Health and Social Care Act 2001

Health and Social Care Act 2001

2001 CHAPTER 15

Commentary on Sections

Part 4 : Social Care

Preserved rights

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 The corresponding provision for Scotland is repealed by subsection (1)(b).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.