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Health and Social Care Act 2001

Preserved rights

243.Sections 50 – 52 concern the abolition of preserved rights. Until 1 April 1993, when the community care reforms came into effect, residential care was paid for by the social security benefits that residents received. The community care reforms transferred the responsibility for paying for residential care to local authorities. However, people who were in residential care immediately before 1 April 1993, retained their right to the higher rate of income support that they had been receiving to pay for their care. Responsibility for paying for their care was not transferred to the local authority.

244.Over time, residential care costs have increased at a disproportionate rate to social security benefits, and in some cases social security benefits are not sufficient to cover the cost of the residential care. This has meant that sometimes people have had to leave the care home they have been living in and find alternative accommodation the cost of which is covered by the social security payment.

245.These sections provide for the removal of the entitlement to higher rates of income support or jobseeker’s allowance and require local authorities to make appropriate accommodation arrangements, for those people who received those higher rates, in the same way as they are required to do for those who entered residential accommodation on or after 1 April 1993 . They will require the Secretary of State for Social Security to ensure that the special provision made for those with preserved rights ceases. At the request of the Scottish Executive and by the approval of the Scottish Parliament, which was obtained on 17th January 2001, section 50 operates on devolved legislation concerning Scotland so that preserved rights can cease across the whole of Great Britain on the same day.

246.These new arrangements will require local authorities to assess (under the 1948 Act or its Scottish equivalent) the care needs of those who have had preserved rights rates of benefits for community care services.

Section 50: Preserved rights: transfer to local authorities of responsibilities as to accommodation

247.Section 50 provides for the transfer to local authorities of the responsibility for providing community care services for preserved rights recipients. Subsection (1)(a) will allow local authorities in England or Wales to provide residential accommodation for persons who were in such accommodation on 31 March 1993 by repealing section 26A of the 1948 Act. The corresponding provision for Scotland is repealed by subsection (1)(b).

248.Subsection (2) provides that a “qualifying person” for the purposes of this section is a person to whom either of those provisions applies immediately before the appointed day (i.e. the day on which subsection (1) takes effect).

249.Subsection (3) requires a local authority to secure community care services for qualifying persons in relation to their accommodation from, or as soon as possible after, the appointed day. Community care services are defined for England and Wales by section 46 of the National Health Service and Community Care Act 1990.

250.Subsection (4) places an obligation on local authorities to actively identify people with preserved rights and to carry out appropriate care assessments. Authorities will do this by working with the Department of Social Security, who will be given power to disclose relevant information by section 51.

251.Subsection (5) provides that where a qualifying person is provided with community care services with respect to his accommodation (under subsection (3)), his private arrangements with the residential home will terminate from the date from which he is provided with those community care services.

252.Subsection (6) provides that where a local authority has not been able to assess a person’s need for community care services before the appointed day, the person’s liability to pay for his accommodation becomes the liability of the local authority until the local authority makes the arrangements they consider necessary or where the person notifies the authority that he does not wish to be provided with community care services, the date of the notification. This is to ensure that Subsection (7) enables the local authority to recover from the person all or part of such a payment. It is intended that the Secretary of State will make regulations so that the liability of persons to pay during this period mirrors the means testing system provided for under sections 22 and 26 of the 1948 Act.

253.Subsection (8) enables regulations to be made so that the provisions of section 50 do not apply in relation to any person of a prescribed description.

254.Subsection (9) allows regulations to be made to define the meaning of “ordinarily resident”. It also allows regulations to be made governing the payment which a person is to make in respect of his accommodation before community care services are provided.

Section 51: Preserved rights: disclosure of information

255.This section is concerned with identifying and locating people with preserved rights by using records held by the Department of Social Security.

256.Section 51 allows the disclosure of relevant information held by the Secretary of State for Social Security about preserved rights recipients to local authorities or to any person providing services to, or authorised to exercise functions of, such authorities. Subsection (1) specifies the persons this section applies to. Subsections (2) to (4) specify the type of information which may be supplied and for what purposes it may be used or disclosed. Subsection (5) provides that the restrictions imposed on the Secretary of State for Social Security relating to the unauthorised disclosure of information held by him (see section 123 of the Social Security Administration Act 1992) will apply to local authorities who receive information under this section as well as to the authorities’ officers and employees .

Section 52: Preserved rights: alignment of social security benefits

257.This section provides for the termination of higher rates of income support and jobseeker’s allowance. It requires the Secretary of State to exercise his powers under the Social Security Contributions and Benefits Act 1992 and the Jobseeker’s Act 1995 so as to secure that the provisions relating to higher rates of income support or jobseeker’s allowance payable to or in respect of persons with preserved rights cease to have effect from the appointed day .

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