The Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015

• Citation: S.I. 2015/914
• Sections: 101

Section 1 Citation, commencement and extent

(1) This Order may be cited as the Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015.

(2) This Order comes into force on the day on which section 1 of the Care Act 2014 comes into force.

(3) Where this Order amends an enactment that is not yet in force, paragraph (2) does not affect how that enactment, as amended, comes into force.

(4) An amendment or repeal made by this Order has the same extent as the enactment amended or repealed.

Section 2 Amendments

The Schedule (amendments in consequence of provisions of the Care Act 2014 and the Children and Families Act 2014) has effect.

Section 3 Savings and transitional provision

(1) Despite the amendments made by this Order, on or after the date on which this Order comes into force—

(a) support or services may continue to be provided, and

(b) payments towards the cost of support or services may continue to be made,

in the case of a person to whom, or in relation to whom, support or services are being provided, or payments towards the cost of support or services are being made, immediately before this Order comes into force.

(2) Paragraph (1) applies until—

(a) Part 1 of the Care Act 2014 applies in relation to the provision of support or services, or the making of payments towards the cost of support or services, in that person’s case by virtue of provision made for transitional purposes under a power conferred by that Act, or

(b) if earlier, 31st March 2016.

(3) Despite the amendments made by this Order—

(a) any provision that operates in relation to, or by reference to, support or services provided, or payments towards the cost of support or services made, before or (in accordance with paragraph (1)) on or after the date on which this Order comes into force, and

(b) anything done under such provision,

continue to have effect for the purposes of that support or those services or payments, subject to paragraph (6).

(4) The references in paragraph (3) to support or services provided, or payments made, before the date on which this Order comes into force include support or services that are not provided but are or may be required or permitted to be provided, or payments that are not made but are or may be required or permitted to be made, before that date.

(5) The provision referred to in paragraph (3) includes in particular provision about—

(a) costs and other amounts payable and their recovery;

(b) civil legal services (within the meaning of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 );

(c) offences.

(6) Paragraph (3) does not authorise a local authority to do any of the following on or after the date on which this Order comes into force—

(a) create a charge under section 22(1) of the Health and Social Services and Social Security Adjudications Act 1983 ;

(b) make an order under section 23(1) of that Act;

(c) enter into a deferred payment agreement under section 55(1) of the Health and Social Care Act 2001 .

(7) Where under this Order an enactment ceases to have effect for a purpose for which a local authority holds land immediately before the Order comes into force, the land is to be treated as appropriated for whatever purposes of Part 1 of the Care Act 2014 the authority may designate.

(8) Where under this Order an enactment ceases to have effect for a purpose for which a local authority has a right to use land immediately before the Order comes into force—

(a) the authority continues to have that right to use the land for whatever purposes of Part 1 of the Care Act 2014 the authority may designate, but

(b) that does not affect the circumstances (other than the enactment ceasing to have effect) in which the right ceases.

(9) This article is without prejudice to section 16 of the Interpretation Act 1978 (general savings).

(10) In this article “local authority” has the meaning given by section 1(4) of the Care Act 2014.

Section 1 National Assistance Act 1948 (c. 29)

The National Assistance Act 1948 is amended as follows.

Section 2 National Assistance Act 1948 (c. 29)

In section 21 (duty of local authorities to provide accommodation) in subsection (4) after “another local authority” insert “, including a local authority in England,”.

Section 3 National Assistance Act 1948 (c. 29)

In section 24 (authority liable for provision of accommodation) in subsection (4) after “another local authority” insert “, including a local authority in England,”.

Section 4 National Assistance Act 1948 (c. 29)

(1) Section 32 (adjustments between authorities) is amended as follows.

(2) In subsection (1), after “a reference to a local authority in” insert “England or”.

(3) After subsection (5) insert—

(6) Subsections (3) to (5) do not apply to a question which involves a dispute to which paragraph 5 of Schedule 1 to the Care Act 2014 applies (corresponding provision about cross-border placements).

Section 5 National Assistance Act 1948 (c. 29)

(1) Section 33(1) (local authorities for purposes of Part 3 of that Act) is amended as follows.

(2) After ““local authority”” insert “(except in “local authority in England”)”.

(3) Omit “England or”.

(4) At the end insert “and “local authority in England” means a council which is a local authority for the purposes of the Local Authority Social Services Act 1970 in England.”

Section 6 National Assistance Act 1948 (c. 29)

(1) Section 47 (removal to suitable premises of persons in need of care and attention) is amended as follows.

(2) In subsection (1), after “for persons” insert “in Wales”.

(3) In subsection (12), omit “the councils of districts and London Boroughs and the Common Council of the City of London,”.

(4) In subsection (12A)(a) , omit “England and”.

Section 7 National Assistance Act 1948 (c. 29)

In section 48(1) (duty of councils to provide temporary protection of property)—

(a) after “it appears to the council” insert “, in the case of any moveable property of that person that is for the time being situated in Wales,”;

(b) for “any moveable property of his” substitute “the property”.

Section 8 National Assistance Act 1948 (c. 29)

In section 56(3) (legal proceedings) after “1970” insert “in Wales”.

Section 9 National Assistance Act 1948 (c. 29)

In section 64 (interpretation), in subsection (1), in the definition of “local authority”, for the words from “means”, in the first place, to the end substitute “means the council of a county or county borough in Wales”.

Section 10 National Assistance Act 1948 (c. 29)

Section 66 of that Act (application to Isles of Scilly) ceases to have effect.

Section 11 Disabled Persons (Employment) Act 1958 (c. 33)

In section 3(2) of the Disabled Persons (Employment) Act 1958 (provision of sheltered employment by local authorities) omit “paragraph 2 of Schedule 20 to the National Health Service Act 2006 or”.

Section 12 Health Services and Public Health Act 1968 (c. 46)

Part 2 of the Health Services and Public Health Act 1968 (amendments connected with local authorities’ services under the National Assistance Act 1948) is amended as follows.

Section 13 Health Services and Public Health Act 1968 (c. 46)

In section 45(11) (local authorities’ promotion of welfare of old people: meaning of local authority) for the words from “the council of a county” to “City of London” substitute “the council of a county or county borough in Wales”.

Section 14 Health Services and Public Health Act 1968 (c. 46)

Section 46 (application to Isles of Scilly) ceases to have effect.

Section 15 Civil Evidence Act 1968 (c. 64)

In section 12 of the Civil Evidence Act 1968 (findings of adultery and paternity as evidence in civil proceedings), in subsection (5) , in the definition of “relevant proceedings”, omit paragraph (a).

Section 16 Local Authority Social Services Act 1970 (c. 42)

The Local Authority Social Services Act 1970 is amended as follows.

Section 17 Local Authority Social Services Act 1970 (c. 42)

In section 7 (local authorities to act under general guidance of Secretary of State) after subsection (1) insert—

(1A) Section 78 of the Care Act 2014 applies instead of this section in relation to functions given by Part 1 of that Act or by regulations under that Part.

Section 18 Local Authority Social Services Act 1970 (c. 42)

(1) Schedule 1 (social services functions) is amended as follows.

(2) In the entry for section 1 of the Chronically Sick and Disabled Persons Act 1970, after “welfare services” insert “; providing information about certain welfare services”.

(3) After the entry for section 2 of that Act insert—

(4) Omit the entry for the National Health Service Act 1977.

(5) After the entry for section 117 of the Mental Health Act 1983 insert—

(6) In column 1 of the entry for Part 4 of the Health and Social Care Act 2001 omit “England or”.

(7) After the entries for the Mental Capacity Act 2005 insert—

“National Health Service (Wales) Act 2006

Schedule 15

(8) At the end insert—

“Care Act 2014

Part 1, except section 78, so far as that Part and regulations under it give functions to local authorities in England

General responsibilities in relation to care and support services.

Assessing and meeting needs for care and support, and carers’ needs.

Direct payments, deferred payment agreements and loans.

Continuity of care and ordinary residence.

Safeguarding adults.

Provider failure.

Children in transition to adult care and support.

Independent advocacy support.

Recovery of charges.

Appeals against local authority decisions.

Discharge of hospital patients.

Registers.

Delegation of functions.”

Section 19 Chronically Sick and Disabled Persons Act 1970 (c. 44)

The Chronically Sick and Disabled Persons Act 1970 is amended as follows.

Section 20 Chronically Sick and Disabled Persons Act 1970 (c. 44)

In section 1 (information as to need for and existence of welfare services) after subsection (3) insert—

(4) Subsection (5) applies to local authorities in England.

(5) A local authority must ensure that any disabled child who uses services which are provided under arrangements made by the authority under Part 3 of the Children Act 1989 is informed—

(a) of any other service provided by the authority (whether or not under those arrangements) which in the authority’s opinion is relevant to the child’s needs, and

(b) of any service provided by another authority or organisation which in the authority’s opinion is relevant to the child’s needs and which the authority have details of.

Section 21 Chronically Sick and Disabled Persons Act 1970 (c. 44)

(1) Section 2 (provision of welfare services) is amended as follows.

(2) Omit subsection (1A) .

(3) At the end insert—

(3) Subsections (4) to (6) apply to local authorities in England.

(4) Where a local authority have functions under Part 3 of the Children Act 1989 in relation to a disabled child and the child is ordinarily resident in their area, they must, in exercise of those functions, make any arrangements within subsection (6) that they are satisfied it is necessary for them to make in order to meet the needs of the child.

(5) Subsection (4) is subject to sections 7(1) and 7A of the Local Authority Social Services Act 1970 (exercise of social services functions subject to guidance or directions of the Secretary of State).

(6) The arrangements mentioned in subsection (4) are arrangements for any of the following—

(a) the provision of practical assistance for the child in the child’s home;

(b) the provision of wireless, television, library or similar recreational facilities for the child, or assistance to the child in obtaining them;

(c) the provision for the child of lectures, games, outings or other recreational facilities outside the home or assistance to the child in taking advantage of available educational facilities;

(d) the provision for the child of facilities for, or assistance in, travelling to and from home for the purpose of participating in any services provided under arrangements made by the authority under Part 3 of the Children Act 1989 or, with the approval of the authority, in any services, provided otherwise than under arrangements under that Part, which are similar to services which could be provided under such arrangements;

(e) the provision of assistance for the child in arranging for the carrying out of any works of adaptation in the child’s home or the provision of any additional facilities designed to secure greater safety, comfort or convenience for the child;

(f) facilitating the taking of holidays by the child, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise;

(g) the provision of meals for the child whether at home or elsewhere;

(h) the provision of a telephone for the child, or of special equipment necessary for the child to use one, or assistance to the child in obtaining any of those things.

(7) Any question arising under this section as to a person’s ordinary residence in an area in England or Wales is to be determined by the Secretary of State or by the Welsh Ministers.

(8) The Secretary of State and the Welsh Ministers must make and publish arrangements for determining which cases are to be dealt with by the Secretary of State and which are to be dealt with by the Welsh Ministers.

(9) Those arrangements may include provision for the Secretary of State and the Welsh Ministers to agree, in relation to any question that has arisen, which of them is to deal with the case.

Section 22 Chronically Sick and Disabled Persons Act 1970 (c. 44)

In section 28A (application of Act to authorities having functions under the Children Act 1989) after “local authority” insert “in Wales”.

Section 23 Chronically Sick and Disabled Persons Act 1970 (c. 44)

In section 29 (short title, extent and commencement), in subsection (2) for “Sections 1” substitute “Sections 1(1) and (2)”.

Section 24 Land Compensation Act 1973 (c. 26)

In section 38 of the Land Compensation Act 1973 (amount of disturbance payment for persons who do not have compensatable interests), in subsection (3), in paragraph (a), after “local authority” insert “in England having functions under Part 1 of the Care Act 2014 or a local authority in Wales”.

Section 25 Rating (Disabled Persons) Act 1978 (c. 40)

In section 8(1) of the Rating (Disabled Persons) Act 1978 (interpretation), in the definition of “disabled person”, omit “for the purposes of section 29(1) of the National Assistance Act 1948 or,”.

Section 26 Reserve Forces Act 1980 (c. 9)

In Schedule 2 to the Reserve Forces Act 1980 (army and air-force pensioners and other former soldiers not liable to be recalled for service), after paragraph 2 insert—

(2A) A person registered as severely sight-impaired in a register kept under section 77(1) of the Care Act 2014.

Section 27 Mental Health Act 1983 (c. 20)

The Mental Health Act 1983 is amended as follows.

Section 28 Mental Health Act 1983 (c. 20)

After section 117A insert—

After-care: exception for provision of nursing care

(117B)

(1) Section 117 does not authorise or require a local social services authority in England, in or in connection with the provision of services under that section, to provide or arrange for the provision of nursing care by a registered nurse.

(2) In this section “nursing care by a registered nurse” means a service provided by a registered nurse involving—

(a) the provision of care, or

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

other 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.

Section 29 Mental Health Act 1983 (c. 20)

In section 135 (warrant to search for and remove patients to place of safety), in subsection (6), after “under” insert “Part 1 of the Care Act 2014 or”.

Section 30 Health and Social Services and Social Security Adjudications Act 1983 (c. 41)

The Health and Social Services and Social Security Adjudications Act 1983 is amended as follows.

Section 31 Health and Social Services and Social Security Adjudications Act 1983 (c. 41)

(1) Section 17 (charges for local authority services in England and Wales) is amended as follows.

(2) Omit subsection (2)(a) to (d) and (f).

(3) In subsection (2)(e) omit the words from “other than” to the end.

(4) In subsection (3)(a), after “a service to which this section applies” insert “or a service within subsection (2A)”.

(5) In subsection (5)—

(a) for “This section has” substitute “Subsection (2A), and subsections (3) and (4) so far as they relate to it, have”;

(b) omit “15 or”.

Section 32 Health and Social Services and Social Security Adjudications Act 1983 (c. 41)

(1) Section 22 (arrears of contributions charged on interest in land in England and Wales) is amended as follows.

(2) After subsection (2A) insert—

(2B) A local authority in England may not create, or be required by directions under subsection (2A) to create, a charge under this section on or after the day on which section 1 of the Care Act 2014 came into force.

(3) Before subsection (4) insert—

(3A) Subject to subsection (5) below, a charge under this section created by a local authority in England shall be in respect of any amount which is outstanding from time to time and is—

(a) assessed as due to be paid by the person to the authority for the Part III accommodation, or

(b) due by the person to the authority under Part 1 of the Care Act 2014 in respect of meeting needs for care and support by the provision of accommodation for the person, including anything provided in connection with that accommodation.

(4) In subsection (4), after “charge under this section” insert “created by a local authority in Wales or Scotland”.

Section 33 Health and Social Services and Social Security Adjudications Act 1983 (c. 41)

(1) Section 23 (arrears of contributions secured over interest in land in Scotland) is amended as follows.

(2) After subsection (2A) insert—

(2B) A local authority in England may not make, or be required by directions under subsection (2A) to make, a charging order on or after the day on which section 1 of the Care Act 2014 came into force.

(3) In subsection (3), for the words from “of securing” to the end substitute—

mentioned in subsection (3A) or (as the case may be) (3B) below.

(3A) Where the charging order is made by a local authority in Scotland or Wales, the purpose referred to in subsection (3) above is the purpose of securing any debt due or to become due by the debtor to the local authority in respect of the provision of the Part III accommodation referred to in subsection (1) above, with interest on that amount as specified in section 24.

(3B) Where the charging order is made by a local authority in England, the purpose referred to in subsection (3) above is the purpose of securing any debt due or to become due by the debtor to the local authority—

(a) in respect of the provision of the Part III accommodation referred to in subsection (1) above, or

(b) under Part 1 of the Care Act 2014 in respect of meeting needs for care and support by the provision of accommodation for the person, including anything provided in connection with that accommodation,

in either case, with interest on that amount as specified in section 24.

(3C) A local authority that records or registers a charging order as mentioned in subsection (1) above shall—

(a) intimate to the debtor in writing that they have made and recorded or registered the order, and

(b) inform the debtor of the order’s effect.

Section 34 Public Health (Control of Disease) Act 1984 (c. 22)

In section 46 of the Public Health (Control of Disease) Act 1984 (burial and cremation), in subsection (2)—

(a) after “immediately before his death” insert

—

(a)

(b) after “section 29 of that Act” insert

, or

(b) was being provided with accommodation under Part 1 of the Care Act 2014.

Section 35 Transport Act 1985 (c. 67)

In section 104 of the Transport Act 1985 (travel concessions), in subsection (2)(b) after “made with that Executive” insert

—

(i) by any local authority within the meaning of the Care Act 2014 in the discharge of their functions under Part 1 of that Act (meeting needs for care and support), or

(ii)

Section 36 Disabled Persons (Services, Consultation and Representation) Act 1986 (c. 33)

The Disabled Persons (Services, Consultation and Representation) Act 1986 is amended as follows.

Section 37 Disabled Persons (Services, Consultation and Representation) Act 1986 (c. 33)

In section 2 (rights of authorised representatives of disabled persons), in subsection (5)—

(a) in paragraph (b), after “Part III of the 1948 Act” insert “or Part 1 of the Care Act 2014”, and

(b) in paragraph (c), after “section 26 of the 1948 Act” insert “or Part 1 of the Care Act 2014”.

Section 38 Disabled Persons (Services, Consultation and Representation) Act 1986 (c. 33)

(1) In section 3 (assessment by local authorities of needs of disabled persons), in subsection (1) after “local authority” insert “in Wales or Scotland”.

(2) In the heading of that section, after “local authorities” insert “in Wales or Scotland”.

Section 39 Disabled Persons (Services, Consultation and Representation) Act 1986 (c. 33)

(1) Section 4 (services under section 2 of the Chronically Sick and Disabled Persons Act 1970: duty to consider needs of disabled persons) is amended as follows.

(2) The existing words become subsection (1).

(3) In that subsection, after “2(1)” insert “or (4)”.

(4) After that subsection insert—

(2) In the case of a local authority in England this section applies only if the disabled person is aged under 18.

Section 40 Disabled Persons (Services, Consultation and Representation) Act 1986 (c. 33)

(1) In section 8 (duty of local authority to take into account abilities of carer), in subsection (1)(b) after “local authority” insert “in Wales or Scotland”.

(2) In the heading of that section, after “local authority” insert “in Wales or Scotland”.

Section 41 Disabled Persons (Services, Consultation and Representation) Act 1986 (c. 33)

(1) Section 16 (interpretation) is amended as follows.

(2) In the definition of “disabled person”, before paragraph (a) insert—

(za) in relation to England, means—

(i) in the case of a person aged 18 or over, a person who has a disability within the meaning of section 6 of the Equality Act 2010;

(ii) in the case of a person aged under 18, a person who is disabled within the meaning of Part 3 of the Children Act 1989;

(3) In paragraph (a) of that definition, omit “England and”.

(4) In the definition of “the welfare enactments”, before paragraph (a) insert—

(za) in relation to England, Part 3 of the Children Act 1989 and Part 1 of the Care Act 2014,

(5) In paragraph (a) of that definition, omit “England and” and “Schedule 20 to the 2006 Act and”.

Section 42 Local Government Finance Act 1988 (c. 41)

(1) In Schedule 5 to the Local Government Finance Act 1988 (non-domestic rating: exemption), paragraph 16 is amended as follows.

(2) After sub-paragraph (1) insert—

(1A) For the purposes of this paragraph in its application to hereditaments in England, a person is disabled if he has a disability within the meaning given by section 6 of the Equality Act 2010.

(3) In sub-paragraph (2), at the beginning insert “For the purposes of this paragraph in its application to hereditaments in Wales,”.

(4) In sub-paragraph (4) at the end insert “or, in the case of a local authority in England, had power to provide under that section immediately before it ceased to apply to local authorities in England.”

Section 43 Children Act 1989 (c. 41)

The Children Act 1989 is amended as follows.

Section 44 Children Act 1989 (c. 41)

In section 17ZA (young carers’ needs assessments: England) in subsection (6)(b) after sub-paragraph (iii) add—

(iv) Part 1 of the Care Act 2014.

Section 45 Children Act 1989 (c. 41)

In section 17ZD (parent carers’ needs assessments: England) in subsection (8)(b) after sub-paragraph (iii) add—

(iv) Part 1 of the Care Act 2014.

Section 46 Children Act 1989 (c. 41)

(1) Section 17A is amended as follows.

(2) For subsections (3) and (3A) substitute—

(3) Regulations under this section may, in particular, make provision—

(a) specifying circumstances in which the responsible authority are not required or authorised to make any payments under the regulations to a person, whether those circumstances relate to the person in question or to the particular service mentioned in subsection (2);

(b) for any payments required or authorised by the regulations to be made to a person by the responsible authority (“direct payments”) to be made to that person (“the payee”) as gross payments or alternatively as net payments;

(c) for the responsible authority to make for the purposes of subsection (3A) or (3B) such determination as to—

(i) the payee’s means, and

(ii) the amount (if any) which it would be reasonably practicable for the payee to pay to the authority by way of reimbursement or contribution,

as may be prescribed;

(d) as to the conditions falling to be complied with by the payee which must or may be imposed by the responsible authority in relation to the direct payments (and any conditions which may not be so imposed);

(e) specifying circumstances in which the responsible authority—

(i) may or must terminate the making of direct payments,

(ii) may require repayment (whether by the payee or otherwise) of the whole or part of the direct payments;

(f) for any sum falling to be paid or repaid to the responsible authority by virtue of any condition or other requirement imposed in pursuance of the regulations to be recoverable as a debt due to the authority;

(g) displacing functions or obligations of the responsible authority with respect to the provision of the service mentioned in subsection (2) only to such extent, and subject to such conditions, as may be prescribed;

(h) authorising direct payments to be made to any prescribed person on behalf of the payee;

(j) as to matters to which the responsible authority must, or may, have regard when making a decision for the purposes of a provision of the regulations;

(k) as to steps which the responsible authority must, or may, take before, or after, the authority makes a decision for the purposes of a provision of the regulations;

(l) specifying circumstances in which a person who has fallen within subsection (3D) but no longer does so (whether because of fluctuating capacity, or regaining or gaining of capacity) is to be treated, or may be treated, as falling within subsection (3D) for purposes of this section or for purposes of regulations under this section.

(3A) For the purposes of subsection (3)(b) “gross payments” means payments—

(a) which are made at such a rate as the authority estimate to be equivalent to the reasonable cost of securing the provision of the service concerned; but

(b) which may be made subject to the condition that the payee pays to the responsible authority, by way of reimbursement, an amount or amounts determined under the regulations.

(3B) For the purposes of subsection (3)(b) “net payments” means payments—

(a) which are made on the basis that the payee will pay an amount or amounts determined under the regulations by way of contribution towards the cost of securing the provision of the service concerned; and

(b) which are accordingly made at such a rate below that mentioned in subsection (3A)(a) as reflects any such contribution by the payee.

(3C) Regulations made for the purposes of subsection (3)(a) may provide that direct payments shall not be made in respect of the provision of residential accommodation for any person for a period in excess of a prescribed period.

(3D) A person falls within this subsection if the person lacks capacity, within the meaning of the Mental Capacity Act 2005, to consent to the making of direct payments.

(3) In subsection (4)—

(a) in paragraph (a), for the words from “(4)(a)” to the end substitute “(3A)(a)”;

(b) in paragraph (b), for “(4)(b) of that section” substitute “(3A)(b)”.

(4) In subsection (6)—

(a) omit the definition of “the 2001 Act”;

(b) in the definition of “prescribed” omit the words from “(and has” to the end.

Section 47 Children Act 1989 (c. 41)

(1) In section 17B (vouchers for persons with parental responsibility for disabled children), in subsection (1) after “local authority” insert “in Wales”.

(2) In the heading of that section, at the end insert “: Wales”.