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The Preserved Rights (Transfer of Responsibilities to Local Authorities) (Wales) Regulations 2001

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Welsh Statutory Instruments

2001 No. 3985 (W.326)

SOCIAL CARE, WALES

The Preserved Rights (Transfer of Responsibilities to Local Authorities) (Wales) Regulations 2001

Made

12th December 2001

Coming into force

19th December2001

The National Assembly for Wales, in exercise of the powers conferred by sections 50(7), (8), (9) and (10) of the Health and Social Care Act 2001(1), hereby makes the following Regulations —

Citation, commencement, interpretation and application

1.—(1) These Regulations, which may be cited as the Preserved Rights (Transfer of Responsibilities to Local Authorities) (Wales) Regulations 2001 shall come into force on 19th December 2001.

(2) In these Regulations —

(a)“the Act” (“y Ddeddf”) means the Health and Social Care Act 2001 and references to sections are to sections of that Act;

(b)“the appointed day” (“y diwrnod penodedig”) means the day appointed under section 70 for the coming into force of section 50(1);

(c)“the Income Support Regulations” (“y Rheoliadau Cymhorthdal Incwm”) means the Income Support (General) Regulations 1987(2); and

(d)“responsible authority” (“awdurdod cyfrifol”) is to be construed in accordance with section 50(3).

(3) These Regulations apply to Wales only.

Persons with preserved rights where local authorities' responsibilities do not apply

2.—(1) For the purposes of section 50(8) no part of sections 50(3) to (7) (local authorities' responsibilities in preserved rights cases) applies to a person specified for the purposes of this regulation in paragraph (2) below.

(2) A person specified for the purposes of this regulation is a 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(3), or is so entitled but does not have a preserved right for the purposes of regulation 19 of the Income Support Regulations; or

(b)is being provided with after-care services in accordance with the requirement in section 117 of the Mental Health Act 1983(4).

Recovery of amounts in respect of payments by local authorities

3.—(1) This regulation applies where a responsible authority has made a payment in respect of a person pursuant to section 50(6) (liability of responsible authority to make payments under arrangements existing at the appointed day where services are not provided from that day in accordance with section 50(3) to (5)).

(2) For the purposes of section 50(7) the amount which is recoverable from the person is the amount which would be recoverable under section 22 of the National Assistance Act 1948(5) and regulations made under that section(6) if the accommodation were provided by the responsible authority under Part III of that Act, and if the standard rate fixed for the accommodation referred to in section 22 of that Act, and regulations made under it, were 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 the person is in fact resident in such premises or is temporarily absent from such premises.

(2) For the purposes of this regulation “temporarily absent” means absent for a period which does not exceed —

(a)unless throughout the period of absence the person was a patient —

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

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

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

(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(7); and

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

Signed on behalf of the National Assembly for Wales under section 66(1) of the Government of Wales Act 1998(8)

D. Elis-Thomas

The Presiding Officer of the National Assembly

12th December 2001

Explanatory Note

(This note is not part of the Regulations)

These Regulations are made under section 50 of the Health and Social Care Act 2001 (“the 2001 Act”) which relates to the removal of prohibitions against local authorities providing accommodation to persons who were in such accommodation on 31st March 1993 (“preserved rights cases”). They apply to Wales only.

Regulation 2 provides exceptions to the duties imposed by sections 50(3) to (7) of the 2001 Act on local authorities to ensure the provision of community care services for people who were preserved rights cases before the day appointed for the coming into force of section 50(1). The exceptions relate to a person who, in respect of the day before the appointed day, is not entitled to income support, or is so entitled but not at the preserved rights rate, or is being provided with after-care services under section 117 of the Mental Health Act 1983.

Regulation 3 provides for the amount that can be recovered where, under section 50(6) of the 2001 Act, certain authorities are responsible for payments under arrangements which existed before the appointed day (“the existing arrangements”) and which will continue until community care services are provided. The amount provided for is the same as the amount which could be recovered under section 22 of the National Assistance Act 1948 and related regulations if the existing arrangements were the provision of accommodation by the authority under Part III of the 1948 Act and the standard rate fixed for the accommodation was the payment made by the authority for the existing arrangements.

Regulation 4 makes provision for the circumstances in which a person is to be treated as ordinarily resident for the purposes of section 50 of the 2001 Act.

(1)

2001 c. 15. Section 50(10) is cited because of the meaning ascribed to the word “prescribed”.

(6)

The regulations are the National Assistance (Assessment of Resources) Regulations 1992, S.I. 1992/2977 as amended in relation to Wales by S.I. 1993/964 and 2230, S.I. 1994/825 and 2385, S.I. 1995/858 and 3054, S.I. 1996/602, S.I. 1997/485, S.I. 1998/497 and 1730 and S.I. 2001/276(W.12) and 1409(W.95).

(7)

S.I. 1975/555. Relevant amending instruments are S.I. 1992/2595 and 1999/1326.

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