7 April 1993

Dear Colleague

COMMUNITY CARE: NATIONAL HEALTH SERVICE AND COMMUNITY CARE ACT 1990

LOCAL AUTHORITIES’ POWERS TO MAKE ARRANGEMENTS FOR PEOPLE IN INDEPENDENT SECTOR RESIDENTIAL CARE AND NURSING HOMES FROM 31 MARCH 1993

Summary

1. This Circular encloses at Annex A guidance on local authorities’ powers to make residential accommodation arrangements from 1 April 1993 for people already in independent sector residential care and nursing homes on 31 March 1993 who, but for the provisions of the Residential Accommodation (Relevant Premises, Ordinary Residence and Exemptions) Regulations 1993 would not otherwise look to the local authority for support.

Background

2. Local authorities’ duty to make residential accommodation arrangements will continue to apply under Part II of the Social Work (Scotland) Act 1968 after 1 April 1993. From that date they assumed responsibility for making social care arrangements for people who need public financial support to enter residential accommodation, primarily residential care and nursing homes, following the implementation of the NHS and Community Care Act 1990.

3. The new arrangements apply to people seeking residential accommodation from 1 April 1993 but not to people already in independent sector residential care and nursing homes on 31 March 1993. This is because those residents will generally have preserved rights (PR) to the special levels of Income Support under the current system and should continue to look to DSS for financial assistance. The cost of their care has not therefore been included in the calculation of the sum to be transferred to local authorities from the Department of Social Security. Annex B outlines residents’ PR entitlement to the higher rates of Income Support.

4. Section 86A of the Social Work (Scotland) Act 1968, as inserted by Section 57 of the NHS and Community Care Act 1990 which came into effect on 1 April 1993, consequently prohibits local authorities from making residential accommodation arrangements for people who, on 31 March 1993, were in residential care and nursing homes registered under the Social Work (Scotland) Act 1968, Nursing Homes Registration (Scotland) Act 1938 or

Mental Health (Scotland) Act 1984. However, Section 86A also provides that certain extensions and exceptions to this rule may be made by regulations. The guidance describes the provisions of the 1993 Regulations and the extensions and exceptions they make.

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

Contact Point

6. Please direct any enquiries about this circular and enclosures to Mr Trevor Hall, Social Work Services Group, Room 44, James Craig Walk, Edinburgh EH1 3BA

(telephone 0131 244 5455).

Yours sincerely

GAVIN ANDERSON

ANNEX A

GUIDANCE ON THE RESIDENTIAL ACCOMMODATION (RELEVANT PREMISES, ORDINARY RESIDENCE AND EXEMPTIONS) REGULATIONS 1993

Index Para Nos

Local Authorities’ Powers to make Residential Accommodation 1

Arrangements

People "ordinarily resident in relevant premises" on 31 March 1993 2-7

"Relevant" Premises 3-5

"Ordinarily" Resident 5-7

Exemption of "Certain Classes of Person" from the General Exclusion 8-27

Exclusion under Section 86A:

People in Independent Sector Residential Care Homes for whom 9-11

local authorities are already providing financial support at

31 March 1993

People under pensionable age in Independent Sector 12-14

Residential Care and Nursing Homes for whom local authorities

are not providing financial support at 31 March 1993

People without preserved rights or who lose their preserved rights 15-18

People over pensionable age in independent sector residential care 19-22

homes who face home closure or eviction

Local Authority and Health Board responsibilities where Nursing 23-27

Homes close or patients face eviction

People with preserved rights who move temporarily into local authority 28

residential accommodation

Care Assessment and Contractual Responsibilities of Local Authorities 29

Methods of Payment 30

Direction on Choice 31

Complaints Procedures 32

LOCAL AUTHORITIES’ POWERS TO MAKE RESIDENTIAL ACCOMMODATION ARRANGEMENTS

1. Local authorities have a general duty under Part II of the Social Work (Scotland) Act 1968 as amended by the NHS and Community Care Act 1990, to promote social welfare for persons in their area and in that regard to make residential accommodation arrangements. Under Section 59 of the 1968 Act they have a duty ot provide residential or other establishments either at their own hand or by arrangement with another authority, or to secure the provision by voluntary organisations or other persons. Section 13B of the 1968 Act and Section 7 of the Mental Health (Scotland) Act 1984 empower authorities to provide residential care in particular circumstances. When contemplating making arrangements under the attached regulations for people with preserved rights (PR), local authorities must first consider whether suitable alternative arrangements can be made by the person concerned, using their PR.

PEOPLE "ORDINARILY RESIDENT IN RELEVANT PREMISES" ON 31 MARCH 1993

2. Section 86A prohibits local authorities from making any residential accommodation arrangements under the Social Work (Scotland) Act 1968, either in the authorities’ own homes or in the independent sector, for people who are "ordinarily resident in relevant premises" on 31 March 1993.

"Relevant Premises"

3. Section 86A(2) defines "relevant premises" as premises registered under the Social Work (Scotland) Act 1968, Nursing Homes Registration (Scotland) Act 1938 (as well as those establishments which are exempt from registration), or Section 12 of the Mental Health (Scotland) Act 1984. As this covers most residential care and nursing homes it means that, from 1 April 1993, the great majority of residents with PR will be excluded from local authorities’ powers to make residential accommodation arrangements.

4. Regulation 2 of the regulations extends the definition of "relevant premises" to include:

i. an establishment provided by a housing association and registered with Scottish Homes which provide care equivalent to that given in residential accommodation provided under the Social Work (Scotland) Act 1968 in which residents attract the higher rates of Income Support;

ii. premises run by the Abbeyfield Society: where people who are currently able to receive the special rates of Income Support will retain their entitlement to preserved rights even though the premises may not be registered.

The intention is to ensure that people who are not in registered homes or establishments exempt from registration but who nevertheless have PR are similarly excluded from local authorities powers to make arrangements.

"Ordinarily Resident"

5. For the purposes of section 86A of the Social Work (Scotland) Act 1968 "ordinarily resident" means, in general terms, where the person concerned is in fact resident. It should not be confused with the issue of the "ordinary residence" of someone before admission to residential accommodation provided under the Social Work (Scotland) Act 1968 or Section 7 of the Mental Health (Scotland) Act 1984, on the basis of which financial responsibility for that resident is generally determined.

6. Regulation 3 of the Regulations provides that a person shall be treated as being "ordinarily resident" in a home on 31 March 1993 even if they are temporarily absent from the home on that date. For these purposes "temporarily absent" means an absence of up to:

i. 4 weeks, where they were a temporary resident before the absence;

ii. 13 weeks, where they were a permanent resident before the absence;

iii. 52 weeks, where the absence is because the resident is in hospital.

7. Generally, people who are in independent sector residential care and nursing home son 31 march 1993 will have preserved rights. Regulation 3 provides that, for the purposes of Section 86A, a person shall be regarded as "ordinarily resident" in relevant premises if he or she is actually resident there on 31 March 1993, even though his or her usual residence is elsewhere. Until they lose their preserved rights entitlement, they will be excluded from local authorities’ powers to make residential accommodation arrangements, subject to the following exemptions.

EXEMPTION OF CERTAIN "CLASSES OF PERSON" FROM THE GENERAL EXCLUSION UNDER SECTION 86A

8. The general prohibition placed on local authorities by section 86A will mean that local authorities are not able to make residential accommodation arrangements from 1 April 1993 for people with PR. However, section 86A(3) also allows for some exceptions to the general prohibition to be made, by regulations, for specified "classes of persons". The "classes of persons" in respect of whom exceptions have been made, and the conditions attached to the powers which local authorities have to make residential accommodation arrangements, are set out in regulations 4 to 9 of the Regulations.

People in Independent Sector Residential Care Homes for whom Local Authorities are already providing financial support at 31 March 1993

9. Up until 1 April 1993, local authorities have had powers under Section 12 of the Social Work (Scotland) Act 1968 to make residential accommodation arrangements in independent sector homes. Where the cost of this exceeded the maximum level of the higher rate of Income Support, exceptionally residents could claim the higher rate of Income Support provided that the local authority met the difference between that and the fees for the home and that the residents concerned were under pensionable age. Regulation 4 provides that local authorities continue to have powers to make residential accommodation arrangements from 1 April for people whom they have been supporting up to that date in independent sector residential care homes under either the Social Work (Scotland) Act 1968 or Section 7 of the Mental Health (Scotland) Act 1984. Local authorities should use these powers after 1 April to continue to assist those people they are currently supporting.

10. Under the system up to 1 April 1993, when the resident reached pensionable age, the local authority remained responsible for the arrangements, but Income Support entitlement reduced to the "Part III" rate, unless the arrangements had been in place for 2 years prior to pensionable age being reached in which case the special levels of Income Support remained in payment. From 1 April 1993, however as a result of amendments to the Income Support regulations, the higher levels of Income Support remain in payment when the resident reaches pension age without the need for a 2 year qualifying period.

11. It is important to note that although local authorities may have been "topping up" the financial contribution paid by residents before 1 April, from that date they are, like all placements made under the Social Work (Scotland) Act 1968 and Section 7 of the Mental Health (Scotland) Act 1984, responsible for meeting the full contractual cost of the accommodation. The resident has PR and therefore continues to receive the special rates of Income Support which the local authority should recover through its charging assessment. Paragraph 29 covers local authority contractual arrangements more fully.

People under Pension Age in Independent Sector Residential Care and Nursing Homes for whom Local Authorities are not providing financial support at 31 March 1993

12. As described above, up to 1 April 1993 local authorities were able, under Section 12 of the Social Work (Scotland) Act 1968, to support people under pension age in residential care homes who were entitled to the special levels of Income Support. Regulation 6 provides that local authorities continue to have a similar power from 1 April 1993 in respect of any residents under pension age in a residential care home for whom they were not already providing financial support on 31 March 1993. Ministers gave a commitment in Parliament during the passage of the NHS and Community Care Bill to extend this power to nursing home residents with PR who are under pensionable age and this is also fulfilled by the provisions of Regulation 6.

13. Local authorities should note that where they consider making residential accommodation arrangements for people under pension age with PR who face eviction from their current home, residential accommodation arrangements can only be made with an alternative home which is not owned or managed by the person or organisation that owns or manages the resident’s current home. This is to help prevent undue pressure being placed on local authorities to provide funding for residents with PR. The requirement does not apply to people in homes that close (see paragraph 20 below).

14. It is also important to note that, where a local authority makes residential accommodation arrangements under the Regulations they will be empowered to continue with the arrangements when the resident reaches pension age, and will be able to make arrangements to place the resident in a nursing home if that becomes necessary. This is because it would be unreasonable for local authority financial support to be withdrawn solely as a result of the resident reaching pension age or needing to move from residential care to nursing home care. This applies both to residents placed by local authorities in homes before 1 April 1993 and residents with PR for whom local authorities have accepted responsibility on or after that date.

People without Preserved Rights or who lose their Preserved Rights

15. Although the great majority of people who were in "relevant premises" on 31 March 1993 will have PR, there will be instances where they will not. It is essential that these people are not excluded both from PR entitlement and local authorities’ powers to make residential accommodation arrangements, and regulation 5 achieves this. Local authorities are therefore able to make residential accommodation arrangements for them if appropriate.

16. Although people who were entitled to the special levels of Income Support on 31 March 1993 will have PR for as long as they remain in relevant premises, either in their current home or elsewhere, they will lose their PR if they are absent from relevant premises in excess of the following lengths of time:

i. 4 weeks, where they were a temporary resident on 31 March 1993;

ii. 13 weeks, where they were a permanent resident on 31 March 1993;

iii. 52 weeks, where their absence is in hospital.

These periods could have begun before 31 March 1993. For example a permanent resident who had been absent from relevant premises since 1 February 1993 (but not absent in hospital) would lose their PR from 3 May 1993.

17. Regulation 5 provides that local authorities are able to make residential accommodation arrangements from 1 April 1993 for people who subsequently lose their PR. This will be applicable after 1 April 1993 to people who happened to be in a residential care or nursing home on 31 March but did not normally live there, for instance, residents receiving respite or rehabilitative care who may have had a relatively short stay. If they left the home for the periods specified in paragraph 16, they would lose their PR and will have to approach the local authority if they require residential accommodation at a future date.

18. Local authorities should note the position of the few people who, at 31 March 1993, were in residential care or nursing homes owned or managed by close relatives. These residents do not have PR because they have not been entitled to the special residential care levels of Income Support under the current system. Local authorities could therefore make residential accommodation arrangements for them in the close relatives’ home under regulation 5 if appropriate. However, if the resident moved to another registered home, or if their current home was taken over by a non-relative, they would obtain entitlement to PR as a consequence of the change of circumstances. As they would have obtained entitlement to PR, local authorities would not be able to make residential accommodation arrangements for them using the particular exemption provided in regulation 5.

People over pensionable age in independent sector residential care homes who face home closure or eviction

19. The general prohibition contained in section 86(A) of the Social Work (Scotland) Act 1968 would have, but for the exceptions made by regulations, removed from local authorities their general powers to make residential accommodation arrangements under Part II of the 1968 Act for anyone already in relevant premises on 31 March 1993, including those in need of care and attention which was not otherwise available to them. For example, it would have presented local authorities from making arrangements for residents in an independent residential care home which was closed for any reason or where they are threatened with eviction, even though the residents may have been unable to find an alternative independent home using their PR. To avoid this, regulations 8 and 9 provide that local authorities can make residential accommodation arrangements for:

i. people over pensionable age, who

ii. have been evicted or are threatened with imminent eviction from a residential care home (whether through home closure or for other reasons).

20. Regulation 9(2) of the Regulations provides that local authorities can only make residential accommodation arrangements for residents who are threatened with eviction (for people under pension age who are threatened with eviction see paragraph 13 above) in a home which is not owned or managed by the person or organisation which owns or manages the resident’s current home, unless the whole home has been or is about to be closed down. This also applies where the resident has just been evicted from a home. This is to prevent undue pressure being placed on local authorities to provide funding for residents with PR.

21. Once a local authority has made arrangements for a person over pension age in a residential care home, regulation 9(1) provides that the local authority will also be able to make arrangements to place them in nursing home if that later becomes necessary. If they are placed in a nursing home and subsequently face eviction, regulation 9(2) provides that the local authority can only make further arrangements in accommodation which is not owned or managed by the person or organisation who owns or manages the current home.

22. It would be appropriate for local authorities to draw up plans in the event that a residential care home closes or a resident is evicted . With the local authority’s advice and guidance, residents may be helped to find alternative accommodation using their PR without the local authority having to take financial responsibility for them. In drawing up such plans local authorities will be able to ensure that arrangements for dealing with home closures or evictions can be handled efficiently, with minimum distress to all residents. Such plans are likely to work most effectively if independent sector providers have been involved in their preparation. Similar arrangements should also be made in respect of nursing homes (see paragraph 27).

Local authority and Health Board responsibilities where nursing homes close or residents face eviction

23. Up to 1 April, where a nursing home closed or a patient was evicted the Department’s view has been that responsibility for finding alternative accommodation lay with:

i. the Health Board where the Health Board had purchased the nursing home place and where the resident was assessed as having continuing health care needs.

ii. the resident or their relatives, with help from the home owner. This was because the resident will probably have arrived at the home as a result of their private arrangements in the first place.

24. Although local authorities have the power from 1 April to make nursing home arrangements for people who do not have PR until that date, they had no power to make residential accommodation arrangements for people in nursing homes, even where the home closed or the residents were threatened with eviction. This remains the position from 1 April 1993 for residents with PR, with the exception that local authorities are empowered by regulation 6 to make arrangements for people under pension age (see paragraph 12). Local authorities also have the responsibility to make alternative arrangements for any people that they have placed in nursing homes from 1 April 1993.

25. From 1 April 1993, local authorities in collaboration with Health Boards can, however, help all nursing home residents who face eviction or home closure with advice and guidance to help them to find alternative accommodation using their PR and any other resources available to them.

26. In this context, it is imperative that local authorities and Health Boards agree the appropriate protocols which clearly define responsibilities and in the case of closure of a nursing home or the threatened eviction of a resident. Although the local authority will only be empowered to make arrangements for people under pension age and those they have placed from 1 April, help and advice will need to be readily available to all residents affected. Such contingency plans and arrangements should, as far as possible, aim to ensure that all residents are helped to identify opportunities and choices in finding alternative accommodation irrespective of the source of financial support. In drawing up such contingency plans, local authorities and health boards will be able to ensure that arrangements for dealing with home closures or evictions can be handled efficiently and with minimum distress to all residents. Such plans are likely to work most effectively if independent sector providers have been involved in the preparation.

27. Residents over pension age in nursing homes under private arrangements of course retain their access to NHS services and, where the private arrangements cannot continue, the NHS will assess the health needs of the residents where appropriate and offer NHS services within the resources available. However, the level of services offered is a matter for local determination in the light of local needs and priorities.

PEOPLE WITH PRESERVED RIGHTS WHO MOVE TEMPORARILY INTO LOCAL AUTHORITY RESIDENTIAL ACCOMMODATION

28. As explained at paragraph 18, a person retains entitlement to PR if temporarily absent from a registered residential care or nursing home. This applies even if the person is accommodated temporarily in a local authority residential care home, for instance following the closure of their previous home. As long as the temporary absence does not exceed the periods outlined at paragraph 18, payment of the higher levels of Income Support will be reinstated on returning to registered residential accommodation. Whilst temporarily placed in the local authority home the resident will be entitled to the "Part III" rate of Income Support.

CARE ASSESSMENT AND CONTRACTUAL RESPONSIBILITIES OF LOCAL AUTHORITIES

29. Where a local authority decides to assist a person with PR (including those that it is already "topping up") its obligations are the same as those that would apply if a place were being arranged for the person for the first time. This means that the authority should carry out an assessment of the person’s needs before making a placement (except in urgent cases). When making a placement in an independent sector home, the authority should contract for the full cost of the accommodation, even though the amount of Income Support it will be able to recover through charging will be higher than for other people because of PR.

METHODS OF PAYMENT

30. As residents with PR will be used to paying their home’s charge direct to the home, local authorities should note that the new section 26(3A) of the National Assistance Act 1948 allows this to continue. Section 26(3A) provides that residents for whom authorities are responsible in independent sector homes may pay their assessed contribution, as calculated by the local authority, direct to the proprietor of the home provided that the authority, the resident and the proprietor all agree to this method. The local authority would be responsible for meeting the balance of the costs, but should the resident fail to pay the appropriate amount to the proprietor the local authority is responsible for payment of the full amount.

DIRECTION ON CHOICE

31. When a local authority decides to make arrangements for residential accommodation for someone with PR, that person has the same rights as any other person to a choice of home under the Social Work (Scotland) Act 1968 (Choice of Accommodation) Directions 1993. However, those Directions do not require or permit an authority to make any arrangement which is not allowed for by these regulations. In other words, a person whom an authority decides to assist when threatened with eviction, from a particular residential care home could not use the Directions to require the authority to make a placement in that same home (see paragraphs 13 and 20).

COMPLAINTS PROCEDURES

32. Where a person is dissatisfied with a local authority’s decision about the application of the attached regulations to their individual circumstances they can make use of the social work complaints procedures. This includes scope for reference to a review panel, including at least one independent member who should chair the review panel, if the complainant is not satisfied with the authority’s initial response to their complaint. The authority must then make a decision in the light of the panel’s recommendation.

ANNEX B

PRESERVED RIGHTS ENTITLEMENT

Note: This chart gives general guidance only and should not be treated as a complete and authoritative statement of the law.