Archive for C&HL Legislation

UNIVERSITY COLLEGE LONDON HOSPITALS NHS FOUNDATION TRUST v MB (2020)

In this case, the NHS Foundation Trust applied for an interim injunction on behalf of one of the hospitals it operated, the National Hospital for Neurology and Neurosurgery (a 12-bed ward for those requiring acute neuropsychiatric care for up to 14 days where the patient’s stay could be extended to 28 days in extreme circumstances).

The Trust had sought to discharge one of its patients, referred to as MB, but she had refused to leave, saying that the care package being offered by the London Borough of Camden Council was insufficient. She had mental capacity but a diagnosis of functional neurological disorder with variable upper and lower limb weakness, tremor and speech disturbance, chronic migraine, fatigue and generalised pain, complex psychological conditions, including PTSD, disrupted attachment, OCD, possibly borderline personality disorder and Asperger’s syndrome.

MB’s representative argued that due to her disabilities (she was wheelchair and bed bound) and complex mental health conditions, discharging her without properly addressing her concerns could lead to her suffering extreme distress as well as being at risk of self-harming or of committing suicide. Discharging her in this way would leave the hospital in breach of its responsibilities under articles 3, 8 and 14 of the European Convention on Human Rights (ECHR) and would amount to disability discrimination and a breach of the duty to make reasonable adjustments, contrary to ss. 29 and 149 of the Equality Act 2010, it was argued.

MB had been residing at the ward since collapsing at home on February 18th 2019.

Staff felt that she could be discharged safely and the local authority had offered adapted accommodation and 24-hour care for 1 month and then extended to 3 months by concession for reassurance, but MB wanted guaranteed care for a whole year and refused to leave.

The judge dismissed the hospital’s subsequent possession claim for MB’s room as ALL such claims have been stayed for 90 days under CPR Pt 55 due to the the COVID-19 pandemic. However, the Civil Procedure Rules do not apply to preclude a claim for an injunction, which the hospital applied for on April 3rd.

The judge heard from MB and her sister, and from hospital staff. Most of the evidence for her prompt discharge from the ward was provided by Dr Christofi, a consultant neurologist working for the hospital. Dr Christofi described MB’s behaviour as unmanageable and often aggressive and threatening. He said “It is of paramount importance that [MB] is discharged from [the Hospital/UCLH] immediately. Not only do we need the beds for critically unwell patients, but remaining in a hospital environment places [MB] at unnecessary risk of contracting COVID-19. It is therefore undoubtedly in [MB’s] best interests to be discharged to a safer location urgently.” Dr Christofi was of the view that the care package consisting of 24hr care was reasonable and that there had been no self-inflicted risk incidents to indicate that MB was a risk to herself.

“She engages in activities such as watching films on her laptop. No psychotic symptoms have been observed (relating to hearing voices, nihilistic delusions etc over the time she has been in hospital). Her plans for DSH [deliberate self-harm]/suicide and not in the context of depression. Her history suggests threats of DSH when her needs are not met…She may well try DSH if she found herself in a situation where her perceived needs are not met and I cannot predict with certainty that she will not harm herself.there are no mental health reasons I can think of to keep her in this hospital.”

MB was not allowed to adduce independent medical evidence. Her main concerns with the care package were due to her distrust of Camden Council and the impending 3 month review which she believed would strip her of the 24hr care.

Although this was not an application for judicial review, MB was effectively raising a public law defence to a private law claim for possession, which is allowed as a matter of principle, without any application for permission, as would be essential if she had been the applicant in the Administrative Court. The judge could not see any good reason for permitting her to adduce evidence that would not be admissible on a direct public law challenge; judicial review would not be an appropriate forum for challenging a clinical view that a person was fit for discharge. Moreover, clinicians cannot be required to provide treatment contrary to their own clinical judgement; the treating team’s view was that the patient did not require hospital care and could safely be discharged.

The judge concluded that MB’s care needs could certainly be met by the care package offered to her by Camden. He felt that the Council had made considerable efforts to accommodate her concerns but that it was unrealistic to think that it would ever satisfy them, due to her distrust in them and the hospital. He said that there was a moderate to low risk of MB resorting to suicide or self-harm if discharged now but accepted that she would likely suffer extreme distress. In either case, this could be managed by the 24hr care offered in her care package, in his view.

Regarding the nature of the property rights being protected, the judge said this:

“The Claimant brings this claim to enforce its private law rights as property owner. As a matter of private law, MB became entitled to occupy the room she is currently in because the Claimant permitted her to do so by admitting her to the Hospital. The Claimant has now terminated her licence to occupy that room. It follows that she is now a trespasser.

Ordinarily, the Claimant would be entitled to seek an order for possession pursuant to CPR Pt 55: see e.g. Barnet Primary Care Trust v H [2006] EWHC 787 (QB), (2006) 92 BMLR 17 (Wilkie J); Sussex Community NHS Foundation Trust v Price (HHJ Coe).

That is not currently possible because of the general stay on possession claims effected by CPR 51Z PD.

The stay does not, however, affect claims for injunctions: see para. 3 of the Practice Direction. A property owner is in general entitled to an injunction to enforce its rights as against a trespasser: see the decisions of the Court of Appeal Manchester Corporation v Connolly [1970] Ch 420 and Supreme Court in Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11, [2009] 1 WLR 2780.

A hospital is no different from any other proprietor in this regard.”

The order made was as follows, regardless of the realistic prospect of vociferous non-co-operation:

(a) MB must leave the Ward by [a particular time], provided that by that time the Hospital has made arrangements to facilitate the transfer of MB (by ambulance trolley and ambulance) and her belongings from the Ward to the accommodation to which she is to be discharged;

(b) if such arrangements are made, MB must not obstruct or impede their implementation;

(c) MB may thereafter not re-enter the Hospital’s premises without the prior written permission of the Claimant, save if admitted by ambulance.

If MB does not comply, she will be in contempt of court and the full range of the court’s coercive powers will be available to enforce it.

The judge went on to consider whether MB had any prospect of defending the claim, because if she did, he could not conscionably grant an injunction, because it would effectively determine the case on possession, prematurely.

He said this too:

“It is a tragic feature of MB’s complex constellation of mental health difficulties that she frequently suffers from extreme distress, whether she is in hospital or not. But, if the Hospital were precluded from doing anything which might precipitate such distress, it would soon end up in a situation where it was legally precluded from taking any step other than in accordance with MB’s wishes. In this case, MB would be entitled to insist on the provision of whatever she considers she needs as a condition of discharge from hospital, even if the result of her doing so were that the needs of others could not be met. That is not the law, because her needs are not the only ones that the law regards as relevant.

In some circumstances, a hospital may have to decide which of two patients, A or B, has a better claim to a bed, or a better claim to a bed in a particular unit, even if ceasing to provide in-patient care to one of them will certainly cause extreme distress or will give rise to significant risks to that patient’s health or even life.

A hospital which in those circumstances determines rationally, and in accordance with a lawful policy, that A’s clinical need is greater than B’s, or that A would derive greater clinical benefit from the bed than B, is not precluded by Article 3 ECHR from declining to offer in-patient care to B.

This is because in-patient care is a scarce resource and, as Auld LJ put it in R v North West Lancashire Health Authority ex p. A [2000] 1 WLR 977, at 996, “[i]t is plain… that article 3 was not designed for circumstances… where the challenge is as to a health authority’s allocation of finite funds between competing demands”.

Decisions taken by a health authority on the basis of finite funds are, in my judgment, no different in principle from those taken by a hospital on the basis of finite resources of other kinds.

In each case a choice has to be made and, in making it, it is necessary to consider the needs of more than one person.

Analytically, the reason why a decision to require a patient to leave a hospital is unlikely to infringe Article 3 ECHR is because it is based on a prior decision not to provide [further] in- patient care. Such a decision engages the state’s positive (and limited) obligation to take steps to avoid suffering reaching a level that engages Article 3, rather than its negative (and absolute) obligation not itself to inflict such suffering. Where the decision to discontinue in-patient care involves the allocation of scarce public resources, the positive duty can only be to take reasonable steps to avoid such suffering: cf R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, [13]-[15] (Lord Bingham). It is difficult to conceive of a case in which it could be appropriate for a court to hold a hospital in breach of that duty by deciding, on the basis of an informed clinical assessment and against the background of a desperate need for beds, to discontinue in-patient care in an individual case and, accordingly, to require the patient to leave the hospital. The present is certainly not one.

Even though the decisions to cease to provide in-patient care to MB and to require her to leave, plainly interfere with MB’s right to respect for private and family life, the evidence adduced by the Claimant amply demonstrates that the interference was justified in order to protect the rights of others, namely those who, unlike MB, need in-patient treatment. Bearing in mind the broad discretionary area of judgment applicable to decisions of this kind, there is no prospect that MB will establish the contrary.”

Comment

People may need to know during the Covid 19 period whether they can bring proceedings for possession against anyone whom they would wish to evict for a good reason – residential licensees, for instance, sharing premises with a resident landlord, or from a care home, when the home does not wish to have the person back, after a spell in hospital. This route of seeking an injunction enables some protection of a property owner’s rights, even if no possession order can be granted.

The judge did accept that a decision by an NHS hospital not to provide in-patient care in an individual case might, in principle, be challengeable on public law grounds, by judicial review if the decision were tainted by improper purpose or had been made in breach of statutory duty or otherwise contrary to law. So that preserves public law challenges for anyone in the Covid19 period to raise, for instance on the basis of a blanket policy of non admission or non selection of anyone aged over 90, or just based on being disabled intellectually or physically, assuming the property owner is a public body amenable to judicial review, such as hospitals. The difference between this and any other case that might arise is that here, the view was very firmly that this woman MB did not NEED any other treatment the hospital could give her, whereas in a Covid competition for a ventilator, it will be different, one can only presume.

An interesting question arises in the context of care homes, who do owe human rights, directly to publicly funded clients, but who are not public bodies in the normal sense required by public law before one can bring judicial review – they do not shoulder the actual public function of a council in meeting needs, when contracted to the council, nor act as a delegate.

If one reads the full case, one discovers that the offer of 24 hour care was being made in the context of a tenancy, which MB had been willing to sign. We do not know how that came about but it is a dearly held principle of CASCAIDr’s legal experts that an offer of care cannot be made conditional upon a council’s expectation that a person provides themselves with housing, and pays for it, before it will provide the care. MB had declined services in her own home; she had declined services in a care home setting, and the Council had just kept on trying to obtain her agreement instead of treating her as capacitated to refuse offers they were satisfied were reasonable. That is not a necessary position for any council to take when a person blocking a bed has capacity; but if it does continue to try to reach agreement, that is the council’s choice, and it must still act under the Care Act.

As noted Ground floor wheelchair accessible accommodation was eventually found which could be secured through a tenancy as opposed to a temporary licence. MB’s willingness to move to the particular accommodation finally identified and adapted must be assumed, because she had signed a tenancy, but if she had been told that she was obliged to take on that tenancy in order to obtain discharge from hospital (as happens to many other people with autism in ATUs, for instance) we think that that would have made for a much stronger public law challenge against the council in a different court.

Here is the link to the full judgment:

https://www.bailii.org/ew/cases/EWHC/QB/2020/882.html

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Human rights underpin all social work and social care law – regardless of the Care Act, please note, or any suspension thereof – Goldsmith v Wandsworth LBC – [2004], Court of Appeal

https://www.bailii.org/ew/cases/EWCA/Civ/2004/1170.html

Lest anyone think that there is no duty to give reasons for a care planning decision in the current crisis, they will be assisted by reminding themselves of the Goldsmith decision from 2004 – from even before the Care Act came in, and when care plans were not even statutory, please note.

Under the Care Act, there is no duty to give written reasons for a council’s belief in adequacy or suitability either, but the Courts have long implied that duty in the interests of fairness and accountability. Examples are the RBKC (Savva) case, Cambridge (K) (on budgets) and several others. The current guidance envisages councils ‘stating’ their reasons for refusing to budge any further on a final offer on a care plan, in para 10.86.

Goodness knows what Corona Guidance will say, if the emergency provisions are triggered. But the good news is that the suspension of s24 and s25, and the modification of s18 regarding meeting needs (which has been provided for by the Coronavirus Act 2020, should it become necessary because of staff shortages), is not a deathknell for people’s legal rights to due process under the public law of this country.

Public law – the duty to act rationally (meaning taking all relevant considerations into account and having an evidence base), lawfully, and fairly (meaning transparently) is not capable of being suspended.

The issue in the Goldsmith case was about rights to make representations to panel, and involvement in the decision making process regarding a care plan (in this case, regarding a setting in which to receive care, given the lady had been very settled in a residential care home before a fall).

Nobody is suggesting that people need to be piling into panel decisions in person, based on this case, please note (not that there will be time for panel decision, we are guessing). But the reason that s27(2)(b) has not been included in the list of sections ripe for suspension or modification is very probably this case: it illustrates the right of involvement and participation in relation to any significant decision that is to be made about a person, by a public body.

76. Against this background, I have to say that I do not agree with the judge’s finding that Linda Goldsmith had no right to attend the LCCP meeting on 8 July 2003. The judge gives no reason for that conclusion, apart from stating that he did not consider the Guidance entitled her to attend. The reason put forward by Wandsworth, namely that the LCCP was discussing “clinical” issues does not to my mind bear examination. Although we do not know the identity of everyone who was present, the LCCP is a joint health and social services panel. I very much doubt if most social workers or social work managers would welcome being described as clinicians. But in any event, if the LCCP was discussing the Appellant’s care needs, that was manifestly a matter on which Linda Goldsmith had a contribution to make. If the matters to be discussed were purely clinical, what was the materiality of her written representations?

87. Judicial review is about process, and in my judgment the process here has been manifestly defective. This analysis, in my judgment, is sufficient to dispose of the appeal [by Wandsworth from the decision below].

Article 8 of the European Convention on Human Rights

  • …However, the judge accepted a submission made on Wandsworth’s behalf that whilst Article 8 was engaged in relation to the Appellant’s right to respect for her private life, if the decision was otherwise lawful, Article 8 added nothing to the debate. That was because Wandsworth’s interference was both in accordance with the law and necessary in a democratic society to safeguard the Appellant’s physical and psychological integrity. Speaking for myself, I am unable to accept that submission when applied to the circumstances of this case.
  • It is trite law that in addition to being in accordance with the law and necessary in a democratic society for the protection of the Appellant’s health, any interference by the State with her right to respect for her private life must be proportionate. There is no evidence, in my judgment, that Wandsworth gave any consideration to the principle of proportionality.
  • This is particularly marked in the meeting on 6 October. I have already set out in paragraph 52 above what can only be regarded as Linda Goldsmith’s practical, albeit emotional, expression of the Appellant’s Article 8 rights. I have recorded Mr. Kelly’s response. It is apparent to me that at no point in the meeting is there any evidence that either Mr. Kelly or any other Wandsworth decision maker had addressed their minds either to Article 8 itself or to the proportionality of Wandsworth’s response.
  • These are not academic considerations. It is not in dispute that a change to a strange environment for a person of the Appellant’s frailty could have serious, if not fatal consequences. The proportionality of the response is, therefore, of the utmost importance. In my judgment it is not good enough for Wandsworth, after the institution of proceedings, to produce evidence that this was a factor in its mind when it made the decision (whenever that was). In my judgment, the court has to look at the decision at the time it was made and at the manner in which it was communicated to the person or persons affected by it. And in that process, I find a complete absence of any suggestion that Wandsworth had addressed the Appellant’s Article 8 rights.
  • It is, in my judgment, and for all the reasons I have already rehearsed at length, no answer to this point for Wandsworth to suggest that this was not the point of the meeting on 6 October, which was to discuss Dr. Cottee’s conclusions. Dr. Cottee was not the decision maker, Wandsworth was. It is unexceptionable for Dr. Cottee to express his professional opinion, but it is for Wandsworth to conduct the overall balancing exercise, which gives weight to Dr. Cottee’s opinion in the wider context of the Appellant’s needs and rights. The point was put to Mr. Kelly point blank by Linda Goldsmith at the meeting, and his answer, in my judgment, is clear.
  • I would therefore, for my part, quash Wandsworth’s decision that the Appellant either should not be returned to alternatively should be removed from Mary Court. I would direct Wandsworth to reconsider its position with an open mind and on all the material available at the date of the fresh decision. I would expect the process of decision making to be transparent and the reasons for its decision to be clearly articulated in writing.
  • The merits of the decision are not a matter for this court. Given the history of this case, however, I nonetheless express the hope that what is left of the Appellant’s life can be lived out with the maximum of dignity and the minimum of psychological harm.
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RE P (URGENT MEDICAL TREATMENT) (2020)

Court of Protection  (Hayden J) 17/02/2020

This is a case about an incapacitated person’s best interests in the situation where treatment that was on offer to the incapacitated patient could not easily said to be in her best interests, even though it would keep her alive, given the disadvantages of the treatment for someone in her very much deteriorated condition.

The Court of Protection was presented with a case about an elderly lady, P, suffering from dementia and chronic renal failure. P was supposed to have dialysis three times a week but she was often distressed by the process and sometimes believed it to be a punishment.

There was a meeting in February 2020 between the family and a number of health professionals. It was decided that it was unethical to force dialysis treatment on P when she found it to be unbearable, and that she was to receive the treatment when and only when she was willing to participate. She was often physically exhausted by it.

However, one member of the family objected to the agreement (for reasons unknown) and so the Court of Protection was asked to make a declaration about P’s future treatment.

The decision was held that P was to determine the extent of her dialysis treatment. The treatment was often confusing for her and sometimes called for her restraint. It is thought to be particularly unsuitable for a person suffering dementia.

The court declared that P’s treatment should ideally take into account what she would have wanted for herself. She had been a Catholic and her faith and belief in the sanctity of life were still of importance to her, even through the dementia, so it was decided that she would have wanted to live – and she did accept the treatment sometimes.

The family were seen as having bravely and compassionately navigated through very tricky situations and decisions to arrive at the best possible solution for P – one that was sensitive and kindly. They were commended for their honesty and integrity in dealing with these difficult decisions.

The court granted a declaration to the effect that it would be in her best interests when she seemed willing to accept the treatment but not to force it on her when she did not.

[2020] 2 WLUK 194

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R (on the application of LARYEA) v London Borough of Ealing (2019)

This case concerned the factors that a housing authority must take into account when exercising its discretion to accommodate a homeless applicant pending the outcome of an internal review into (in this case) the reasons for this man’s homelessness.

The Law

A housing authority’s duty to provide interim accommodation under s188(1) will come to an end when the local authority makes a substantive decision that brings their accommodation duty to an end, for instance that the applicant is not in priority need or is intentionally homeless (Section 188 (1ZB) HA 1996)

However, the housing authority does have a power to continue to provide interim accommodation pending a review under section 188(3).

“Once the review has been completed, if it is adverse to the applicant, the applicant has the right under section 204 to appeal to the county court on any point of law, and if there is such an appeal, the local housing authority may continue to secure that accommodation remains available to that person pending determination of the appeal. It follows, that both pending a review and pending an appeal, the local housing authority is given a discretionary power to provide interim housing. The Act itself gives no guidance as to the way in which that discretionary power is to be exercised.”

Advisers should request that any interim accommodation be extended as part of their review request as authorities are not required to consider providing or extending interim accommodation pending review unless positively requested to do so (R v Newham LBC ex p Lumley (2003) 33 HLR 111)

A refusal to provide interim accommodation pending review is challenged by way of judicial review (not to the County Court) and the principles an authority must apply when deciding whether or not to provide interim accommodation were set out in the case of R v Camden LBC ex p Mohammed.

In deciding whether to exercise discretion to provide accommodation pending a review, a local authority should take account of:

  • the strength or weakness of the review case – this should include consideration of matters of which the authority were informed before the original decision but did not investigate for whatever reason.
  • any new material provided at review stage which may have a real effect on its outcome – even if the original review was lawful, failing to consider new evidence may lead to an unlawful decision around accommodation pending review.
  • the personal circumstances of the applicant and the consequences of an adverse decision.

It is accepted, however, on behalf of the respondent Council that as in the case of any discretionary power, discretion is not an unlimited discretion, but it must be a discretion which is exercised in accordance with the perceived purposes of the statute.

It is trite law, that in the context of the inquiries that the local housing authority has to make under the relevant statutory provision, in this case section 184, it should give the applicant a proper opportunity to answer criticisms that may be made about his or her account.

A good example of the Court’s approach is in the judgment of Simon Brown J., as he was, in R. v. Gravesham Borough Council ex p. Winchester (1986) 18 H.L.R. 207 at 215 where he said: “The applicant must be given an opportunity to explain matter which the local authority is minded to regard as weighing substantially against him.”

The facts of this particular case

L was homeless and suffered from epilepsy and post-traumatic stress disorder. Medical evidence showed that his epilepsy became worse when he was homeless.

He was assessed as being in priority need. He was housed by the local authority but later found to be intentionally homeless. The local authority wrote to L in June 2019 to inform him that it had discharged the ‘relief’ duty imposed under s.189B and therefore no longer had a duty to secure accommodation for his use.

L sought a review of that decision under s.202 and the local authority wrote a letter refusing to exercise its discretion under s188(3) to house him pending that review. The local authority found that he had not taken the reasonable steps agreed in his personalised housing plan created for him under the ‘relief’ duty.

The court decided that the housing authority’s letter refusing interim accommodation was defective as it had failed properly to consider L’s personal circumstances and the negative impact on his health in not providing interim accommodation. It had therefore failed altogether to consider how these factors should impact on its decision of whether or not to grant interim accommodation.

Conclusion

This decision is a reminder for advisers requesting accommodation pending review to include as much information as possible about the client’s personal circumstances and the negative impact of the client becoming / remaining homeless during the review if accommodation is not provided.

Many Housing Authorities now produce standard response letters quoting the Mohammed criteria and stating that all material factors have been taken into account in denying accommodation pending review. This case illustrates however, that where an authority does not give proper consideration to the factors laid down in Mohammed, then that decision may be defective and a court may award interim relief.

JR can take up to 30 weeks for the court to make a decision and so if the matter is urgent, then an applicant can apply for an injunction from the court requiring the LA to provide temporary accommodation pending the outcome of the review. 

In the absence of interim relief the applicant would have had to wait 6 months for the court to rule by which time the review would probably have been concluded and the client would have been on the streets for 6 months.

Geoff Davies

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R (on the application of Muriel Maguire) v Senior Coroner for Blackpool and Fyle and United Response and Ors [2019]

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The Charging and Assessment of Resources Regs

 PART 1

General

 

  1. Citation and commencement
  2. Interpretation

 

PART 2

Power of the local authority to charge for care and support

 

  1. Services to be provided free of charge
  2. Adults to whom services are to be provided free of charge
  3. Costs of putting in place arrangements to meet needs
  4. Personal   expenses   allowance   for   residents   or   temporary   residents   provided   with accommodation in a care home
  5. Minimum income guaranteed amount for other adults and carers whose needs are being met otherwise than by the provision of accommodation in a care home
  6. Power of the local authority to financially assess and charge a short-term resident as if the resident is receiving care and support other than the provision of accommodation in a care home

 

PART 3

Assessment of financial resources

 

  1. Financial assessment
  2. Circumstances in which an authority is to be treated as having carried out a financial assessment (including light touch assessments)
  3. Rounding of fractions
  4. Financial limit – capital

 

PART 4

Treatment and calculation of income

 

  1. Calculation of income
  2. Earnings to be disregarded
  3. Other sums to be disregarded
  4. Capital treated as income
  5. Notional income

 

PART 5

Treatment and calculation of capital

 

  1. Calculation of capital
  2. Income treated as capital
  3. Calculation of capital in the United Kingdom
  4. Calculation of capital outside the United Kingdom
  5. Notional capital
  6. Diminishing notional capital rule
  7. Capital jointly held
  8. Calculation of tariff income from capital

 

 

 

 

SCHEDULE 1  —  Sums to be disregarded in the calculation of income PART 1  —  Sums to be disregarded

PART 2  —  Special Provisions Relating to Charitable or Voluntary Payments and Certain Pensions

SCHEDULE 2  —  Capital to be disregarded

 

 

PART 1

General

 

Citation and commencement

  1. These Regulations may be cited as the Care and Support (Charging and Assessment of Resources) Regulations 2014 and come into force immediately after sections 14(5) and 17(7) of the Act are both fully in force.

 

Interpretation

2.—(1) In these Regulations—

“the Act” means the Care Act 2014;

“the 1992 Act” means the Social Security Contributions and Benefits Act 1992;

“the adult” in relation to a financial assessment carried out by a local authority for the purposes of section 17(1), (3) or (4) of the Act means the adult or, as the case may be, the carer in respect of whom the authority is carrying out the financial assessment;

“armed forces independence payment” means armed forces independence payment under the Armed Forces and Reserved Forces (Compensation Scheme) Order 2011;

“attendance allowance” has the same meaning as in the Income Support Regulations;

“care home” means a care home (within the meaning given in section 3 of the Care Standards Act 2000(C)) in respect of which a person is registered under the Health and Social Care Act 2008 for the regulated activity of the provision of residential accommodation together with nursing or personal care;

“carer premium” means a carer premium under the Income Support Regulations; “child benefit” means a child benefit under the 1992 Act;

“child tax credit” means a child tax credit under the Tax Credits Act 2002;

“council tax” is to be construed in accordance with section 1(1) of the Local Government Finance Act 1992;

“couple” has the same meaning as in the Income Support Regulations;

“disability living allowance” means a disability living allowance under the 1992 Act; “disability premium” means a disability premium under the Income Support Regulations; “employed earner” is to be construed in accordance with section 2(1)(a) of the 1992 Act;

“enhanced disability premium” means an enhanced disability premium under the Income Support Regulations;

“guardian’s allowance” means a guardian’s allowance under the 1992 Act; “income support” means income support under the 1992 Act;

“Income Support Regulations” means the Income Support (General) Regulations 1987;

“lone parent” has the same meaning as in the Income Support Regulations; “partner” has the same meaning as in the Income Support Regulations;

“Pension Credit Regulations” means the State Pension Credit Regulations 2002;

“pension credit age” means the qualifying age for state pension credit within the meaning of section 1(6) of the State Pension Credit Act 2002;

“permanent resident” means a resident who is not a temporary resident or a short-term resident;

“personal  independence  payment”  means  a  personal  independence  payment  under  Part  4  of  the Welfare Reform Act 2012;

“personal pension scheme” has the same meaning as in the Income Support Regulations;

“prospective resident” means a person for whom accommodation in a care home is proposed to be provided under the Act;

“resident” means a person who is provided with accommodation in a care home under the Act;

“savings credit” means a savings credit under the State Pension Credit Act 2002;

“self-employed earner” is to be construed in accordance with section 2(1)(b) of the 1992 Act;

“severe disablement occupational allowance” means a severe disablement occupational allowance paid under article 10 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 or under article 16 of the Personal Injuries (Civilians) Scheme 1983;

“short-term resident” means a person who is provided with accommodation in a care home under the Act for a period not exceeding 8 weeks;

“temporary resident” means a resident whose stay is—

(a)     unlikely to exceed 52 weeks; or

(b)     in exceptional circumstances, unlikely to substantially exceed that period; “working tax credit” means a working tax credit under the Tax Credits Act 2002.

(2)  Where reference is made in these Regulations to the application of a provision in the Income Support Regulations, any reference to “claimant” in the provision of the Income Support Regulations is to be construed as a reference to the adult concerned.

(3)  In these Regulations any reference to a resident’s accommodation in a care home, or to accommodation provided for a resident in a care home, is to be construed in the case of a resident who is a prospective resident as a reference to accommodation to be provided for that resident under section 18, 19 or 20 of the Act.

 

 

PART 2

Power of the local authority to charge for care and support

 

Services to be provided free of charge

3.—(1) A local authority(C) must not make a charge for meeting needs under section 14(1) of the Act where the care and support, or support which is provided to an adult, under section 18, 19 or 20 of the Act, is a service specified in paragraph (2)(a) or (b).

(2)  The following are specified—

(a)     a service which consists of the provision of community equipment (aids and minor adaptations);

(b)     intermediate care and reablement support services for the first 6 weeks of the specified period or, if the specified period is less than 6 weeks, for that period.

(3)  In this regulation—

“community equipment (aids and minor adaptations)” means an aid, or a minor adaptation to property, for the purpose of assisting with nursing at home or aiding daily living and for the purposes of this paragraph, an adaptation is minor if the cost of making the adaptation is £1,000 or less;

“intermediate care and reablement support services” means care and support, or support provided to an adult by the local authority under section 18, 19 or 20 of the Act which—

(a)     consists of a programme of care and support, or support;

(b)     is for a specified period of time (“the specified period”); and

(c)     has as its purpose the provision of assistance to an adult to enable the adult to maintain or regain the ability needed to live independently in their own home.

 

Adults to whom services are to be provided free of charge

  1. A local authority must not make a charge for meeting needs under section 14(1) of the Act where the care and support is provided to an adult, under section 18, 19 or 20 of the Act, suffering from variant Creutzfeldt-Jakob disease.

 

Costs of putting in place arrangements to meet needs

  1. Where a local authority is meeting needs because Condition 2 in section 18, or Condition 2 or 4 in section 20, of the Act is met, the charge the authority may make under section 14(1)(b) of the Act may only cover the cost that the authority incurs in putting in place the arrangements for meeting those needs.

 

Personal expenses allowance for residents or temporary residents provided with accommodation in a care home

  1. The amount specified for the purposes of section 14(7) of the Act in relation to a resident or temporary resident provided with accommodation in a care home is £24.40 each week.

 

Minimum  income  guaranteed  amount  for  other  adults  and  carers  whose  needs  are  being  met otherwise than by the provision of accommodation in a care home

7.—(1) Subject to paragraph (8), the amount specified for each week for the purposes of section 14(7) of the Act (“the minimum income guaranteed amount”) in relation to the adult concerned specified in paragraph (2), (3), (4), (5), (6) or, as the case may be, (7) is the aggregate of—

(a)     the amount specified in relation to that adult in that paragraph;

(b)     where the adult concerned is responsible for, and a member of the same household as, a child, the amount of £82.95 in respect of each child; and

(c)     any applicable premium under paragraphs (4) to (7).

(2)  Where the adult concerned is a single person and—

(a)     is aged 18 or older but less than 25, the amount of £71.70;

(b)     is aged 25 or older but less than pension credit age, the amount of £90.50;

(c)     has attained pension credit age, the amount of £185.45.

(3)  Where the adult concerned is a lone parent aged 18 or over, the amount of £90.50.

(4)  Where the adult concerned is a member of a couple and—

(a)     one or both are aged 18 or over, the amount of £71.05;

(b)     one or both have attained pension credit age, the amount of £141.55.

(5)  Where the adult concerned is a single person who is in receipt of, or the local authority considers would, if in receipt of income support, be in receipt of—

(a)     disability premium, the amount of the applicable premium is £39.85;

(b)     enhanced disability premium, the amount of the applicable premium is £19.45.

(6)  Where the adult concerned is a member of a couple and one member of that couple is in receipt of, or the local authority considers would, if in receipt of income support, be in receipt of—

(a)     disability premium, the amount of the applicable premium is £28.35;

(b)     enhanced disability premium, the amount of the applicable premium is £13.95.

(7)  Where the adult concerned is in receipt of, or the local authority considers would, if in receipt of income support be in receipt of, carer premium, the amount of the applicable premium is £42.75.

(8)  Where a local authority provides non-care related support for the adult concerned the minimum income guaranteed amount in relation to that adult is the amount calculated in accordance with paragraph (1)  less an amount equal to the cost the local authority incurs in providing that non-care related support for the adult concerned.

(9)  In this regulation—

“the adult concerned” means—

(a)     an adult who has needs for care and support under section 18, 19 or 20 of the Act other than the provision of accommodation in a care home;

(b)     a carer who has needs for support under section 20 of the Act;

“non-care  related  support”  includes  support  which  consists  of  services  or  activities  such  as  the provision of meals on wheels, shopping or transport services or recreational activities.

 

Power of the local authority to financially assess and charge a short-term resident as if the resident is receiving care and support or support other than the provision of accommodation in a care home

  1. A local authority may, if it thinks fit, financially assess and charge a short-term resident as if they are receiving care and support, or support under section 18, 19 or 20 of the Act other than the provision of accommodation in a care home.

 

 

PART 3

Assessment of financial resources

 

Financial assessment

  1. A local authority must carry out a financial assessment of the adult under section 17(1), (3) or (4) of the Act in accordance with the provisions of Parts 3 to 5 of these Regulations.

 

Circumstances in which an authority is to be treated as having carried out a financial assessment (including light touch assessments)

10.—(1) A local authority is to be treated as having carried out a financial assessment in an adult’s case and being satisfied on that basis that the adult’s financial resources exceed the financial limit where—

(a)     the adult has refused a financial assessment; or

(b)     the authority has been unable to carry out a full financial assessment because of the adult’s refusal to co-operate with the assessment and the local authority nevertheless decides to meet some or all of the adult’s needs for care and support, or for support.

(2)  A local authority is to be treated as having carried out a financial assessment in an adult’s case and being satisfied on that basis that the adult’s financial resources do not exceed the financial limit where—

(a)     with  the  consent  of  the  adult,  the  authority  has  not  carried  out  a  financial  assessment  in accordance with these Regulations; and

(b)     the authority is satisfied from the evidence available to it that the adult’s financial resources do not exceed the financial limit.

(3)  A local authority is to be treated as having carried out a financial assessment in an adult’s case and being satisfied on that basis that the adult’s financial resources exceed the financial limit where—

(a)     with  the  consent  of  the  adult,  the  authority  has  not  carried  out  a  financial  assessment  in accordance with these Regulations; but

(b)     the authority is satisfied from the evidence available to it that the adult’s financial resources do exceed the financial limit.

 

Rounding of fractions

  1. Where any financial assessment of the adult concerned, under section 17(1), (3) or (4) of the Act, results in a fraction of a penny, that fraction is, if it would be to that adult’s advantage, to be treated as a penny, otherwise it is to be disregarded.

 

Financial limit – capital

12.—(1) If the financial resources of an adult who is a permanent resident (in terms of capital) exceed

£23,250, the local authority is not permitted to pay towards the cost of the provision of accommodation in a care home for that adult.

(2)  If the financial resources of an adult who has needs for care and support other than as a permanent resident (in terms of capital) exceed £23,250, the local authority may (but need not) pay towards the cost of that care and support.

(3)  If the financial resources of a carer whose needs involve the provision of support (in terms of capital) exceed £23,250, the local authority may (but need not) pay towards the cost of the provision of that support for the carer.

 

PART 4

Treatment and calculation of income

 

Calculation of income

13.—(1) The income of the adult is to be calculated on a weekly basis—

(a)     by determining, in accordance with this Part, the weekly amount of the adult’s total income;

(b)     by adding to that amount the adult’s weekly tariff income from capital calculated in accordance with regulation 25 (calculation of tariff income from capital).

(2) For the purposes of paragraph (1) income includes capital treated as income under regulation 16 and notional income under regulation 17.

 

Earnings to be disregarded

14.—(1) Earnings derived from employment as an employed earner or a self-employed earner are to be disregarded in the calculation of the adult’s income for the purposes of the financial assessment.

(2)  For the purposes of this regulation—

(a)     earnings in relation to an employed earner has the same meaning—

(i)    as in regulation 35 of the Housing Benefit Regulations 2006;

(ii)     where the earner has attained the qualifying age for state pension credit, as in regulation 35 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 (earnings of employed earners); and

(b)     earnings in relation to a self-employed earner has the same meaning as in regulation 37 of the Income Support Regulations (earnings of self-employed earners).

 

Other sums to be disregarded

15.—(1) There is to be disregarded in the calculation of the adult’s total income for the purposes of the financial assessment any sum, where applicable, specified in Part 1 of Schedule 1, in accordance with Part 2 of that Schedule.

(2) In a case where the adult has needs for care and support other than the provision of accommodation in a care home, or the carer has needs for support, a local authority may in carrying out the calculation of the adult or carer’s income for the purposes of the financial assessment, disregard such other sums the adult or carer may receive as the authority considers appropriate.

 

Capital treated as income

16.—(1) Any capital payable to the adult by instalments which are outstanding on the date on which the adult first becomes liable to pay for their care and support, or support, is to be treated as income if the aggregate of the instalments outstanding and the amount of the adult’s capital calculated in accordance with Part 5 exceed the amount specified in regulation 41(1) of the Income Support Regulations (capital treated as income).

(2)  Any payment received under an annuity is to be treated as income.

(3)  Any earnings to the extent that they are not a payment of income are to be treated as income.

(4)  Any payment of capital made or due to be made to a local authority by a third party pursuant to an agreement between the authority and the third party in connection with the liability of the adult to pay the local authority for accommodation provided under the Act is to be treated as part of the income of the adult, unless it is a voluntary payment made for the purposes of discharging any arrears of payments required by the local authority from the adult for their accommodation.

(5)  Where an agreement or court order provides that payments are to be made to the adult in consequence of any personal injury to them and that such payments are to be made wholly or partly by way of periodical payments, any such periodical payments received by the adult, to the extent that they are not a payment of income, are to be treated as income.

 

Notional income

17.—(1) The adult is to be treated as possessing income of which the adult has deprived themselves for the purpose of decreasing the amount they may be liable to pay towards the cost of meeting their needs for care and support, or their needs for support.

(2)  The adult is to be treated as possessing any income which would be treated as income possessed by a claimant of income support under regulation 42(2) to (4A) of the Income Support Regulations (notional income).

(3)  Subject to paragraph (4), the adult is to be treated as possessing any income paid or due to be paid to a local authority by a third party pursuant to an agreement between the local authority and the third party made in connection with the liability of the adult to pay towards the cost of accommodation provided for the adult under the Act.

(4)  The adult is not to be treated as possessing any voluntary payment of income made by a third party to a local authority for the purpose of discharging any arrears of the payments required by the authority from the adult for accommodation provided under the Act.

 

 

PART 5

Treatment and calculation of capital

 

Calculation of capital

18.—(1) The capital of the adult to be taken into account in a financial assessment is, subject to paragraph (2), to be the whole of the adult’s capital calculated in accordance with this Part and any income treated as capital under regulation 19.

(2) Any capital, where applicable, specified in Schedule 2 is to be disregarded in the calculation of the adult’s capital under paragraph (1).

 

Income treated as capital

19.—(1) Any amount by way of refund of income tax deducted from profits or emoluments chargeable to income tax under Schedule D or E is to be treated as capital.

(2)  Any holiday pay which is not earnings is to be treated as capital.

(3)  Except income derived from capital disregarded under paragraphs 1, 4, 9, 15, 22 and 24 of Schedule 2, any income of the adult which is derived from capital is to be treated as capital but only on the date on which it is normally due to be paid to the adult.

(4)  In the case of the adult’s employment as an employed earner, any advance of earnings or any loan made by the adult’s employer is to be treated as capital.

(5)  Any charitable or voluntary payment which is not made or due to be made at regular intervals, other than one made under the Fund, the Eileen Trust, the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No. 2) Trust or the Independent Living Fund, is to be treated as capital.

(6)  Any voluntary payment of income made by a third party to the adult for the purpose of helping the adult to discharge any arrears of the payments required by the local authority from the adult for accommodation provided under the Act is to be treated as the capital of the adult.

(7)  In this regulation, “the Fund”, “the Eileen Trust”, “the Macfarlane Trust”, “the Macfarlane (Special Payments) Trust”, “the Macfarlane (Special Payments) (No. 2) Trust” and “the Independent Living Fund” have the same meaning as in the Income Support Regulations.

 

Calculation of capital in the United Kingdom

  1. Capital which the adult possesses in the United Kingdom is to be calculated at its current market or surrender value (whichever is the higher), less—

(a)     where there would be expenses attributable to sale, 10%; and

(b)     the amount of any encumbrance secured on it.

 

Calculation of capital outside the United Kingdom

  1. Capital which the adult possesses outside of the United Kingdom shall be calculated in accordance with the method set out in regulation 50 of the Income Support Regulations (calculation of capital outside the United Kingdom).

 

Notional capital

22.—(1) The adult is to be treated as possessing capital of which the adult has deprived themselves for the purpose of decreasing the amount that they may be liable to pay towards the cost of meeting their needs for care and support, or their needs for support, except—

(a)     where that capital is derived from a payment made in consequence of any personal injury and is placed on trust for the benefit of the adult;

(b)     to the extent that the capital which the adult is treated as possessing is reduced in accordance with regulation 23; or

(c)     any sum to which paragraph 44(1) or 45(a) of Schedule 10 to the Income Support Regulations (disregard of compensation for personal injuries which is administered by the Court) refers.

(2)  Subject to paragraph (3), the adult may be treated as possessing any payment of capital which would be treated as capital possessed by a claimant of income support under regulation 51(2) or (3) of the Income Support Regulations (notional capital).

(3)  For the purposes of paragraph (2), regulation 51(2)(c) of the Income Support Regulations applies as if for the reference to Schedule 10 to the Income Support Regulations there were substituted a reference to Schedule 2 to these Regulations.

(4)  Where the adult is treated as possessing capital under paragraph (1) or (2), the provisions of this Part apply for the purposes of calculating its amount as if it were actual capital the adult does possess.

 

Diminishing notional capital rule

23.—(1) Where the adult is treated as possessing capital under regulation 22 (“notional capital”), for each week or part of a week that the local authority has determined that the adult is liable to pay towards the cost of their care and support, or support, at a higher rate than that at which the adult would have been assessed as liable to pay if the adult had had no notional capital, the amount of the adult’s notional capital is to be reduced by the method set out in paragraph (2).

(2)  The local authority must reduce the amount of adult’s notional capital by the difference between—

(a)     the higher rate referred to in paragraph (1); and

(b)     the rate at which the adult would have been assessed as liable to pay towards the cost of that care and support, or support for that week or part of a week if the adult had been assessed as possessing no notional capital.

 

Capital jointly held

24.—(1) Where the adult and one or more other persons are beneficially entitled in possession to any capital asset except an interest in land—

(a)     unless paragraph (2) applies, each person is to be treated as if each of them were entitled in possession to an equal share of the whole beneficial interest; and

(b)     that asset is to be treated as if it were actual capital.

(2)  This paragraph applies where the local authority is satisfied that the adult is beneficially entitled in possession to a share which is less than or, as the case may be, more than an equal share of the whole beneficial estate.

(3)  Where paragraph (2) applies the adult’s share of the whole beneficial interest will be the actual share (as determined by the local authority) and is to be treated as if it were actual capital.

 

Calculation of tariff income from capital

25.—(1) Where the adult’s capital calculated in accordance with this Part exceeds £14,250, it is to be treated as equivalent to a weekly income of £1 for each complete £250 in excess of £14,250 but not exceeding £23,250.

(2)  Notwithstanding paragraph (1) where any part of the excess is not a complete £250, that part is also to be treated as equivalent to a weekly income of £1.

(3)  For the purposes of paragraph (1), capital includes any income treated as capital under regulation 19 (income treated as capital).

 

 

SCHEDULE 1                             Regulation 15

Sums to be disregarded in the calculation of income

 

PART 1

Sums to be disregarded

  1. Any amount paid by way of tax on income which is taken into account under regulation 13 (calculation of income).

27.—(1) Subject to sub-paragraph (2), where the adult has needs for care and support other than the provision of accommodation in a care home, or is a temporary resident, any housing-related costs which the adult is liable to meet in respect of the adult’s main or only home.

(2)  Sub-paragraph (1) does not apply to the extent that the housing-related costs which the adult is liable to meet are a payment or an amount which is disregarded under paragraph 3.

(3)  In this paragraph, “housing-related costs” means any mortgage repayments, payments by way of rent or ground rent, council tax or service charges (other than service charges which are ineligible under Schedule 1 to the Housing Benefit Regulations 2006).

28.—(1) Any payment which would be disregarded under paragraph 5 of Schedule 9 to the Income Support Regulations (housing benefit).

(2)  Any payment of income support towards housing costs determined in accordance with Schedule 3 to the Income Support Regulations (housing costs) or any amount that the local authority considers would be determined as a payment towards housing costs if the adult were in receipt of income support.

(3)  Any payment which would be disregarded under paragraph 46 of Schedule 9 to the Income Support Regulations (reduction of liability for council tax).

29.—(1) Where a local authority takes into account in the calculation of income any disability benefits the adult receives, any disability-related expenditure incurred by the adult.

(2) In this paragraph—

“disability benefits” means any attendance allowance (other than severe disablement occupational allowance), disability living allowance or personal independence payment;

“disability-related expenditure” includes payment for any community alarm system, costs of any privately arranged care services required including respite care, and the costs of any specialist items needed to meet the adult’s disability.

  1. Any direct payment received by the adult or in the case of an adult without capacity, the authorised person, in accordance with sections 31 to 33 of the Act.
  2. Any payment in respect of any expenses incurred by the adult who is—

(a)     engaged by a charitable or voluntary body; or

(b)     a volunteer,

if the adult derives no remuneration or profit from the employment.

  1. Any payment which would be disregarded under paragraph 3 or 4A of Schedule 9 to the Income Support Regulations (employed earner expenses and statutory sick pay in Northern Ireland).
  2. The mobility component of any disability living allowance or the mobility component of personal independence payment.
  3. Any armed forces independence payment.
  4. Any payment which would be disregarded under paragraph 8 of Schedule 9 to the Income Support Regulations (mobility supplement).
  5. If the adult is a temporary resident—

(a)     any attendance allowance;

(b)     the care component of any disability living allowance; or

(c)     the daily living component of any personal independence payment.

  1. Any concessionary payment made to compensate for the non-payment of—

(a)     any payment specified in paragraph 8 or 11; or

(b)     any income support.

  1. Any amount which would be disregarded under paragraph 10 or 11 of Schedule 9 to the Income Support Regulations (payments to medal recipients and educational awards).
  2. Any amount which would be disregarded under paragraph 13 of Schedule 9 to the Income Support Regulations (participants in training schemes).

40.—(1) Except where sub-paragraph (2) applies, and subject to paragraphs 45 and 46, any relevant payment made or due to be made at regular intervals other than any payment which is to be disregarded under paragraph 31.

(2)  Subject to paragraph 46, any relevant payment made or due to be made at regular intervals which is intended and used for any item which was not specified in the personal budget but was specified in the care and support plan or support plan.

(3)  In this paragraph, “relevant payment” means—

(a)     a charitable payment;

(b)     a voluntary payment;

(c)     a payment (not falling within sub-paragraph (a) or (b)) from a trust whose funds are derived from a payment made in consequence of any personal injury to the adult;

(d)     a payment under an annuity purchased—

(i)    pursuant to any agreement or court order to make payments to the adult; or

(ii)     from funds derived from a payment made,

in consequence of any personal injury to the adult; or

(e)     a payment (not falling within sub-paragraphs (a) to (d)) received by virtue of any agreement or court order to make payments to the resident in consequence of any personal injury to the adult.

41.—(1) Subject to sub-paragraphs (2) and (3), where the adult—

(a)     is not residing with their spouse or civil partner; and

(b)     at least 50% of any occupational pension of the adult, or of any income from a personal pension scheme of the adult, is being paid to, or in respect of, their spouse for that spouse’s maintenance or their civil partner for that civil partner’s maintenance,

an amount equal to 50% of the pension, pensions or income concerned.

(2)  Where the adult is entitled to pensions or income referred to in sub-paragraph (1) from more than one source, all pensions and income to which the adult is entitled are to be aggregated for the purposes of that sub-paragraph.

(3)  This paragraph does not have effect in respect of that part of any pension or income referred to in sub-paragraph (1) to which the adult’s spouse or civil partner is legally entitled, whether or not under a court order.

  1. Any amount which would be disregarded under paragraph 16 of Schedule 9 to the Income Support Regulations (specified pensions) save for paragraph 16(cc), but as if the reference in paragraph 16 of that Schedule to paragraphs 36 and 37 of Schedule 9 to the Income Support Regulations were a reference

to paragraph 46 of this Schedule and as if the reference in paragraph 16(a) of Schedule 9 to the Income Support Regulations to paragraph 8 or 9 of Schedule 9 to the Income Support Regulations were a reference to paragraph 10 or 11 of this Schedule.

  1. Any guaranteed income payment referred to in article 15(1)(c) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011.
  2. Subject to paragraph 46, £10 of any survivor’s guaranteed income payment referred to in article 29(1)(a) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 and, if the amount of that payment has been abated to less than £10 by a pension falling within article 39(1)(a) of that Order, so much of that pension as would not, in aggregate with the amount of any survivor’s guaranteed income payment disregarded, exceed £10.
  3. Any payment which would be disregarded under paragraphs 17 to 20 of Schedule 9 to the Income Support Regulations (annuities, payments by third parties towards living costs, contractual payments in respect of occupation of a dwelling and payments by lodgers).
  4. Any income in kind.

47.—(1) Any income derived from capital to which the adult is or is treated under regulation 24 (capital jointly held) as beneficially entitled but, subject to sub-paragraph (2), not income derived from capital disregarded under paragraph 1, 4, 9, 15 or 22 of Schedule 2.

(2) Any income derived from capital disregarded under paragraph 4, 22 or 24 of Schedule 2 but only to the extent of any mortgage repayments and payments of council tax or water charges which the adult is liable to make in respect of the dwelling or premises in the period during which that income accrued.

  1. Any income which would be disregarded under paragraph 23 of Schedule 9 to the Income Support Regulations (income outside the United Kingdom).
  2. Any amount which would be disregarded under paragraph 24 of Schedule 9 to the Income Support Regulations (charge or commission for converting income into sterling).

50.—(1) Any payment made to the adult in respect of a child or young person who is a member of the adult’s family—

(a)     pursuant to regulations made under section 2(6)(b) or 3 of the Adoption and  Children  Act 2002;

(b)     in accordance with an adoption allowance scheme made under section 71 of the Adoption and Children (Scotland) Act 2007 (adoption allowances schemes);

(c)     which is a payment made by a local authority in pursuance of section 15(1) of, and paragraph 15 of Schedule 1 to, the Children Act 1989 (local authority contribution to a child’s maintenance where a child is living with a person as a result of a child arrangements order).

(2) Any payment, other than a payment to which sub-paragraph (1)(a) applies, made to  the  adult pursuant to regulations made under section 2(6)(b) of the Adoption and Children Act 2002.

  1. Any payment which would be disregarded under paragraph 26 or 28 of Schedule 9 to the Income Support Regulations (provision of accommodation and maintenance for children in care, and local authorities’ duty to promote the welfare of children and powers to grant financial assistance to persons in or formerly in their care).
  2. Any payment received under an insurance policy, taken out to insure against the risk of being unable to maintain repayments on a loan to acquire or retain an interest in a dwelling occupied by the adult as their main or only home, or for repairs and improvements to that home, and used to meet such repayments, to the extent that it does not exceed the aggregate of—

(a)     the amount payable, calculated on a weekly basis, of any interest on the loan;

(b)     the amount of any payment, calculated on a weekly basis, due on the loan attributable to the repayment of capital; and

(c)     the amount, calculated on a weekly basis, of the premium due on that policy.

  1. Any payment which would be disregarded under paragraph 31 or 31A of Schedule 9 to the Income Support Regulations (social fund payments and local welfare provision).
  2. Any payment of income which under regulation 19 (income treated as capital) is to be treated as capital.
  3. Any payment which would be disregarded under paragraph 33 of Schedule 9 to the Income Support Regulations (pensioner’s Christmas bonus).
  4. Any payment which would be disregarded under paragraph 39 of Schedule 9 to the Income Support Regulations (the Fund, the Macfarlane Trusts and other trusts and Funds and the Independent Living Fund).
  5. Any amount which would be disregarded under paragraphs 40, 43 and 48 to 51 of Schedule 9 to the Income  Support  Regulations  (housing  benefit  compensation,  juror  and  witness  payments,  travelling expenses  and  health  service  supplies,  welfare  food  payments,  prison  visiting  scheme  payments  and disabled persons’ employment payments).

58.—(1) Any child benefit, except in circumstances where the adult is accompanied by the child or qualifying young person in respect of whom the child benefit is payable, and accommodation is provided for that child or qualifying young person under the Act.

(2) In this paragraph, “child” and “qualifying young person” have the same meaning as in section 142 of the 1992 Act.

  1. Any payment which would be disregarded under paragraph 53 of Schedule 9 to the Income Support Regulations (increases in rates of benefits etc).
  2. Any payment which would be disregarded under paragraphs 54 to 56 of Schedule 9 to the Income Support Regulations (supplementary pensions etc).
  3. Any payment made by a local authority to or on behalf of the adult relating to the provision of a service, where—

(a)     that service is provided to develop or sustain the capacity of the adult to live independently in the community; and

(b)     any charge for that service would be a service charge of the kind specified in Schedule 1B to the Housing Benefit (General) Regulations 1987 as in force immediately before the 1st April 2003.

  1. The amount of any payment made by the adult to the local authority in payment of a charge imposed on the adult by the authority under the Local Authorities (Charges for Specified Welfare Services) (England) Regulations 2003.
  2. Any guardian’s allowance.
  3. Any child tax credit.

65.—(1) Where the adult is in receipt of savings credit as a person who has no partner and has qualifying income not exceeding the standard minimum guarantee—

(a)     the amount of that savings credit where the amount received is £5.75 or less; or

(b)     £5.75 of that savings credit where the amount received is greater than £5.75.

(2)  Where the adult—

(a)     has no partner;

(b)     has attained the age of 65; and

(c)     has qualifying income in excess of the standard minimum guarantee, a sum of £5.75.

(3)  Where the adult is in receipt of savings credit as a person who has a partner and has qualifying income not exceeding the standard minimum guarantee—

(a)     the amount of that savings credit where the amount received is £8.60 or less; or

(b)     £8.60 of that savings credit where the amount received is greater than £8.60.

(4)  Subject to sub-paragraph (5), where the adult—

(a)     has a partner;

(b)     has—

(i)    attained the age of 65; or

(ii)     has attained pension credit age and the adult’s partner has attained the age of 65; and

(c)     has qualifying income in excess of the standard minimum guarantee, a sum of £8.60.

(5)  Where—

(a)     the sum referred to in sub-paragraph (4) has been disregarded in the assessment of the adult’s partner’s income under these Regulations; or

(b)     the adult’s partner is in receipt of savings credit, sub-paragraph (4) does not apply to the adult.

(6)  For the purposes of this paragraph—

(a)     the adult has a partner if the adult would be considered to have a partner for the purposes of the Pension Credit Regulations;

(b)     “qualifying income” is to be construed in accordance with regulation 9 of the Pension Credit Regulations and for the purposes of sub-paragraphs (3) and (4) the adult’s qualifying income includes any qualifying income of the adult’s partner;

(c)     “standard minimum guarantee” means, for the purposes of—

(i)    sub-paragraphs (1) and (2), the amount prescribed by regulation 6(1)(b) of the Pension Credit Regulations(B); and

(ii)     sub-paragraphs (3) and (4), the amount prescribed by regulation 6(1)(a) of the Pension Credit Regulations.

  1. Any payment made to a temporary resident in lieu of concessionary coal pursuant to section 19(1)(b) or (c) of the Coal Industry Act 1994(C).
  2. Any payment made to the adult under section 63(6)(b) of the Health Services and Public Health Act 1968(D) (“the 1968 Act”) (travelling and other allowances to persons availing themselves of instruction) for the purpose of meeting childcare costs where the instruction is provided pursuant to—

(a)     section 63(1)(a) of the 1968 Act; or

(b)     section 63(1)(b) of the 1968 Act and where the adult is employed, or has it in contemplation to be employed, in an activity involved in or connected with a service which must or may be provided or secured as part of the health service.

  1. Any payment made in accordance with regulations made pursuant to section 14F of the Children Act 1989 (special guardian support services)(E) to an adult who is a prospective special guardian or a special guardian.

69.—(1) Where the adult is a student, any grant or other award, student loan, income used to make repayments on a student loan or other payment received by that student for the purposes of their course of study at an educational establishment.

(2) In this paragraph, “course of study”, student and “student loan” have the same meaning as in the Income Support Regulations.

 

 

PART 2

Special provisions relating to charitable or voluntary payments and certain pensions

  1. Paragraph 15 does not apply to any payment which is made or due to be made—

(a)     by the adult for the maintenance of any member of the adult’s family or of the adult’s former partner or of the adult’s children; or

(b)     by a third party pursuant to an agreement between the local authority and that third party in connection with the liability of the adult to pay the local authority for the adult’s accommodation.

  1. The total income to be disregarded pursuant to paragraphs 15(2) and 17 must in no case exceed the amount per week specified in paragraph 36 of Schedule 9 to the Income Support Regulations (ceiling for aggregated disregards).

 

SCHEDULE 2                         Regulation 18(2)

Capital to be disregarded

1.—(1) Where the adult is a temporary resident but not a prospective resident, the value of the adult’s main or only home in circumstances where—

(a)     the adult is taking reasonable steps to dispose of the dwelling in order that they may acquire another dwelling which they intend to occupy as their main or only home; or

(b)     the adult intends to return to occupy that dwelling as their main or only home and the dwelling is still available to them.

(2)  Where the adult is a temporary resident who is a prospective resident, the value of the adult’s main or only home in circumstances where the adult intends, on being provided in fact with accommodation under the Act—

(a)     to take reasonable steps to dispose of the dwelling in order that they may acquire another dwelling which they intend to occupy as their main or only home; or

(b)     to return to occupy that dwelling as their main or only home and the dwelling to which the adult intends to return is available to them.

2.—(1) Where the adult is a permanent resident the value of the adult’s main or only home which the adult would otherwise normally occupy (“the adult’s home”) for a period of 12 weeks beginning with the day on which the adult first moves into accommodation in a care home (“the first period of residence”).

(2)  Where the adult—

(a)     ceases to be a permanent resident; and

(b)     subsequently becomes a permanent resident again at any time within the period of 52 weeks from the end of the first period of permanent residence, the value of the adult’s home for such period (if any) which when added to the period disregarded under sub-paragraph (1) in respect of their first period of permanent residence does not exceed 12 weeks in total.

(3)  Where the adult—

(a)     ceases to be a permanent resident and is not a person to whom sub-paragraph (2) has applied; and

(b)     subsequently becomes a permanent resident again at any time after a period of more than 52 weeks from the end of the first period of residence, the value of the adult’s home for a period of 12 weeks beginning with the day on which the second period of permanent residence begins.

(4)  In this paragraph, “the second period of permanent residence” means the period of permanent residence beginning at any time after the period of 52 weeks referred to in sub-paragraph (3)(b).

  1. Where the adult is a permanent resident and there is an unexpected change in their financial circumstances the local authority may disregard the value of the adult’s main or only home which the adult would normally otherwise occupy for a period of 12 weeks.

4.—(1) The value of any premises—

(a)     which would be disregarded under paragraph 2 or 4(b) of Schedule 10 to the Income Support Regulations (premises acquired for occupation, and premises occupied by a former partner) but as if for the words “his home” in each provision there were substituted “his main or only home”; or

(b)     which is occupied in whole or in part as their main or only home by a qualifying relative of the adult who has occupied the premises as their main or only home since before the date on which the adult was first provided with accommodation in a care home under the Act.

(2)  A local authority may disregard the value of any premises which is occupied in whole or in part by a qualifying relative of the adult as their main or only home where the qualifying relative occupied the premises after the date on which the adult was first provided with accommodation in a care home under the Act.

(3)  The value of any premises for a period of 12 weeks where the local authority has disregarded the value of the premises under sub-paragraph (1)(b) or (2) and that relative has died or is no longer occupying the premises because they have been provided with accommodation in a care home.

(4)  The local authority may disregard the value of any premises for a period of 12 weeks where the premises were occupied in whole or in part by a qualifying relative of the adult as their main or only home and that relative is no longer occupying the premises because of an unexpected change in their circumstances.

(5)  In this paragraph—

“child” is to be construed in accordance with section 1 of the Family Law Reform Act 1987(B); “qualifying relative” means the adult’s—

(a)     partner;

(b)     other family member or relative who is aged 60 or over or who is incapacitated; or

(c)     child who is under 18.

  1. In the case of an adult who is a resident who has ceased to occupy what was formerly the dwelling occupied by them as their main or only home following their estrangement or divorce from their former partner, the value of the adult’s interest in that dwelling where it is still occupied as the home by the former partner who is a lone parent.
  2. In the case of an adult who is in receipt of care and support other than the provision of accommodation in a care home, the value of the adult’s main or only home.
  3. The value of the proceeds of sale of any premises which would be disregarded under paragraph 3 of Schedule 10 to the Income Support Regulations (proceeds of sale from premises formerly occupied).
  4. Any future interest in property which would be disregarded under paragraph 5 of Schedule 10 to the Income Support Regulations (future interests in property other than in certain land or premises)(C).
  5. Any assets which would be disregarded under paragraph 6 of Schedule 10 to the Income Support Regulations (business assets)(A), but as if in sub-paragraph (2) of that paragraph for the words from “the claim for income support” to the end of that sub-paragraph there were substituted—

(a)     in the case of the adult who is a resident other than a prospective resident the words “the accommodation was initially provided”;

(b)     in the case of the adult who is a prospective resident, the words “the local authority began to assess the adult’s ability to pay for their accommodation under these Regulations”.

  1. Any amount which would be disregarded under paragraph 7(1) of Schedule 10 to the Income Support Regulations (arrears of specified payments)(B), but as if the words “Subject to sub-paragraph (2)” at the beginning of that sub-paragraph were omitted and as if the reference in paragraph (a) of that sub-paragraph to paragraphs 6, 8 or 9 of Schedule 9 to the Income Support Regulations (other income to be disregarded) were a reference to paragraphs 8 to 11 of Schedule 1 to these Regulations (other income to be disregarded).
  2. Any arrears of, or any concessionary payment made to compensate for arrears due to the non- payment of—

(a)     child tax credit;

(b)     working tax credit;

(c)     a payment which is made under any of—

(i)    the Order in Council of 19th December 1881;

(ii)     the Royal warrant of 27th October 1884;

(iii)     the Order by his Majesty of 14th January 1922,

to a widow, widower or surviving civil partner under any power of Her Majesty otherwise than under an enactment to make provision about pensions for or in respect of persons who have been disabled or have died in consequence of service as members of the armed forces of the Crown and whose service in such capacity terminated before 31st March 1973, but only for a period of 52 weeks from the date of the receipt of the arrears or the concessionary payment.

  1. Any amount which would be disregarded under paragraph 8 or 9 of Schedule 10 to the Income Support Regulations (property repairs and amounts deposited with a housing association).
  2. Any personal possessions except those which had or have been acquired by the adult with the intention of reducing their capital in order to satisfy a local authority that they were unable to pay towards the cost of their care and support or support.
  3. Any amount which would be disregarded under paragraph 11 of Schedule 10 to the Income Support Regulations (income under an annuity).
  4. Any amount which would be disregarded under paragraph 12 of Schedule 10 to the Income Support Regulations (personal injury trusts)(C).
  5. Any amount which would be disregarded under paragraph 12A of Schedule 10 to the Income Support Regulations (personal injury payments)(D) with the exception of any payment or any part of any payment that has been specifically identified by a court to deal with the cost of providing care.
  6. Any amount which would be disregarded under paragraph 13 of Schedule 10 to the Income Support Regulations (a life interest or a life rent).
  7. The value of the right to receive any income which is disregarded under paragraph 21 of Schedule 1 (income to be disregarded).
  8. Any amount which would be disregarded under paragraph 15, 16, 18, 18A or 19 of Schedule 10 to the Income Support Regulations (surrender value of life insurance policy, outstanding instalments, social fund payments, local welfare provision and tax refunds on certain loan interest)(A).
  9. Any capital which under regulation 16 (capital treated as income) is to be treated as income.
  10. Any amount which would be disregarded under paragraphs 21 to 24 of Schedule 10 to the Income Support Regulations (charge or commission for converting capital into sterling, the Macfarlane Trusts, the Fund and the Independent Living Fund, value of the right to receive personal or occupational pension, value of funds under personal pension scheme and rent).
  11. The value of any premises which would be disregarded under paragraph 27 or 28 of Schedule 10 to the Income Support Regulations (premises a claimant intends to occupy)(C) but as if for the words “his home” in each provision there were substituted “his main or only home”.
  12. Any amount which would be disregarded under paragraphs 29 to 31, 34 and 36 to 43 of Schedule 10 to the Income Support Regulations (fund payments in kind, training bonuses, housing benefit compensation, juror or witness payments, reduction of liability for personal community charge, housing grants, travelling expenses and health service supplies, welfare food payments, health in pregnancy grant, prison visiting scheme payments, special war widows payments, disabled persons’ employment payments, and blind homeworkers’ payments).
  13. The value of any premises occupied in whole or in part by a third party where the local authority considers it would be reasonable to disregard the value of those premises.
  14. Any amount which—

(a)     falls within paragraph 44(2)(a), and would be disregarded under paragraph 44(1)(a) or (b), of Schedule 10 to the Income Support Regulations; or

(b)     would be disregarded under paragraph 45(a) of that Schedule.

  1. Any amount which would be disregarded under paragraph 61 of Schedule 10 to the Income Support Regulations (ex-gratia payment made by the Secretary of State in consequence of a person’s imprisonment or internment by the Japanese during the Second World War).
  2. Any payment which would be disregarded under paragraph 64 of Schedule 10 to the Income Support Regulations (payments under a trust established out of funds provided by the Secretary of State in respect of persons who suffered or are suffering from variant Creutzfeldt-Jakob disease).
  3. Any payment made by a local authority to or on behalf of the adult relating to the provision of a service, where—

(a)     that service is provided to develop or sustain the capacity of the adult to live independently in the community; and

(b)     any charge for that service would be a service charge of the kind specified in Schedule 1B to the Housing Benefit (General) Regulations 1987 as in force immediately before 1st April 2003.

  1. Any payment made by the adult to the local authority in payment of a charge imposed on the adult by the authority under the Local Authorities (Charges for Specified Welfare Services) (England) Regulations 2003.
  2. Any payment made to the adult pursuant to regulations made under section 2(6)(b) or 3 of the Adoption and Children Act 2002.
  3. Any payment made to the adult under section 2 or 3 of the Age-Related Payments Act 2004 (entitlement: basic or special cases).
  4. Any payment made to the adult under Part 2 (payments to persons over the age of 65) or Part 3 (payments to persons in receipt of guarantee credit) of the Age-Related Payments Regulations 2005.
  5. Any payment made to the adult under section 63(6)(b) of the Health Services and Public Health Act 1968 (“the 1968 Act”) (travelling and other allowances to persons availing themselves of instruction) for the purpose of meeting childcare costs where the instruction is provided pursuant to—

(a)     section 63(1)(a) of the 1968 Act; or

(b)     section 63(1)(b) of the 1968 Act and where the adult is employed, or has it in contemplation to be employed, in an activity involved in or connected with a service which must or may be provided or secured as part of the health service.

  1. Any payment made in accordance with regulations made pursuant to section 14F of the Children Act 1989 (special guardian support services) to an adult who is a prospective special guardian or a special guardian.
  2. Any payment made to the adult under regulations made under section 7 of the Age-Related Payments Act 2004 (power to provide future payments).

 

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision under the Care Act 2014 (“the Act”) for the limitations on the local authority powers to make a charge for meeting needs under section 14 of the Act (Part 2) and in relation to financial assessments for the purposes of section 17 of the Act (Parts 3 to 5 and Schedules 1 and 2). The duty to carry out a financial assessment under section 17 of the Act applies where the local authority thinks that if it were to meet an adult’s needs for care and support, or a carer’s needs for support, it would charge the adult or carer under section 14(1) of the Act.

Section 14 of the Act (power of local authority to charge) provides that a local authority may make a charge for meeting needs under sections 18 to 20 of the Act. Regulation 3 specifies the services which are to be provided free of charge. These are community equipment (aids and minor adaptations) and, for the first 6 weeks only, intermediate care and reablement support services. Regulation 4 provides that adults suffering from variant Creutzfield-Jakob disease are to be provided with any services free of charge. Regulation 5 provides that where a local authority is meeting needs because either Condition 2 in section 18 of the Act or Condition 2 or 4 in section 20 of the Act is met, a charge for putting in place the arrangements to meet needs must be no more than the cost incurred by a local authority.

Section 14(7) of the Act provides that a local authority may not make a charge for services under section 14(1) of the Act if the adult or carer’s income would, after deduction of the amount of the charge, fall below the amount specified in regulations. Regulations 6 and 7 specify the personal expenses allowance for residents or temporary residents provided with accommodation in a care home and the minimum income guaranteed amount for other adults and carers provided with care and support, or support. The personal expenses allowance is £24.40 for each week. The minimum income guaranteed amount in relation to adults who have needs for care and support other than the provision of accommodation in a care home, or a carer who has needs for support, is the aggregate of the amounts set out in regulation 7(1). The amounts reflect the applicable amounts for income support and an additional amount in respect of each child for whom the adult is responsible together with any applicable premiums, in each case together with a buffer of 25%. Applicable premiums include carer premiums and disability premiums payable under the Income Support Regulations. The local authority can also include the listed premiums where it is satisfied that a person would be in receipt of the premium were they to be in receipt of income support. Regulation 8 gives local authorities a power to charge and financially assess short-term residents – persons who are provided with accommodation in a care home for a period not exceeding 8 weeks – as if they are in receipt of care and support in their own homes.

Part 3 makes provision in relation to the assessment of financial resources. Financial assessments must be carried out in accordance with Parts 3 to 5 of these Regulations. In some circumstances an authority is to be treated as having carried out a financial assessment in an adult’s case and being satisfied on that basis that their financial resources exceed, or as the case may be, do not exceed the financial limit (regulation 10). This includes where the authority, with the consent of the adult, has not carried out a financial assessment but is nevertheless satisfied from the evidence available to the authority that the adult’s resources do not exceed the financial limit. For example, where the adult is in receipt of income support.

Regulation 12 specifies the financial limit for the purposes of section 17 of the Act. If the financial resources of an adult who is provided with accommodation in a care home (a permanent resident) exceed (in terms of capital) £23,250, the local authority is not permitted to pay towards the cost of the provision of that accommodation. In any other case where the financial limit exceeds (in terms of capital) £23,250, the authority may (but need not) pay towards the cost of care and support.

Part 4 and Schedule 1 make provision for the treatment and calculation of income. Schedule 1 sets out the income that must or may be disregarded by the local authority.

Part 5 and Schedule 2 make provision for the treatment and calculation of capital. Schedule 2 sets out the capital sums that must or may be disregarded by the local authority.

 

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The Care Act Assessment Regulations

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Care and Support (Assessment) Regulations 2014 and come into force immediately after section 12(1) of the Care Act 2014 comes fully into force.

(2) In these Regulations—

“the Act” means the Care Act 2014; “assessment” means—

(a)      a needs assessment;

(b)     a child’s needs assessment;

(c)     a carer’s assessment;

(d)     a child’s carer’s assessment;

(e)      a young carer’s assessment;

“supported self-assessment” has the meaning given by regulation 2(1).

 

Supported self-assessment

2.—(1) A supported self-assessment is an assessment carried out jointly by the local authority and the individual to whom it relates.

(2)  A local authority proposing to carry out an assessment must ascertain whether the individual to whom the assessment is to relate wishes the assessment to be a supported self-assessment.

(3)  A supported self-assessment must be carried out if the individual concerned is an adult and—

(a)     wishes the assessment to be a supported self-assessment; and

(b)     has the capacity to take part in a supported self-assessment.

(4)  A supported self-assessment may be carried out if the individual concerned is a child and—

(a)     wishes the assessment to be a supported self-assessment;

(b)     has the capacity, and is competent, to take part in a supported self-assessment; and

(c)     the local authority believes it appropriate for a self-supported assessment to be carried out having regard to all the circumstances.

(5)  To facilitate the carrying out of the assessment a local authority must provide an individual taking part in a supported self-assessment with any relevant information it may have—

(a)     about that individual; and

(b)     providing the consent condition in paragraph (6) is met, in the case of—

(i)    a carer’s assessment, about the adult needing care;

(ii)     a child’s carer’s assessment, about the child needing care;

(iii)     a young carer’s assessment, about the adult needing care, if the local authority believes it is appropriate for the young carer to have that information having regard to all the circumstances.

(6)  The consent condition referred to in paragraph (5)(b) is met if—

(a)     the adult or child needing care has capacity or is competent to agree to the information in paragraph (5)(b) being provided and does so agree, or

(b)     the adult or child needing care does not have capacity or is not competent so to agree but the local authority is satisfied that providing the information in paragraph (5)(b) would be in the best interests of the adult or child needing care.

(7)  The information must be provided in a format which is accessible to the individual to whom it is given.

 

Assessment – general requirements

3.—(1) A local authority must carry out an assessment in a manner which—

(a)     is appropriate and proportionate to the needs and circumstances of the individual to whom it relates; and

(b)     ensures that the individual is able to participate in the process as effectively as possible.

(2)  In seeking to ensure that an assessment is carried out in an appropriate and proportionate manner, a local authority must have regard to—

(a)     the wishes and preferences of the individual to whom it relates;

(b)     the outcome the individual seeks from the assessment; and

(c)     the severity and overall extent of the individual’s needs.

(3)  In a case where the level of the individual’s needs fluctuates, the local authority must take into account the individual’s circumstances over such period as it considers necessary to establish accurately the individual’s level of needs.

(4)  A local authority must give information about the assessment process—

(a)     to the individual whose needs are being assessed; or

(b)     in the case of a child’s needs assessment or a young carer’s assessment, if the child or young carer is not competent or lacks capacity to understand the assessment process, to all parents of that child or young carer.

(5)  The information must be provided prior to the assessment wherever practicable, and in a format which is accessible to the individual to whom it is given.

 

Impact on the individual’s family etc

4.—(1) A local authority carrying out an assessment must consider the impact of the needs of the individual to whom the assessment relates on—

(a)     any person who is involved in caring for the individual; and

(b)     any person the local authority considers to be relevant.

(2)  Where a local authority considers that any person would benefit from the provision of information and advice relating to care and support for individuals or support for carers, it must advise that person how to obtain such information and advice.

(3)  If it appears to a local authority carrying out an assessment that a child is involved in providing care to any individual, the local authority must

(a)     consider the impact of the needs of the individual concerned on the child’s well-being, welfare, education and development; and

(b)     identify whether any of the tasks which the child is performing for the individual are inappropriate for the child to perform having regard to all the circumstances.

 

Training, expertise and consultation

5.—(1) A local authority must ensure that any person (other than in the case of a supported self- assessment, the individual to whom it relates) carrying out an assessment—

(a)     has the skills, knowledge and competence to carry out the assessment in question; and

(b)     is appropriately trained.

(2)  A local authority carrying out an assessment must consult a person who has expertise in relation to the condition or other circumstances of the individual whose needs are being assessed in any case where it considers that the needs of the individual concerned require it to do so.

(3)  Such consultation may take place before, or during, the carrying out of the assessment.

 

Requirement for specialist expertise – deafblind individuals

6.—(1) An assessment which relates to an individual who is deafblind must be carried out by a person who has specific training and expertise relating to individuals who are deafblind.

(2)  A local authority must facilitate the carrying out of the assessment by providing any person carrying out such an assessment with any relevant information which it may have—

(a)     about the individual whose needs are being assessed; and

(b)     in the case of—

(i)    a carer’s assessment, about the adult needing care;

(ii)     a child’s carer’s assessment, about the child needing care;

(iii)     a young carer’s assessment, about the adult needing care.

(3)  In this regulation, an individual is “deafblind” if the individual has combined sight and hearing impairment which causes difficulties with communication, access to information and mobility.

 

NHS Continuing Healthcare

7.—(1) Where it appears to a local authority carrying out a needs assessment that the individual to whom the assessment relates may be eligible for NHS continuing healthcare, the local authority must refer the individual to the relevant body.

(2)  Where it appears to a local authority carrying out a child’s needs assessment that the child may, after becoming 18, be eligible for NHS continuing healthcare, the local authority must refer the individual to the relevant body.

(3)  In performing its duties under this regulation, a local authority must have regard to the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care issued by the Secretary of State and dated 28 November 2012.

(4)  The “relevant body” means the National Health Service Commissioning Board or a clinical commissioning group as the case may be, which appears to the local authority to have responsibility for the individual by reason of regulation 20(2) of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012.

 

 

EXPLANATORY NOTE

(This note is not part of the Regulations)

Sections 9 and 10 of the Care Act 2014 impose duties on a local authority to assess an adult’s needs for care and support, and a carer’s needs for support, by carrying out a needs assessment or a carer’s assessment. These Regulations make further provision about such assessments.

The Regulations also apply to an assessment carried out under that Act in relation to the likely care and support needs of a child on becoming an adult (a child’s needs assessment), the likely support needs of a young carer on becoming an adult (a young carer’s assessment) and the support needs of an adult carer of a child (a child’s carer’s assessment).

Regulation 2 makes provision for supported self-assessment, where the individual to whom the assessment relates and the local authority carry out the assessment jointly. Regulation 3 makes provision about the manner in which assessments are carried out, and regulation 4 imposes requirements on local authorities relating to persons involved in the care of the individual whose needs are being assessed, including where it appears that any child is involved in providing care to any individual.

Regulation 5 makes provision about the training and expertise of persons carrying out assessments, and regulation 6 makes specific provision about training and expertise in connection with the assessment of individuals who are deafblind. Regulation 7 requires the local authority to make a referral to the health service where it appears that the individual whose needs are being assessed may have a need for NHS Continuing Healthcare.

 

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The Business Failure Regulations

Citation, commencement and interpretation

1 .—(1) These Regulations may be cited as the Care and Support (Business Failure) (England and Wales and Northern Ireland) Regulations 2014.

(2)   These Regulations come into force—

(a)       on the date that section 50 of the Act comes fully into force or, if later, immediately after section 52(12) of the Act comes fully into force, in so far as they make provision for the purposes of—

(i)     section 50 of the Act, and

(ii)      section 52 of the Act in so far as it relates to section 50; and

(b)       immediately after section 52(12) of the Act comes fully into force for all other purposes.

(3)   In these Regulations—

“the Act” means the Care Act 2014;

“the 1986 Act” means the Insolvency Act 1986;

“the 1989 Order” means the Insolvency (Northern Ireland) Order 1989;

“a members’ voluntary winding up” means a winding up where a statutory declaration has been made under section 89 of the 1986 Act or Article 75 of the 1989 Order;

“a provider” means—

(a)       a registered care provider,

(b)       a person registered under Part 2 of the Care Standards Act 2000 in respect of an establishment or agency, or

(c)       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;

“the relevant amount” means the amount specified in section 123(1)(a) of the 1986 Act (definition of inability to pay debts) or Article 103(1)(a) of the 1989 Order (definition of inability to pay debts; the statutory demand) as the case may be.

 

Business failure

2 .—(1) For the purposes of sections 48 and 50 to 52 of the Act—

(a)       business failure has the meaning given in paragraphs (2) to (5); and

(b)       a provider is to be treated as unable to carry on a regulated activity or to carry on or manage an establishment or agency because of business failure if the provider’s inability to do so follows business failure.

(2)   Where  a  provider  is  not an  individual,  business  failure  means  that,  in  respect  of  that provider—

(a)       the appointment of an administrator (within the meaning given by paragraph 1(1) of Schedule B1 to the 1986 Act or paragraph 2(1) of Schedule B1 to the 1989 Order takes effect;

(b)       a receiver is appointed;

(c)       an administrative receiver as defined in section 251 of the 1986 Act or Article 5 of the 1989 Order is appointed;

(d)       a resolution for a voluntary winding up is passed other than in a members’ voluntary winding up;

(e)       a winding up order is made;

(f)        an order by virtue of Article 11 of the Insolvent Partnerships Order 1994 (joint bankruptcy petition by individual members of insolvent partnership) is made;

(g)       an order by virtue of Article 11 of the Insolvent Partnerships Order (Northern Ireland) 1995 (joint bankruptcy petition by individual members of insolvent partnership) is made;

(h)       the charity trustees of the provider become unable to pay their debts as they fall due;

(i)        every member of the partnership (in a case where the provider is a partnership) is adjudged bankrupt; or

(j)   a voluntary arrangement proposed for the purposes of Part 1 of the 1986 Act or Part 2 of the 1989 Order has been approved under that Part of that Act or Order.

(3)   In relation to a provider who is an individual, business failure means that—

(a)       the individual is adjudged bankrupt; or

(b)       a voluntary arrangement pursuant to Part 8 of the 1986 Act or Part 8 of the 1989 Order is proposed by or entered into by the individual.

(4)   For the purposes of paragraph (2)(h), a person is a charity trustee of a provider if—

(a)       the provider is a charity that is unincorporated; and

(b)       the person is a trustee of that charity.

(5)   For the purposes of paragraph (2)(h), the charity trustees of a provider are to be treated as becoming unable to pay their debts as they fall due if—

(a)       a creditor to whom the trustees are indebted in a sum exceeding the relevant amount then due has served on the trustees a written demand requiring the trustees to pay the sum so due and the trustees have for 3 weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor;

(b)       in England and Wales, execution or other process issued on a judgment, decree or order of a court in favour of a creditor of the trustees is returned unsatisfied in whole or in part;

(c)       in Scotland, the induciae of a charge for payment on an extract decree, or an extract registered bond, or an extract registered protest, have expired without payment being made; or

(d)       in Northern Ireland, a certificate of unenforceability has been granted in respect of a judgment against the trustees.

 

EXPLANATORY NOTE

(This note is not part of the Regulations)

Sections 48 to 52 of the Care Act 2014 (“the Act”) impose duties (“temporary duties”) on local authorities in England and Wales, and on Health and Social Care trusts in Northern Ireland (“HSC trusts”), to meet care and support needs of adults, or support needs of carers, in circumstances where registered providers of care are unable to carry on because of “business failure”.

These Regulations  make provision as to the interpretation, for those purposes, of “business failure” and as to circumstances in which a person is to be treated as unable to do something because of “business failure”. (As regards Scotland, certain duties are imposed on local authorities under Part 2 of the Social Work (Scotland) Act 1968.)

Regulation 2 sets out the events which constitute business failure for the purposes of  the temporary duties on local authorities in England and Wales, and on HSC trusts.

In relation to a provider, other than an individual, registered in England, Wales or Northern Ireland, business failure consists of—

—        the appointment of an administrator;

—        the appointment of a receiver;

—        the appointment of an administrative receiver;

—        the passing of a resolution for a voluntary winding up in a creditors’ voluntary winding up;

—        the making of a winding up order;

—        the making of bankruptcy orders where individual members of a partnership present a joint bankruptcy petition;

—        in relation to an unincorporated charity, the charity trustees becoming unable to pay their debts as they fall due;

—        all members of a partnership being adjudged bankrupt; or

—        a voluntary arrangement being approved under the Insolvency Act 1986 (“the 1986 Act”) or the Insolvency (Northern Ireland) Order 1989 (“the 1989 Order”).

In relation to a provider who is an individual registered in England, Wales or Northern Ireland, business failure consists of the individual being adjudged bankrupt or proposing or entering into an individual voluntary arrangement under Part 8 of the 1986 Act or Part 8 of the 1989 Order.

Under the Act, the temporary duties are triggered where a registered provider becomes unable to carry on a regulated activity or to carry on an establishment or agency because of business failure. Regulation 2(1)(b) provides that a provider is to be treated as unable to carry on a regulated activity or to carry on or manage an establishment or agency because of business failure if the provider’s inability to do so follows business failure.

 

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Sight Impaired Regs

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Care and Support (Sight-impaired and Severely Sight- impaired Adults) Regulations 2014 and come into force immediately after section 77(1) of the Care Act 2014 comes fully into force.

(2) In these Regulations “consultant ophthalmologist” means a consultant or honorary consultant appointed in the medical speciality of ophthalmology, who is employed for the purposes of providing any service as part of the health service.

 

Persons to be treated as sight-impaired or severely sight-impaired

2.—(1) For the purposes of section 77 of the Care Act 2014, a person is to be treated as being sight- impaired if the person is certified as such by a consultant ophthalmologist.

(2) For the purposes of that section, a person is to be treated as being severely sight-impaired if the person is certified as such by a consultant ophthalmologist.

 

 

EXPLANATORY NOTE

(This note is not part of the Regulations)

Section 77(1) of the Care Act 2014 sets out the requirement on local authorities to establish and maintain a register of adults who are ordinarily resident in their area and are sight-impaired or severely sight- impaired. These Regulations specify the persons who are to be treated as being sight-impaired and severely sight-impaired for the purposes of that section.

 

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Provision of health services regulations

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Care and Support (Provision of Health Services) Regulations 2014 and come into force immediately after section 22(1) of the Care Act 2014 comes fully into force.

(2)  In these Regulations—

“the Act” means the Care Act 2014;

“the Board” means the National Health Service Commissioning Board;

“healthcare profession” means a profession which is concerned (wholly or partly) with the physical or mental health of individuals (whether or not a person engaged in that profession is regulated by, or by virtue of, any enactment);

“health service” means the health service continued under section 1(1) of the National Health Service Act 2006;

“local authority member” means a person appointed by the Board pursuant to regulation 23(1)(b)(ii) of the Standing Rules Regulations;

“multi-disciplinary team” means a team consisting of at least—

(a)      two professionals who are from different healthcare professions, or

(b)     one professional who is from a healthcare profession and one person who is responsible for assessing persons who may have needs for care and support under Part 1 of the Care Act 2014;

“National Framework” means the National Framework for NHS Continuing Healthcare and NHS- funded Nursing Care issued by the Secretary of State and dated 28th November 2012;

“NHS Continuing Healthcare” means a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs which have arisen as a result of disability, accident or illness;

“relevant body” means the Board or a clinical commissioning group;

“review panel” means the panel of members referred to in regulation 23(4) of the Standing Rules Regulations;

“Standing Rules Regulations” means the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012.

 

Arrangements  for  the  provision  of  nursing  care  by  a  registered  nurse:  responsible  clinical commissioning group

2.—(1) For the purposes of section 22(4) of the Act, the clinical commissioning group from which a local authority must obtain consent for it to arrange for the provision of nursing care by a registered nurse in respect of any person is the responsible clinical commissioning group.

(2) The responsible clinical commissioning group in respect of any person is the clinical commissioning group which has responsibility for arranging for the provision of nursing care by a registered nurse in respect of that person, pursuant to the provisions of section 3(1), (1A) and (1E) of the National Health Service Act 2006 and any regulations made under section 3(1B) or (1D) of that Act.

 

Requirements on local authorities: joint working with relevant bodies

3.—(1) A local authority must, as far as is reasonably practicable, provide advice and assistance to a relevant body which consults it pursuant to regulation 22(1)(a) of the Standing Rules Regulations (duty of relevant bodies: joint working with social services authorities).

(2)  A local authority must, when requested to do so by a relevant body, co-operate with that body in arranging for a person or persons to participate in a multi-disciplinary team for the purposes of that body fulfilling its duty under regulation 21(5) of the Standing Rules Regulations (duty of relevant bodies: assessment and provision of NHS Continuing Healthcare).

(3)  Nothing in this regulation affects a local authority’s duty to carry out an assessment of a person’s needs for care and support pursuant to section 9 of the Act (assessment of an adult’s needs for care and support), and if it has carried out such an assessment, it must use the information obtained as a result of that assessment, so far as it is relevant, to comply with its duty under paragraph (1).

(4)  In complying with its obligations under this regulation, a local authority must have due regard to the need to promote and secure the continuity of appropriate services for persons—

(a)     whose care and support needs are being met under Part 1 of the Act or who are being provided with aftercare under section 117 of the Mental Health Act 1983 on the date on which they are found to be eligible to receive NHS Continuing Healthcare;

(b)     who have been in receipt of NHS Continuing Healthcare but are determined to be no longer eligible for NHS Continuing Healthcare; or

(c)     who are otherwise determined to be ineligible for NHS Continuing Healthcare.

(5)  Where, pursuant to regulation 24(1) of the Standing Rules Regulations (appointment and term of appointment), the Board requests that a local authority nominates a person to be appointed as a local authority member of a review panel, the local authority—

(a)     must nominate such a person as soon as is reasonably practicable; and

(b)     must ensure that local authority members are, so far as is reasonably practicable, available to participate in review panels.

 

Requirements on local authorities: dispute resolution

4.-  Where there is a dispute between a relevant body and a local authority about—

(a)     a decision as to eligibility for NHS Continuing Healthcare; or

(b)     the contribution of a relevant body or local authority to a joint package of care for a person who is not eligible for NHS Continuing Healthcare,

the local authority must, having regard to the National Framework, agree a dispute resolution procedure with the relevant body, and resolve the dispute in accordance with that procedure.

 

Transitional provisions

5.—(1) This paragraph applies in a case where, immediately before the coming into force of these Regulations, a local authority—

(a)     was, in accordance with any directions issued in exercise of the powers conferred by section 7A of the Local Authority Social Services Act 1970—

(i)    providing advice and assistance to a relevant body which had consulted it pursuant to regulation 22(1)(a) of the Standing Rules Regulations (duty of relevant bodies: joint working with social services authorities); or

(ii)     cooperating with a relevant body in arranging for a person to participate in a multi- disciplinary team for the purposes of that body fulfilling its duty under regulation 21(5) of the Standing Rules Regulations (duty of relevant bodies: assessment and provision of NHS Continuing Healthcare);

(b)     was in receipt of a request from the Board, pursuant to regulation 24(1) of the Standing Rules Regulations (appointment and term of appointment), that it nominate a person to be  appointed as a local authority member of a review panel but had not yet nominated such a person; or

(c)     was in dispute with a relevant body about—

(i)    a decision as to eligibility for NHS Continuing Healthcare; or

(ii)     the contribution of a relevant body or local authority to a joint package of care for a person who is not eligible for NHS Continuing Healthcare,

and had either not yet agreed a dispute resolution procedure with the relevant body, in accordance with any directions issued in exercise of the powers conferred by section 7A of the  Local Authority Social Services Act 1970, or had agreed such a dispute resolution procedure with the relevant body but had not yet resolved the dispute in accordance with that procedure.

(2)  Where—

(a)     paragraph (1)(a) applies, the local authority is required to continue providing advice and assistance to the relevant body or cooperating with the relevant body as though such obligation had arisen under these Regulations;

(b)     paragraph (1)(b) applies, the local authority is required to nominate a person to be appointed as a local authority member of a review panel as though the obligation to nominate such a person had arisen under these Regulations;

(c)     paragraph (1)(c) applies, the local authority is required to—

(i)    if necessary, agree a dispute resolution procedure, and

(ii)     resolve the dispute in accordance with any procedure agreed with the relevant body,

as though the obligation to agree such procedure and to resolve the dispute had arisen under these Regulations.

 

 

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision in respect of three different issues, all of which concern the relationship between, on the one hand, local authorities and, on the other, clinical commissioning groups or, in certain cases, the National Health Service Commissioning Board (“NHS bodies”) at the boundary between their respective areas of responsibilities: the issue of consent to arranging the provision of nursing care by a registered nurse; the issue of joint working between local authorities and NHS bodies and the issue of resolving disputes between local authorities and NHS bodies.

Local authorities are prohibited by section 22 of the Care Act 2014 from meeting needs under the Act by providing or arranging for the provision of services or facilities that it is the responsibility of the National Health Service to provide. However, local authorities are permitted, despite this prohibition, to arrange for the provision of accommodation together with the provision of registered nursing care by a registered nurse if they have obtained consent to arrange for the provision of such nursing care from whichever clinical commissioning group (“CCG”) regulations require.

Regulation 2 imposes a requirement to obtain such consent from the CCG which has the responsibility for arranging for the provision of nursing care by a registered nurse in respect of the person concerned.

That responsibility is established by reference to certain provisions of the National Health Service Act 2006 (“the 2006 Act”) and regulations made under the 2006 Act.

Regulation 3 makes provision about how local authorities must work with NHS bodies in the processes for assessing a person’s needs for health care and for deciding how those needs must be met. It includes requirements regarding participation in review panels. These provisions mirror similar requirements regarding joint working that are imposed on such NHS bodies by the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (as amended) (“the Standing Rules Regulations”).

Regulation 4 imposes requirements on local authorities to make arrangements for determining any disputes between themselves and NHS bodies about whether or not something should be provided by the NHS as part of the health service. Again, these requirements mirror similar requirements imposed on NHS bodies by the Standing Rules Regulations.

Regulation 5 makes transitional provisions to provide for continuity in those cases where (in accordance with directions issued under the provisions of section 7A of the Local Authority Social Services Act 1970) the local authority is already working jointly with NHS bodies in a particular case, or is already in receipt of a request to nominate a member to a review panel or is already working with an NHS body to settle a dispute.

 

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