28(1)For the purpose of determining whether the duty imposed by section 35 or 40 of SSW(W)A 2014 applies to a local authority, any reference in that section to there being no charge under section 59 of that Act includes a reference to there being no charge because the authority has decided not to carry out an assessment under section 63(2) of that Act as a result of paragraph 25(1) above (but see paragraph 30 below).
(2)But the duty under section 35 or 40 of SSW(W)A 2014 does not apply to a local authority if—
(a)the authority notifies the relevant person that it may impose a charge for meeting needs under that section, and
(b)the relevant person asks the authority not to meet those needs.
(3)In sub-paragraph (2) “the relevant person” means—
(a)the person who would be liable to pay any such charge, except where paragraph (b) or (c) applies;
(b)in a case where—
(i)the authority would be meeting the needs of an adult under section 35 of SSW(W)A 2014, and
(ii)the adult lacks capacity to arrange for the provision of care and support,
a person who is authorised under the Mental Capacity Act 2005 to arrange for such provision or is otherwise in a position to do so on the adult’s behalf;
(c)in a case where the authority would be meeting the needs of a carer under section 40 of SSW(W)A 2014 and the person cared for by the carer (“P”)—
(i)lacks capacity to decide whether to have the needs met by the provision of care and support to P, or
(ii)where P is a disabled child aged under 16, does not have sufficient understanding to make an informed decision about having the needs met by the provision of care and support to P,
a relevant representative.
(4)The following are relevant representatives for the purposes of sub-paragraph (3)(c)—
(a)an authorised person within the meaning of section 41 of SSW(W)A 2014 (see subsection (15) of that section), and
(b)in the case of a disabled child, a person with parental responsibility for the child.
(5)In a case where the local authority would be meeting the needs of a carer under section 40 of SSW(W)A 2014 and the person cared for by the carer is a disabled child aged 16 or 17, the authority may disregard a request for the purposes of sub-paragraph (2)(b) if it is satisfied that it would not be in the disabled child’s best interests.
(6)In a case where the local authority would be meeting the needs of a carer under section 40 of SSW(W)A 2014 and the person cared for by the carer is a disabled child aged under 16, the authority may disregard a request for the purposes of sub-paragraph (2)(b) if it is satisfied that it would not be consistent with the disabled child’s well-being.