Circular SWSG5/94 5455 - Community Care: National Assistance (Assessment of Resources) (Amendment No.2) Regulations 1993: Regulations and Guidance

SECTION 13 - TRANSITIONAL PROVISIONS

What are Transitional Provisions?

13.001 These provisions give protection to residents who are, already in residential accommodation before the introduction of new rules in April 1993, who would be financially worse-off were the new rules to affect them immediately.

13.002 An assessment will be made to arrive at the resident’s "protected amount" ie the charge they will have to pay as a result of protection under the Transitional Provisions.

Who benefits from Transitional Provisions?

13.003 In order to benefit a person must have been, immediately before 12 April 1993, in or temporarily absent from accommodation provided by a local authority under Part IV of the Social Work (Scotland) Act 1968 or Section 7 of the Mental Health (Scotland) Act 1984 and either:

Schedule 1 paras 2 and 4(1)

a. receiving disregards on income under the old rules the total of which was more than £1 higher than the total of income disregards under the new rules; or

b. in possession of capital in excess of the £8,000 limit.

Schedule 1 para 4(2)

Who is not included in the Provisions?

13.004 The provisions do not apply to:

a. new residents placed in residential accommodation between 1 April 1993 and 12 April 1993;

b. less dependent residents;

c. people in accommodation provided under Part IV of the Social Work (Scotland) Act 1968 or Section 7 of the Mental Health (Scotland) Act 1968 or Section 7 of the Mental Health (Scotland) Act 1984 who are already paying the standard charge;

d. people who have capital of less than £8,000 and who also have income of which less than £1 is being disregarded.

Schedule 1 para 5

Assessment of the Protected Amount

13.005 The Provisions will be phased over 3 years and will involve making assessments under the new rules for each year.

1993/94

13.006 For the residents listed at 13.003, assess the amount that would have been paid had the "old" charging arrangements based on Schedule 1 of the Supplementary Benefits Act 1976 still been applicable, but taking account of the new amounts of Social Security benefits payable and allowing the new rate of personal expenses allowance. Assess the amount liable to be paid under the new rules. Charge as follows:

a. if the charge under the new rules is equal to or lower than the charge under the old rules; then no protected amount applies and the resident will be charged immediately under the new rules from 12 April 1993.

b. if the charge under the new rules is higher than the charge under the old rules; then, for the first year, the resident will remain to be charged under the old rules ie the charge under the old rules will be the person’s protected amount. This charge will be made immediately the new rules come into force.

Schedule 1 para 6

1994/95

13.007 In April 1994 and assessment under the new rules will be made at the time of the DSS Income Support uprating and will be compared to the protected amount that the resident has been paying since April 1993. Charge as follows from the first full week following the date of the annual benefit rates uprating order:

a. assess the amount the resident would be liable to pay for their accommodation in accordance with the new rules;

b. add to his 1993 protected amount 33% of the difference between his new rules assessment and the 1993 protected amount;

c. if this new protected amount is less than £1 higher than the 1993 protected amount, base the resident’s charge on the new rules assessment;

d. otherwise, charge the resident on the basis of the new protected amount.

Schedule 1 para 7(1)

eg The resident has been liable for a charge of £65.00 (his 1993 protected amount);

In April 1994 the assessment under the new rules shows him able to pay a charge of £165.00.

Add 33% of the difference between the 1993 protected amount and the new rules assessment (£165-£65 = £100 x 33% £33 + £65 = £98) this is his protected amount for 1994.

1995/96

13.008 In April 1995 an assessment under the new rules will be made at the time of the DSS Income Support uprating and will be compared to the protected amount that the resident has been paying since April 1994. Charge as follows from the first full week following the annual benefit rates uprating order:

a. assess the amount the resident would be liable to pay for their accommodation in accordance with the new rules;

b. add to his 1993 protected amount 33% of the difference between his new rules assessment and the 1993 protected amount;

c. if this new protected amount is less than £1 higher than the 1993 protected amount, base the resident’s charge onthe new rules assessment;

d. otherwise, charge the resident on the basis of the new protected amount.

Schedule 1 para 7(2)

eg The resident has been liable for a charge of £98.00 (his 1994 protected amount);

In April 1995 the assessment under the new rules shows him able to pay a charge of £248.00.

Add 33% of the difference between the 1994 protected amount and the new rules assessment (£248 - £98 = £150 x 33% = £49.50 + £98 = £147.50) this is his protected amount for 1995.

1996/97

13.009 In April 1996 all residents will be liable to pay the charge assessed under the new rules from the first full week following the annual benefits uprating order; ie if income or capital considerations mean they are assessed as being able to meet the standard charge (eg they have capital over £8,000) then they will be liable to pay the full standard rate for the accommodation provided.

Schedule 1 para 7(3)

Change of circumstances

Increase in resources

13.010 If, once an annual protected amount has been assessed, a person’s income or capital increases, the change will not affect the protected amount for that year, unless the increase is due to a payment from a third party contributing towards fees (see 6.055 and 8.019). In these cases, the protected amount should be reassessed as follows:

Schedule 1 para 8(1) and (3)

13.011 In the first full week following the first payment under an agreement, assessments will have to be made under the old (pre April 1993) rules and the new rules taking into account the new resource and any other resources acquired since the last re-assessment.

1993/94

13.012 If the new resources is received during the 1993/94 year, reassess the amounts which would be liable to be paid under the old rules and under the new rules and charge as follows:

a. if the re-assessed charge under the new rules is equal to or lower than the re-assessed charge under the old rules no protected amount applies and the resident should be charged immediately under the new rules.

b. if the assessed charge under the new rules is higher than the re-assessed charge under the old rules, the resident will remain to be charged under the old rules at the re-assessed amount. This re-assessed amount will be the resident’s new protected amount for 1993/94.

Schedule 1 para 8(3)(4)

1994/95

13.013 If the new resources is received following the re-assessment under 13.007, further re-assessments will have to be made under the old (pre April 1993) rules and under the new rules taking the new resource, and any other resource acquired since the last re-assessment, into account and the resident charged as follows:

a. if the re-assessed charge under the new rules is equal to or lower than the re-assessed charge under the old rules, transfer the resident to the charge assessed under the new rules.

b. if the re-assessed charge under the new rules is higher than the re-assessed charge under the old rules, charge the resident the amount assessed under the old rules plus 33% of the difference between the two new assessments.

Schedule 1 para 8(5)

eg The resident has been liable for a charge of £65; on 15/5/94 he receives, for the first time, a payment of £50 under an agreement from a relative.

The re-assessment under the old rules results in him being able to pay a charge of £115; the re-assessment under the new rules results in him being able to pay a charge of £215.

His protected amount for the remainder of the 1994/95 year is £115 plus 33% of the difference between £215 and £115 ie 33% of £100 = £33; so his new protected amount for 1994/95 is £148.

1995/96

13.014 If the new resources received following the re-assessment under 13.008, further re-assessments will have to be made under the old (pre April 1993) rules and under the new rules taking into account the new resource, and any other resource acquired since the last re-assessment, and the resident charged as follows:

a. if the re-assessed charge under the new rules is equal to or lower than the re-assessed charge under the old rules, transfer the resident to the charge assessed under the new rules.

b. if the re-assessed charge under the new rules is higher than the re-assessed charge under the old rules, charge the resident the amount assessed under the old rules plus 66% of the difference between the two new assessments.

Schedule 1 para 8(6)

eg On 15/5/95 a resident receives, for the first time, a payment of £50 under an agreement from a relative.

The re-assessment under the old rules results in him being able to pay a charge of £115; the re-assessment under the new rules results in him being able to pay a charge of £200.

His protected amount for the remainder of the 1995/96 year is £115 plus 66% of the difference between £200 and £115 ie 66% of £85 = £56.10; so his new protected amount for 1995/96 is £171.10.

13.015 The assessment under the new rules each April will take into account any increase in income or capital, other than payments made by third parties, over the preceding year; this assessment in turn will determine the new protected amount.

Schedule 1 para 8(2)

Decrease in resource

13.016 Once a person has been assessed as having a protected amount if, on any date:

a. because of a reduction in income or capital; or

b. as a result of the annual review of his protected amount

the difference between the protected amount and the charge under the new rules is less than £1.00; or if the charge under the new rules would be less than the protected amount, the Transitional Provisions would cease to apply from that date.

Schedule 1 para 9

Change in accommodation

13.017 If the local authority arranges different accommodation for someone who is paying a protected amount for his accommodation the protected will remain the same as that being charged for the original accommodation unless it falls to be re-determined for some other reason, for example an increase in income which necessitates a re-assessment under para 13.010.

Schedule 1 para 10

Temporary absence

13.018 If a person is temporarily absent from accommodation provided for him under the Social Work (Scotland) Act 1968 or Section 7 of the Mental Health (Scotland) Act 1984 he will not lose the right to pay a protected amount.

13.019 If a person is temporarily absent from such accommodation when the new rules come into effect then his protected sum will be assessed from the first full week after his return to that accommodation.

13.020 A person is deemed as temporarily absent from such accommodation for:

a. a period spent in hospital of 52 weeks or less; or

b. any other period of absence not exceeding 13 weeks.

Schedule 1 para 11

Residents Who are Temporarily in Residential Accommodation Before 12 April, including those who are temporarily absent on 11 April

13.021 Where the conditions of 13.003 are satisfied and 13.004 does not apply, a resident who is temporarily in residential accommodation before 12 April 1993 will still have the right to pay a protected amount. It is also possible for a temporary resident to retain the right to pay that protected amount if he returns to the accommodation after a period of absence.

13.022 As with a permanent resident, a resident who is temporarily in residential accommodation before 12 April 1993 will be treated as temporarily absent from that accommodation and will, subject to 13.003, be entitled to pay a protected amount if he is absent from that accommodation for:

a. a period spent in hospital of 52 weeks or less; or

b. any other period of absence not exceeding 13 weeks.

Schedule 1 para 11

eg 1. a person is in residential accommodation for a period of respite care on 11 April 1993 and is assessed to pay a protected amount until he goes home on 17 May 1993. The protected amount is still payable as the period of absence is less than 13 weeks.

2. a temporary resident leaves residential accommodation on 22 March 1993 and returns for a further period of respite care on 10 May 1993. As this is less than 13 weeks from the end of the previous stay, a protected amount subject to the conditions of 13.003 and 13.004 should be assessed.