The Care and Support (Financial Assessment) (Wales) Regulations 2015

Made: 27 October 2015

Laid before the National Assembly for Wales: 3 November 2015

Coming into force: 6 April 2016

The Welsh Ministers, in exercise of the powers conferred by sections 50(1), 52(1), 53(3), 64(1), 65 and 196(2) of the Social Services and Well-being (Wales) Act 2014[^f00001], make the following Regulations[^f00002]:

PART 1 — General

Title, commencement and application

1

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

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

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

Interpretation

2

• (1) In these Regulations—

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

• “the 1992 Act” (“Deddf 1992”) means the Social Security Contributions and Benefits Act 1992[^f00003];

• “the Charging Regulations” (“y Rheoliadau Gosod Ffioedd”) means the Care and Support (Charging) (Wales) Regulations 2015[^f00004];

• “the Income Support Regulations” (“y Rheoliadau Cymhorthdal Incwm”) means the Income Support (General) Regulations 1987[^f00005];

• “the Pension Credit Regulations” (“y Rheoliadau Credyd Pensiwn”) means the State Pension Credit Regulations 2002[^f00006];

• “A” (“A”) means an adult— whose financial resources are to be assessed in accordance with regulation 6 or regulation 8, or who falls within the circumstances specified in regulation 7;

• “armed forces independence payment” (“taliad annibyniaeth y lluoedd arfog”) means armed forces independence payment under the Armed Forces and Reserved Forces (Compensation Scheme) Order 2011[^f00007];

• “attendance allowance” (“lwfans gweini”) has the same meaning as in the Income Support Regulations;

• “child benefit” (“budd-dal plant”) means a child benefit under the 1992 Act;

• “child tax credit” (“credyd treth plant”) means a child tax credit under the Tax Credits Act 2002[^f00008];

• “council tax” (“treth gyngor”) is to be construed in accordance with section 1(1) of the Local Government Finance Act 1992[^f00009];

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

• “disability living allowance” (“lwfans byw i’r anabl”) means a disability living allowance under the 1992 Act;

• “employed earner” (“enillydd cyflogedig”) is to be construed in accordance with section 2(1)(a) of the 1992 Act[^f00010];

• “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); or services provided under section 15 (preventative services) or for assistance provided under section 17 (provision of information, advice and assistance) of the Act;

• “guardian’s allowance” (“lwfans gwarcheidwad”) means a guardian’s allowance under the 1992 Act;

• “home visiting facility” (“cyfleuster ymweld â’r cartref”) means a visit (or visits) which are undertaken by an appropriate officer of a local authority to a person’s current place of residence, or at such other venue as the person reasonably requests, for the purposes of gathering information to inform a financial assessment for that person and for providing information and offering assistance in relation to that process;

• “income support” (“cymhorthdal incwm”) means income support under the 1992 Act;

• “lone parent” (“unig riant”) has the same meaning as in the Income Support Regulations;

• “partner” (“partner”) has the same meaning as in the Income Support Regulations;

• “pension credit age” (“oedran credyd pensiwn”) means the qualifying age for state pension credit within the meaning of section 1(6) of the State Pension Credit Act 2002[^f00011];

• “permanent resident” (“preswylydd parhaol”) means a resident who is not a temporary resident or a short-term resident;

• “personal independence payment” (“taliad annibyniaeth bersonol”) means a personal independence payment under Part 4 of the Welfare Reform Act 2012[^f00012];

• “personal pension scheme” (“cynllun pensiwn personol”) has the same meaning as in the Income Support Regulations;

• “prospective resident” (“darpar breswylydd”) means a person for whom accommodation in a care home is proposed to be provided under the Act[^f00013];

• “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; or secured or arranged by A, where A is or will be receiving direct payments made in accordance with section 50 or 52 of the Act; and which— consists of a programme of care and support, is for a specified[^f00014] period of time (“the specified period”), and has as its purpose the provision of assistance to A to enable A to maintain or regain the ability to live independently in A’s only or main home;

• “resident” (“preswylydd”) means a person who is provided with accommodation in a care home under the Act;

• “savings credit” (“credyd cynilion”) means a savings credit under the State Pension Credit Act 2002;

• “self-employed earner” (“enillydd hunangyflogedig”) is to be construed in accordance with section 2(1)(b) of the 1992 Act;

• “severe disablement occupational allowance” (“lwfans galwedigaethol anabledd difrifol”) means a severe disablement occupational allowance paid under article 10 of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 2006[^f00015] or under article 16 of the Personal Injuries (Civilians) Scheme 1983[^f00016];

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

• “standard amount” (“swm safonol”) means the amount which a person would be required to pay by virtue of section 50 or 52 of the Act towards securing the provision of care and support in respect of which direct payments are being considered or made if no financial assessment is carried out in accordance with these Regulations or determination as to A’s ability to pay an amount is undertaken in accordance with the Charging Regulations;

• “temporary resident” (“preswylydd dros dro”) means a resident whose stay is— unlikely to exceed 52 weeks; or in exceptional circumstances, unlikely to substantially exceed that period;

• “working day” (“diwrnod gwaith”) means any day other than— a Saturday or a Sunday, Christmas day or Good Friday, or a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971[^f00017];

• “working tax credit” (“credyd treth gwaith”) means a working tax credit under the Tax Credits Act 2002.

• (2) Where reference is made in these Regulations to the application of a provision of the Income Support Regulations, any reference to “claimant” in the provision of the Income Support Regulations is to be construed as a reference to A.

• (3) In these Regulations any reference to a resident’s accommodation in a care home, or to accommodation provided for a resident in a care home, is to be construed in the case of a resident who is a prospective resident as a reference to accommodation to be provided for that resident under section 35, 36, 40 or 45 of the Act, or where the prospective resident is in receipt of direct payments, as a reference to accommodation which will be secured by virtue of sections 50 or 52 of the Act.

• (4) In these Regulations references to provision of or securing of care and support are, in the case of carer, to be read as meaning the provision or securing of support.

PART 2 — Assessment of financial resources

Information to be provided by local authority

3

Before a local authority carries out a financial assessment in accordance with these Regulations it must give A the following—

• (a) details of care and support to meet A’s needs which are offered or being provided for A and in respect of which it thinks it would impose a charge under section 59 of the Act;

• (b) details of the care and support that A has been assessed as requiring and for which direct payments[^f00018] are being considered or made in accordance with section 50 or 52 of the Act;

• (c) where paragraph (a) applies, details of its charging policy for the provision of care and support, including—

• (i) which elements, if any, are subject to a charge,

• (ii) the standard charge[^f00019] which may be imposed in relation to any of them,

• (iii) any care and support, assistance or service for which a flat-rate charge is imposed,

• (iv) the maximum weekly charge[^f00020] that may be imposed or the maximum weekly charge that the local authority applies, where that charge is lower;

• (d) where paragraph (b) applies, details of its direct payments policy, which must include the following—

• (i) details of the care and support, if any, for which direct payments may be, or are being provided, in respect of which A may be required to pay towards the cost of securing,

• (ii) details of the standard amount which A may be required to pay towards the cost of securing such care and support,

• (iii) any care and support, assistance or service for which a flat-rate charge is imposed,

• (iv) the amount of the maximum weekly contribution or reimbursement[^f00021] that may be imposed or the amount of the maximum weekly contribution or reimbursement that the local authority applies, where that amount is lower;

• (e) details of its financial assessment process;

• (f) details of the information and any documents that A is required to provide to the local authority for the purposes of the financial assessment, and the time limit, and format for providing them;

• (g) information about the consequences of failing to provide the information and documents within the time limit and in an appropriate format;

• (h) information about the consequences of not providing the information or documents required for the purposes of the assessment or of refusing to allow the local authority to carry out a financial assessment;

• (i) information about the statement of determination of A’s ability to pay a charge for, or to pay towards the cost of securing, A’s care and support that the local authority will provide following the completion of the financial assessment process[^f00022];

• (j) details of the capital limit specified in regulation 11 or regulation 26 of the Charging Regulations and information about the consequences of[^f00023] A being assessed as having capital in excess of that limit;

• (k) details of any home visiting facility that the local authority provides within its area;

• (l) the names of an individual or individuals within the authority who may be contacted if A requires additional information or assistance in respect of the financial assessment process; and

• (m) information about A’s right to appoint a third party to assist, or to act on A’s behalf, in respect of all or part of the financial assessment process and the contact details of any organisation in its area which provides this type of support or assistance.

Time limits

4

• (1) Subject to paragraph (2), a local authority must allow A 15 working days, or such longer time limit as it thinks reasonable, to provide the information and documents described in regulation 3(f).

• (2) If A makes a reasonable request for an extension of the time limit specified in paragraph (1), giving reasons why the extension is required, a local authority must agree to the request and advise A of the period of the extension.

• (3) If a local authority refuses a request for an extension of the time limit, it must inform A of its refusal and it must give reasons for its refusal.

Format

5

• (1) The information provided by a local authority in accordance with regulation 3 may be in electronic or paper format, and must be in a format that is appropriate to A’s communication needs.

• (2) The information and documents to be provided by A under regulation 3(f) must be in electronic or paper format or such other format that the local authority has agreed to accept.

Duty to carry out a financial assessment

6

• (1) Where a local authority thinks—

• (a) it would impose a charge under section 59 of the Act (power to impose a charge), were it to meet A’s needs for care and support;

• (b) that if it were to make payments towards meeting the cost of A’s needs for care and support by making direct payments by virtue of section 50 or 52 of the Act[^f00024], it would require A to pay by way of reimbursement[^f00025] (in the case of a gross payment) or contribution (in the case of a net payment) towards the costs of securing the provision of that care and support,

it must carry out an assessment of A’s financial resources in accordance with these Regulations.

• (2) The duty in paragraph (1) does not apply where A falls within any of the circumstances specified in regulation 7.

Circumstances in which there is no duty to carry out a financial assessment

7

• (1) A local authority is under no duty to carry out an assessment of A’s financial resources in circumstances, where A—

• (a) has been assessed as needing or is receiving care and support, assistance or a service or any combination of the same for which the local authority applies a flat-rate charge;

• (b) declines to undergo a financial assessment;

• (c) fails to provide the local authority with the information or documents required by the authority in accordance with regulation 3(f) within a reasonable time or at all;

• (d) is suffering from any form of Creutzfeldt-Jakob disease, where that disease has been diagnosed by a registered medical practitioner;

• (e) has been offered or is receiving care and support, advice or a service, or has been offered or provided with direct payments to secure the provision of care and support as part of a package of after-care services in accordance with section 117 of the Mental Health Act 1983 (after-care)[^f00026];

• (f) has been offered or is receiving reablement for the first 6 weeks of the specified period or, if the specified period is less than 6 weeks, for that period;

• (g) has been assessed as needing, or is receiving, only advocacy services[^f00027].

• (2) Where paragraph (1)(c) applies, a local authority may, if it considers that it has sufficient information, make an assessment of A’s financial resources on the basis of the partial information or partial document (or both) that is in its possession.

Power to carry out a financial assessment

8

A local authority may carry out a new assessment of A’s financial resources in accordance with these Regulations if any of the circumstances specified in regulation 15 (revised determination) or regulation 30 (revised determination) of the Charging Regulations apply in A’s case.

Financial assessment process

9

• (1) Where a local authority carries out a financial assessment in accordance with regulation 6 (duty to carry out a financial assessment) or regulation 8 (power to carry out a financial assessment), it must ensure that the process of assessment that it employs gives effect to the requirements of this regulation.

• (2) Where a local authority is meeting or proposing to meet A’s needs for care and support, or where it is making, or is proposing to make, direct payments towards the cost of securing the provision of care and support to meet A’s needs otherwise than by the provision of accommodation in a care home, it must—

• (a) calculate A’s capital in accordance with the provisions of Part 4;

• (b) disregard the value of A’s only or main home from that calculation.

• (3) Where a local authority is meeting or proposing to meet A’s needs for care and support, or where it is making, or is proposing to make, direct payments towards the cost of securing care and support to meet A’s needs by the provision of accommodation in a care home, it must calculate A’s capital in accordance with the provisions of Part 4.

• (4) The provision made in paragraphs (2) and (3) does not affect the discretion of a local authority to apply criteria that are more generous to A than the provision made by these Regulations.

Duty of local authority to carry out a financial assessment of a short-term resident as if the resident is receiving care and support otherwise than the provision of accommodation in a care home

10

Where A is a short-term resident, a local authority must carry out an assessment of A’s financial resources as if A is receiving care and support, or is receiving direct payments to secure the provision of care and support, other than by the provision of accommodation in a care home.

Saving

11

• (1) Where, immediately before the coming into force of these Regulations an assessment of A’s financial resources has effect, such assessment will continue to have effect notwithstanding that it was not made in accordance with the Act and these Regulations.

• (2) An assessment referred to in paragraph (1) will continue to have effect until replaced by an assessment of A’s financial resources carried out in accordance with the Act and these Regulations.

Rounding of fractions

12

Where any assessment of A’s financial resources results in a fraction of a penny, that fraction is, if it would be to A’s advantage, to be treated as a penny, otherwise it is to be disregarded.

PART 3 — Treatment and calculation of income

Calculation of income

13

• (1) A’s income is to be calculated on a weekly basis by determining, in accordance with this Part, the weekly amount of A’s total income.

• (2) For the purposes of paragraph (1) income includes capital treated as income under regulation 16 and notional income under regulation 17.

Earnings to be disregarded

14