ANNEX B: EXISTING LEGISLATION ABOUT SOCIAL CARE National Assistance Act 1948
395.Part 3 of this Act deals with local authorities’ responsibilities with regard to arranging and charging for residential and nursing care placements.
396.In particular the Act gives powers to and imposes duties on local authorities in respect of accommodation. Section 21 of the 1948 Act enables local authorities (with the approval of the Secretary of State) to provide residential care for people over the age of 18 where they need residential care and care and attention is not otherwise available. Where the Secretary of State directs a local authority to provide such care, a local authority has a duty to provide it. The Secretary of State’s approvals and directions are set out in Department of Health Circular LAC (93) 10. Section 26 of the 1948 Act enables local authorities to discharge their responsibility under section 21 by entering into arrangements with certain private and voluntary sector care homes.
397.A local authority may be required under section 21 of the 1948 Act to provide nursing care incidental or ancillary to the provision of accommodation. The Court of Appeal so decided in the case of R v North Devon Health Authority ex parte Coughlan [2000] 3 All E R 850, [2000] 2 WLR 622.
398.Sections 22 and 26 of the 1948 Act set out the system whereby a charge may be made for the provision of accommodation under sections 21 and 26. The charge is determined in accordance with a means test. This means testing system is set out in regulations, namely the National Assistance (Assessment of Resources) Regulations (S.I. 1992/2977). It follows that where a local authority provides nursing care incidental or ancillary to the Part 3 accommodation such services fall within the means testing system
399.Where a person is required to make a contribution towards his care under the means testing regime, but falls behind with the payments, the local authority may take a charge over any interest in land that the person has in the circumstances set out in section 22 of the Health and Social Services and Social Security Adjudication’s Act 1983 .