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Update on Final Orders Under the Care Act 2014

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Update on Final Orders Under the Care Act 2014 Update on final Orders under the Care Act 2014 Contents The final secondary legislation which will underpin the Care Act is due to be completed in advance of implementation in April 2015. This note summarises those final technical legal orders to provide information to local authorities and other interested stakeholders, and annexes or links to the statutory instruments for ease of reference. The note also provides clarification on certain matters related to the statutory guidance for the Care Act. Following the publication of the final Care and support statutory guidance in October 2014, the Department has received a number of requests for clarification on certain passages. This note clarifies the issues raised and sets out how the statutory guidance will be updated to reflect this in due course. None of these changes amend local authorities’ statutory obligations- they serve only to clarify intent in areas where this has been requested. Summary of Orders under the Care Act 2014 Transitional Order p2 Commencement Order p2 Primary Consequential Order p3 Secondary Consequential Order p4 Miscellaneous Amendments Regulations p4 Proposed clarifications to statutory guidance p6 Annexes: Annex A – Transitional Order p9 Annex B – Commencement Order p13 1 Summary of Orders under the Care Act 2014 Transitional Order (see Annex A) 1. Together with the Primary Consequential Order (see below), the transitional order will set out details of how the transition from the old to the new legislative framework will work. The basic approach is that: i. People who are already receiving services and support (including direct payments) prior to 1 April 2015 will continue to receive such support and services under the old law until the local authority completes a review of that person’s case, at which point the new law will apply in respect of that person. ii. In practice, such a review can have one of two basic outcomes: a. the local authority concludes the person does not have care and support needs that they are required to meet under the Care Act (for example because needs do not meet the eligibility criteria), and the authority does not intend to meet any of the person’s other needs; or b. the local authority, having concluded that the person does have needs and that they are going to meet some or all of these needs, starts to do so (assuring itself that existing arrangements fully comply with the Care Act, making any adjustments as necessary). iii. Reviews of existing care and support plans will usually take place at least annually. Therefore, it will usually be most pragmatic for the transition under the Care Act to take place at the point of the planned, regular review. In any event, local authorities must undertake a review within one year of the implementation of the Care Act (i.e. before 1st April 2016). If they do not, the Care Act will apply as of this date and anyone who has not been reviewed will be treated as having their eligible needs met under the Care Act until the local authority does, in fact, complete a review and reach a decision in accordance with the Care Act. We will make clear in guidance that local authorities will be at risk of increasing violation of their duty to review regularly the longer such a situation continues. iv. We will also make clear in guidance that local authorities must not use existing legislation to underpin care and support planning or provision after 1st April 2015 in respect of cases other than these transitional cases. The purpose of the saving in the Order is to enable local authorities only to continue with existing arrangements pending a review, so as to plan a managed transition over the first year. Commencement Order (see Annex B) 2. This is the fourth commencement order under the Act. We have already commenced certain relevant regulation-making powers in Part 1 of the Care Act in October 2014, in order to make and lay the regulations in Parliament. This order will commence most of the remaining provisions of Part 1 in April as well as provisions relating to care standards, effectively bringing the new care and support system into force from then. 2 3. The majority of the provisions in the order come into effect on 1 April 2015, but the market oversight provisions commence on 6 April to align with the start of the new financial year, since they impact on business. 4. This order also formalises the previously announced delay to the commencement of section 18(3) of the Act insofar as it creates a duty to meet needs by providing or arranging care home accommodation. Section 18(3), read with section 18(1), gives people with assets above the financial limit (“self-funders”) the right to have their eligible needs met by the local authority. The Department proposes to undertake further work to explore the impact on the social care market of this provision insofar as it relates to care homes, and announced in our response to the consultation on draft regulations and guidance our intention to delay implementation for one year to April 2016 in this regard. The provision in section 18(3) will, however, be commenced on 1 April 2015 in relation to cases where needs are to met by all other types of care and support. 5. The elements of the Care Act relating to funding reform are intended to come into force from April 2016 and are subject to the outcome of the ongoing consultation, so this will not be the subject of this commencement order. 6. The Order will be made once the Primary Consequential Order has been approved by Parliament (see below). Primary Consequential Order 7. Broadly speaking, the amendments in this Order come in two forms: i. Disapplication of current social care legislation in relation to England which will be replaced by the Care Act; ii. Removal of references to current social care legislation in relation to England in other Acts and replacing these with references to reflect the Care Act. 8. There are also some general savings for transitional purposes, although detailed transitional provisions will be in the separate order described above. 9. The Order also makes some amendments further to the Children and Families Act 2014. Because current legislation relating to carers will be partially replaced by each Act, it makes sense to simply do a single order dis-applying this legislation in its entirety. 10. As is usual with orders amending primary legislation, this is subject to the affirmative Parliamentary procedure and so remains subject to Parliamentary approval. The draft order to be considered by Parliament can be found here: http://www.legislation.gov.uk/ukdsi/2015/9780111128626/contents. 3 Secondary Consequential Order 11. This is similar to the primary consequential order, but relating to necessary amendments to secondary legislation (e.g. regulations) rather than primary legislation. Broadly speaking, these amendments come in two forms: i. disapplication of current social care legislation in relation to England which will be replaced by legislation under the Care Act; ii. removal of references to current social care legislation in other legislation and replacing these with references to reflect the Care Act where relevant. 12. There are also some general savings for transitional purposes, although detailed transitional provisions will be in a separate order. 13. The Order was laid before Parliament on 11 March 2015 and can be found here: http://legislation.data.gov.uk/uksi/2015/643/made/data.htm?wrap=true Miscellaneous Amendments Order 14. This is a set of regulations making relatively minor amendments to other regulations already laid under Part 1 of the Care Act 2014. Amendments to five sets of regulations are proposed: i. Care and Support (Charging and Assessment of Resources) Regulations 2014 Uprating of certain allowances in line with the existing practice on annual uprating of figures, plus some minor corrections of cross references and terminology in two of the provisions and clarification as to the meaning of an expression. ii. Care and Support (Deferred Payment) Regulations 2014 Change to make clearer that the provisions concerning disposable income do not apply if the local authority ceases to make deferrals. iii. Care and Support (Direct Payment) Regulations 2014 Change to the list of local authorities which may make a direct payment for accommodation in a care home (to omit three authorities), to reflect developments in the pilot scheme relating to this. iv. Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014 A change to clarify that the ordinary residence deeming principles apply only from the date a person living in specified accommodation receives care and support under the Act. The purpose of the amendment is to ensure that the deeming principles do not apply when a person is living in a specified type of accommodation (such as a care home) before they begin to receive care and support from the local authority. In such a situation the normal ordinary residence rules should apply. That is the position under the current legislation and it has always been the intention that the Care Act should not change this. 4 v. Care and Support (Cross-border Placements) (Business Failure Duties of Scottish Local Authorities) Regulations 2014 ! technical change to the definition of “care provider” (in Scotland) for reasons of greater accuracy. 15. The Order was laid before Parliament on 11 March 2015 and can be found here: http://www.legislation.gov.uk/uksi/2015/644/contents/made 5 Clarifications to statutory guidance under the Care Act 2014 16. This section of the note outlines proposed clarifications to the statutory guidance, which will be made when the guidance is updated later in 2015.
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