Community Care and Health (Scotland) Act 2002
Community Care and Health (Scotland) Act2002
asp 5
The Bill for this Act of the Scottish Parliament was passed by the Parliament on 6th February 2002 and received Royal Assent on12th March 2002
An Act of the Scottish Parliament to make further provision as respects social care; to make provision in relation to arrangements and payments between National Health Service bodies and local authorities as respects certain of their functions; to amend the law relating to the National Health Service; and for connected purposes.
Part 1
Community care
Charging and not charging for social care
1 Regulations as respects charging and not charging for social care
(1) Subject to subsection (2)(a) below, a local authority are not to charge for social care provided by them (or the provision of which is secured by them) if that social care is—
(a) personal care as defined in section 2(28) of the Regulation of Care (Scotland) Act 2001 (asp 8);
(b) personal support as so defined;
(c) whether or not such personal care or personal support, care of a kind for the time being mentioned in schedule 1 to this Act; or
(d) whether or not from a registered nurse, nursing care.
(2) The Scottish Ministers may (either or both)—
(a) by regulations qualify the requirements of subsection (1) above in such way as they think fit;
(b) by order amend schedule 1 to this Act.
(3) In paragraph (d) of subsection (1) above, ‘nursing care’ does not include such social care as falls within any of paragraphs (a) to (c) of that subsection.
(4) Subject to subsection (1) above, the Scottish Ministers may by regulations—
(a) require a local authority—
(i) to charge; or
(ii) not to charge,
for such social care provided by (or the provision of which is secured by) the authority as may be specified in the regulations;
(b) where a requirement is made under paragraph (a)(i) above, specify the amount to be charged or factors which the authority must (either or both)—
(i) take into account;
(ii) not take into account,
in determining any such amount; and
(c) where a requirement is made under paragraph (a)(ii) above, qualify that requirement in such way as they think fit.
(5) Regulations under subsection (4) above may—
(a) specify, as a factor which the authority must take into account by virtue of paragraph (b) of that subsection, the maximum amount which may be charged for the social care in question or for that and such other social care (being social care provided to the same person by the authority) as may be specified in the regulations; or
(b) provide that a person who, in such manner and by reference to such factors as may be specified in the regulations, is assessed by the authority as unable to pay the amount falling to be charged by virtue of that paragraph is required to pay only so much as appears from the assessment to be reasonably practicable for that person.
(6) In section 87 of the 1968 Act (charges that may be made for services and accommodation), after subsection (1A) there is inserted the following subsection—
(1B) Subsections (1) and (1A) above do not apply as respects any amount required not to be charged by subsection (1) of section 1 of the Community Care and Health (Scotland) Act 2002 (asp 5) (charging and not charging for social care) or required to be charged or not to be charged by virtue of subsection (4) of that section.’.
(7) Regulations under this section may make such transitional provision as the Scottish Ministers consider necessary or expedient, modifying either or both of subsections (1) and (2) of section 12A of the 1968 Act (duty of local authority to assess needs of certain persons for community care services) in their application to persons who, immediately before the date of coming into force of this section, were receiving such services in residential accommodation and for whom the local authority were not, at that time, providing or securing the provision either of the services or the accommodation.
Accommodation
2 Accommodation provided under 1968 Act etc.
For the purposes of the definition of ‘social care’ in section 22(1) and (2) of this Act, of sections 22 (charges to be made for accommodation), 26 (provision of accommodation in premises maintained by voluntary organisations) and 65 (general provisions as to application to Scotland) of the 1948 Act and of section 87(2) and (3) (charges that may be made for accommodation) of the 1968 Act, the Scottish Ministers may by regulations determine what is and what is not to be regarded as accommodation provided under the 1968 Act or under section 7 of the 1984 Act (arrangements in relation to persons who are or have been suffering from mental disorder).
3 Disregarding of resources when determining whether to make available
assistance by providing residential accommodation
In section 12 of the 1968 Act (general social welfare services of local authorities), for subsections (3A) and (3B) there is substituted—
(3A) In determining, for the purposes of this section, whether to make available assistance by providing, or securing the provision of, residential accommodation to a person, a local authority shall disregard so much of the person's resources—
(a) as may be prescribed; or
(b) as is determined by them in such a way as may be prescribed,
and any order made by virtue of this subsection may make different provision for different cases and for different persons.
(3B) An order made by virtue of paragraph (a) of subsection (3A) of this section may prescribe circumstances in which assistance such as is mentioned in that subsection is to be made available disregarding entirely a person's resources.
(3C) In subsections (3A) and (3B) of this section, references to a person's resources are to resources within the meaning of the order prescribing the amount, or as the case may be the way, in question.
(3D) A statutory instrument made in exercise of the power conferred by paragraph (a) or (b) of subsection (3A) of this section shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.’.
4 Accommodation more expensive than usually provided
(1) The Scottish Ministers may by regulations make provision, in relation to accommodation provided under the 1968 Act or under section 7 of the 1984 Act (functions of local authorities), for and in connection with the making of additional payments—
(a) by persons for whom the accommodation is provided (in this section referred to as ‘residents’); or
(b) by other persons, including those liable to maintain residents by virtue of section 42 of the 1948 Act (liability to maintain wife or husband and children).
(2) In subsection (1) above ‘additional payments’, in relation to a resident, means payments which—
(a) are made for the purpose of meeting all or part of the difference between the actual cost of the accommodation and the amount that the local authority providing it would usually expect to pay in order to provide accommodation suitable for a person with the assessed needs of the resident; and
(b) if they are made by the resident, are made out of such of that person's resources as are specified in, or determined in accordance with, the regulations in question.
(3) Such regulations are, for the purposes of subsection (2) above, to define the expression ‘resources’.
5 Local authority arrangements for residential accommodation outwith Scotland
(1) In fulfilment of their duty under section 12(1) (arranging for provision of residential accommodation, etc.) or 13A(1) (arranging for provision of residential accommodation with nursing) of the 1968 Act, a local authority—
(a) may, in accordance with regulations made by the Scottish Ministers; and
(b) must, if and to such extent as the Scottish Ministers so direct, in accordance with such regulations and with that direction,
make arrangements for the provision of residential accommodation in an appropriate establishment in England and Wales, or in Northern Ireland, any of the Channel Islands or the Isle of Man.
(2) Regulations under subsection (1) above may, subject to subsection (4) below, modify any of the provisions of the 1968 Act in their application to such arrangements.
(3) Arrangements made, before the date on which this section comes into force, by a local authority under section 12(1) of the 1968 Act for the provision of residential accommodation in an appropriate establishment (whether or not the establishment was an appropriate establishment when the arrangements were made) are deemed to have been made by virtue of paragraph (a) of subsection (1) above.
(4) Subsection (2) of section 13A of the 1968 Act does not apply in relation to arrangements made under subsection (1) above and subsection (3) of that section does not apply in relation to premises where accommodation is provided by virtue of subsection (1) above.
(5) In subsections (1) and (3) above, ‘appropriate establishment’ means, in relation to—
(a) section 12 of the 1968 Act—
(i) as respects England and Wales, an establishment carried on or managed by a person registered in respect of it under Part II of the Care Standards Act 2000 (c.14); and
(ii) as respects Northern Ireland, any of the Channel Islands or the Isle of Man, an establishment of such description as may be specified in regulations under subsection (1) above; and
(b) section 13A of the 1968 Act, such establishment as is mentioned in—
(i) sub-paragraph (i) of paragraph (a) above, if that establishment is an independent hospital, in which treatment or nursing (or both) are provided for...
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