Modifications etc. (not altering text)
C1Pt. II extended with modifications by Guardianship Act 1973 (c. 29), s. 11(5)
( 1 )Where, as respects [F3any person]—
(a)a local authority
[F4(i)]] have decided under section 12A of this Act that his needs call for the provision of any service which is a community care service [F5; or
(ii)have a duty to provide a service to him under section 22(1) of the Children (Scotland) Act 1995 (c.36) (promotion of welfare of children in need) other than a service which comprises giving assistance in cash;] and
(b)the person is [F6not] of a description which is specified for the purposes of this subsection by regulations,
the authority [F7shall, if and while (the payment having been offered by the authority) either the person consents or consent is duly given on his behalf,] , make to him, in respect of his securing the provision of the service, a payment of such amount as, subject to subsection (2) below, they [F8determine to be appropriate] .
[F9(1A)The amount of any payment made, under subsection (1) above, with or without first assessing the person’s ability to contribute to securing the provision of the service in question, may be determined on the supposition that he has no such ability; but this subsection is subject to subsection (5A) below.
(1B)Consent is duly given as mentioned in subsection (1) above if—
(a)the authority are satisfied that the person on whose behalf it is given is himself incapable of giving it; and
(b)the person who gives it is of a category specified for the purposes of that subsection by regulations,
and such regulations may authorise the person so consenting to intromit with the payment and to do anything requisite to secure the provision of the service.
(1C)The reference in subsections (1) to (1B) above to securing the provision of the service is to securing its provision by any person, including the authority themselves (provided that both they and the consenting person so wish) or any other local authority.]
(2)If—
(a)an authority pay under subsection (1) above at a rate below their estimate of the reasonable cost of securing the provision of the service concerned, and
(b)the person to whom the payment is made satisfies the authority that his means are insufficient for it to be reasonably practicable for him to make up the difference,
the authority shall so adjust the payment to him under that subsection as to avoid there being a greater difference than that which appears to them to be reasonably practicable for him to make up.
(3)A payment under subsection (1) above shall be subject to the condition that the person to whom it is made shall not secure the provision of the service to which it relates by a person who is of a description specified for the purposes of this subsection by regulations.
(4)Regulations may provide
F10 [( a )] that the [F11duty imposed by subsection (1) above shall not apply] in relation to the provision of residential accommodation for any person for a period in excess of such period as may be specified in the regulations;
[F12(b)impose preconditions which must be fulfilled if the service concerned is, by virtue of that subsection, to be provided by the authority by whom the payment under that subsection is made and special conditions which shall apply as respects a service so provided by them;
(c)specify circumstances in which the authority are not required to make payments under that subsection (whether circumstances relating to the person in question or to the service in question or to both);
(d)specify circumstances in which the authority may or must terminate the making of such payments; and
(e)authorise such payments to be made, on behalf of the payee, to some other person of a category specified, for the purposes of this subsection, by regulations.]
(5)If the authority by whom a payment under subsection (1) above is made are not satisfied, in relation to the whole or any part of the payment—
(a)that it has been used to secure the provision of the service to which it relates, or
(b)that the condition imposed by subsection (3) above, or any condition properly imposed by them, has been met in relation to its use,
they may require the payment or, as the case may be, the part of the payment to be repaid.
[F13(5A)An authority who have made a determination by virtue of subsection (1A) above in respect of a payment—
(a)having first assessed the recipient’s ability to contribute to securing the provision of the service in question, may; or
(b)other than is mentioned in paragraph (a) above, shall thereafter make such an assessment and may,
having regard to the assessment, require from him such repayment as appears to them appropriate.
(5B)If the person from whom a repayment is required under subsection (5A) above satisfies the authority that, notwithstanding the assessment to which regard was had in making the requirement, his means are insufficient for it to be reasonably practicable for him to make that repayment, the authority shall adjust the requirement so that the amount to be repaid becomes an amount which appears to them to be reasonably practicable for him to repay.]
(6)Regulations under this section shall be made by the Secretary of State and may—
[F14(za)make provision for the delegation of functions to local authorities;]
(a)make different provision for different cases; and
(b)include such supplementary, incidental, consequential and transitional provisions and savings as the Secretary of State thinks fit.
[F15(7)The definition of “community care [F16services]” in section 5A of this Act shall, with the modification mentioned in subsection (8) below, apply for the purposes of this section as that definition applies for the purposes of that section.
(8)The modification is that the words “, other than services for children,” in the definition shall be disregarded.]
Textual Amendments
F1Ss. 12AA, 12AB inserted (1.9.2002) by Community Care and Health (Scotland) Act 2002 (asp 5), s. 9(2); S.S.I. 2002/170, art. 2
F2S. 12B inserted (S.)(1.4.1997) by 1996 c. 30, s. 4; S.I. 1997/756, art. 2
F3Words in s. 12B(1) substituted (1.6.2003) by Community Care and Health (Scotland) Act 2002 (asp 5), s. 7(a)(i); S.S.I. 2002/170, art. 2
F4Words in s. 12B(1)(a) re-numbered (20.12.2001) as s. 12B(1)(a)(i) by virtue of 2001 asp 8, s. 70(a)(i); S.S.I. 2001/304, art. 2(2)
F5S. 12B(1)(a)(ii) and the word "or" immediately preceding it substituted (20.12.2001) for words in s. 12B(1)(a) by 2001 asp 8, s. 70(a)(ii); S.S.I. 2001/304, art. 2(2)
F6Word in s. 12B(1)(b) inserted (1.6.2003) by Community Care and Health (Scotland) Act 2002 (asp 5), s. 7(a)(ii); S.S.I. 2002/170, art. 2
F7Words in s. 12B(1) substituted (1.6.2003) by Community Care and Health (Scotland) Act 2002 (asp 5), s. 7(a)(iii); S.S.I. 2002/170, art. 2
F8Words in s. 12B(1) substituted (1.6.2003) by Community Care and Health (Scotland) Act 2002 (asp 5), s. 7(a)(iv); S.S.I. 2002/170, art. 2
F9S. 12B(1A)-(1C) inserted (1.6.2003) by Community Care and Health (Scotland) Act 2002 (asp 5), s. 7(b); S.S.I. 2002/170, art. 2
F10Words in s. 12B(4) renumbered (1.6.2003) as s. 12B(4)(a) by virtue of Community Care and Health (Scotland) Act 2002 (asp 5), s. 7(c); S.S.I. 2002/170, art. 2
F11Words in s. 12B(4)(a) substituted (1.6.2003) by Community Care and Health (Scotland) Act 2002 (asp 5), s. 7(c); S.S.I. 2002/170, art. 2
F12S. 12B(4)(b)-(e) inserted (1.6.2003) by Community Care and Health (Scotland) Act 2002 (asp 5), s. 7(c); S.S.I. 2002/170, art. 2
F13S. 12B(5A)(5B) inserted (1.6.2003) by Community Care and Health (Scotland) Act 2002 (asp 5), s. 7(d); S.S.I. 2002/170, art. 2
F14S. 12B(6)(za) inserted (5.10.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 63, 79(3); S.S.I. 2007/334, art. 2(b), sch. 2
F15S. 12B(7)(8) inserted (20.12.2001) by 2001 asp 8, s. 70(b); S.S.I. 2001/304, art. 2(2)
F16Words in s. 12B(7) substituted (1.6.2003) by Community Care and Health (Scotland) Act 2002 (asp 5), s. 25, {Sch. 2, para. 1(2)}; S.S.I. 2002/170, art. 2
Modifications etc. (not altering text)
C2S. 12B(1) restricted (1.4.1997) by S.I. 1997/693, reg. 4(1)