Care Act s61-70

Section 61 – Child’s carer’s assessment: requirements etc.

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

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

(2)  A local authority, in carrying out a child’s carer’s assessment, must have regard to—

(a)  whether the carer works or wishes to do so, and
(b)  whether the carer is participating in or wishes to participate in education, training or recreation.

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

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

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

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

(a)  an indication as to whether any of the needs for support which it thinks the carer is likely to have after the child becomes 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 carer is likely to have after the child becomes 18;
(ii)  what can be done to prevent or delay the development by the carer of needs for support in the future.

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

(7)  In considering what to decide under subsection (5A), a local authority must have regard to—

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

(8)  “Carer” has the same meaning as in section 60.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“Assessment of a child’s carer should include assessment of whether the carer is willing and able to provide care to the child and is likely to continue to be willing and able when the child reaches the age of 18.

Assessment must include assessment of the outcomes the carer wants to achieve in day-to-day life, whether and to what extent the provision of support will contribute to meeting these outcomes and consideration of whether there are other matters that could help the carer achieve the outcomes.  The section specifies that the assessment must involve the carer and any other person who the carer wants to be involved.

Once an assessment has been done the carer must be provided with an indication of whether they are likely to have eligible needs for support on the child’s 18th birthday, advice and information about what can be done to meet any of the carer’s needs and what can be done to prevent or delay the development of needs for support in the future.

As with all assessments, such an assessment will need to consider whether other matters beyond the provision of services might help the carer achieve their desired outcomes or prevent needs increasing or arising (similarly to section 9(6)).

The local authority may combine a carer’s assessment with any other assessment it is carrying out of the carer or another person only if the individuals agree. If carrying out a carer’s assessment the local authority can also carry out another agency’s assessment of the carer 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 paragraph are in section 65.”

 

Section 62 – Power to meet child’s carer’s needs for support

(1)  Where a local authority, having carried out a child’s carer’s assessment, is satisfied that the carer has needs for support, it may meet such of those needs as it considers appropriate.

(2)  Regulations may make provision in connection with the exercise of the power under subsection (1); the regulations may, in particular, provide for provisions of this Part to apply with such modifications as may be specified.

(3)  In deciding whether or how to exercise the power under subsection (1), a local authority must have regard to any services being provided to the carer under section 17 of the Children Act 1989.

(4)  “Carer” has the same meaning as in section 60.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section provides a power for a local authority to meet a child’s carer’s needs for support. A child’s carer’s needs will usually be met under section 17 of the Children Act 1989. However, this section allows for additional support to be provided, where appropriate, for instance, because a certain type of support is only available under adult care and support.  The section provides that regulations can be made in relation to the exercise of this power.”

 

Section 63 – Assessment of a young carer’s needs for support

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

(a)  whether the young carer has needs for support and, if so, what those needs are, and
(b)  whether the young carer is likely to have needs for 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 “young carer’s assessment”.

(3)  The consent condition is met if—

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

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

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

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

(6)  “Young carer” means a person under 18 who provides or intends to provide care for an adult (but see subsection (8)).

(7)  A person is not a young carer for the purposes of this section if the person provides or intends to provide care—

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

(8)  But in a case where the local authority considers that the relationship between the adult and the person under 18 providing or intending to provide care is such that it would be appropriate for the person under 18 to be regarded as a young carer, that person is to be regarded as such (and subsection (8) is therefore to be ignored in that case).

(9)  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 provides a duty for local authorities to assess a young carer’s needs for support where it considers the child is likely to have needs for care and support after turning 18 and where there is significant benefit to the young carer in carrying out the assessment.

This provision does not affect existing rights to assessment under section 1 of the Carers and Disabled Children Act 2000. A young carer, or a person acting on their behalf, could request an assessment in advance of their 18th birthday, which could indicate to the local authority an appearance of need which would trigger the duty.

If a young carer refuses an assessment but is experiencing (or at risk of) abuse or neglect, the local authority must carry out an assessment. It must also carry out an assessment if the young carer does not have capacity or is not competent to consent but it is satisfied that it would be in the young carer’s best interests for an assessment to be carried out.

There is no prescription about the age at which the local authority must assess  The local authority must consider in all cases whether there would be “significant benefit” to the young carer in undertaking the assessment, so that the authority is able to take all relevant circumstances into account in deciding whether to assess.

A young carer does not have to be receiving any specific service under children’s legislation in order to request this assessment.  Similarly, there is no restriction on the age of child for whom the request may be made, or their proximity to their 18th birthday. The local authority must consider in all cases whether there would be “significant benefit” 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 support the young carer may have after 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 carer should include an indication of whether they are likely to have eligible needs for support on 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 for 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 64 – Young carer’s assessment: requirements etc.

(1)  A young carer’s assessment must include an assessment of—

(a)  whether the young carer is able to provide care for the person in question and is likely to continue to be able to do so after becoming 18,
(b)  whether the young carer is willing to do so and is likely to continue to be willing to do so after becoming 18,
(c)  the impact on the matters specified in section 1(2) of what the young carer’s needs for support are likely to be after the young carer becomes
18,
(d)  the outcomes that the young carer wishes to achieve in day-to-day life, and
(e)  whether, and if so to what extent, the provision of support could contribute to the achievement of those outcomes.

(2)  A local authority, in carrying out a young carer’s assessment, must have regard to—

(a)  the extent to which the young carer works or wishes to work (or is likely to wish to do so after becoming 18),
(b)  the extent to which the young carer is participating in or wishes to participate in education, training or recreation (or is likely to wish to do
so after becoming 18).

(3)  A local authority, in carrying out a young carer’s assessment, must involve—

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

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

(5)  Having carried out a young carer’s assessment, a local authority must give the young carer—

(a)  an indication as to whether any of the needs for support which it thinks the young carer 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 for support which it thinks the young carer is likely to have after becoming 18;
(ii)  what can be done to prevent or delay the development by the young carer of needs for support in the future.

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

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

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

(a)  when the young carer’s assessment was carried out, and
(b)  whether it appears to the authority that the circumstances of the person to whom the young carer’s assessment relates have changed in a way
that might affect the assessment.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets requirements about the assessment of young carers under section 63, including consideration of whether the young carer is willing and able, both at the time and likely to be so when he or she reaches the age of 18, to provide care to the individual in question. It must also include an assessment of the outcomes the child wants to achieve.  Results of an assessment will normally be given to the young carer; or to their parents where the young carer lacks capacity to understand their options or express their wishes.

The section specifies who the local authority must involve in the assessment, namely the child, the child’s parents and any other person who the child wants to be involved.  When assessing a young carer the local authority must have regard to the extent to which the young person wishes to work or to participate in education, training or recreation.

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.

Once the young carer becomes 18 the local authority must decide whether to treat this assessment as their carer’s assessment taking into account when the assessment was carried out and whether the young person’s circumstances have changed.

As with all assessments, a young carer’s assessment will need to consider whether other matters beyond the provision of services might help the young carer achieve their desired outcomes or prevent need (similarly to Section 9(6)).

 

Section 65 – Assessments under sections 58 to 64: further provision

(1)  Regulations under section 12—

(a)  may make such provision about carrying out a child’s needs assessment as they may make about carrying out a needs assessment;
(b)  may make such provision about carrying out a child’s carer’s assessment or a young carer’s assessment as they may make about
carrying out a carer’s assessment.

(2)  A local authority may combine a child’s needs assessment or young carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the consent condition is met in relation to the child to whom the child’s needs or young carer’s assessment relates and—

(a)  where the combination would include an assessment relating to another child, the consent condition is met in relation to that other child;
(b)  where the combination would include an assessment relating to an adult, the adult agrees.

(3)  A local authority may combine a child’s carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the adult to whom the child’s carer’s assessment relates agrees and—

(a)  where the combination would include an assessment relating to another adult, that other adult agrees, and
(b)  where the combination would include an assessment relating to a child, the consent condition is met in relation to that child.

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

(a)  the child has capacity or is competent to agree to the assessments 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 combining the assessments would be in the
child’s best interests.

(5)  Where a local authority is carrying out a child’s needs assessment, a child’s carer’s assessment or a young carer’s assessment, and there is some other assessment being or about to be carried out in relation to the person to whom the assessment relates or in relation to a relevant person, the local authority may carry out that other assessment—

(a)  on behalf of or jointly with the body responsible for carrying it out, or
(b)  if that body has arranged to carry out the other assessment jointly with another person, jointly with that body and the other person.

(6)  A reference to an assessment includes a reference to part of an assessment.

(7)  A person is a “relevant person”, in relation to a child’s needs, child’s carer’s or young carer’s assessment, if it would be reasonable to combine an assessment relating to that person with the child’s needs, child’s carer’s or young carer’s assessment (as mentioned in subsections (2) and (3)).
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“The section includes a power to make regulations about carrying out assessments for children and young carers under these provisions. It also includes provision for the local authority to carry out an assessment of a child jointly with another assessment and specifies that if assessments are to be combined the child must have capacity or be competent to agree to a combined assessment.

The local authority may combine a needs assessment with any other assessment it is carrying out of the individual 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. So for example an assessment of likely needs after the age of 18 could be included in a young person’s education, health and care (EHC) plan, provided for in the Children and Families Bill 2013. The EHC offers a joined up assessment for children and young people across education, health and social care. 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. For example, if carrying out a child’s needs assessment the local authority could carry out a continuing healthcare assessment of his or her carer jointly with the relevant health body.

The provisions for assessment in order to plan for transition under sections 58, 59, 60, 61, 62, and 64 apply both to those who are and to those who are not already receiving support.”

Section 66 – Continuity of services under other legislation

Amends the Children Act 1989

 

Section 67 – Involvement in assessments, plans etc.

(1)  This section applies where a local authority is required by a relevant provision to involve an individual in its exercise of a function.

(2)  The authority must, if the condition in subsection (4) is met, arrange for a person who is independent of the authority (an “independent advocate”) to be available to represent and support the individual for the purpose of facilitating the individual’s involvement; but see subsection (5).

(3)  The relevant provisions are—

(a)  section 9(5)(a) and (b) (carrying out needs assessment);
(b)  section 10(7)(a) (carrying out carer’s assessment);
(c)  section 25(3)(a) and (b) (preparing care and support plan);
(d)  section 25(4)(a) and (b) (preparing support plan);
(e)  section 27(2)(b)(i) and (ii) (revising care and support plan);
(f)  section 27(3)(b)(i) and (ii) (revising support plan);
(g)  section 59(2)(a) and (b) (carrying out child’s needs assessment);
(h)  section 61(3)(a) (carrying out child’s carer’s assessment);
(i)  section 64(3)(a) and (b) (carrying out young carer’s assessment).

(4)  The condition is that the local authority considers that, were an independent advocate not to be available, the individual would experience substantial difficulty in doing one or more of the following—

(a)  understanding relevant information;
(b)  retaining that information;
(c)  using or weighing that information as part of the process of being involved;
(d)  communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means).

(5)  The duty under subsection (2) does not apply if the local authority is satisfied that there is a person—

(a)  who would be an appropriate person to represent and support the individual for the purpose of facilitating the individual’s involvement, and
(b)  who is not engaged in providing care or treatment for the individual in a professional capacity or for remuneration.

(6)  For the purposes of subsection (5), a person is not to be regarded as an appropriate person unless—

(a)  where the individual has capacity or is competent to consent to being represented and supported by that person, the individual does so
consent, or
(b)  where the individual lacks capacity or is not competent so to consent, the local authority is satisfied that being represented and supported by
that person would be in the individual’s best interests.

(7)  Regulations may make provision in connection with the making of arrangements under subsection (2); the regulations may in particular—

(a)  specify requirements that must be met for a person to be independent for the purposes of subsection (2);
(b)  specify matters to which a local authority must have regard in deciding whether an individual would experience substantial difficulty of the
kind mentioned in subsection (4);
(c)  specify circumstances in which the exception in subsection (5) does not apply;
(d)  make provision as to the manner in which independent advocates are to perform their functions;
(e)  specify circumstances in which, if an assessment under this Part is combined with an assessment under this Part that relates to another
person, each person may or must be represented and supported by the same independent advocate or by different independent advocates;
(f)  provide that an independent advocate may, in such circumstances or subject to such conditions as may be specified, examine and take copies of relevant records relating to the individual.

(8)  This section does not restrict the provision that may be made under any other provision of this Act.

(9)  “Relevant record” means—

(a)  a health record (within the meaning given in section 68 of the Data Protection Act 1998 (as read with section 69 of that Act)),
(b)  a record of, or held by, a local authority and compiled in connection with a function under this Part or a social services function (within the
meaning given in section 1A of the Local Authority Social Services Act 1970),
(c)  a record held by a person registered under Part 2 of the Care Standards Act 2000 or Chapter 2 of Part 1 of the Health and Social Care Act 2008, or
(d)  a record of such other description as may be specified in the regulations.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section places a duty on local authorities to arrange an independent advocate to be available to facilitate the involvement of an adult or carer who is the subject of an assessment, care or support planning or review process, if that local authority considers that the adult would experience substantial difficulty in understanding the processes or information relevant to those processes or communicating their views, wishes, or feelings.

Subsections (5) and (6) set out that the duty does not apply if the local authority is satisfied there is an appropriate person to represent the adult, who is not engaged in providing care or treatment to the adult in a professional or paid capacity, and the adult consents to being so represented by that person, or where the adult lacks capacity to consent, the local authority is satisfied that it would be in the adult’s best interests to be represented by that person.

Subsection (7) allows for regulations to specify the arrangements on the provision of independent advocacy including to set out the requirements for an independent advocate, to specify what a local authority has regard to in determining whether an individual would experience substantial difficulties in their involvement in the assessment, specifying any circumstance in which the exception in subsection (5) does not apply, and making provision as to the manner in which independent advocates are to perform their duties.”

 

Section 68 – Safeguarding enquiries and reviews

(1)  This section applies where there is to be—

(a)  an enquiry under section 42(2),
(b)  a review under section 44(1) of a case in which condition 2 in section 44(3) is met or a review under section 44(4).

(2)  The relevant local authority must, if the condition in subsection (3) is met, arrange for a person who is independent of the authority (an “independent
advocate”) to be available to represent and support the adult to whose case the enquiry or review relates for the purpose of facilitating his or her involvement in the enquiry or review; but see subsections (4) and (6).

(3)  The condition is that the local authority considers that, were an independent advocate not to be available, the individual would experience substantial difficulty in doing one or more of the following—

(a)  understanding relevant information;
(b)  retaining that information;
(c)  using or weighing that information as part of the process of being involved;
(d)  communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means).

(4)  The duty under subsection (2) does not apply if the local authority is satisfied that there is a person—

(a)  who would be an appropriate person to represent and support the adult for the purpose of facilitating the adult’s involvement, and
(b)  who is not engaged in providing care or treatment for the adult in a professional capacity or for remuneration.

(5)  For the purposes of subsection (4), a person is not to be regarded as an appropriate person unless—

(a)  where the adult has capacity to consent to being represented and supported by that person, the adult does so consent, or
(b)  where the adult lacks capacity so to consent, the local authority is satisfied that being represented and supported by that person would be
in the adult’s best interests.

(6)  If the enquiry or review needs to begin as a matter of urgency, it may do so even if the authority has not yet been able to comply with the duty under
subsection (2) (and the authority continues to be subject to the duty).

(7)  “Relevant local authority” means—

(a)  in a case within subsection (1)(a), the authority making the enquiry or causing it to be made;
(b)  in a case within subsection (1)(b), the authority which established the SAB arranging the review.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“Section 68 places a duty on local authorities to arrange an independent advocate to be available to represent and support an adult who is the subject of an adult safeguarding enquiry or a safeguarding adults review, if that local authority considers that the adult would experience substantial difficulty in understanding the processes or information relevant to those processes or communicating their views, wishes, or feelings.  The duty does not apply if the local authority is satisfied there is an appropriate person to represent the adult, who is not engaged as that adult’s professional or paid carer and the adult consents to being so represented by that person, or where the adult lacks capacity to consent, the local authority is satisfied that it would be in the adult’s best interests to be represented by that person.

The purpose of this section is to ensure that individuals who are the subject of a local authority’s safeguarding enquiry or a Safeguarding Adults Review will, where appropriate, have an independent advocate made available to represent and support them so as to enable them to participate meaningfully in those processes.”

 

Section 69 – Recovery of charges, interest etc.

(1)  Any sum due to a local authority under this Part is recoverable by the authority as a debt due to it.

(2)  But subsection (1) does not apply in a case where a deferred payment agreement could, in accordance with regulations under section 34(1), be
entered into, unless—

(a)  the local authority has sought to enter into such an agreement with the adult from whom the sum is due, and
(b)  the adult has refused.

(3)  A sum is recoverable under this section—

(a)  in a case in which the sum becomes due to the local authority on or after the commencement of this section, within six years of the date the sum becomes due;
(b)  in any other case, within three years of the date on which it becomes due.

(4)  Where a person misrepresents or fails to disclose (whether fraudulently or otherwise) to a local authority any material fact in connection with the
provisions of this Part, the following sums are due to the authority from the person—

(a)  any expenditure incurred by the authority as a result of the misrepresentation or failure, and
(b)  any sum recoverable under this section which the authority has not recovered as a result of the misrepresentation or failure.

(5)  The costs incurred by a local authority in recovering or seeking to recover a sum due to it under this Part are recoverable by the authority as a debt due to it.

(6)  Regulations may—

(a)  make provision for determining the date on which a sum becomes due to a local authority for the purposes of this section;
(b)  specify cases or circumstances in which a sum due to a local authority under this Part is not recoverable by it under this section;
(c)  specify cases or circumstances in which a local authority may charge interest on a sum due to it under this Part;
(d)  where interest is chargeable, provide that it—

(i)  must be charged at a rate specified in or determined in accordance with the regulations, or
(ii)  may not be charged at a rate that exceeds the rate specified in or determined in accordance with the regulations.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section allows authorities to recover as a debt any sums owed, such as unpaid charges and interest. This section replaces sections 22 and 24 of the Health and Social Services and Social Security Adjudications Act 1983 and section 45 of the National Assistance Act 1948.

The exception to this is cases where an authority could (in accordance with regulations under section 34) enter into a deferred payment agreement, unless the authority offers someone this option and they refuse (subsection 2).  Under subsection (3), sums are recoverable within six years (if they become due following commencement of this section), or within 3 years (if they became due before commencement).  When someone misrepresents or fails to disclose any material fact in connection with the provisions in this Part, the authority may recover as a debt, expenditure incurred as a result of the misrepresentation or failure and any sum it would have recovered but for the misrepresentation or failure (subsection 4).  Subsection (5) provides that an authority can recover as a debt the legal and administrative costs it incurs in pursuing that debt.  Subsection (6) provides a power for regulations to determine the date when a debt becomes due, to specify exceptions to when an authority can recover a debt and to specify when an authority may charge interest on the sum owed, at a rate in accordance with the regulations.”

 

Section 70 – Transfer of assets to avoid charges

(1)  This section applies in a case where an adult’s needs have been or are being met by a local authority under sections 18 to 20 and where—

(a)  the adult has transferred an asset to another person (a “transferee”),
(b)  the transfer was undertaken with the intention of avoiding charges for having the adult’s needs met, and
(c)  either the consideration for the transfer was less than the value of the asset or there was no consideration for the transfer.

(2)  The transferee is liable to pay to the local authority an amount equal to the difference between—

(a)  the amount the authority would have charged the adult were it not for the transfer of the asset, and
(b)  the amount it did in fact charge the adult.

(3)  But the transferee is not liable to pay to the authority an amount which exceeds the benefit accruing to the transferee from the transfer.

(4)  Where an asset has been transferred to more than one transferee, the liability of each transferee is in proportion to the benefit accruing to that transferee from the transfer.

(5)  “Asset” means anything which may be taken into account for the purposes of a financial assessment.

(6)  The value of an asset (other than cash) is the amount which would have been realised if it had been sold on the open market by a willing seller at the time of the transfer, with a deduction for—

(a)  the amount of any incumbrance on the asset, and
(b)  a reasonable amount in respect of the expenses of the sale.

(7)  Regulations may specify cases or circumstances in which liability under subsection (2) does not arise.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“Where a person’s needs for care and support have been or are being met by a local authority, the local authority may, under section 14, impose a charge on the person to cover all or part of the cost of meeting the person’s needs. If the person has transferred assets to another individual in order to avoid these charges, subsections (2) and (4) enable the local authority to recover the lost income from the individual, or individuals.  Subsection (3) limits the amount the local authority may recover so that it cannot recover more than the individual gained from the transfer.  What constitutes an asset and how it should be valued, is set out in subsections (5) and (6).”

 

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