The Preserved Rights (Transfer to Responsible Authorities) (Scotland) Regulations 2002

Citation, commencement, interpretation and extent

1.—(1) These Regulations may be cited as the Preserved Rights (Transfer to Responsible Authorities) (Scotland) Regulations 2002 and shall come into force on 8th April 2002.

(2) In these Regulations, unless the context otherwise requires, any reference to a section is to a section of the Health and Social Care Act 2001.

(3) These Regulations extend to Scotland only.

Disapplication of duties of a responsible authority under section 50(3) to (7)

2.  For the purposes of section 50(8), section 50(3) to (7) (duties of responsible authorities to persons having preserved rights) shall not apply to any person who, in respect of the day immediately before the appointed day–

(a) is not entitled to income support under section 124(1) of the Social Security Contributions and Benefits Act 1992(1) or is so entitled but does not have a preserved right for the purposes of regulation 19 of the Income Support (General) Regulations 1987(2), or

(b) is being provided with after-care services in accordance with section 7 of the Mental Health (Scotland) Act 1984(3).

Recovery of payments by responsible authorities

3.  For the purposes of section 50(7), the amount of any payment made by a responsible authority in pursuance of section 50(6) (payments where services not provided under section 50(3)) which is recoverable by it from the person, is the amount which would be recoverable under section 87(2) to (4) of the Social Work (Scotland) Act 1968(4) if the accommodation was provided by the responsible authority under that Act and the rate fixed in accordance with sections 22(2) or 26(2) of the National Assistance Act 1948(5) was the amount of the payment made by the authority pursuant to section 50(6).

Ordinarily resident

4.—(1) A person is to be treated as ordinarily resident in any premises for the purposes of section 50 if that person is in fact resident in such premises or is temporarily absent from such premises.

(2) In this regulation, “temporarily absent” means absent for a period which does not exceed–

(a) where the person is not a patient throughout the period of the absence–

(i) 4 weeks, where the person was, before the absence, a temporary resident in relevant premises; or

(ii) 13 weeks, where the person was, before the absence, a permanent resident in relevant premises; or

(b) where the person is a patient throughout the period of the absence, 52 weeks.

(3) For the purposes of this regulation–

(a) a “patient” means a person (other than a prisoner) who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations 1975(6); and

(b) a person is a permanent resident in relevant premises where those premises are that person’s principal place of abode, and a temporary resident where they are not.

HUGH HENRY

Authorised to sign by the Scottish Ministers

St Andrew’s House,

Edinburgh

27th February 2002