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The Care and Support (Deferred Payment) (Wales) Regulations 2015

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Title, commencement and application

1.—(1) The title of these Regulations is the Care and Support (Deferred Payment) (Wales) Regulations 2015 and they come into force on 6 April 2016.

(2) These Regulations apply in relation to Wales.

Interpretation

2.  In these Regulations—

“the Act” (“y Ddeddf”) means the Social Services and Well-being (Wales) Act 2014;

“the 2011 Act” (“Deddf 2011”) means the Budget Responsibility and National Audit Act 2011(1);

“the Charging Regulations” (“y Rheoliadau Gosod Ffioedd”) means the Care and Support (Charging) (Wales) Regulations 2015(2);

“adequate security” (“sicrwydd digonol”) means a charge by way of a legal mortgage for an amount which is at least equal to the adult’s required amount and any interest or administration costs which are to be treated in the same way as the adult’s required amount and which is capable of being registered as a first legal charge in favour of the local authority in the land register(3);

“assessed income” (“incwm asesedig”) has the meaning given in the Charging Regulations;

“capital limit” (“terfyn cyfalaf”) is the amount specified in regulation 11(2) of the Charging Regulations;

“care and support plan” (“cynllun gofal a chymorth”) means a plan prepared in accordance with section 54 of the Act, or a plan which a local authority prepares when it meets an adult’s needs for care and support under section 36 of the Act;

“deferred payment agreement” (“cytundeb ar daliad gohiriedig”) has the meaning given in section 68(2) of the Act;

“required amount” (“swm gofynnol”) is so much of the charge that the adult is required (or is going to be required) to pay under section 59 of the Act and any amount the adult is required to pay in accordance with regulations made under section 57(2) of the Act as is specified or determined in accordance with regulation 5;

“specified time” (“amser penodedig”) means the time specified in regulation 7.

Local authority required to enter into a deferred payment agreement

3.—(1) A local authority(4) is required to enter into a deferred payment agreement with an adult if—

(a)paragraph (2) applies to the adult;

(b)the condition in regulation 4 is met; and

(c)the adult agrees to all the terms and conditions included in the deferred payment agreement in accordance with regulation 11.

(2) This paragraph applies if—

(a)the adult’s needs for care and support are being met (or are going to be met) under section 35 or section 36(1) of the Act and the care and support plan for the adult specifies that the local authority is going to meet the adult’s needs by the provision of accommodation in a care home(5);

(b)the adult is required (or is going to be required) to pay a charge under section 59 of the Act;

(c)the local authority has carried out a financial assessment under section 63 of the Act;

(d)the local authority is satisfied that the adult has an interest in a property which the adult occupies as his or her home or which the adult used to occupy as his or her home(6), and that—

(i)the value of that interest has not been disregarded for the purposes of calculating the amount of the adult’s capital in accordance with regulations made under section 64 of the Act(7), and

(ii)the adult’s capital, less the value of that interest, does not exceed the capital limit; and

(e)the adult’s weekly assessed income is insufficient to meet the full amount due from the adult under section 59 of the Act for the provision of care and support in a care home and any amount the adult is required to pay in accordance with regulations made under section 57(2)(8) of the Act.

Adequate security

4.—(1) A local authority must obtain—

(a)adequate security for the payment of the adult’s required amount and any interest or administration costs which are to be treated in the same way as the adult’s required amount; and

(b)the consent referred to in paragraph (2), if the local authority considers it necessary to do so.

(2) The consent required by paragraph (1)(b) is consent which in the opinion of the local authority is genuine and informed consent, given in writing, to the matters specified in paragraph (3) by any person—

(a)whom the local authority considers has an interest in the property over which the charge will be created; and

(b)whose interest the local authority considers may prevent it from exercising a power of sale of the property or recovering the required amount and any interest and administration costs which are to be treated in the same way as the required amount.

(3) The matters specified for the purpose of paragraph (2) are—

(a)the creation of a charge; and

(b)the charge taking priority over and ranking before any interest the person has in the property over which the charge will be created.

Required amount

5.—(1) The adult’s required amount is the sum which is specified or determined in accordance with paragraph (2).

(2) The sum is the lowest of—

(a)100% of the amount due from the adult under section 59 of the Act for the provision of care and support in a care home and of any amount which the adult is required to pay in accordance with regulations made under section 57(2) of the Act, less any amount which the local authority requires the adult to contribute under regulation 6;

(b)such lesser part of the amount due under section 59 of the Act, and, as the case may be, in accordance with regulations made under section 57(2) of the Act as the adult requests to be deferred, less any amount which the local authority requires the adult to contribute under regulation 6;

(c)the amount deferred in accordance with sub-paragraphs (a) or (b), less any amount which, during the time the deferred payment agreement is in force and in accordance with the terms and conditions of the deferred payment agreement, the local authority does not agree to defer payment of until the specified time.

Adult’s contribution

6.—(1) If in any week during which the deferred payment agreement is in force the adult’s weekly assessed income exceeds the amount of the appropriate minimum guarantee applicable in the adult’s case, the local authority is permitted not to defer an amount due to the local authority under section 59 of the Act and any amount the adult is required to pay in accordance with regulations made under section 57(2) of the Act for meeting the adult’s needs for that week by the provision of accommodation in a care home.

(2) But the amount which, under this regulation, the local authority may decide not to defer in respect of that week may not exceed the amount by which the adult’s assessed income in that week exceeds the amount of the appropriate minimum guarantee.

(3) Where the local authority decides not to defer an amount under paragraph (1), it may include a term in the deferred payment agreement to require the adult to pay or ensure payment of the amount due to the local authority.

(4) In paragraph (3) the amount due to the local authority is the amount which, in accordance with this regulation, the local authority decides not to defer.

(5) The amount of the adult’s weekly assessed income must be calculated in accordance with regulations made under section 64 of the Act.

(6) But nothing in this regulation requires the local authority to defer any amount which is due to it under section 59 of the Act or in accordance with regulations made under section 57(2) of the Act if, under paragraph (3), or in accordance with the terms of the deferred payment agreement, the local authority is permitted to cease to defer that amount.

(7) For the purposes of paragraphs (1) and (2), the “appropriate minimum guarantee” (“gwarant isafswm briodol”) is to be construed in accordance with section 2(3) of the State Pension Credit Act 2002(9).

Time for payment of the required amount

7.  The specified time for repayment of the required amount and any interest and administration costs which have been treated in the same way as the required amount is the sooner of—

(a)the date of sale or disposal of the adult’s property; or

(b)90 days after the date of the death of the adult with whom the deferred payment agreement is made or such longer time as the local authority may permit.

Termination

8.  The adult may terminate the deferred payment agreement at any time prior to the specified time by giving the local authority reasonable notice, in writing, and paying to the local authority the required amount together with any amount of interest and any amount which is required to be paid towards administrative costs which the adult has agreed is to be treated in the same way as the required amount.

Interest

9.—(1) A local authority may charge interest on an adult’s required amount provided that, before entering into the deferred payment agreement, it informs the adult that it proposes to do so and of the rate at which interest will be charged.

(2) The interest may be treated in the same way as the adult’s required amount, unless the adult requests to pay the interest separately.

(3) The interest rate is a rate that does not exceed the relevant rate for the relevant period plus 0.15%.

(4) The relevant rate is the weighted average interest rate on conventional gilts specified for the financial year in which the relevant period starts in the most recent report published before the start of the relevant period by the Office of Budget Responsibility(10) under section 4(3) of the 2011 Act(11).

(5) The relevant period is the period starting on—

(a)1 January and ending on 30 June in any year; or

(b)1 July and ending on 31 December in any year.

(6) “Financial year” (“blwyddyn ariannol”) has the meaning given in section 25(2) of the 2011 Act.

Administrative costs

10.—(1) A local authority may require the adult to pay an amount towards the local authority’s administrative costs provided that it informs the adult that it proposes to do so, before entering into the deferred payment agreement, and complies with sub-paragraphs (a) to (c) of paragraph (3).

(2) The amount which the local authority requires the adult to pay towards its administrative costs may be treated in the same way as the adult’s required amount, unless the adult requests to pay that amount separately.

(3) But the local authority must—

(a)before entering into the deferred payment agreement, give the adult an estimate of the amount which it proposes to require the adult to pay towards the local authority’s administrative costs in respect of making the deferred payment agreement and registering any charge on the land register or on the land charges register;

(b)before entering into the deferred payment agreement, give the adult an indication of the amount which the adult will be required to pay towards the local authority’s administrative costs during the period when the deferred payment agreement is in force and information to enable the adult to ascertain any changes to the amount of such payments;

(c)before requesting payment towards the local authority’s administrative costs, or treating the amount of such a payment in the same way as the required amount, provide the adult with a statement which sets out the amount of the payment.

Terms, conditions and information

11.  The deferred payment agreement may include such terms, conditions and information as the local authority considers necessary or appropriate.

Mark Drakeford

Minister for Health and Social Services, one of the Welsh Ministers

27 October 2015

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