CIRCULAR NO

CIRCULAR NO: SWSG13/92 5455

31 December 1992

Dear Colleague

COMMUNITY CARE: NATIONAL ASSISTANCE (ASSESSMENT OF RESOURCES) REGULATIONS 1992: REGULATIONS AND GUIDANCE

Summary

1. This Circular encloses guidance on the new assessment and charging procedures which will apply to adults placed by local authorities in residential accommodation, including nursing homes, from April 1993. The National Assistance (Assessment of Resources) Regulations 1992 (SI 1992 No 2977) constitute the basis for the new arrangements. Note that amending Regulations were made in 1993 and new guidance issued under Circular SWSG13/93, and thereafter.

Commencement Date

2. The new rules will apply from 1 April 1993 to new residents placed by local authorities in statutory and independent sector residential accommodation, including nursing homes under the Social Work (Scotland) Act 1968 and Section 7 of the Mental Health (Scotland) Act 1984. They will also apply to existing residents for whom accommodation is provided by local authorities under Part IV of the 1968 Act and Section 7 of the 1984 Act from 12 April, the date from which the DSS uprating of benefits takes effect for 1993/94.

Background

3. The 1989 White Paper "Caring for People" which set out the Government’s community care proposals included a commitment to align the rules for assessing ability to meet the cost of local authority residential accommodation retained from Part III of Schedule 1 to the Supplementary Benefits Act 1976, with those which apply in the independent sector under DSS Income Support arrangements. In this regard the charging arrangements described in the National Assistance (Assessment of Resources) Regulations 1992 made under Section 22(5) of the National Assistance Act 1948, which have GB application, will come into operation from 1 April 1993. From that date, local authorities will be required to assess the care needs

and, if necessary, place in residential accommodation those who need public financial support to help meet their residential care costs.

Legislative Basis of New Arrangements

4. The requirement for local authorities to charge for accommodation will continue to be provided under Part III of the National Assistance Act 1948 which applies by virtue of Section 87(3) of the Social Work (Scotland) Act 1968. However, Section 65(f) of the National Assistance Act 1948 as amended by Schedule 9 to the National Health Service and Community Care Act 1990, extends the charging arrangements to all residential accommodation provided for social work purposes, including nursing homes. Section 22 of the 1948 Act requires local authorities to recover from people provided with accommodation the cost at either the standard rate, which is the amount representing the full economic cost of care, or a lower sum, depending on the individual’s ability to pay. There will therefore no longer be a minimum charge for people in local authority residential accommodation.

Issues Related to the New Charging Arrangements

(a) Entitlement to Income Support

5. People placed by local authorities from 1 April 1993 in registered residential care homes and nursing homes will be able to claim normal Income Support, including appropriate premiums and Residential Allowance. People in unregistered residential accommodation will be able to claim normal Income Support and Housing Benefit. People in local authorities’ own residential care homes will be able to claim the "Part III" rate of Income Support, although if board is not provided they will be able to claim normal Income Support and Housing Benefit. People who are already in residential care and nursing homes on 31 March 1993 will be able to continue to claim the special rates of Income Support as at present.

(b) Personal Expenses Allowance

6. In "Caring for People" a commitment was given to increase the personal expenses allowance for people in local authority homes to the same level as that payable to those claiming Income Support in independent homes. From 12 April 1993 when the new charging rules come into effect for existing residents, there will be a common personal expenses allowance for everyone supported from public funds. The same basic amount will in future be paid to all residents placed by local authorities and to existing residents in independent homes who have preserved rights to the higher levels of Income Support.

7. As a consequence of the change, which will mean that residents placed by local authorities will in future have a slightly larger sum than at present, the expectation that local authorities will provide replacement clothing will no longer normally apply. However, in special circumstances where replacement clothing is required, such as where a resident has unusually high or high cost clothing requirements because of their special needs or because of an emergency such as a fire or theft, the local authority can provide clothing.

8. New regulations are to be made before April 1993 setting the sum at £12.65 (Circular SWSG6/93, and now replaced by Circular SWSG4/95).

9. In general, people who are ordinarily resident in independent sector residential accommodation on 31 March 1993 will have preserved rights to the higher rates of DSS Income Support. They will therefore look to DSS, rather than to local authorities, for their continued financial support following the introduction of the new residential care funding arrangements. Authorities, therefore, will not generally have powers to provide accommodation for such people.

10. Section 86A of the Social Work (Scotland) Act 1968, as inserted by Section 57 of the NHS and Community Care Act 1990, allows the Secretary of State to prescribe in regulations exemptions to this overall prohibition, together with relevant premises other than those already specified in Section 86(A) and those people to be classified as "ordinarily" resident in such premises at 31 March next year. Separate regulations and guidance on "preserved rights" will be issued to local authorities in due course.

(d) Implementation of Sections 21-24 of the Health and Social Services and Social Security Adjudications Act 1983 (HASSASSA)

11. Sections 21-24 of HASSASSA will come into effect at the same time as the new local authority assessment rules for residential charges. When implemented these sections will give local authorities power to recover charges for residential accommodation from assets previously belonging to residents. The Department will issue a copy of the Commencement Order enacting the provision together with regulations implementing Section 23 and associated guidance shortly.

(e) Choice of Accommodation

12. Authorities will be aware that the Government intend to issue a statutory direction which will require local authorities to place people in more expensive accommodation than they usually would provide if there is a third party able and willing to meet the difference in fees. The charging regulations and guidance would allow for the third party’s contribution to be treated as part of the resident’s income and recovered accordingly.

Revisions of Charging Assessment Rules

13. The guidance will be updated at least annually, together with the annual revision of the basic sum for personal expenses. As the new rules are based largely on Income Support (IS) Regulations, changes in the IS Regulations may require an amendment to the National Assistance (Treatment of Resources) Regulations and/or the guidance. The Department will consider the need for comparable changes and notify local authorities and interested parties of any changes to be implemented.

Cancellation of Circulars

14. The following Circulars are cancelled from 12 April 1993: SWSG14/69, SWSG27/71 and SWSG16/77. See also paragraph 8 above.

Copies of Regulations and Guidance

15. Copies of the legislation mentioned in this Circular can be obtained from HMSO, 71 Lothian Road, Edinburgh.

Contact Point

16. Please direct any enquiries concerning this Circular or enclosures to Mr Trevor Hall, Social Work Services Group, Room 44, James Craig Walk, Edinburgh

EH1 3BA (telephone 0131 244 5455).

Yours faithfully

GAVIN ANDERSON