Care Act s71-80

Section 71 – Five-yearly review by Secretary of State

(1)  The Secretary of State must review—

(a)  the level at which the cap on care costs is for the time being set under regulations under section 15(4),
(b)  the level at which the amount attributable to an adult’s daily living costs is for the time being set under regulations under section 15(8), and
(c) the level at which the financial limit is for the time being set under regulations under section 17(8).

(2)  In carrying out the review, the Secretary of State must have regard to—

(a)  the financial burden on the state of each of those matters being at the level in question,
(b)  the financial burden on local authorities of each of those matters being at the level in question,
(c)  the financial burden on adults who have needs for care and support of each of those matters being at the level in question,
(d)  the length of time for which people can reasonably be expected to live in good health,
(e)  changes in the ways or circumstances in which adults’ needs for care and support are being or are likely to be met,
(f) changes in the prevalence of conditions for which the provision of care and support is or is likely to be required, and
(g)  such other factors as the Secretary of State considers relevant.

(3)  The Secretary of State must prepare and publish a report on the outcome of the review.

(4)  The first report must be published before the end of the period of five years beginning with the day on which section 15 comes into force.

(5)  Each subsequent report must be published before the end of the period of five years beginning with the day on which the previous report was published.

(6)  The Secretary of State may arrange for some other person to carry out the whole or part of a review under this section on the Secretary of State’s behalf.

(7)  The Secretary of State must lay before Parliament a report prepared under this section.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section requires the Secretary of State for Health to review how the capped cost system is operating every five years, the results of which can be used to inform decisions on whether to change the level of the cap, or other parameters, such as general living costs, in the system.  In reviewing how the cap is operating, the Secretary of State will have to consider how certain factors are having an impact on the capped cost system parameters, such as healthy life expectancy or changes in the way services are delivered (subsection (2)). The Secretary of State can commission other people to carry out the review (subsection (6)).  Subsection (3) requires a report of the review to be prepared and published, the report must also be presented to Parliament (subsection (7)). Subsection (4) requires the first report to be published within five years of the commencement of the section and subsection (5) requires subsequent reports to be published within five years of each previous report. This means that there will be a review within any five year rolling period.”

 

Section 72 – Part 1 appeals

(1)  Regulations may make provision for appeals against decisions taken by a local authority in the exercise of functions under this Part in respect of an individual (including decisions taken before the coming into force of the first regulations made under this subsection).

(2)  The regulations may in particular make provision about—

(a)  who may (and may not) bring an appeal;
(b)  grounds on which an appeal may be brought;
(c) pre-conditions for bringing an appeal;
(d)  how an appeal is to be brought and dealt with (including time limits);
(e)  who is to consider an appeal;
(f) matters to be taken into account (and disregarded) by the person or body considering an appeal;
(g)  powers of the person or body deciding an appeal;
(h)  what action is to be taken by a local authority as a result of an appeal decision;
(i)  providing information about the right to bring an appeal, appeal procedures and other sources of information and advice;
(j)  representation and support for an individual bringing or otherwise involved in an appeal;
(k) investigations into things done or not done by a person or body with power to consider an appeal.

(3)  Provision about pre-conditions for bringing an appeal may require specified steps to have been taken before an appeal is brought.

(4)  Provision about how an appeal is to be dealt with may include provision for—

(a)  the appeal to be treated as, or as part of, an appeal brought or complaint made under another procedure;
(b)  the appeal to be considered with any such appeal or complaint.

(5)  Provision about who is to consider an appeal may include provision—

(a)  establishing, or requiring or permitting the establishment of, a panel or other body to consider an appeal;
(b)  requiring an appeal to be considered by, or by persons who include, persons with a specified description of expertise or experience.

(6)  Provision about representation and support for an individual may include provision applying any provision of or made under section 67, with or without modifications.

(7)  The regulations may make provision for—

(a)  an appeal brought or complaint made under another procedure to be treated as, or as part of, an appeal brought under the regulations;
(b)  an appeal brought or complaint made under another procedure to be considered with an appeal brought under the regulations;
(c)  matters raised in an appeal brought under the regulations to be taken into account by the person or body considering an appeal brought or complaint made under another procedure.

(8)  The regulations may include provision conferring functions on a person or body established by or under an Act (including an Act passed after the passing of this Act); for that purpose, the regulations may amend, repeal, or revoke an enactment, or provide for an enactment to apply with specified modifications.

(9)  Regulations may make provision, in relation to a case where an appeal is brought under regulations under subsection (1)—

(a)  for any provision of this Part to apply, for a specified period, as if a decision (“the interim decision”) differing from the decision appealed against had been made;
(b)  as to what the terms of the interim decision are, or as to how and by whom they are to be determined;
(c)  for financial adjustments to be made following a decision on the appeal.

(10)  The period specified under subsection (9)(a) may not begin earlier than the date on which the decision appealed against was made, or end later than the date on which the decision on the appeal takes effect.

 

Section 73 – Human Rights Act 1998: provision of regulated care or support etc a public function

(1)        This section applies where—

(a)        in England, a registered care provider provides care and support to an adult or support to a carer, in the course of providing—

(i)         personal care in a place where the adult receiving the personal care is living when the personal care is provided, or

(ii)        residential accommodation together with nursing or personal care;

(b)        in Wales, a person registered under Part 2 of the Care Standards Act 2000 provides care and support to an adult, or support to a carer, in the course of providing—

(i)         personal care in a place where the adult receiving the personal care is living when the personal care is provided, or

(ii)        residential accommodation together with nursing or personal care;

(c)        in Scotland, a person provides advice, guidance or assistance to an adult or support to a carer, in the course of providing a care service which is registered under section 59 of the Public Services Reform (Scotland) Act 2010 and which consists of the provision of—

(i)         personal care in a place where the adult receiving the personal care is living when the personal care is provided, or

(ii)        residential accommodation together with nursing or personal care;

(d)        in Northern Ireland, a person registered under Part 3 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 provides advice, guidance or assistance to an adult or services to a carer, in the course of providing—

(i)         personal care in a place where the adult receiving the personal care is living when the personal care is provided, or

(ii)        residential accommodation together with nursing or personal care.

In this section “the care or support” means the care and support, support, advice, guidance, assistance or services provided as mentioned above, and “the provider” means the person who provides the care or support.

(2)        The provider is to be taken for the purposes of section 6(3)(b) of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature in providing the care or support, if the requirements of subsection (3) are met.

(3)        The requirements are that—

(a)        the care or support is arranged by an authority listed in column 1 of the Table below, or paid for (directly or indirectly, and in whole or in part) by such an authority, and

(b)        the authority arranges or pays for the care or support under a provision listed in the corresponding entry in column 2 of the Table.

 

 

TABLE

 

Authority Provisions imposing duty or conferring power to meet needs
Local authority in

England

Sections 2, 18, 19, 20, 38 and 48 of this Act.
Local authority in

Wales

Part 4 and section 189 of the Social Services and Well-being (Wales) Act 2014.

 

Section 50 of this Act.

Local authority in

Scotland

Sections 12, 13A, 13B and 14 of the Social Work (Scotland) Act 1968.

 

Section 3 of the Social Care (Self-directed Support) (Scotland) Act 2013.

Health and Social

Care trust

Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972.

 

Section 51 of this Act.

Authority (within

the meaning of

section 10 of the

Carers and Direct

Payments Act

(Northern Ireland)

2002)

Section 2 of the Carers and Direct Payments Act (Northern Ireland) 2002.

 

(4)        In this section—

“local authority in England” means a local authority for the purposes of this Part;

“local authority in Wales” means a local authority for the purposes of the Social Services and Well-being (Wales) Act 2014;

“local authority in Scotland” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;

“nursing care”, for England, Wales and Northern Ireland, has the same meaning as in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010, as amended from time to time;

“personal care”—

(a)        for England, Wales and Northern Ireland, has the same meaning as in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010, as amended from time to time;

(b)        for Scotland, has the same meaning as in Part 5 of the Public Services Reform (Scotland) Act 2010, as amended from time to time.

 

 

Section 74 – Discharge of hospital patients with care and support needs

Schedule 3 (which includes provision about the discharge of hospital patients with care and support needs) has effect.

 

Section 75 – After-care under the Mental Health Act 1983

(1)  In section 117 of the Mental Health Act 1983 (after-care), in subsection (2), after “to provide” insert “or arrange for the provision of”.

(2)  In subsection (2D) of that section, for the words from “as if” to the end substitute “as if the words “provide or” were omitted.”

(3)  In subsection (3) of that section, after “means the local social services authority” insert “—

(a)  if, immediately before being detained, the person concerned was ordinarily resident in England, for the area in England in
which he was ordinarily resident;
(b)  if, immediately before being detained, the person concerned was ordinarily resident in Wales, for the area in Wales in which
he was ordinarily resident; or
(c)  in any other case”.

(4)  After that subsection insert—

“(4)  Where there is a dispute about where a person was ordinarily resident for the purposes of subsection (3) above—

(a)  if the dispute is between local social services authorities in England, section 40 of the Care Act 2014 applies to the dispute
as it applies to a dispute about where a person was ordinarily resident for the purposes of Part 1 of that Act;
(b)  if the dispute is between local social services authorities in Wales, section 195 of the Social Services and Well-being (Wales) Act 2014 applies to the dispute as it applies to a dispute about where a person was ordinarily resident for the purposes of that Act;

(c)  if the dispute is between a local social services authority in England and a local social services authority in Wales, it is to be determined by the Secretary of State or the Welsh Ministers.

(5)  The Secretary of State and the Welsh Ministers shall make and publish arrangements for determining which of them is to determine a dispute under subsection (4)(c); and the arrangements may, in particular, provide for the dispute to be determined by whichever of them they agree is to do so.”

(5)  After subsection (5) insert—

“(6)  In this section, “after-care services”, in relation to a person, means
services which have both of the following purposes—

(a)  meeting a need arising from or related to the person’s mental
disorder; and
(b) reducing the risk of a deterioration of the person’s mental
condition (and, accordingly, reducing the risk of the person
requiring admission to a hospital again for treatment for mental
disorder).”

(6)  After section 117 of that Act insert—

“117A After-care: preference for particular accommodation

(1)  The Secretary of State may by regulations provide that where—

(a)  the local social services authority under section 117 is, in
discharging its duty under subsection (2) of that section,
providing or arranging for the provision of accommodation for
the person concerned;
(b)  the person concerned expresses a preference for particular
accommodation; and
(c)  any prescribed conditions are met,
the local social services authority must provide or arrange for the provision of the person’s preferred accommodation.

(2)  Regulations under this section may provide for the person concerned,
or a person of a prescribed description, to pay for some or all of the
additional cost in prescribed cases.

(3)  In subsection (2), “additional cost” means the cost of providing or
arranging for the provision of the person’s preferred accommodation
less the amount that the local social services authority would expect to
be the usual cost of providing or arranging for the provision of
accommodation of that kind.

(4)  The power to make regulations under this section—

(a)  is exercisable only in relation to local social services authorities
in England;
(b)  includes power to make different provision for different cases
or areas.”

(7)  The ways in which a local authority may discharge its duty under section 117 of the Mental Health Act 1983 include by making direct payments; and for that purpose Part 1 of Schedule 4 (which includes modifications of the provisions of this Part relating to direct payments) has effect.

(8)  In section 53 of the Social Services and Well-being (Wales) Act 2014 (direct
payments: further provision), at the end insert—

“(11)  The ways in which a local authority may discharge its duty under
section 117 of the Mental Health Act 1983 include by making direct
payments; and for that purpose Schedule A1 (which includes
modifications of sections 50 and 51 and this section) has effect.”

(9)  Before Schedule 1 to that Act insert the Schedule A1 contained in Part 2 of
Schedule 4 to this Act.

(10)  In section 163 of that Act (ordinary residence), after subsection (4) insert—

“(4A)  A person who is being provided with accommodation under section
117 of the Mental Health Act 1983 (after-care) is to be treated for the
purposes of this Act as ordinarily resident in the area of the local
authority, or the local authority in England, on which the duty to
provide that person with services under that section is imposed.”

(11)  In consequence of subsections (7) to (9), in subsection (2C) of section 117 of the Mental Health Act 1983—

(a)  in paragraph (a), for “regulations under section 57 of the Health and
Social Care Act 2001 or” substitute “—

(i)  sections 31 to 33 of the Care Act 2014 (as applied
by Schedule 4 to that Act),
(ii)  sections 50, 51 and 53 of the Social Services and Well-being (Wales) Act 2014 (as applied by Schedule A1 to that Act), or
(iii)  regulations under”,

(b)  in paragraph (b), after “apart from” insert “those sections (as so
applied) or”.

(12)  In the case of a person who, immediately before the commencement of
subsections (3) and (4), is being provided with after-care services under section 117 of the Mental Health Act 1983, the amendments made by those subsections do not apply while those services are continuing to be provided to that person.

(13)  In section 145 of the Mental Health Act 1983 (interpretation), for the definition of “local social services authority” substitute—

““local social services authority” means—

(a)  an authority in England which is a local authority for the purposes of Part 1 of the Care Act 2014, or
(b)  an authority in Wales which is a local authority for the purposes of the Social Services and Well-being (Wales) Act 2014.”
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“Section 75 clarifies the meaning of, and makes minor amendments to, section 117 of the Mental Health Act 1983 (the 1983 Act). The changes remove anomalies in determining the responsible local authority in relation to the provision of after-care services under the 1983 Act to people who have been detained in hospital for treatment of mental disorder and the provision of care and support services to which the Bill applies. The section also inserts new section 117A into the 1983 Act. This is about enabling a person to express a preference for particular accommodation to be provided under section 117. Schedule 4 makes a number of modifications to the application of certain provisions of the Bill to enable direct payments to continue to be made in respect of section 117 services.  Subsection (1) of section 75 clarifies that local authorities may commission as well as provide section 117 services. Consequent upon the amendments made by subsection (1), subsection (2) preserves the effect of section 117(2D) that a clinical commissioning group is under a duty to commission rather than provide section 117 services.  Subsections (3) and (4) apply the ordinary residence rules to section 117 in order to avoid anomalies which can currently arise where one local authority is responsible for commissioning section 117 services whilst another commissions any other services a person may need. They apply consistent after-care ordinary residence rules in England and Wales, in particular, in relation to which health body and local authority are responsible for commissioning after-care services. One benefit of this will be to empower the Secretary of State to resolve disputes as to which authority is liable to commission section 117 services, which can currently only be resolved through the courts. The Secretary of State and the Welsh Ministers will publish arrangements for determining cross-border disputes.  Subsection (5) inserts a definition of “after-care services” for the purposes of section 117. It makes clear that section 117 services must meet a need arising from or related to the person’s mental disorder. Additionally, the purpose of these services must be to reduce the risk of deterioration in the person’s mental condition and, accordingly, to reduce the risk of the person’s re-admission to hospital for treatment for mental disorder. In order to reduce the risk of deterioration over time, the services should meet the person’s needs for health and social care as well as needs associated with coping with life outside hospital.

Subsection (6) inserts a new section 117A into the 1983 Act.  This empowers the Secretary of State to make regulations to place a duty on a local authority to enable a person who qualifies for accommodation under section 117 to live in accommodation of their choice. This may involve the person themselves or another person paying some or all of the additional cost.  Subsection (7) provides that a local authority may exercise its duty under section 117 by making direct payments, and for that purpose Part 1 of Schedule 4 has effect.  As a consequence of the amendments to section 117 as it applies to Wales, subsections (8), (9) and (10) amend the Social Services and Well-being (Wales) Act 2014 (“the Wales Act”). Subsection (8) inserts a new section 53(11) in the Wales Act to provide that a local authority in Wales may discharge its duty under section 117 by making direct payments, and subsection (9) inserts a new Schedule A1 to the Wales Act for that purpose. Subsection (10) inserts a new section 163(4A) in the Wales Act to provide that an adult will be treated as ordinarily resident in the area of the local authority in England or Wales in which that person is being provided with accommodation under section 117 of the Mental Health Act 1983. Subsection (11) updates the references to legislation in section 117(2C) under which direct payments for mental health after-care services may be made.  Subsection (12) provides that the changes to the commissioning responsibility made by subsections (3) and (4) will not apply where a person is already in receipt of section 117 services when these changes come into force. The current authority will remain responsible for commissioning those services for as long as the person concerned continues to need them.”

 

Section 76 – Prisoners and persons in approved premises etc.

(1)  In its application to an adult who is detained in prison, this Part has effect as if references to being ordinarily resident in an area were references to being detained in prison in that area.

(2)  In its application to an adult who is residing in approved premises, this Part has effect as if references to being ordinarily resident in an area were references to being resident in approved premises in that area.

(3)  In its application to an adult who is residing in any other premises because a requirement to do so has been imposed on the adult as a condition of the grant of bail in criminal proceedings, this Part has effect as if references to being ordinarily resident in an area were references to being resident in premises in that area for that reason.

(4)  The power under section 30 (preference for particular accommodation) may not be exercised in the case of an adult who is detained in prison or residing in approved premises except for the purpose of making provision with respect to accommodation for the adult—

(a)  on his or her release from prison (including temporary release), or
(b)  on ceasing to reside in approved premises.

(5)  Sections 31 to 33 (direct payments) do not apply in the case of an adult who, having been convicted of an offence, is—

(a)  detained in prison, or
(b)  residing in approved premises.

(6)  Sections 37 and 38 (continuity of care), in their application to an adult who is detained in prison or residing in approved premises, also apply where it is decided that the adult is to be detained in prison, or is to reside in approved premises, in the area of another local authority; and accordingly—

(a)  references to the adult’s intention to move are to be read as references to that decision, and
(b)  references to carers are to be ignored.

(7)  Sections 42 and 47 (safeguarding: enquiry by local authority and protection of property) do not apply in the case of an adult who is—

(a)  detained in prison, or
(b)  residing in approved premises.

(8)  An SAB’s objective under section 43(2) does not include helping and protecting adults who are detained in prison or residing in approved premises; but an SAB may nonetheless provide advice or assistance to any person for the purpose of helping and protecting such adults in its area in cases of the kind described in section 42(1) (adults with needs for care and support who are at risk of abuse or neglect).

(9)  Section 44 (safeguarding adults reviews) does not apply to any case involving an adult in so far as the case relates to any period during which the adult was—

(a)  detained in prison, or
(b)  residing in approved premises.

(10)  Regulations under paragraph 1(1)(d) of Schedule 2 (membership of Safeguarding Adults Boards) may not specify the governor, director or
controller of a prison or a prison officer or prisoner custody officer.

(11)  “Prison” has the same meaning as in the Prison Act 1952 (see section 53(1) of that Act); and—

(a)  a reference to a prison includes a reference to a young offender institution, secure training centre or secure children’s home,
(b)  the reference in subsection (10) to the governor, director or controller of a prison includes a reference to the governor, director or controller of a young offender institution, to the governor, director or monitor of a secure training centre and to the manager of a secure children’s home, and
(c)  the reference in that subsection to a prison officer or prisoner custody officer includes a reference to a prison officer or prisoner custody
officer at a young offender institution, to an officer or custody officer at a secure training centre and to a member of staff at a secure children’s home.

(12)  “Approved premises” has the meaning given in section 13 of the Offender Management Act 2007.

(13)  “Bail in criminal proceedings” has the meaning given in section 1 of the Bail Act 1976.

(14)  For the purposes of this section—

(a)  a person who is temporarily absent from prison is to be treated as detained in prison for the period of absence;
(b)  a person who is temporarily absent from approved premises is to be treated as residing in approved premises for the period of absence;
(c)  a person who is temporarily absent from other premises in which the person is required to reside as a condition of the grant of bail in criminal proceedings is to be treated as residing in the premises for the period of absence.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets out the responsibilities for provision of care and support for adult prisoners and people residing in approved premises (which includes bail accommodation). Where it appears to a local authority that adults in prison or approved premises may have needs for care and support, the local authority will be under a duty to assess their needs under section 9 and where they have needs which meet the eligibility criteria, may be under a duty to meet those needs.  This will provide consistency of approach between institutions and ensure prisoners and residents in approved premises receive services equivalent to people with similar needs in the community.

Subsections (1) and (2) of section 76 make clear that the local authority in whose area a prison, or approved premises, is located will be responsible for providing assessments and meeting care and support needs for the residents of those custodial settings. A detainee’s previous ordinary residence will not be a consideration while they are in these settings, and responsibility will fall to the local authority in whose area the prison or approved premises are located without reference to the general ordinary residence criteria.

Subsection (3) applies the same principle where an adult is required to reside in any other premises as a condition of bail, so that responsibility will fall to the local authority in whose area the premises are located.  Subsection (4) makes clear that prisoners and those in approved premises will not be able to express a preference for particular accommodation except where the individual is being released into the community. The duty for local authorities to protect property will not apply to the property of adult prisoners and residents in approved premises with care and support needs whilst in custody.

Subsection (5) makes clear that sections 31 to 33 on the provision of direct payments do not apply to prisoners or residents in approved premises, except those who have not been convicted of an offence, for example some people in bail accommodation. Prisoners and residents in approved premises who have been convicted of an offence will not be eligible to receive direct payments for the costs of their care and support.
Subsection (6) covers continuity of care for prisoners and those in approved premises whose needs for care and support are being met by a local authority. The continuity provisions in sections 37 and 38 will apply to prisoners and residents in approved premises being moved between different custodial settings and on release to the community.

Subsection (7) also makes clear that the duties for local authorities to carry out adult safeguarding enquiries and to protect property do not apply to people in prison or approved premises.  Subsection (10) makes clear that governors and officers of a prison will not be required by regulations to become members of Safeguarding Adult Boards. However, it does not prevent a Safeguarding Adult Board from inviting governors and officers of a prison to become members by virtue of Schedule 2 paragraph 1(2)). By virtue of subsection (11), this also extends to young offender’s institutions, secure training centres and secure children’s homes.

The eligibility framework will apply to prisoners and residents in approved premises.
Youth offenders with care and support needs should receive the same transition procedures to adult care and support as young people in the community. A request for an assessment can be made on the youth offender’s behalf by the professional responsible for their care in the Young Offenders’ Institution, Secure Children’s Home or Secure Training Centre.  Charging arrangements for care and support services received by prisoners will be the same as for people in the community.

Subsection (14) makes clear that someone who is temporarily away from their prison or approved premises, such as for visits to hospital, is deemed to be still detained in that prison or residing in those approved premises whilst away. This means, for example, that if someone is receiving care or support from the local authority in which their prison is based and they are temporarily in hospital in the area of a different local authority, the responsibility for providing the support does not change local authorities.”

 

Section 77 – Registers of sight-impaired adults, disabled adults, etc.

(1)  A local authority must establish and maintain a register of sight-impaired and severely sight-impaired adults who are ordinarily resident in its area.

(2)  Regulations may specify descriptions of persons who are, or are not, to be treated as being sight-impaired or severely sight-impaired for the purposes of this section.

(3)  A local authority may establish and maintain one or more registers of adults to whom subsection (4) applies, and who are ordinarily resident in the local authority’s area, for the purposes in particular of—

(a)  planning the provision by the authority of services to meet needs for care and support, and
(b)  monitoring changes over time in the number of adults in the authority’s area with needs for care and support and the types of needs they have.

(4)  This subsection applies to an adult who—

(a)  has a disability,
(b)  has a physical or mental impairment which is not a disability but which gives rise, or which the authority considers may in the future give rise,
to needs for care and support, or
(c)  comes within any other category of persons the authority considers appropriate to include in a register of persons who have, or the
authority considers may in the future have, needs for care and support.

(5) “Disability” has the meaning given by section 6 of the Equality Act 2010.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“Subsection (1) sets out the requirement on local authorities to establish and maintain a register of people who are ordinarily resident in their area and are sight impaired. This replaces the requirement on local authorities to maintain registers of disabled people under section 29(4)(g) of the National Assistance Act 1948.  There is no legal definition of “sight impairment”, but clinical guidelines make it clear that someone can be certified as sight impaired if they are “substantially and permanently handicapped by defective vision caused by congenital defect or illness or injury”.

Subsection (2) allows for regulations to describe what “sight impairment” and “severe sight impairment” mean for the purposes of compiling a local authority register. This aims to ensure that clinical staff and local authorities have a shared understanding of the terminology.  Subsection (3) gives local authorities the option to establish and maintain registers of people living in their area who require care and support or who might in the future. This section will allow those people whose needs may change over time to be accurately recorded – for instance, to take account of an individual with a progressive neurological condition who may need care and support at some point in the future.  Subsection (4) defines the categories of people who might be included in these voluntary general registers.”

 

Section 78 – Guidance, etc.

(1)  A local authority must act under the general guidance of the Secretary of State in the exercise of functions given to it by this Part or by regulations under this Part.

(2)  Before issuing any guidance for the purposes of subsection (1), the Secretary of State must consult such persons as the Secretary of State considers appropriate.

(3)  The Secretary of State must have regard to the general duty of local authorities under section 1(1) (promotion of individual well-being)—

(a)  in issuing guidance for the purposes of subsection (1);
(b)  in making regulations under this Part.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section provides a power for the Secretary of State to issue guidance to local authorities about how they exercise their functions under this Part of the Bill. It has been drafted with the intention that this guidance will have the same legal effect as guidance issued under section 7 of the Local Authority Social Services Act 1970. Like section 7, the provision requires local authorities to “act under the general guidance of the Secretary of State”. The Courts have interpreted this to mean that local authorities must “follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course” (R v Islington LBC ex parte Rixon [1997] 1 CCLR 119 at 123).  Section 7 continues to apply in relation to guidance about the exercise of all other social services functions.

Subsection (2) requires the Secretary of State to consult relevant persons including stakeholders before issuing guidance under this section. Subsection (3) requires the Secretary of State when issuing guidance or making regulations under this Part to have regard to the general duty of local authorities to promote individual well-being.”

 

Section 79 – Delegation of local authority functions

(1)  A local authority may authorise a person to exercise on its behalf a function it has under—

(a)  this Part or regulations under this Part (but see subsection (2)), or
(b)  section 117 of the Mental Health Act 1983 (after-care services).

(2)  The references in subsection (1)(a) to this Part do not include a reference to—

(a)  section 3 (promoting integration with health services etc.),
(b)  sections 6 and 7 (co-operating),
(c)  section 14 (charges),
(d)  sections 42 to 47 (safeguarding adults at risk of abuse or neglect), or
(e)  this section.

(3)  An authorisation under this section may authorise an employee of the authorised person to exercise the function to which the authorisation relates; and for that purpose, where the authorised person is a body corporate, “employee” includes a director or officer of the body.

(4)  An authorisation under this section may authorise the exercise of the function to which it relates—

(a)  either wholly or to the extent specified in the authorisation;
(b)  either generally or in cases, circumstances or areas so specified;
(c)  either unconditionally or subject to conditions so specified.

(5)  An authorisation under this section—

(a)  is for the period specified in the authorisation;
(b)  may be revoked by the local authority;
(c)  does not prevent the local authority from exercising the function to which the authorisation relates.

(6)  Anything done or omitted to be done by or in relation to a person authorised under this section in, or in connection with, the exercise or purported exercise of the function to which the authorisation relates is to be treated for all purposes as done or omitted to be done by or in relation to the local authority.

(7)  But subsection (6) does not apply—

(a)  for the purposes of the terms of any contract between the authorised person and the local authority which relate to the function, or
(b)  for the purposes of any criminal proceedings brought in respect of anything done or omitted to be done by the authorised person.

(8)  Schedule 15 to the Deregulation and Contracting Out Act 1994 (which permits disclosure of information between local authorities and contractors where that is necessary for the exercise of the functions concerned, even if that would otherwise be unlawful) applies to an authorisation under this section as it applies to an authorisation by virtue of an order under section 70(2) of that Act.

(9)  The Secretary of State may by order—

(a)  amend subsection (2) so as to add to or remove from the list a provision of this Part;
(b)  amend subsection (1) so as to add to or remove from the list a provision relating to care and support for adults or support for carers;
(c)  impose conditions or other restrictions on the exercise of the power under subsection (1), whether by amending this section or otherwise.

(10)  The provision which may be made in an order under subsection (9) in reliance on section 125(8) (supplementary etc. provision in orders under this Act) includes, in particular, provision as to the rights and obligations of local authorities and persons authorised under this section in light of the provision made by the order.

(11)  “Function” includes a power to do anything that is calculated to facilitate, or is conducive or incidental to, the exercise of a function.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section provides a power for local authorities to authorise a third party to carry out certain care and support functions.  However, certain functions are excluded from this power. Subsection (2) sets out the functions which are excluded, and which therefore may not be delegated to a third party.  Subsection (4) provides that that the local authority may determine the extent to which it delegates the function in any particular case. For example, a local authority may delegate the carrying out of all needs assessments to a third party organisation, or it may choose to delegate assessments only for certain groups of people, but carry out other assessments itself. When delegating any function, the local authority may impose conditions on the way the third party may exercise the function.

Subsection (5) provides that any authorisation is only for the period specified in the authorisation and the local authority may revoke the authorisation at any time during that period. Delegating the function does not prevent the local authority from being able to carry out the function itself.  Subsection (6) makes clear that anything done (or failed to be done) by the third party in carrying out any function delegated to them is treated as done (or not done) by the local authority itself (though as subsection (7) makes clear this does not mean that the third party can avoid liability for any criminal actions nor for any disputes between it and the local authority arising out of any contractual relationship between them). This means that the delegation of any function does not absolve the local authority from ultimate responsibility for ensuring the function is carried out properly and in accordance with all relevant statutory obligations.

Subsection (8) makes provision permitting the disclosure of information between the local authority and anyone to whom it has delegated a function under this provision (even where such disclosure would otherwise be unlawful) where such disclosure is necessary for the exercise of that function. It does this by applying the provisions of Schedule 15 of the Deregulation and Contracting Out Act 1994 to any delegation made under this provision. Schedule 15 of the 1994 Act contains detailed provisions governing the disclosure of information in cases such as this (where a function is delegated to a third party). The effect is that the third party may be given information by the local authority where it is necessary for the exercise of the delegated function but the third party is then subject to the same kind of confidentiality requirements in respect of that information as was the local authority.

This section includes an order-making power to enable the Secretary of State to change the list of functions to which this power applies, and also to impose conditions and limitations on the exercising of the power.”

 

Section 79 – Part 1: interpretation

(1)        For the purposes of this Part, an expression in the first column of the following table is defined or otherwise explained by the provision of this Act specified in the second column.

Expression                                                                    Provision

 

Abuse                                                                            Section 42(3)

Accrued costs                                                              Section 15(5)

Adult                                                                               Section 2(8)

Adult needing care                                                      Section 10(3)

Authority under the Mental Capacity Act 2005        Subsection (3) below

Best interests                                                               Subsection (2) below

Cap on care costs                                                       Section 15(4)

Capacity, having or lacking                                        Subsection (2) below

Care and support plan                                               Section 25

Care account                                                                Section 29

Carer (other than in sections 58 to 62)                   Section 10(3)

Carer’s assessment                                                  Sections 10(2) and 12(8) and (9)

Child’s carer’s assessment                                      Section 60(2)

Child’s needs assessment                                       Section 58(2)

Daily living costs, amount attributable to                 Section 15(8)

Deferred payment agreement                                    Section 34

Direct payment                                                              Sections 31 and 32

Eligibility criteria                                                            Section 13

Financial assessment                                                 Section 17(5)

Financial limit                                                                 Section 17(10)

Financial year                                                                 Section 126

The health service                                                         Section 126

Independent personal budget                                     Section 28

Local authority                                                                 Section 1(4)

Needs assessment                                                       Sections 9(2) and 12(8) and (9)

Parent                                                                                Section 58(6)

Personal budget                                                              Section 26

Registered care provider                                               Section 48

Support Plan                                                                    Section 25

Well-being                                                                        Section 1(2)

Young carer                                                                      Section 63(6)

Young carer’s assessment                                           Section 63(2)

 

(2)        A reference in this Part to having or lacking capacity, or to a person’s best interests, is to be interpreted in accordance with the Mental Capacity Act 2005.

(3)        A reference in this Part to being authorised under the Mental Capacity Act 2005 is a reference to being authorised (whether in general or specific terms) as—

(a)        a donee of a lasting power of attorney granted under that Act, or

(b)        a deputy appointed by the Court of Protection under section 16(2)(b) of that Act.

 

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

 

“This section provides an index of defined expression in respect of terms used in Part 1 of the Bill.”

 

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