Care Bill (HC Bill 168)

(10) The reference in subsection (1)(c) to there being no charge under section 14 for
meeting an adult’s needs for care and support under section 14 is to be
construed in accordance with section 18(6).

21 Exception for persons subject to immigration control

(1) 5A local authority may not meet the needs for care and support of an adult to
whom section 115 of the Immigration and Asylum Act 1999 (“the 1999 Act”)
(exclusion from benefits) applies and whose needs for care and support have
arisen solely—

(a) because the adult is destitute, or

(b) 10because of the physical effects, or anticipated physical effects, of being
destitute.

(2) For the purposes of subsection (1), section 95(2) to (7) of the 1999 Act applies
but with the references in section 95(4) and (5) to the Secretary of State being
read as references to the local authority in question.

(3) 15But, until the commencement of section 44(6) of the Nationality, Immigration
and Asylum Act 2002, subsection (2) is to have effect as if it read as follows—

“(2) For the purposes of subsection (1), section 95(3) and (5) to (8) of, and
paragraph 2 of Schedule 8 to, the 1999 Act apply but with references in
section 95(5) and (7) and that paragraph to the Secretary of State being
20read as references to the local authority in question.”

(4) The reference in subsection (1) to meeting an adult’s needs for care and support
includes a reference to providing care and support to the adult in order to meet
a carer’s needs for support.

(5) For the purposes of its application in relation to the duty in section 2(1)
25(preventing needs for care and support), this section is to be read as if—

(a) for subsection (1) there were substituted—

“(1) A local authority may not perform the duty under section 2(1)
in relation to an adult to whom section 115 of the Immigration
and Asylum Act 1999 (“the 1999 Act”) (exclusion from benefits)
30applies and whose needs for care and support have arisen, or
for whom such needs may in the future arise, solely—

(a) because the adult is destitute, or

(b) because of the physical effects, or anticipated physical
effects, of being destitute.”, and

(b) 35subsection (4) were omitted.

22 Exception for provision of health services

(1) A local authority may not meet needs under sections 18 to 20 by providing or
arranging for the provision of a service or facility that is required to be
provided under the National Health Service Act 2006 unless—

(a) 40doing so would be merely incidental or ancillary to doing something
else to meet needs under those sections, and

(b) the service or facility in question would be of a nature that the local
authority could be expected to provide.

(2) Regulations may specify—

(a) types of services or facilities which, despite subsection (1), may be
provided or the provision of which may be arranged by a local
authority, or circumstances in which such services or facilities may be
so provided or the provision of which may be so arranged;

(b) 5types of services or facilities which may not be provided or the
provision of which may not be arranged by a local authority, or
circumstances in which such services or facilities may not be so
provided or the provision of which may not be so arranged;

(c) services or facilities, or a method for determining services or facilities,
10the provision of which is, or is not, to be treated as meeting the
conditions in subsection (1)(a) and (b).

(3) A local authority may not meet needs under sections 18 to 20 by providing or
arranging for the provision of nursing care by a registered nurse.

(4) But a local authority may, despite the prohibitions in subsections (1) and (3),
15arrange for the provision of accommodation together with the provision of
nursing care by a registered nurse if—

(a) the authority has obtained consent for it to arrange for the provision of
the nursing care from whichever clinical commissioning group
regulations require, or

(b) 20the case is urgent and the arrangements for accommodation are only
temporary.

(5) In a case to which subsection (4)(b) applies, as soon as is feasible after the
temporary arrangements are made, the local authority must seek to obtain the
consent mentioned in subsection (4)(a).

(6) 25Regulations may require a local authority—

(a) to be involved in the specified manner in processes for assessing a
person’s needs for health care and for deciding how those needs should
be met;

(b) to make arrangements for determining disputes between the authority
30and a clinical commissioning group or the National Health Service
Commissioning Board about whether or not a service or facility is
required to be provided under the National Health Service Act 2006.

(7) Nothing in this section affects what a local authority may do under the
National Health Service Act 2006, including entering into arrangements under
35regulations under section 75 of that Act (arrangements with NHS bodies).

(8) A reference to the provision of nursing care by a registered nurse is a reference
to the provision by a registered nurse of a service involving—

(a) the provision of care, or

(b) the planning, supervision or delegation of the provision of care,

40other than a service which, having regard to its nature and the circumstances
in which it is provided, does not need to be provided by a registered nurse.

(9) Where, in a case within subsection (4), the National Health Service
Commissioning Board has responsibility for arranging for the provision of the
nursing care, the reference in paragraph (a) of that subsection to a clinical
45commissioning group is to be read as a reference to the Board.

(10) For the purposes of its application in relation to the duty in section 2(1)
(preventing needs for care and support), this section is to be read as if

references to meeting needs under sections 18 to 20 were references to
performing the duty under section 2(1).

23 Exception for provision of housing etc.

(1) A local authority may not meet needs under sections 18 to 20 by doing
5anything which it or another local authority is required to do under—

(a) the Housing Act 1996, or

(b) any other enactment specified in regulations.

(2) “Another local authority” includes a district council for an area in England for
which there is also a county council.

(3) 10For the purposes of its application in relation to the duty in section 2(1)
(preventing needs for care and support), this section is to be read as if, in
subsection (1), for “meet needs under sections 18 to 20” there were substituted
“perform the duty under section 2(1)”.

Next steps after assessments

24 15The steps for the local authority to take

(1) Where a local authority is required to meet needs under section 18 or 20(1), or
decides to do so under section 19(1) or (2) or 20(6), it must—

(a) prepare a care and support plan or a support plan for the adult
concerned,

(b) 20tell the adult which (if any) of the needs that it is going to meet may be
met by direct payments, and

(c) help the adult with deciding how to have the needs met.

(2) Where a local authority has carried out a needs or carer’s assessment but is not
required to meet needs under section 18 or 20(1), and does not decide to do so
25under section 19(1) or (2) or 20(6), it must give the adult concerned—

(a) its written reasons for not meeting the needs, and

(b) (unless it has already done so under section 13(5)) advice and
information about—

(i) what can be done to meet or reduce the needs;

(ii) 30what can be done to prevent or delay the development by the
adult concerned of needs for care and support or of needs for
support in the future.

(3) Where a local authority is not going to meet an adult’s needs for care and
support, it must nonetheless prepare an independent personal budget for the
35adult (see section 28) if—

(a) the needs meet the eligibility criteria,

(b) at least some of the needs are not being met by a carer, and

(c) the adult is ordinarily resident in the authority’s area or is present in its
area but of no settled residence.

25 40Care and support plan, support plan

(1) A care and support plan or, in the case of a carer, a support plan is a document
prepared by a local authority which—

(a) specifies the needs identified by the needs assessment or carer’s
assessment,

(b) specifies whether, and if so to what extent, the needs meet the eligibility
criteria,

(c) 5specifies the needs that the local authority is going to meet and how it
is going to meet them,

(d) specifies to which of the matters referred to in section 9(4) the provision
of care and support could be relevant or to which of the matters
referred to in section 10(5) and (6) the provision of support could be
10relevant,

(e) includes the personal budget for the adult concerned (see section 26),
and

(f) includes advice and information about—

(i) what can be done to meet or reduce the needs in question;

(ii) 15what can be done to prevent or delay the development of needs
for care and support or of needs for support in the future.

(2) Where some or all of the needs are to be met by making direct payments, the
plan must also specify—

(a) the needs which are to be so met, and

(b) 20the amount and frequency of the direct payments.

(3) In preparing a care and support plan, the local authority must involve—

(a) the adult for whom it is being prepared,

(b) any carer that the adult has, and

(c) any person whom the adult asks the authority to involve or, where the
25adult lacks capacity to ask the authority to do that, any person who
appears to the authority to be interested in the adult’s welfare.

(4) In preparing a support plan, the local authority must involve—

(a) the carer for whom it is being prepared,

(b) the adult needing care, if the carer asks the authority to do so, and

(c) 30any other person whom the carer asks the authority to involve.

(5) In performing the duty under subsection (3)(a) or (4)(a), the local authority
must take all reasonable steps to reach agreement with the adult or carer for
whom the plan is being prepared about how the authority should meet the
needs in question.

(6) 35In seeking to ensure that the plan is proportionate to the needs to be met, the
local authority must have regard in particular—

(a) in the case of a care and support plan, to the matters referred to in
section 9(4);

(b) in the case of a support plan, to the matters referred to in section 10(5)
40and (6).

(7) The local authority may authorise a person (including the person for whom the
plan is to be prepared) to prepare the plan jointly with the authority.

(8) The local authority may do things to facilitate the preparation of the plan in a
case within subsection (7); it may, for example, provide a person authorised
45under that subsection with—

(a) in the case of a care and support plan, information about the adult for
whom the plan is being prepared;

(b) in the case of a support plan, information about the carer and the adult
needing care;

(c) in either case, whatever resources, or access to whatever facilities, the
authority thinks are required to prepare the plan.

(9) 5The local authority must give a copy of a care and support plan to—

(a) the adult for whom it has been prepared,

(b) any carer that the adult has, if the adult asks the authority to do so, and

(c) any other person to whom the adult asks the authority to give a copy.

(10) The local authority must give a copy of a support plan to—

(a) 10the carer for whom it has been prepared,

(b) the adult needing care, if the carer asks the authority to do so, and

(c) any other person to whom the carer asks the authority to give a copy.

(11) A local authority may combine a care and support plan or a support plan with
a plan (whether or not prepared by it and whether or not under this Part)
15relating to another person only if the adult for whom the care and support plan
or the support plan is being prepared agrees and—

(a) where the combination would include a plan prepared for another
adult, that other adult agrees;

(b) where the combination would include a plan prepared for a child
20(including a young carer), the consent condition is met in relation to the
child.

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

(a) the child has capacity or is competent to agree to the plans being
combined and does so agree, or

(b) 25the child lacks capacity or is not competent so to agree but the local
authority is satisfied that the combining the plans would be in the
child’s best interests.

(13) Regulations may specify cases or circumstances in which such of paragraphs
(a) to (f) of subsection (1) and paragraphs (a) and (b) of subsection (2) as are
30specified do not apply.

(14) The regulations may in particular specify that the paragraphs in question do
not apply as regards specified needs or matters.

26 Personal budget

(1) A personal budget for an adult is a statement which specifies—

(a) 35the cost to the local authority of meeting those of the adult’s needs
which it is required or decides to meet as mentioned in section 24(1),

(b) the amount which, on the basis of the financial assessment, the adult
must pay towards that cost, and

(c) if on that basis the local authority must itself pay towards that cost, the
40amount which it must pay.

(2) In the case of an adult with needs for care and support which the local
authority is required to meet under section 18, the personal budget must also
specify—

(a) the cost to the local authority of meeting the adult’s needs under that
45section, and

(b) where that cost includes daily living costs—

(i) the amount attributable to those daily living costs, and

(ii) the balance of the cost referred to in paragraph (a).

(3) A personal budget for an adult may also specify other amounts of public
money that are available in the adult’s case including, for example, amounts
5available for spending on matters relating to housing, health care or welfare.

27 Review of care and support plan or of support plan

(1) A local authority must—

(a) keep under review generally care and support plans, and support
plans, that it has prepared, and

(b) 10on a reasonable request by or on behalf of the adult to whom a care and
support plan relates or the carer to whom a support plan relates, review
the plan.

(2) A local authority may revise a care and support plan; and in deciding whether
or how to do so, it—

(a) 15must have regard in particular to the matters referred to in section 9(4)
(and specified in the plan under section 25(1)(d)), and

(b) must involve—

(i) the adult to whom the plan relates,

(ii) any carer that the adult has, and

(iii) 20any person whom the adult asks the authority to involve or,
where the adult lacks capacity to ask the authority to do that,
any person who appears to the authority to be interested in the
adult’s welfare.

(3) A local authority may revise a support plan; and in deciding whether or how
25to do so, it—

(a) must have regard in particular to the matters referred to in section 10(5)
and (6) (and specified in the plan under section 25(1)(d)), and

(b) must involve—

(i) the carer to whom the plan relates,

(ii) 30the adult needing care, if the carer asks the authority to do so,
and

(iii) any other person whom the carer asks the authority to involve.

(4) Where a local authority is satisfied that circumstances have changed in a way
that affects a care and support plan or a support plan, the authority must—

(a) 35to the extent it thinks appropriate, carry out a needs or carer’s
assessment, carry out a financial assessment and make a determination
under section 13(1), and

(b) revise the care and support plan or support plan accordingly.

(5) Where, in a case within subsection (4), the local authority is proposing to
40change how it meets the needs in question, it must, in performing the duty
under subsection (2)(b)(i) or (3)(b)(i), take all reasonable steps to reach
agreement with the adult concerned about how it should meet those needs.

28 Independent personal budget

(1) An independent personal budget is a statement which specifies what the cost
would be to the local authority concerned (see section 24(3)) of meeting the
adult’s eligible needs for care and support.

(2) 5Where the amount referred to in subsection (1) includes daily living costs, the
independent personal budget for the adult must specify—

(a) the amount attributable to those daily living costs, and

(b) the balance of the amount referred to in subsection (1).

(3) An adult’s needs are “eligible needs” if, at the time they were met—

(a) 10they met the eligibility criteria,

(b) they were not being met by a carer, and

(c) the adult was ordinarily resident or present in the area of the local
authority.

(4) A local authority must—

(a) 15keep under review generally independent personal budgets that it has
prepared, and

(b) on a reasonable request by or on behalf of the adult to whom an
independent personal budget relates, review the independent personal
budget.

(5) 20A local authority may revise an independent personal budget; and in deciding
whether or how to do so, it must, in so far as it is feasible to do so, involve—

(a) the adult to whom the independent personal budget relates,

(b) any carer that the adult has, and

(c) any other person whom the adult asks the authority to involve or,
25where the adult lacks capacity to ask the authority to do that, any
person who appears to the authority to be interested in the adult’s
welfare.

(6) Where a local authority is satisfied that the circumstances of the adult to whom
an independent personal budget applies have changed in a way that affects the
30independent personal budget, the authority must—

(a) to the extent it thinks appropriate, carry out a needs assessment and
make a determination under section 13(1), and

(b) revise the independent personal budget accordingly.

(7) Where, in a case within subsection (6), an adult refuses a needs assessment and
35the local authority thinks that the adult’s refusal is unreasonable, it need no
longer keep an up-to-date care account in the adult’s case.

(8) Having reviewed an independent personal budget, a local authority must—

(a) if it revises the independent personal budget, notify the adult to whom
the independent personal budget relates of the revisions and provide
40an explanation of the effect of each revision, or

(b) if it does not revise the independent personal budget, notify the adult
accordingly.

29 Care account

(1) Where an adult has needs for care and support which meet the eligibility
criteria, the local authority in whose area the adult is ordinarily resident or, if
the adult is of no settled residence, in whose area the adult is present—

(a) 5must keep an up-to-date record of the adult’s accrued costs (a “care
account”), and

(b) once those costs exceed the cap on care costs, must inform the adult.

(2) Where a local authority which has been keeping a care account is no longer
required to do so, it must nonetheless retain the account that it has kept so far
10until—

(a) the end of the period of 99 years beginning with the day on which it last
updated the account, or

(b) where the adult dies, the local authority becomes aware of the death.

(3) A care account must specify such amount as is attributable to the adult’s daily
15living costs.

(4) A local authority which is keeping a care account must, at such times as
regulations may specify, provide the adult concerned with a statement
which—

(a) sets out the adult’s accrued costs, and

(b) 20includes such other matters as regulations may specify.

(5) Regulations may specify circumstances in which the duty under subsection (4)
does not apply.

30 Cases where adult expresses preference for particular accommodation

(1) Regulations may provide that where—

(a) 25a local authority is going to meet needs under sections 18 to 20 by
providing or arranging for the provision of accommodation of a
specified type,

(b) the adult for whom the accommodation is going to be provided
expresses a preference for particular accommodation of that type, and

(c) 30specified conditions are met,

the local authority must provide or arrange for the provision of the preferred
accommodation.

(2) The regulations may provide for the adult or a person of a specified description
to pay for some or all of the additional cost in specified cases or circumstances.

(3) 35“Additional cost” means the cost of providing or arranging for the provision of
the preferred accommodation less that part of the amount specified in the
personal budget for the purposes of section 26(1)(a) that relates to the provision
of accommodation of that type.

Direct payments

31 40Adults with capacity to request direct payments

(1) This section applies where—

(a) a personal budget for an adult specifies an amount which the local
authority must pay towards the cost of meeting the needs to which the
personal budget relates, and

(b) the adult requests the local authority to meet some or all of those needs
5by making payments to the adult or a person nominated by the adult.

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

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

(4) 10Condition 1 is that—

(a) the adult has capacity to make the request, and

(b) where there is a nominated person, that person agrees to receive the
payments.

(5) Condition 2 is that—

(a) 15the local authority is not prohibited by regulations under section 33
from meeting the adult’s needs by making direct payments to the adult
or nominated person, and

(b) if regulations under that section give the local authority discretion to
decide not to meet the adult’s needs by making direct payments to the
20adult or nominated person, it does not exercise that discretion.

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

(a) by himself or herself, or

(b) with whatever help the authority thinks the adult or nominated person
25will be able to access.

(7) Condition 4 is that the local authority is satisfied that making direct payments
to the adult or nominated person is an appropriate way to meet the needs in
question.

32 Adults without capacity to request direct payments

(1) 30This section applies where—

(a) a personal budget for an adult specifies an amount which the local
authority must pay towards the cost of meeting the needs to which the
personal budget relates, and

(b) the adult lacks capacity to request the local authority to meet any of
35those needs by making payments to the adult, but

(c) an authorised person requests the local authority to meet some or all of
those needs by making payments to the authorised person.

(2) If conditions 1 to 5 are met, the local authority must, subject to regulations
under section 33, make the payments to which the request relates to the
40authorised person.

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

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

(a) the person is authorised under the Mental Capacity Act 2005 to make
decisions about the adult’s needs for care and support,

(b) where the person is not authorised as mentioned in paragraph (a), a
person who is so authorised agrees with the local authority that the
person is a suitable person to whom to make direct payments, or

(c) where the person is not authorised as mentioned in paragraph (a) and
5there is no person who is so authorised, the local authority considers
that the person is a suitable person to whom to make direct payments.

(5) Condition 1 is that, where the authorised person is not authorised as
mentioned in subsection (4)(a) but there is at least one person who is so
authorised, a person who is so authorised supports the authorised person’s
10request.

(6) Condition 2 is that—

(a) the local authority is not prohibited by regulations under section 33
from meeting the adult’s needs by making direct payments to the
authorised person, and

(b) 15if regulations under that section give the local authority discretion to
decide not to meet the adult’s needs by making direct payments to the
authorised person, it does not exercise that discretion.

(7) Condition 3 is that the local authority is satisfied that the authorised person
will act in the adult’s best interests in arranging for the provision of the care
20and support for which the direct payments under this section would be used.

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

(a) by himself or herself, or

(b) with whatever help the authority thinks the authorised person will be
25able to access.

(9) Condition 5 is that the local authority is satisfied that making direct payments
to the authorised person is an appropriate way to meet the needs in question.

33 Direct payments: further provision

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

(2) 30The regulations may, in particular, specify—

(a) cases or circumstances in which a local authority must not, or cases or
circumstances in which it has the discretion to decide not to, meet needs
by making direct payments;

(b) conditions which a local authority may or must attach to the making of
35direct payments;

(c) matters to which a local authority may or must have regard when
making a decision of a specified type in relation to direct payments;

(d) steps which a local authority may or must take before, or after, making
a decision of a specified type in relation to direct payments;

(e) 40cases or circumstances in which an adult who lacks capacity to request
the making of direct payments must or may nonetheless be regarded
for the purposes of this Part or the regulations as having capacity to do
so;

(f) cases or circumstances in which an adult who no longer lacks capacity
45to make such a request must or may nonetheless be regarded for any of
those purposes as lacking capacity to do so;