The National Assistance (Assessment of Resources) Amendment (No. 4) (Scotland) Regulations 2003

Scottish Statutory Instruments

2003 No. 577

NATIONAL ASSISTANCE SERVICES

The National Assistance (Assessment of Resources) Amendment (No. 4) (Scotland) Regulations 2003

Made

26th November 2003

Laid before the Scottish Parliament

27th November 2003

Coming into force

22nd December 2003

The Scottish Ministers, in exercise of the powers conferred by section 22(5) of the National Assistance Act 1948(1) (including that provision as applied by section 87(3) and (4) of the Social Work (Scotland) Act 1968(2)), and of all other powers enabling them in that behalf, hereby make the following Regulations:

Citation, commencement, interpretation and extent

1.—(1) These Regulations may be cited as the National Assistance (Assessment of Resources) Amendment (No. 4) (Scotland) Regulations 2003 and shall come into force on 22nd December 2003.

(2) In these Regulations “the principal Regulations” means the National Assistance (Assessment of Resources) Regulations 1992(3).

(3) These Regulations extend to Scotland only.

Amendment of regulation 2 of the principal Regulations

2.  In regulation 2(1) of the principal Regulations (interpretation)–

(a) in the definition of “guardian’s allowance”, omit “2002”; and

(b) in the definition of “less dependant resident”, in paragraph (a)–

(i) for “and which are not registered (as respects England and Wales) under the Registered Homes Act 1984” substitute “which are not (as respects England and Wales) an establishment which is carried on or managed by a person who is registered under Part II of the Care Standards Act 2000(4)”; and

(ii) for “under Part IV of the Social Work (Scotland) Act 1968” substitute “as care homes under the Regulation of Care (Scotland) Act 2001(5)”.

Amendment of regulation 16 of the principal Regulations

3.  After regulation 16(4) of the principal Regulations(6) (capital treated as income), insert–

“(5) Where an agreement or court order provides that payments shall be made to the resident in consequence of any personal injury to the resident and that such payments are to be made, wholly or partly, by way of periodical payments, any such periodical payments received by the resident, to the extent that they are not a payment of income, shall be treated as income.”.

Amendment of Schedule 3 to the principal Regulations

4.—(1) In paragraph 10 of Schedule 3 to the principal Regulations (sums to be disregarded in the calculation of income other than earnings)–

(a) in sub-paragraph (1), for “(charitable or voluntary payments) of any charitable payment or of any voluntary payment” substitute “(relevant payments) of any relevant payment”;

(b) in sub-paragraph (2), for “charitable payment or voluntary payment” substitute “relevant payment”; and

(c) after sub-paragraph (2), insert–

“(3) In this paragraph, “relevant payment” means–

(a) a charitable payment;

(b) a voluntary payment;

(c) a payment (not falling within sub-paragraph (a) or (b)) from a trust whose funds are derived from a payment made in consequence of any personal injury to the resident;

(d) a payment under an annuity purchased–

(i) pursuant to any agreement or court order to make payments to the resident; or

(ii) from funds derived from a payment made,

in consequence of any personal injury to the resident; or

(e) a payment (not falling within sub-paragraphs (a) to (d)) received by virtue of any agreement or court order to make payments to the resident in consequence of any personal injury to the resident.”.

(2) After paragraph 28H(7) of Schedule 3 to the principal Regulations, insert–

“28I.— (1) Subject to sub-paragraph (2), any payment made by a local authority under section 12B (direct payments in respect of community care services) of the Social Work (Scotland) Act 1968(8) to or on behalf of the resident.

(2) Where the payment or, as the case may be, any proportion of it is made to meet or contribute towards the costs of that resident’s residential accommodation, sub-paragraph (1) shall not apply to that payment or, as the case may be, to the proportion of it.”.

(3) In paragraph 30 of Schedule 3 to the principal Regulations–

(a) at the beginning, insert “(1)”;

(b) for “charitable or voluntary payments” substitute “relevant payments”; and

(c) at the end, insert–

“(2) In this paragraph “relevant payment” has the same meaning as in paragraph 10(3).”.

Amendment of Schedule 4 to the principal Regulations

5.  In Schedule 4 to the principal Regulations (capital to be disregarded), after paragraph 22(9) insert–

“23.— (1) Subject to sub-paragraph (2), any payment made by a local authority under section 12B of the Social Work (Scotland) Act 1968 to or on behalf of the resident.

(2) Where the payment or, as the case may be, any proportion of it is made to meet or contribute towards the costs of that resident’s residential accommodation, sub-paragraph (1) shall not apply to that payment or, as the case may be, to the proportion of it.”.

TOM McCABE

Authorised to sign by the Scottish Ministers

St Andrew’s House, Edinburgh

26th November 2003

Explanatory Note

(This note is not part of the Regulations)

These Regulations amend the National Assistance (Assessment of Resources) Regulations 1992 (S.I. 1992/2977) (the “principal Regulations”). The principal Regulations concern the assessment of a person’s liability to pay for accommodation provided under the Social Work (Scotland) Act 1968 (c. 49) (the “1968 Act”). By virtue of section 87(3) of the 1968 Act, accommodation provided under the 1968 Act or section 7 of the Mental Health (Scotland) Act 1984 (c. 36) shall be regarded as accommodation provided under Part III of the National Assistance Act 1948.

Regulation 2 inserts new definitions in the principal Regulations.

Regulation 3 provides that periodical payments made in consequence of personal injury should be disregarded for the financial assessment.

Regulation 4(1) and (3) provide that periodical payments made in consequence of personal injury should be disregarded for the financial assessment.

Regulation 4(2) provides that any direct payment made under the 1968 Act to or on behalf of the resident shall be disregarded for the financial assessment unless it was made for the purpose of funding that resident’s residential accommodation.

Regulation 5 adds a new disregard into Schedule 4 to the principal Regulations for direct payments made under section 12B of the 1968 Act, unless the payment was made for the purpose of funding residential accommodation.

(1)

1948 c. 29. Section 22(5) was amended by the Ministry of Social Security Act 1966 (c. 20), section 39(1) and Schedule 6, paragraph 6, the Supplementary Benefits Act 1976 (c. 71), section 35(2) and Schedule 7, paragraph 3(b), the Social Security Act 1980 (c. 30), section 20 and Schedule 4, paragraph 2, and the Social Security Act 1986 (c. 50), section 86 and Schedule 10, paragraph 32. The functions of the Secretary of State so far as they are exercisable in Scotland were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c. 46).

(2)

1968 c. 49. Section 87(3) was amended by the Social Security Act 1980 (c. 30), Schedule 4, paragraph 5; the Health and Social Services and Social Security Adjudications Act 1983 (c. 41), section 20, the Social Security Act 1986 (c. 50), Schedule 10, paragraph 41 and the National Health Service and Community Care Act 1990 (c. 19), section 66 and Schedule 9, paragraph 10(13). By virtue of section 87(3), accommodation provided under that Act or under section 7 of the Mental Health (Scotland) Act 1984 is regarded as accommodation provided under Part III of the National Assistance Act 1948.

(3)

S.I. 1992/2977 (“the principal Regulations”).

(4)

2000 c. 14.

(5)

2001 asp 8.

(6)

Regulation 16(4) was inserted into the principal Regulations by S.I. 1993/964.

(7)

Paragraph 28H was inserted into the principal Regulations by S.S.I. 2003/425.

(8)

1968 c. 49. Section 12B was inserted by the Community Care (Direct Payments) Act 1996 (c. 30), section 4, and amended by the Regulation of Care (Scotland) Act 2001 (asp 8), section 70, and the Community Care and Health (Scotland) Act 2002 (asp 5), section 7.

(9)

Paragraph 22 was inserted into the principal Regulations by S.S.I. 2003/156.