Community Care (Delayed Discharges etc.) Act 2003 (repealed)

Part 1 — Delayed discharge payments

Preliminary

Meaning of “NHS body” and “qualifying hospital patient”

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• (1) In this Part—

• “NHS body” means—a National Health Service trust; or ...... ... a Local Health Board (in Wales); and ...... and

• “qualifying hospital patient” means, subject to subsection (2), a person being accommodated at—a health service hospital; oran independent hospital in pursuance of arrangements made by an NHS body,who is receiving (or who has received or is expected to receive) care of a description prescribed in regulations.

• (2) The term “qualifying hospital patient” does not include any person who is ordinarily resident outside England and Wales.

• (3) An NHS body may make arrangements with any person connected with the management of an independent hospital in the United Kingdom for that person (or any employee of his) to do, on behalf of the NHS body and in accordance with the arrangements, anything which is required or authorised to be done by the NHS body by or under this Part in relation to qualifying hospital patients accommodated in that hospital.

• (4) Anything done or omitted to be done by or in relation to the authorised person (or any employee of his) in pursuance of such arrangements is to be treated as done or omitted to be done by or in relation to the NHS body.

• (5) Nothing in subsection (3) or (4) prevents anything being done by or in relation to the NHS body.

Determination of need for community care services etc. on discharge

Notice of patient’s likely need for community care services

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• (1) This section applies where—

• (a) a person (“the patient”) is or is expected to become a qualifying hospital patient at a particular hospital, and

• (b) the responsible NHS body considers that it is unlikely to be safe to discharge the patient from hospital unless one or more community care services are made available for him.

• (2) It is the duty of the responsible NHS body to give notice of the patient’s case for the purposes of this Part—

• (a) to the social services authority appearing to the NHS body to be the authority in whose area the patient is ordinarily resident when the notice is given, or

• (b) if it appears to them that the patient has no settled residence, to the social services authority in whose area the hospital is situated.

• (3) That notice—

• (a) must state that it is given under this section; and

• (b) if given before the day on which the patient is admitted to the hospital, must not be given earlier than the beginning of the period of eight days ending with the day on which he is expected to be admitted.

• (4) Before giving a notice under this section the responsible NHS body must consult—

• (a) the patient; and

• (b) if the responsible NHS body is aware of the identity of a person who is a carer in respect of the patient and it is reasonably practicable to consult him, that carer.

• (5) In this Part “the responsible NHS body”, in relation to a person who is or is expected to become a qualifying hospital patient, means—

• (a) if the hospital concerned is a health service hospital, the NHS body managing the hospital; or

• (b) if the hospital concerned is an independent hospital, the NHS body making the arrangements for the patient to be accommodated.

• (6) In this Part “the responsible authority”, in relation to a person whose case has been notified under this section, means (subject to any regulations under section 10) the social services authority to which the notice is given.

Notices under section 2: supplementary

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• (1) A notice under section 2 remains in force until the patient to which it relates is discharged, unless it has previously ceased to have effect by virtue of subsection (2) or (3).

• (2) The responsible NHS body may withdraw the notice by giving notice of withdrawal to the responsible authority.

• (3) Regulations may prescribe other circumstances in which the notice ceases to have effect.

• (4) If the notice ceases to have effect before the patient is discharged—

• (a) no further steps under section 4, 5 or 6 resulting from the notice shall be taken and no liability (or further liability) to make a payment under section 6(2) shall accrue; and

• (b) the responsible NHS body may (subject to section 2(1)) give a fresh notice under section 2 in relation to the patient;

but paragraph (a) does not affect any liability which accrues before the notice ceases to have effect.

• (5) Regulations may provide for—

• (a) the form and content of—

• (i) notices under section 2; and

• (ii) notices of withdrawal under subsection (2),

and the manner in which such notices are to be given;

• (b) circumstances in which notices under section 2 must be withdrawn; and

• (c) determining the day on which a notice under section 2 or a notice of withdrawal under subsection (2) is given (including provision prescribing circumstances in which a notice under section 2 is to be treated for any specified purpose as having been given on a day other than that on which it was in fact given).

Duties of responsible authority following notice under section 2

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• (1) The duties in this section apply where notice of a patient’s case under section 2 has been given.

• (2) The responsible authority must—

• (a) carry out an assessment of the patient’s needs with a view to identifying any community care services that need to be made available in order for it to be safe to discharge him; and

• (b) after consulting the responsible NHS body, decide which of those services (if any) the authority will make available for the patient.

• (3) The responsible authority must, in the circumstances mentioned in subsection (4), also—

• (a) carry out an assessment of the needs of any person who is a carer in respect of the patient (“the carer”) with a view to identifying any services which—

• (i) the authority may provide under section 2 of the Carers and Disabled Children Act 2000 (c. 16) or Part 1 of the Care Act 2014; and

• (ii) need to be made available to the carer in order for it to be safe to discharge the patient; and

• (b) after consulting the responsible NHS body, decide which of those services (if any) the authority will make available to the carer.

• (4) The duties in subsection (3) apply only where the carer—

• (a) asks the responsible authority to carry out an assessment under subsection (3); or

• (b) has, within the period of twelve months ending with the day on which the notice under section 2 was given (or at any time after that day), asked the responsible authority to carry out an assessment under section 1 of the Carers and Disabled Children Act 2000; or

• (c) is entitled to an assessment under section 10(1) of the Care Act 2014.

• (5) The duties in subsection (2) or (3) apply whether or not the patient’s needs for community care services or the carer’s needs for services (as the case may be) have previously been assessed.

• (6) The responsible authority must keep under review—

• (a) the needs of the patient; and

• (b) the needs of any carer whose needs it has assessed under subsection (3)(a),

so far as affecting the services that need to be made available in order for it to be safe to discharge the patient.

• (7) The responsible authority may, after consulting the responsible NHS body, alter—

• (a) its decision under subsection (2)(b); or

• (b) any decision taken by it under subsection (3)(b),

to take account of any change in circumstances since the assessment carried out under subsection (2)(a) or (3)(a) (as the case may be).

• (8) The responsible authority must inform the responsible NHS body of the decision under subsection (2)(b), of any decision under subsection (3)(b) and of any alteration made under subsection (7).

• (9) Anything done under subsection (2) above is to be treated as done under section 47(1) of the National Health Service and Community Care Act 1990 (c. 19) or, as the case may be, Part 1 of the Care Act 2014, (but without prejudice to anything to be done under that section or that Part in relation to any other community care services).

• (10) Anything done under subsection (3) above is to be treated as done under section 1 or 2 of the Carers and Disabled Children Act 2000 or, as the case may be, Part 1 of the Care Act 2014, (but without prejudice to anything to be done under that section or that Part in relation to other services which may be provided to the carer).

Duties of responsible NHS body following notice under section 2

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• (1) The duties under this section apply where notice of a patient’s case under section 2 has been given.

• (2) The responsible NHS body, and any other NHS body which is considering whether to provide services to the patient after discharge, must consult the responsible authority before deciding what services (if any) it will make available to him in order for it to be safe to discharge the patient.

• (3) The responsible NHS body must give the responsible authority notice of the day on which it proposes to discharge the patient.

• (4) The notice under subsection (3) remains in force until the end of the relevant day, unless it has previously been withdrawn.

• (5) The responsible NHS body may withdraw the notice under subsection (3) at any time before the end of the relevant day by giving notice of withdrawal to the responsible authority.

• (6) For the purposes of this Part “the relevant day”, in relation to a qualifying hospital patient, is the later of—

• (a) the day specified in the notice under subsection (3); and

• (b) the last day of the prescribed minimum interval after the notice under section 2 is given.

• (7) Regulations may prescribe a period as the minimum interval after a notice under section 2 is given; but that period must—

• (a) begin with the day after that on which the notice under section 2 is given; and

• (b) be a period of at least two days.

• (8) Until 31st March 2005 the period of two days referred to in subsection (7) is exclusive of Sundays and public holidays in England and Wales.

• (9) If the notice under subsection (3) is withdrawn before the end of the relevant day—

• (a) the duty under subsection (3) applies again; and

• (b) when a fresh notice under subsection (3) is given, subsection (6) applies again for the purpose of identifying a new “relevant day”.

• (10) Regulations may provide for—

• (a) the time at which notices under subsection (3) are to be given;

• (b) the form and content of—

• (i) notices under subsection (3); and

• (ii) withdrawal notices under subsection (5);

and the manner in which such notices are to be given;

• (c) circumstances in which notices under subsection (3) must be withdrawn; and

• (d) determining the day on which a notice under subsection (3) or a notice of withdrawal under subsection (5) is given (including provision prescribing circumstances in which a notice under subsection (3) is to be treated for any specified purpose as having been given on a day other than that on which it was in fact given).

Delayed discharge payments

Liability to make delayed discharge payments

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• (1) This section applies where notice of a patient’s case under section 2 and notice of the proposed discharge day under section 5(3) have both been given (and are in force).

• (2) If by the end of the relevant day—

• (a) the patient has not been discharged and the responsible authority has not complied with its duties under section 4(2); or

• (b) it has not been possible to discharge the patient because, and only because, either of the conditions in subsection (3) is satisfied (or both are satisfied),

the responsible authority must make a payment of the amount prescribed in regulations for each day of the delayed discharge period.

• (3) The conditions referred to in subsection (2) are that—

• (a) the responsible authority has not made available for the patient a community care service which it decided under section 4(2)(b) to make available for him;

• (b) the responsible authority has not made available for the patient’s carer a service which it decided under section 4(3)(b) to make available to the carer.

• (4) For this purpose “the delayed discharge period” is, subject to subsections (5) and (7), the period—

• (a) beginning with the day after the relevant day, and

• (b) ending with the day on which the patient is discharged.

• (5) If on any day before that on which the patient is discharged the responsible authority gives notice to the responsible NHS body that—

• (a) it has complied with its duties under section 4(2),

• (b) every community care service that it decided under section 4(2)(b) to make available has been made available for the patient, and

• (c) every service that it decided under section 4(3)(b) to make available to a carer has been made available,

the delayed discharge period ends with that day.

• (6) The references in subsections (3) and (5) to services “decided under” section 4(2)(b) or (3)(b) are, in a case where the decision in question has been altered under section 4(7), to any services specified in the altered decision.

• (7) Regulations may—

• (a) require days after the relevant day not to be treated as days of the delayed discharge period;

• (b) prescribe circumstances (other than those mentioned in subsections (4) and (5)) in which the delayed discharge period ends;

• (c) make provision for determining the day on which a patient is discharged (including provision prescribing circumstances in which a patient is to be treated for the purposes of this section as having been discharged on a day other than that on which he was in fact discharged).

Delayed discharge payments: supplementary

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• (1) In prescribing an amount under section 6(2) the appropriate Minister must have regard (among other things) to either or both of the following matters—

• (a) costs to NHS bodies of providing accommodation and personal care to patients who are ready to be discharged; and

• (b) costs to social services authorities of providing community care services to, and services to carers in relation to, persons who have been discharged.

• (2) Any payment which the responsible authority is required to make under section 6 in relation to qualifying hospital patient shall, subject to subsection (3), be made to the responsible NHS body.

• (3) In cases of any description prescribed in regulations the payment shall be made to the person prescribed in relation to cases of that description.

Disputes

Ordinary residence

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• (1) Any question arising under this Part as to the ordinary residence of a person who is or is expected to become a qualifying hospital patient shall be determined by the Secretary of State or by the Assembly.

• (2) The Secretary of State and the Assembly must make and publish arrangements for determining which cases are to be dealt with by the Secretary of State and which are to be dealt with by the Assembly.

• (3) Those arrangements may include provision for the Secretary of State and the Assembly to agree, in relation to any question that has arisen, which of them is to deal with the case.

Dispute resolution

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• (1) Regulations may make provision for panels appointed ... by Local Health Boards in Wales to assist in the resolution of disputes between two or more public authorities about matters arising under or in relation to this Part in relation to Wales.

• (2) The persons forming a panel for the purpose of a particular dispute must be appointed by a ... Local Health Board from lists of persons required by the regulations to be kept by the ... Board.

• (3) The regulations must contain such provision as the Welsh Ministers consider appropriate for ensuring that each social services authority situated (or any part of whose area is situated) in the area of ... a Local Health Board is consulted about the persons whose names appear on any list kept by the ... Board for the purposes of subsection (2).

• (4) The regulations may make provision about the panels, including in particular—

• (a) provision for determining who is to appoint a panel in the case of a dispute between public authorities which are not all situated in the area of a single ... Local Health Board;

• (b) provision specifying the descriptions of disputes which may be referred to a panel;

• (c) provision about the recommendations (including recommendations relating to the payment of any amount by one party to another) which may be made by a panel in relation to any dispute referred to it.

• (5) Regulations may prohibit a public authority from bringing legal proceedings against another public authority in relation to a dispute before such steps have been taken in relation to a panel appointed by virtue of this section as may be prescribed in the regulations.

• (6) For the purposes of this section “public authority” means an NHS body or a social services authority.

Supplemental

Adjustments between social services authorities

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• (1) Regulations may make provision as to the application of this Part in cases where, in relation to a qualifying hospital patient, it appears to the responsible authority for the time being that the patient is ordinarily resident in the area of another social services authority.

• (2) The regulations may, among other things, authorise or require a social services authority—

• (a) to accept a notice given to it under section 2 notwithstanding that it may wish to dispute that it was the right authority to be notified;

• (b) to become the responsible authority for a patient’s case in place of the social services authority previously responsible;

• (c) to recover expenditure incurred—

• (i) in the performance of functions under this Part in relation to a qualifying patient;