The Care and Support (Charging) (Wales) Regulations 2015

Made: 27 October 2015

Laid before the National Assembly for Wales: 3 November 2015

Coming into force: 6th April 2016

The Welsh Ministers, in exercise of the powers conferred by sections 50, 52, 53(3), 61, 62, 66, 67, 69 and 196(2)[^f00001] of the Social Services and Well-being (Wales) Act 2014[^f00002], make the following Regulations.

PART 1 — GENERAL

Title, application commencement and interpretation

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• (1) The title of these Regulations is the Care and Support (Charging) (Wales) Regulations 2015.

• (2) These Regulations apply in relation to Wales.

• (3) These Regulations come into force on 6 April 2016.

• (4) In these Regulations—

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

• “Direct Payments Regulations” (“Rheoliadau Taliadau Uniongyrchol”) means the Care and Support (Direct Payments) (Wales) Regulations 2015[^f00003];

• “Financial Assessment Regulations” (“Rheoliadau Asesiad Ariannol”) means the Care and Support (Financial Assessment) (Wales) Regulations 2015[^f00004];

• “A” (“A”) is used to refer to a person for whom care and support is being or may be provided or arranged by a local authority under Part 4 of the Act and who is liable to be charged, as provided for in regulation 2(1) of these Regulations[^f00005];

• “B” (“B”) is used to refer to a person in relation to whose needs a local authority is providing direct payments or may be required to make direct payments pursuant to regulations made under sections 50 or 52 of the Act and who is liable to make a contribution or reimbursement;

• “assessed income” (“incwm asesedig”) means that part of A’s income calculated in accordance with the Financial Assessment Regulations which a local authority may take into account in making a determination under these Regulations;

• “assessed needs” (“anghenion asesedig”) means the needs of a person identified in an assessment under section 19 (duty to assess the needs of an adult for care and support), or 24 (duty to assess the needs of a carer for support) of the Act;

• “basic entitlement” (“hawlogaeth sylfaenol”) means, in relation to—income support—the personal allowance[^f00006] and any premiums[^f00007] to which A is entitled, but need not include the severe disability premium (“SDP”) (“y premiwm anabledd difrifol”)[^f00008] where is it paid, and where A is a carer, includes any carer premium that A receives,employment and support allowance—the personal allowance and any premiums and components to which A is entitled, but need not include the SDP where is it paid, and where A is a carer includes any carer premium that A receives,guarantee credit—the personal allowance and any additional amount to which A is entitled, but need not include the additional amount added for severe disability where it is paid, and where A is a carer, includes any additional amount applicable for carers that A receives;

• ...

• “care home” (“cartref gofal”) is defined in section 197(1) of the Act[^f00009];

• “contribution” (“cyfraniad”) in relation to a person whose needs are met by the local authority making direct payments has the meaning ascribed in the definition of “net payments” in section 53(2) of the Act;

• “day service” (“gwasanaeth dydd”) means a service provided by a local authority which meets part of an adult’s assessed needs, which takes place away from that adult’s home and which is intended to assist the adult in meeting others, or taking up new, or practising existing interests, including work opportunities;

• “employment and support allowance” (“lwfans cyflogaeth a chymorth”) means either contributory employment and support allowance or income-related employment and support allowance in accordance with Part 1 of the Welfare Reform Act 2007[^f00010];

• “direct payment” (“taliad uniongyrchol”) has the meaning given to it in sections 50(7) and 52(7) of the Act;

• “financial limit” (“terfyn ariannol”) means the limit in relation to A’s capital set by the relevant capital limit;

• “flat-rate charge” (“ffi unffurf”) means a fixed rate charge which is imposed by a local authority regardless of the means of the person who is liable to be charged for—care and support arranged or provided by a local authority under Part 4 of the Act (meeting needs); orservices provided under section 15 (preventative services) or for assistance provided under section 17 (information advice and assistance) of the Act;

• “guarantee credit” (“credyd gwarant”) is to be construed in accordance with sections 1 and 2 of the State Pension Credit Act 2002[^f00011];

• “income support” (“cymhorthdal incwm”) means income support paid in accordance with section 124 of the Social Security Contributions and Benefits Act 1992[^f00012];

• “net weekly income” (“incwm wythnosol net”) means the weekly income which A has, or would have left, after the deduction from A’s assessed income of the standard charge (or any other charge) imposed under Part 5 of the Act and these Regulations;

• “non-residential care and support” (“gofal a chymorth amhreswyl”) means any care and support provided to meet a person’s need for care and support other than provision of accommodation in a care home;

• “reablement” (“gofal a chymorth ailalluogi”) means care and support—provided or arranged by a local authority for A under Part 2 or 4 of the Act; orsecured or arranged by A, where A is or will be receiving direct payments made in accordance with section 50 or 52 of the Act; andwhich—consists of a programme of care and support,is for a specified period[^f00013] of time (“the specified period”), andhas as its purpose the provision of assistance to A to enable A to maintain or regain the ability needed to live independently in A’s only or main home;

• “reimbursement” (“ad-daliad”) in relation to a person whose needs are met by the local authority making direct payments has the meaning ascribed in the definition of “gross payments” in section 53(2) of the Act;

• “relevant benefit” (“budd-dal perthnasol”) means—income support, oremployment and support allowance, orguarantee credit;

• “relevant capital limit” (“terfyn cyfalaf perthnasol”) means the maximum amount of capital, assessed in accordance with the Financial Assessment Regulations, which a chargeable person may have depending on whether their need is for care and support which is residential or non-residential, above which that person will be required, in accordance with regulation 11 to meet the standard charge in full;

• “short-term resident” (“preswylydd byrdymor”) means a person who is provided or is to be provided with accommodation in a care home under the Act for a period not exceeding 8 weeks;

• “standard charge” (“ffi safonol”) has the meaning given in section 63(3) of the Act.

• (5) References in these Regulations to provision or arrangement of care and support are, in the case of carers, to be read as meaning provision or arrangement of support.

PART 2 — CHARGING UNDER PART 5 OF THE ACT

Persons in relation to whom regulations 2 to 15 apply

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• (1) When a local authority exercises its discretion to require a person to pay a charge it must do so in accordance with the requirements of these Regulations.

• (2) Regulations 2 to 15 apply in relation to persons who may be charged by virtue of section 60(2), 60(4)(a) and 60(5)(a) of the Act.

Persons who may not be charged

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A local authority may not impose a charge for care and support provided or arranged—

• (a) to meet the needs of a child;

• (b) for a person who is suffering from any form of Creutzfeldt-Jakob disease where that disease has been clinically diagnosed by a registered medical practitioner[^f00014];

• (c) for a person who has been offered or is receiving a service provided as part of a package of after care services in accordance with section 117 of the Mental Health Act 1983[^f00015] (after care).

Services for which no charge may be made

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A local authority may not impose a charge for—

• (a) care and support which consists of the provision of transport to attend a day service where the transport is provided by a local authority and where attendance at the day service and the provision of transport to enable attendance are required to meet the assessed needs of the person;

• (b) providing a statement setting out its determination in accordance with regulation 14;

• (c) reablement for the first 6 weeks of the specified period, or, where the specified period is less than 6 weeks, for that period;

• (d) for advocacy services provided in fulfilment of its functions under Part 4 of the Act.

Determinations about charging

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Where a local authority thinks it would impose a charge under section 59 of the Act and has carried out a financial assessment of A in accordance with the requirements of the Financial Assessment Regulations, it must make a determination about what amount, if any, it is reasonably practicable for A to pay in accordance with the requirements of these Regulations.

Circumstances where a local authority need not make a determination

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A local authority need not make a determination under these Regulations where the only services provided are either those to which a flat-rate charge applies or to which no charge applies.

Maximum weekly charge for non-residential care and support

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• (1) Except where the care and support which is provided, or is to be provided consists of provision of care and accommodation in a care home, a local authority may not determine that it is reasonably practicable for A to pay a total charge greater than £100 per week for the care and support.

• (2) But a local authority must, in calculating the total charge for the care and support which the person receives for the purpose of applying the maximum weekly charge in paragraph (1), exclude any charges in relation to care and support for which it imposes a flat-rate charge so that any flat-rate charges are separate to the charges for care and support to which the maximum weekly charge applies.

Procedure for determining a charge in relation to person for whom the local authority provides or arranges non-residential care and support

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• (1) This regulation applies in relation to the charges for provision of care and support which does not consist of provision of accommodation in a care home.

• (2) When calculating the amount that A may be required to pay a local authority must adopt the procedure set out in paragraph (3).

• (3) A local authority must—

• (a) calculate the amount of the standard charge for the care and support provided or to be provided to the person;

• (b) disregard from that total the amount of any charges which are flat-rate charges;

• (c) apply the maximum weekly charge for non-residential care and support where the resulting amount would otherwise exceed it;

• (d) subject the amount calculated in accordance with this regulation to a determination of what it would be reasonably practicable for the person to pay in accordance with regulations 11 (relevant capital limit) and 12 (minimum income amount for a person being provided with non-residential care and support).

Procedure for determining a charge in relation to person for whom the local authority provides or arranges care and support through provision of accommodation in a care home

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• (1) This regulation applies in relation to the charges for residential care and support.

• (2) When calculating the amount that A pays or may be required to pay for the care and support the local authority must adopt the following procedure—

• (a) calculate the amount of the standard charge for the care and support received by, or offered to A;

• (b) subject the amount calculated in accordance with this regulation to a determination of what it would be reasonably practicable for A to pay in accordance with regulation 11 (capital limit) and regulation 13 (minimum income amount where a person is provided with accommodation in a care home).

• (3) Where a local authority thinks it would impose a charge in relation to A where A is a short-term resident it must treat A as if A was receiving non-residential care and support and follow the procedure in regulation 8 and make a determination in accordance with regulations 11 and 12.

Procedure for determining a charge where financial assessment not carried out

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Where regulation 7(1)(b) or (c) of the Financial Assessment Regulations applies (circumstances in which there is no duty to carry out a financial assessment) a local authority must determine that it is reasonably practicable for A to pay the standard charge, subject to the maximum weekly charge in relation to non-residential care and support.

Capital limit

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• (1) Where A has capital above the relevant capital limit a local authority must determine that it is reasonably practicable for A to pay the standard charge subject to the maximum weekly charge in relation to non-residential care and support.

• (2) The following are the financial limits for the purposes of section 66(5) of the Act—

• (a) the relevant capital limit for the purposes of residential care is £50,000;

• (b) the relevant capital limit for the purposes of non-residential care is £24,000.

• (3) Where A has capital at or below the relevant capital limit then a local authority must determine that it is not reasonably practicable for A to pay the standard charge or any lesser amount from capital.

Minimum income amount for a person being provided with non-residential care and support

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• (1) This regulation applies where a local authority is meeting, or is proposing to meet A’s needs for care and support other than by provision of accommodation in a care home.

• (2) A local authority must determine that it would not be reasonably practicable for A to pay any sum whose payment would reduce A’s net weekly income below the minimum income amount set out in this regulation.

• (3) Where A is in receipt of a relevant benefit, the minimum income amount is—

• (a) the basic weekly entitlement to the relevant benefit that is being received by A (“the basic entitlement”);

• (b) an amount of not less that 35% of that entitlement (“the buffer”);

• (c) a further amount to compensate A for disability-related expenditure of not less than 10% of the basic entitlement; and

• (d) a weekly amount equivalent to any flat-rate charges being paid or to be paid by A whether for services provided under Part 4 of the Act, for services provided under section 15 or assistance provided under section 17 of the Act.

• (4) Where A is not in receipt of a relevant benefit, the minimum income amount is—

• (a) the weekly amount which the local authority reasonably assesses would be A’s basic entitlement to benefits, having regard to A’s age, circumstances and level of disability (“the estimated basic entitlement”);

• (b) an amount of not less than 35% of the estimated basic entitlement (“the buffer”);

• (c) an amount to compensate A for disability-related expenditure of not less than 10% of the estimated basic entitlement; and

• (d) a weekly amount equivalent to any flat-rate charges being paid or to be paid by A whether for services provided under Part 4 of the Act, for services provided under section 15 or assistance provided under section 17 of the Act.

• (5) Nothing in this regulation affects the discretion of a local authority to increase the percentage of the buffer or the amount to compensate for any disability-related expenditure when calculating the minimum income amount.

Minimum income amount where a person is provided with accommodation in a care home

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Where a local authority is meeting or is proposing to meet A’s needs for care and support by provision of accommodation in a care home, a local authority must determine that it would not be reasonably practicable for A to pay any sum whose payment would reduce A’s net weekly income below £44.65.

Statement of determination

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• (1) Where a local authority makes a determination in accordance with these Regulations about the amount which it is reasonably practicable for A to pay for care and support which—

• (a) is being offered to A for the first time; or

• (b) is being provided to A but for which a charge is being imposed for the first time,

it must provide A with a statement setting out the payment which A must make.

• (2) A local authority may not require payment of a charge until the date when the statement is sent to A.

• (3) But once a statement has been issued a local authority may require A to pay a charge for care and support which was provided or arranged before the date of the statement[^f00016].

Revised determination

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• (1) A local authority may carry out a new determination where—

• (a) it considers that there has been a change in the capital or income of A;

• (b) it considers that there has been a change in the standard charge for the service (including a change resulting from a change in the level at which or degree to which care and support is provided);

• (c) it has changed its policy about the exercise of the discretion to charge under section 59 of the Act;

• (d) it considers that a mistake was made in the assessment of A’s capital or income or in making the determination; or

• (e) A requests a new determination.

• (2) Where a local authority makes a further determination of A’s ability to pay a charge in accordance with this regulation—

• (a) it must provide A with a statement of the revised determination; and

• (b) it must reimburse A for any overcharge for care and support which was provided or arranged before the revised determination; or

• (c) it may require A to pay any additional charge for care and support which was provided or arranged before the revised determination.

PART 3 — CHARGING UNDER SECTIONS 15 AND 17 OF THE ACT

Charging for preventative services and for assistance

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