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Personal care

1. For regulatory purposes, the term “personal care” is defined in legislation. 

England

2.  In England  “personal care” is:

  1. for someone who is unable to provide it for themself by reason of:
    1. old age,
    2. illness, or
    3. disability, and
  2. which is provided in a place where that person is living at the time the care is provided.1The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 No 2936 Sch 1 para 1

3. “Personal care” means:2The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 No. 2936, reg 2(1) def: of “personal care”

  1. physical assistance given to someone in connection with:
    1. eating or drinking (including the maintenance of established parenteral nutrition),
    2. toileting (including in relation to the process of menstruation),
    3. washing or bathing,
    4. dressing,
    5. oral care, or
    6. the care of skin, hair and nails (but not nail care provided by a  registered chiropodist or podiatrist), or
  2. the prompting, together with supervision, of someone, in relation to the performance of any of the activities listed in paragraph (a), where that person is unable to make a decision for themselves in relation to performing such activity without such prompting and supervision. 

Scotland

4.  In Scotland  “personal care” means care which relates to:3Public Services Reform (Scotland) Act 2010 Sch 12 Para 20

  1. the day-to-day physical tasks and needs of the person cared for (for example eating and washing); and
  2. mental processes related to those tasks and needs (for example remembering to eat and wash).

Wales

5. In Wales, the equivalent definition is to the term “care” which relates to: 

  1. the day-to-day physical tasks and needs of the person cared for (for example, eating and washing), and
  2. the mental processes related to those tasks and needs (for example, the mental process of remembering to eat and wash).4Regulation and Inspection of Social Care (Wales) Act 2016, s.3(1)(a)

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Domiciliary support service (Wales)

A regulated service

1. The Regulation and Inspection of Social Care (Wales) Act 2016 introduced a new concept of “regulated services”.1Regulation and Inspection of Social Care (Wales) Act 2016, s.2 A “domiciliary support service” is one such regulated service.2Regulation and Inspection of Social Care (Wales) Act 2016, s.2(1)

Definition

2. A “domiciliary support service” is defined as “the provision of care and support to a person who by reason of vulnerability or need (other than vulnerability or need arising only because the person is of a young age) is unable to provide it for him or herself and is provided at the place in Wales where the person lives (including making arrangements for or providing services in connection with such provision).”3Regulation and Inspection of Social Care (Wales) Act 2016, sch 1 para 8(1)

Exceptions to the “domiciliary support service” registration requirement

3. Part 2 of the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017 (“the 2017 Regulations”) created exceptions to the registration requirement in the Act.4 Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017, Part 2 Regulation 3 sets out the situations where the provision of care and support is not to be treated as a “domiciliary support service”.5Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017, reg. 3

4. But for these 2017 Regulations there would have been a requirement for support services in Wales to register as domiciliary support services under the Act.6Explanatory Memorandum to the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017, Huw Irranca-Davies, Minister for Children and Social Care, 17 November 2017, last accessed: 30 August 2022 However the 2017 Regulations have removed this requirement where support is being provided without care by excluding “support only” services from regulation.7The 2017 Regulations addressed the fact that the definition of care and support under the 2016 Act was broader than the meaning of “personal care” under the 2000 Act, in so far as the definition of care and support under the 2016 Act included both “care”, “support” and “both care and support”. 

5. Another exception to the registration requirement as a domiciliary support service is the provision of care and support to four or fewer individuals at any one time.8Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017, reg. 3(1)(b)

Other exceptions

6. The following activities are also excluded from being a domiciliary support service:9Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017, reg. 3(1)(c)-(g)

  1. personal assistants who provide care and support without the involvement of an employment agency or employment business, and who work wholly under the direction and control of the person receiving the care and support; 
  2. care and support provided at:
    1. a place where a care home service, secure accommodation service, residential family centre service or accommodation arranged as part of an adult placement service is provided, or
    2. a hospital;
  3. personal assistant agencies who introduce individuals who provide a domiciliary support service to individuals who may wish to receive it but has no ongoing role in the direction or control of the care and support provided;
  4. the provision of care and support for an adult in the course of a family or personal relationship, and for no commercial consideration;
  5. the provision of care and support for a child by a parent, relative or foster parent;
  6. arrangements for the supply of carers to a service provider by an undertaking acting as an employment agency or employment business for the purpose of the provision of a regulated service by the service provider ;
  7. the provision of care and support where the care and support is provided by a person managing a prison or other similar custodial establishment.

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Regulation and Inspection of Social Care (Wales) Act 2016

A new system for regulation of care & support services (April 2018)

1. In 2016 Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (“the Act”) introduced a new system for the regulation of care and support services in Wales from April 2018.1Regulation and Inspection of Social Care (Wales) Act 2016 This replaced the system established under the Care Standards Act 2000.

Regulated services

2. The Act introduced a new concept of “regulated services”. A person who wants to provide a regulated service must make an application for registration specifying the regulated service that the person wants to provide. It is an offence to provide a “regulated service” without being registered.

3. The term “regulated services” includes:2Regulation and Inspection of Social Care (Wales) Act 2016, s.2(1)

  1. “care home service”; and
  2. “domiciliary support service”.

4. The other regulated services are:3Regulation and Inspection of Social Care (Wales) Act 2016, s.2(1)

  1. a secure accommodation service; 
  2. a residential family centre service; 
  3. an adoption service; 
  4. a fostering service; 
  5. an adult placement service; 
  6. an advocacy service; 
  7. any other care and support service prescribed by the Welsh Ministers in regulations.

Exceptions

5. Certain activities, such as the provision of support only,  that would otherwise fit the definition of a “regulated service” are not treated as such under the provisions of the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017 No. 1264 (as amended).4Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017 No. 1264 (W. 295) (as amended)

Meaning of the terms “care” and “support”

Care

6. The Act defines “care” as care relating to—

  1. the day-to-day physical tasks and needs of the person cared for (for example, eating and washing), and
  2. the mental processes related to those tasks and needs (for example, the mental process of remembering to eat and wash).5Regulation and Inspection of Social Care (Wales) Act 2016, s.3(1)(a)

Support

7. The Act defines “support” as counselling, advice or other help, provided as part of a plan prepared for the person receiving support by a service provider or other person providing care and support to the person, or a local authority (even if the authority does not provide care and support to the person).6Regulation and Inspection of Social Care (Wales) Act 2016, s.3(1)(d)

Guidance on the Act

8. The Care Inspectorate Wales has published guidance for (prospective) providers in respect of the registration, regulation and inspection of regulated services under the Act.7Care Inspectorate Wales, March 2022, Guide to Registration: Regulation and Inspection of Social Care (Wales) Act 2016

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Section 117 aftercare

1. Section 117 of the Mental Health Act 1983 (‘section 117 aftercare’) enables the provision of free help and support to individuals who have previously been detained in hospital under the Act.1Section 117 Mental Health Act 1983 

2. A person assessed under section 117A aftercare services may express a preference for particular accommodation such as supported accommodation and local authorities may be required to pay for some or all of the additional cost in prescribed cases.2Section 117A Mental Health Act 1983

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Care Inspectorate Wales [CIW]

About

1. The Care Inspectorate Wales is the independent regulator of social care in Wales. 1‘Home | Care Inspectorate Wales’ It carries out functions on behalf of Welsh Ministers. 

Duties

2. Amongst other duties it regulates and inspects: 2‘What We Do | Care Inspectorate Wales’  

  1. Care homes,
  2. Domiciliary support service – a service that can provide care in your own home as well as general support, and
  3. Adult placement schemes.

Directory of registered services and related inspection reports

3. A directory of registered services and related inspection reports may be viewed in the Care Inspectorate Wales’ website.3‘Care Service Directory | Care Inspectorate Wales’ accessed 1 September 2022

 

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Care home

Description

1. A care home is a place where personal care and accommodation are provided together.1NHS Business Definitions – Care Home

2. People may live in a care home for short or long periods. For many people, it is their sole place of residence and so it becomes their home, although they do not legally own or rent it.

Types

3. There are two types of care home:

  1. Care home without nursing (residential care home);
  2. Care home with nursing (nursing home).

Care homes for HB purposes

4. For HB purposes a “care home” is separately defined as:2The Housing Benefit Regulations 2006/213 reg 2(1) def: “care home“; The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006/214 reg 2(1) def: “care home“; Universal Credit Regulations 2013/376, sch 1, para 1 def: “care home“

  1. a “care home” in England;3Care Standards Act 2000 s 3 
  2. a “care home service” in Wales, which is provided wholly or mainly to persons aged 18 or over;4Regulation and Inspection of Social Care (Wales) Act 2016 part 1 and
  3. a “care home service” in Scotland.5Public Services Reform (Scotland) Act 2010 sch 12 para 2

In England 

5. In England an establishment is a “care home” if it provides accommodation, together with nursing or personal care, for any of the following persons (unless excluded by relevant law):6Care Standards Act 2000 s 3(1)-(2) 

  1. persons who are or have been ill;
  2. persons who have or have had a mental disorder;
  3. persons who are disabled or infirm; or
  4. persons who are or have been dependent on alcohol or drugs.

6. Accommodation is not a care home unless the care which it provides includes required assistance with bodily functions.7Care Standards Act 2000 s 121(9), 3(1)-(2)

In Wales

7. In Wales a “care home service” is the provision of accommodation, together with nursing or care at a place in Wales to persons because of their vulnerability or need.8Regulation and Inspection of Social Care (Wales) Act 2016 s 2(1)(a), (2); sch 1 para 1(1)

In Scotland

8. In Scotland a “care home service” is a service which provides accommodation, together with nursing, personal care or personal support, for persons by reason of their vulnerability or need; but the expression does not include:9Public Services Reform (Scotland) Act 2010 sch 12 para 2

  1. a hospital;
  2. a public, independent or grant-aided school; or
  3. a service excepted from this definition by regulations.

Regulation of care homes

9. Care homes, as defined in the relevant legislation, are regulated by:

  1. the Care Quality Commission (in England);
  2. the Care Inspectorate Wales; and
  3. the Care Inspectorate Scotland.

Care homes and benefit entitlement

Housing Benefit

10. People who are liable to make payments in respect of a care home are not normally eligible for HB. This applies to individuals of working age or pension age.10The Housing Benefit Regulations 2006/213 reg 9(1)(k); 9(4)(a); The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006/214 reg 9(1)(k); 9(4)(a)

11. In the first instance the distinction between a “care home” and “exempt accommodation” for HB purposes may be difficult to determine for individuals with high care needs. 

12. For a benefit decision-maker it is normally whether or not the accommodation is registered that determines the matter.

Universal Credit

13. For UC claimants payments in respect of a care home are excluded from being rent payments for UC calculation purposes.11Universal Credit Regulations 2013/376, sch 1, para 3(d)

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Exempt accommodation [SA1]

1. Residents in “exempt accommodation” are protected from the various schemes of rent restriction that have been introduced into the HB scheme since 2nd January 1996. 

2. This does not mean that the Council will meet unreasonable amounts or unreasonable increases in the rent of such accommodation. It must, however, consider the various tests and safeguards found in the updated version of the pre-January 1996 rules.1A – The restriction on unreasonable payments for working-age claimants is now found in Housing Benefit Regulations 2006/213 , reg 13 as inserted by Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217, sch 3, para 5(2)
B – The restriction on unreasonable payments for non-working-age claimants is now found in Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006/214 reg 13 as inserted by Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217, sch 3, para 5(2)
C – The restrictions on rent increases for working-age claimants is now found in Housing Benefit Regulations 2006/213 , reg 13ZA as inserted by Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217, sch 3, para 5(3)
D – The restriction on unreasonable payments for non-working-age claimants is now found in Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006/214 reg 13ZA as inserted by Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217, sch 3, para 5(3)

Definition

3. This section describes the conditions that must be met for a dwelling to be designated “exempt accommodation”.

The landlord

4. The landlord must have a particular legal status. Exempt accommodation means accommodation which is “provided by”:3Universal Credit Regulations 2013/376 sch 1 para 1 def: exempt accommodation,  Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217 sch 3 para 4(10) def: exempt accommodation para b

  1. a housing association;
  2. a registered charity;
  3. voluntary organisation; or 
  4. a non-metropolitan county council in England. 

Provision of care, support or supervision

5. The identified landlord or a person acting on its behalf must also provide the resident with care, support or supervision.2Universal Credit Regulations 2013/376 sch 1 para 1 def: exempt accommodation,  Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217 sch 3 para 4(10) def: exempt accommodation para b 

Resettlement places

6. The term exempt accommodation also includes accommodation (a resettlement place) that was in receipt of a Resettlement Grant. 4Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217 sch 3 para 4(10) def: “exempt accommodation” para a (These were formerly nationally run resettlement units that provided temporary accommodation for homeless people that were transferred to local providers).

Purpose of the “exempt accommodation” definition

Exclusion from UC help with housing costs

7. For working age claimants “exempt accommodation” is also a category of specified accommodation. Consequently, working age UC claimants living in exempt accommodation are not entitled to UC help with their housing costs.5Welfare Reform Act 2012, s 11, Universal Credit Regulations 2013/376, sch 1 paras 2, 3(h), 3A Help with their housing costs is provided by the HB scheme and may be paid direct to the landlord on request.

Exemption from the main HB rent restriction rules

8. The “exempt accommodation” definition provides HB claimants with exemption from the main HB rent restriction schemes that have been introduced from January 1996 ie.: 

  1. the local reference rent rules; and 
  2. the local housing allowance rules. 

HB excluded from the benefit cap calculation

9. A limit is set on the total amount of welfare benefits many working-age claimants can receive. This limit is known as the benefit cap. 

10. Working age claimants in receipt of HB living in exempt accommodation do not have their weekly HB award included in the calculation of the benefit cap. They potentially get a higher amount of total benefit income.6Welfare Reform Act 2012, s96, 96A, 97; Housing Benefit Regulations 2006/213, 75A, 75C(2)(a), 75H(2)

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