Regulation 28 Care home residentsI1

England, Wales and Scotland

(1)

Subject to paragraph (3) and regulation 30, no amount of personal independence payment which is attributable to the daily living component is payable in respect of C for any period during which C meets the condition in section 85(2) of the Act (care home residents: costs of qualifying services borne out of public or local funds).

(2)

For the purpose of section 85(2) of the Act the specified enactments are—

(a)

Part 3 of the National Assistance Act 1948 F1 (Local Authority Services);

(b)

sections 59 and 59A of the Social Work (Scotland) Act 1968 F2 (provision of residential and other establishments by local authorities and maximum period for repayment of sums borrowed for such provision and grants in respect of secure accommodation for children respectively);

(c)

the Mental Health Act 1983F3;

(d)

the Community Care and Health (Scotland) Act 2002F4;

(e)

the Mental Health (Care and Treatment) (Scotland) Act 2003F5; F6...

F7(ee)

section 57 of the Health and Social Care Act 2001, F8...

F9(eea)

Part 1 of the Care Act 2014 (care and support), F10...

F11(eeb)

Part 4 of the Social Services and Well-being (Wales) Act 2014 (meeting needs), or

(f)

any other enactment relating to persons under a disability or to young persons or to education or training except—

(i)

section 485 of the Education Act 1996 F12 (grants in aid of educational services or research);

(ii)

section 14 of the Education Act 2002 F13 (power of Secretary of State or National Assembly for Wales to give financial assistance for purposes related to education or children etc.);

(iii)

section 49 of the Education (Scotland) Act 1980 F14 (power of education authorities to assist persons to take advantage of educational facilities) or section 73 of that Act (power of Scottish Ministers to make grants to education authorities and others)F15;

(iv)

section 65 of the Further and Higher Education Act 1992 F16 (administration of funds by F17HEFCW);

(v)

section 4 of the Further and Higher Education (Scotland) Act 2005 F18 (general duty of Scottish Ministers to provide support for funding of higher education) or section 11 of that Act (administration of funds); and

(vi)

section 22 of the Teaching and Higher Education Act 1998 F19 (new arrangements for giving financial support to students).

F20(vii)

section 39 of the Higher Education and Research Act 2017 (financial support for registered higher education providers) or section 40 of that Act (financial support for certain institutions);

(3)

Subject to paragraph (4), paragraph (1) does not apply in the case of C, where C is a person—

(a)

who has not reached the age of 18 and to whom –

(i)

section 17(10)(b) of the Children Act 1989 F21 (provision of services for children in need: impaired health and development) or section 93(4)(a)(ii) of the Children (Scotland) Act 1995 F22 (interpretation: children in need of care and attention due to impaired health and development) applies because C's health is likely to be significantly impaired, or further impaired, without the provision of services for C; or

(ii)

section 17(10)(c) of the Children Act 1989 (provision of services for children in need: disability) or section 93(4)(a)(iii) of the Children (Scotland) Act 1995 (interpretation: children in need of care and attention due to disability) applies; F23...

F24(aa)

to whom section 37, 38 or 42 of the Social Services and Well-being (Wales) Act 2014 applies; or

(b)

who is accommodated outside the United Kingdom if the costs of any qualifying services are borne wholly or partly by a local authority pursuant to their powers under section 320 of the Education Act 1996 F25 (provision outside England and Wales for certain children) or section 25 of the Education (Additional Support for Learning) (Scotland) Act 2004 F26 (attendance at establishments outwith the United Kingdom).

(4)

F27Paragraphs (3)(a) and (aa) only apply during any period in which the local authority looking after C places C in a private dwelling with a family, or with a relative of C, or with some other suitable person.

Annotations

Textual amendments

F1: 1948 c.29.
F2: 1968 c.49. Section 59 was amended by the National Health Service and Community Care Act 1990 (c.19), Schedule 9, paragraph 10(7); the Regulation of Care (Scotland) Act 2001 (asp 8), Part 6, section 72(c); the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), section 25(4) and Schedule 4, paragraph 1(6) and the Children (Scotland) Act 1995 (c.36), Schedule 4, paragraph 15(15). Section 59A was inserted by the Children Act 1975 (c.72), section 72 and amended by the Health and Social Services and Social Security Adjudications Act 1983 (c.41), section 30 and Schedule 10, Part 1.
F3: 1983 c.20.
F4: 2002 asp 5.
F5: 2003 asp 13.
F6: Word in reg. 28(2)(e) omitted (1.11.2013) by virtue of The Community Care, Services for Carers and Childrens Services (Direct Payments) (England) (Amendment) Regulations 2013 (S.I. 2013/2270), regs. 1(1), 7(a)
F7: Reg. 28(2)(ee) inserted (1.11.2013) by The Community Care, Services for Carers and Childrens Services (Direct Payments) (England) (Amendment) Regulations 2013 (S.I. 2013/2270), regs. 1(1), 7(b)
F8: Word in reg. 28(2)(ee) omitted (1.4.2015) by The Care Act 2014 (Consequential Amendments) (Secondary Legislation) Order 2015 (S.I. 2015/643), art. 1(2), Sch. para. 40(a) (with art. 4)
F9: Reg. 28(2)(eea) inserted (1.4.2015) by The Care Act 2014 (Consequential Amendments) (Secondary Legislation) Order 2015 (S.I. 2015/643), art. 1(2), Sch. para. 40(b) (with art. 4)
F10: Word in reg. 28(2)(eea) omitted (3.11.2017) by virtue of The Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (S.I. 2017/901), arts. 1, 16(a)
F11: Reg. 28(2)(eeb) inserted (3.11.2017) by The Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (S.I. 2017/901), arts. 1, 16(b)
F12: 1996 c.56. Section 485 was amended by the Local Education Authorities and Children's Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158) (‘the Integration of Functions Order’), Schedule 2, paragraph 7(1) and (3).
F13: 2002 c.32. Section 14 was amended by the Children Act 2004 (c.31) section 59; the Education Act 2005 (c.18), Schedule 14, paragraph 23, the Education Act 2011(c.21), section 15 and the Integration of Functions Order, Schedule 2, paragraph 11.
F14: 1980 c.44. Section 49 was amended by the Self-Governing Schools etc. (Scotland) Act 1989 (c. 39), Schedule 10, paragraph 8(9).
F15: Section 73 was amended by the Self-Governing Schools etc. (Scotland) Act 1989 (c.39), section 73 and by the Education (Graduate Endowment and Student Support) (Scotland) Act 2001 (asp 6), section 3(2). The power of the Secretary of State was transferred to Scottish Ministers by virtue of the Scotland Act 1998 (c. 46), section 53 (general transfer of functions).
F16: 1992 (c. 13). Section 65 was amended by the Disability Discrimination Act 1995 (c. 50), section 30(6), the Teaching and Higher Education Act 1998 (c. 30), section 27, the Special Educational Needs and Disability Act 2001 (c. 10) sections 34(1) and 24(6) and Schedule 9 and the Integration of Functions Order, Schedule 2, paragraph 5(1).
F17: Word in reg. 28(2)(f)(iv) substituted (1.8.2019) by The Higher Education and Research Act 2017 (Further Implementation etc.) Regulations 2019 (S.I. 2019/1027), regs. 1, 36(a)
F18: 2005 asp 6.
F19: 1998 c.30. Section 22 was amended by the Learning and Skills Act 2000 (c.21), section 146(2)(a) and Schedule 11, paragraph 1; the Income Tax (Earnings and Pensions) Act 2003 (c.1), Schedule 6(2), paragraph 236; the Finance Act 2003 (c.14), section 147(3); the Higher Education Act 2004 (c.8), sections 42(1) and 43(2) and Schedule 7, paragraph 1, the Apprenticeship, Skills, Children and Learning Act 2009 (c.22), section 257(2) and the Education Act 2011 (c.21), section 76.
F20: Reg. 28(2)(f)(vii) inserted (1.8.2019) by The Higher Education and Research Act 2017 (Further Implementation etc.) Regulations 2019 (S.I. 2019/1027), regs. 1, 36(b)
F21: 1989 c.41.
F22: 1995 c.36.
F23: Word in reg. 28(3)(a) omitted (3.11.2017) by virtue of The Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (S.I. 2017/901), arts. 1, 16(c)
F24: Reg. 28(3)(aa) inserted (3.11.2017) by The Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (S.I. 2017/901), arts. 1, 16(d)
F25: 1996 c.56. Section 320 was amended by the Integration of Functions Order, Schedule 2, paragraph 7(2).
F26: 2004 asp 4.
F27: Words in reg. 28(4) substituted (3.11.2017) by The Social Services and Well-being (Wales) Act 2014 and the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Order 2017 (S.I. 2017/901), arts. 1, 16(e)

Commencement

I1: Reg. 28 coming into force in accordance with reg. 1(2) and S.I. 2013/358

Notes on the whole SI

Textual amendments

F1: 2012 c.5.
F2: See section 173(5)(a) of the Social Security Administration Act 1992 (c.5) (‘the 1992 Act’). The requirement to refer regulations to the Social Security Advisory Committee does not apply where regulations are contained in a statutory instrument made before the end of the period of six months beginning with the coming into force of the enactment under which the regulations were made. Schedule 9, paragraph 26(a) to the Welfare Reform Act 2012 (c.5) (‘the Act’) inserted a reference to Part 4 of that Act into section 170(5) of the 1992 Act which has the effect of making that Part of the Act a ‘relevant enactment’ and therefore subject to the requirement to refer regulations to the Social Security Advisory Committee unless section 173(5) applies.