so, what those needs are, and
(b)  whether the carer is likely to have needs for support after the child becomes 18 and, if so, what those needs are likely to be.

(2)  An assessment under subsection (1) is referred to in this Part as a “child’s carer’s assessment”.

(3)  Where a child’s carer refuses a child’s carer’s assessment, the local authority is not required to carry out the assessment (and subsection (1) does not apply in the carer’s case).

(4)  Where, having refused a child’s carer’s assessment, a child’s carer requests the assessment, subsection (1) applies in the carer’s case (and subsection (3) does not).

(5)  Where a child’s carer has refused a child’s carer’s assessment and the local authority concerned thinks that the carer’s needs or circumstances have changed, subsection (1) applies in the carer’s case (but subject to further refusal as mentioned in subsection (3)).

(6)  Where a local authority, having received a request to carry out a child’s carer’s assessment from the carer concerned, decides not to comply with the request, it must give the carer—

(a)  written reasons for its decision, and
(b)  information and advice about what can be done to prevent or delay the development by the carer of needs for support in the future.

(7)  “Carer”, in relation to a child, means an adult (including one who is a parent of the child) who provides or intends to provide care for the child (but see subsection (8)).

(8)  An adult is not a carer for the purposes of this section if the adult provides or intends to provide care—

(a)  under or by virtue of a contract, or
(b)  as voluntary work.

(9)  But in a case where the local authority considers that the relationship between the child and the adult providing or intending to provide care is such that it would be appropriate for the adult to be regarded as a carer, the adult is to be regarded as such (and subsection (8) is therefore to be ignored in that case).

(10)  The references to providing care include a reference to providing practical or emotional support.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section requires a local authority to assess a child’s carer’s needs for support (as
provided for by this Part), when it appears to the local authority that the carer is likely to have needs support after the child turns 18 and it is satisfied that there is significant benefit to the carer in carrying out the assessment.

A “child’s carer” is any adult providing care to a child, regardless of whether they are the parent of that child.

Child’s carers also have a right to an assessment under section 6 of the Carers and Disabled Children Act 2000, and support would normally be provided under the Children Act 1989, as part of a whole-family approach. However, there may be certain services available only through adult care and support.

If a child’s carer refuses an assessment, the local authority is not required to do anything further – although the child’s carer has the right to change their mind later.
The purpose of the assessment would be to consider what needs for support the child’s carer may have at the child’s 18th birthday, to support planning for transition to adult care and support. The local authority will therefore assess the child’s carer’s needs by reference to the adult care and support arrangements, and this power is not intended to be used to assess needs for children’s services.”

 

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