Long-Term Care (General Provisions) (Jersey) Order 2014
Explanatory Note
This Order is made under the Long-Term Care (Jersey) Law 2012 (“Law”) and makes provision for the procedures for making claims under that Law, assessments of the long-term care needs of individuals, approvals of persons who can make such assessments and approve care packages, the procedures for approving care homes and transitional arrangements.
Part 1 – Interpretation
Article 1 is an interpretation provision. In particular, “claimant” refers to a person who makes or who has made a claim for a benefit under the Law. It also defines the “Benefits Order”, to which this Order makes a number of references, as the Long-Term Care (Benefits) Order 2014. “Partner” of a claimant is defined with reference to the Benefits Order.
Part 2 – Claims and benefits
Article 2 sets out how claims are to be made, that is, on a form approved by the Minister for Social Security (“Minister”) and makes provision for when a claim can be treated as having been made on an earlier date and what happens if a claim is defective.
Article 3 requires a claimant or a claimant’s partner to provide a determining officer with such information, documents and evidence as the determining officer requires for determining the claim. “Determining officer” is defined in the Law to mean a person appointed by the Minister to determine claims.
Article 4 makes provision regarding the assessment of the long-term care needs of individuals and the approval of care packages for meeting long-term care needs in a person’s own home. A claimant is not entitled to receive a benefit unless he or she has been assessed as needing a level of care specified in the Benefits Order (4 levels are specified in that Order). Also, to receive a benefit, such care must be provided in an approved care home or in a person’s own home by means of arrangements comprised in an approved care package. Assessments of long-term care needs and assessments for approving care packages are done by an “approved registered person” within the meaning of Article 12. A care package must be suitable for meeting the claimant’s long-term care needs. A determining officer can, at any time, require an approved registered person to assess whether a claimant’s long-term care needs have changed or a change is needed to the arrangements comprised in a care package. A determining officer is responsible for providing a claimant with a copy of each assessment and, if dissatisfied, the claimant can require a reassessment by a different approved registered person.
Article 5 sets out the functions of a determining officer. Those functions are (a) to determine whether a claimant is entitled to a benefit and, if so, the amount of benefit and (b) to determine any other question or matter arising from a claim other than a matter which is for an approved registered person to assess under Article 4. If a claimant is dissatisfied with the determination by a determining officer he or she can require a redetermination by a different determining officer.
Article 6 and the Schedule make provision for appeals. The Schedule deals with appeals against a reassessment under Article 4 to the Medical Appeal Tribunal and appeals against redeterminations under Article 5 to the Social Security Tribunal. Each tribunal can take evidence, make findings of fact and confirm, reverse or vary the reassessment or redetermination. A claimant who is dissatisfied with a tribunal’s decision may appeal to the Royal Court on a point of law only.
Article 7 requires a claimant or the claimant’s partner to notify the Minister if there is any change in circumstances that might affect entitlement to a benefit or the amount of such a benefit and to provide such information the Minister may require in connection with such a change.
Article 8 makes provision for when a person can act as agent of another person to make a claim or otherwise in connection with a claim. This Article allows the Minister to appoint a person (including the Minister or a determining officer) to act on behalf of a claimant where the claimant is unable to act in this regard. It also allows a claimant who is able to act to appoint another person to act on his or her behalf. The rights of a person to act on behalf of another where the claimant has a guardian under the Mental Health (Jersey) Law 1969, a curator under that Law or a tuteur are not affected. Provision is also made to allow deduction from social security benefits to be made and such amounts to be paid directly to an approved care home or the provider of a care package where the Minister has appointed a person to act on the claimant’s behalf.
Article 9 allows a benefit to be paid directly to the claimant, the claimant’s agent, or the relevant approved care home or provider of an approved care package. It is for a determining officer to decide the most appropriate recipient having taken into account the views of the claimant or the claimant’s agent. Provision is also made to allow for payment of benefits to continue for a period of not more than 2 days in the event of a claimant’s death or where a claimant leaves an approved care home in circumstances where reasonable advance notice cannot be given (without prejudice to other benefits that may be payable in respect of long-term care received elsewhere).
Article 10 deals with the situation where benefits have been wrongly paid. A person to whom a benefit was wrongly paid may be required to repay it and provision is made for what happens in the event of the death of such a person and for when the payment may be set-off against other payments due under the Law.
Article 11 makes provision allowing notices of assessments, reassessments, determinations and redeterminations to be sent by post to a person’s usual or last known address.
Part 3 – Approvals
Article 12 sets out how registered persons may be approved for the purpose of making assessments of the long-term care needs of individuals and for approving care packages. (In this Article such assessments and approvals are referred to collectively as “assessments”.) “Registered person” is defined in the Law to mean any person who is a registered medical practitioner under the Medical Practitioners (Registration) (Jersey) Law 1960 (“Medical Practitioners Law”) or who is in a registrable occupation under the Health Care (Registration) (Jersey) Law 1995 (“Health Care Law”). Under Article 5 of the Law the Minister may specify the descriptions of registered persons who may make assessments. Article 12 allows any person who is a nurse, social worker, occupational therapist or a registered medical practitioner to apply to the Minister to be an approved registered person. A person may apply to the Minister for approval to make assessments of the long-term care needs of individuals or to assess the suitability of care packages for individuals, or both. The Minister must be satisfied that the person is competent to make assessments for the purpose stated in the application. Provision is made for such approval to be suspended if, under the Health Care Law, the person’s name is removed from the register or his or her registration is cancelled or, in the case of a registered medical practitioner, registration of the person is cancelled or suspended under the Medical Practitioners Law. Once the person’s name is restored to the register or such cancellation or suspension no longer applies under the relevant Law, the person resumes his or her status as an approved registered person under the Order. Provision is also made for the Minister to remove a person’s status as an approved registered person by notice if satisfied that the person is no longer competent to make the assessments for the purposes for which approval was given. Such a notice can be made only after giving a person a period of not less than 21 days to make representations and a person has a right of appeal to the Royal Court on the ground that the Minister’s decision is unreasonable in all the circumstances of the case. Similar rights to a notice, adequate opportunity to make representations and appeal apply where a Minister has refused an application for approval.
Article 13 makes provision for the approval of care homes providing long-term care for the purpose of enabling those in receipt of such care to receive benefits under the Law. Such a home must be registered under the Nursing and Residential Homes (Jersey) Law 1994 (“1994 Law”) or be one that is not required to be so registered because it is a hospital controlled or maintained by the States or is another establishment maintained or controlled by the Minister. The Minister may grant an application to be an approved care home without qualification (“fully approved care home”) or grant an application with the qualification that it is an approved care home only to the extent that it provides long-term care to individuals who were resident at the home immediately before the application (“provisionally approved care home”). An application for a fully approved care home may be granted if an agreement is in place between the Minister and the home, or the person carrying on the home, with respect to the services provided by the home that are ancillary to the long-term care provided (for example, services relating to records and invoicing). An application for a provisionally approved care home may be granted if no such agreement is in place but the Minister is satisfied that arrangements are in place with a view to such an agreement being made in the future.
A home ceases to be an approved care home (whether fully or provisionally approved) if it ceases to be a registered home. If a fully approved care home breaches a condition of its registration in circumstances where its registration under the 1994 Law does not cease or there is a breach of the agreement relating to ancillary services, the Minister may impose a restriction on it to the effect that it is an approved care home only in respect of individuals who were resident in the home immediately before the date of the restriction. If the breach continues and the Minister is not satisfied that it will be remedied, the Minister can notify the home that it is no longer an approved care home. In the case of a provisionally approved care home, the Minster can notify it that it is no longer an approved care home. Such a notice can be made only after giving the person carrying on the home a period of not less than 21 days to make representations and the person has a right of appeal to the Royal Court on the ground that the Minister’s determination is unreasonable in all the circumstances of the case. Similar rights to a notice, adequate opportunity to make representations and appeal apply where a Minister has refused an application for approval.
Part 4 – Transitional provisions
Article 14 is an interpretation provision for the purposes of this Part.
Under Article 15, a person who, immediately before the date that this Order comes into force, was making assessments of a person’s long-term care needs or approving arrangements comprised in care packages equivalent to those described in the Law is deemed to be an approved registered person.
Article 16 applies to a home which, on the date that this Order comes into force, is registered under the 1994 Law or which is not required to be so registered because it is a hospital controlled or maintained by the States or another establishment maintained or controlled by a Minister. On that date such a home is deemed to be a fully approved care home if there is an agreement such as is described in relation to Article 13 above or deemed to be a provisionally approved care home if there are arrangements such as are described in relation to that Article.
Under Article 17 assessments of an individual’s long-term care needs made before the date that this Order comes into force where such needs are assessed to be equivalent to a level specified in the Benefits Order are, subject to a determining officer’s confirmation that there is sufficient evidence for such an assessment, treated as assessments for the purposes of the Law, this Order and the Benefits Order. Similarly care packages approved before the date that this Order comes into force that are equivalent to the care packages that could be approved for the purposes of the Law are treated as being so approved.
Under Article 18, a notification to an individual before the date that this Order comes into force by a person acting on the Minister’s behalf as to whether the person is likely to be entitled to a benefit under the Law and if so, the amount of such a benefit is deemed to be determination under Article 5 that the person is entitled to a benefit of that amount and to have been received by the individual on that date. This means that the right to a redetermination and subsequent appeal rights will apply accordingly in accordance with that Article and Article 6.
Under Article 19, if certain conditions are met, payments for long-term care made by an individual on or after 1st January 2013 and before the date that this Order comes into effect will be treated as payments towards the fixed sum that must be paid under the Benefits Order before a person is entitled to receive non means-tested payments for long-term care under that Order. (That fixed sum is £52,120 in the case of a single person.) Those conditions include the requirement that, at the time of the payment, the individual had been assessed as having long-term care needs equivalent to a level described in the Benefits Order and that the care was received in a deemed approved care home under Article 16 or was comprised in arrangements deemed to be an approved care package under Article 17.
Under Article 20 persons who were receiving payments under the Income Support (Transitional Provisions) (Jersey) Order 2008 (“2008 Order”) in connection with residential care (i.e. care in an institution for a person who needs assistance with normal daily activities) are deemed, on the date that this Order comes into force, to meet the residency condition and to have made a claim for benefit in accordance with this Order. If such a person was receiving payments under the 2008 Order for the costs of residential care, those payments will no longer apply but if such payments were higher than those to which the person is entitled under the Benefits Order, the person’s benefits under the Benefits Order are increased so that the person is not put in a worse position.
Article 21 is a transitional provision for persons aged 65 years and over who, immediately before the date that this Order comes into force were liable to pay in full charges specified in the Long-Term Care (Health and Social Services Charges) (Jersey) Order 2014 (“Order”) for long term care services as defined in the Long-Term Care (Health and Social Services Charges) (Jersey) Law 2014 (“Charges Law 2014”). (Broadly, such services are defined as being long-term care services arranged, administered or supplied by the Minister for Health and Social Services.) On the date that this Order comes into force, such persons will be deemed to have met the residency condition under the Law for receiving a benefit and to have made a claim for benefit under this Order.
Any such person who pays £485.31 a week for such services (that is the same amount that is specified in the Order – such Order to be repealed on the date this Order comes into force) will receive a grant instead of the grant specified in the Benefits Order for the cost of long-term care. Broadly speaking the grant is the difference between the gross costs for such care in the approved care home after the date this Order comes into effect and the amount of £485.31 paid by the individual.
Alternatively, if an individual does not pay £481.31 a week as described above, the Benefits Order will apply as if for each week the individual received long-term care services during the period on or after 1st January 2013 and before the date that this Order comes into effect, the individual paid £182.82 towards the fixed sum that must be paid under the Benefits Order before a person is entitled to receive non means-tested payments for long-term care under that Order. (That fixed sum is £52,120 in the case of a single person).
Article 22 provides that a person under the age of 65 who was receiving long-term care services as defined in the Charges Law 2014 and would have been liable to pay charges under the Order if the person had been aged 65 years or over will be deemed, on the date that this Order comes into force, to meet the residency condition under the Law for receiving benefits, to have made a claim for benefits under this Order and to have no income or assets for the purposes of calculating the individual’s entitlement to benefits under the Benefits Order.
Part 5 – Closing
Article 23 sets out the title of this Order and provides that it will come into force on the same date that Parts 3 and 4 of the Long-Term Care (Jersey) Law 2012 come into force. Under the Long-Term Care (Jersey) Law 2012 (Appointed Day) Act 2013 that date is 1st July 2014 (see R&O.160/2013).
File No.1409/5
gov.je