Health and Personal Social Services (Northern Ireland) Order 1972

Changes over time for: Section 36

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Health and Personal Social Services (Northern Ireland) Order 1972, Section 36 is up to date with all changes known to be in force on or before 24 April 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.

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Changes and effects yet to be applied to Article 36:

Instrument amended by 1995 c. 51 s.4 Sch. para.30

Changes and effects yet to be applied to the whole Order associated Parts and Chapters:

Whole provisions yet to be inserted into this Order (including any effects on those provisions):

art. 56(4C)(4D) substituted by S.I. 2002/3135 Sch. 1 para. 16 (This amendment has not been applied as it has been superceded by the substitution of art. 56 by 2004/311 NI 2 art. 3)
art. 61-61E and art. 61F and cross-heading substituted for art. 61 by 2008 c. 2 (N.I.) s. 2(2) (This amending provision is itself amended (13.6.2016) before it comes into force by 2016 c. 26 (N.I.), ss. 9, 20(2))
art. 98(3) added by 2008 c. 2 (N.I.) s. 4(1)
art. 107(1A) inserted by 2008 c. 2 (N.I.) s. 4(4)(b)

[F1Provision of accommodation in premises maintained by voluntary organisations, etc.N.I.

36.—[F2(1) Subject to paragraph (2), arrangements must not be made under Article 15 for the provision of accommodation together with nursing or personal care for persons such as are mentioned in Article 10(1) of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (residential care homes) unless —

(a)the accommodation is to be provided, under the arrangements, in a residential care home or nursing home (within the meaning of that Order); and

(b)a person carrying on or managing the home is registered in respect of it under that Order.]

[F2(2) The Department may by regulations make provision for or in connection with the making of arrangements under Article 15 for the provision of the accommodation in Great Britain, the Channel Islands or the Isle of Man.]

[F3(2A) Any question under this Order as to [F4whether a person is ordinarily resident in the operational area of an authorised HSC trust is to be determined by the trust.]]

(3) Any arrangements made by virtue of this Article shall provide for the making by [F5the HSC trust] to the other party thereto of payments in respect of the accommodation provided at such rates as may be determined by or under the arrangements; and, subject to paragraph (7), [F6the trust] shall recover from each person for whom accommodation is provided under the arrangements the amount of the refund which he is liable to make in accordance with the following provisions of this Article.

[F7(4) Subject to the following provisions of this Article, a person for whom accommodation is provided under any such arrangements shall refund to [F8the HSC trust] —

(a)where the payments made in respect of him under paragraph (3) include any amount in respect of nursing care by a registered nurse, the amount of such payments less any amount paid in respect of such nursing care;

(b)in any other case, the amount of the payments made in respect of him under paragraph (3).

(4A) In paragraph (4) "nursing care by a registered nurse" means any services provided by a nurse registered under Article 5 of the Nursing and Midwifery Order 2001 (SI 2002 / 253) and involving—

(a)the provision of care, or

(b)the planning, supervision or delegation of the provision of care,

other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a nurse so registered.]

(5) Where a person for whom accommodation is provided, or proposed to be provided, under any such arrangements satisfies [F9the HSC trust] that he is unable to make a refund at the full rate determined under[F7 paragraph (4)(a) or (b)], [F10the trust] shall assess his ability to pay, and accordingly determine at what lower rate he shall be liable to make a refund.

(6) Regulations may make provision for the assessment, for the purposes of paragraph (5), of a person's ability to pay.

(7) Where accommodation in any home or premises is provided for any person under arrangements made by virtue of this Article and [F11the HSC trust] , the person concerned and the voluntary organisation or other person managing the home or premises (in this paragraph referred to as “the provider”) agree that this paragraph shall apply—

(a)so long as the person concerned makes the payments for which he is liable under sub-paragraph (b), he shall not be liable to make any refund under paragraph (4) or (5) and [F12the trust] shall not be liable to make any payment under paragraph (3) in respect of the accommodation provided for him;

(b)the person concerned shall be liable to pay to the provider such sums as he would otherwise (under paragraph (4) or (5)) be liable to pay by way of refund to [F12the trust] ; and

(c)[F12the trust] shall be liable to pay to the provider the difference between the sums paid by virtue of sub-paragraph (b) and the payments which, but for sub-paragraph (a), [F12the trust] would be liable to pay under paragraph (3).

(8) [F13An HSC trust] may, on each occasion when it makes arrangements by virtue of this Article for the provision of accommodation for a person and irrespective of his means, limit to such amount as appears to [F14the trust] reasonable for him to pay the refunds required from him for his accommodation during a period commencing when [F14the trust] began to make the arrangements for accommodation for him and ending not more than 8 weeks after that.]