Consultation Analysis Report - Care Act 2014 Cross-border Placement and Provider Failure regulations

Executive Summary

Background

1. The Scottish Government alongside the Department of Health, Department of Health, Social Services and Public Safety of Northern Ireland and the Welsh Government launched a consultation on cross-border placements, dispute resolution and provider failure regulations in May 2014 to support the UK Care Act 2014 ("the 2014 Act"). This report presents the views expressed by respondents to the consultation proposals in Scotland.

2. The 2014 Act has created a legislative basis for cross border placements for those who require care and accommodation in a devolved administration area. Devolved administrations have worked together to agree the principles of Schedule one of the 2014 Act. Schedule one sets out certain principles governing those occasions when a local authority decides that a person's need for care and support is best met by a placement into residential care in a different part of the UK.

3. The consultation sought views on two regulations that extend to Scotland following the introduction of the 2014 Act to achieve a consistent and equitable approach across the UK:

• Local authorities in Scotland are able to make placements outside Scotland; whereby the placing authority retains funding responsibility for the individual;
• Dispute resolution process for cross-border placement disputes;
• where a registered care home provider fails financially the local authority duty to provide alternative arrangements is prescribed.

Method

4. The consultation commenced on 9 June 2014 till 18 August 2014. It was a web based written consultation inviting individuals and organisations to submit their written responses to the consultation document on the 2014 Act regulations that extend to Scotland.

5. The consultation paper included 3 questions to which written responses were invited. A total of 9 responses were received.

Summary of responses

6. Each of the questions were embedded as part of each regulation under two headings The Care and Support (Cross-border Placements and Provider Failure: Temporary Duty) (Dispute Resolution) Regulations 2014 which includes the cross-border placements and dispute resolution process and The Care and Support (Cross-border Placements) (Business Failure [Duties])(Scotland) Regulations 2014 provider failure regulations.

7. The questions posed in the consultation document required respondents to provide a full textual response. All respondents provided full textual responses expressing their views and some provided additional views on the wider context relating to issues beyond the scope of this consultation document. This input is invaluable as we have received responses from a range of sectors offering a greater depth to our understanding to take forward this legislation. Responses from the regulatory bodies to voluntary sectors reaffirms the complexity of the areas that this consultation seeks to address.

8. The remainder of this section provides a brief summary of key points made in response to the proposals in the consultation.

Cross-border placements

9. All respondents provided a positive response to the framework introduced by schedule 1 of the 2014 Act. However some respondents provided further information stating the difficulties that individuals experience at present without a legislative framework.

Dispute resolution process

10 The dispute resolution process forms part of the first regulation that introduces the framework. Respondents agreed with the overall principles to achieve reciprocity. However some respondents requested clarity on the sharing of information and amendments to specify a time period for Ministers/Secretary of State to make a determination upon referral.

11. Some of the respondents expressed that the dispute resolution process is adequate based on the current drafting.

12. Other respondents requested that the time period local authorities have before referring a dispute is extended from four months to six months as some cases are more complex than others.

Provider failure

13. The provider failure regulations formed the final part of the consultation document. A few responses referred to the need to consider wider causes for provider failures that lead to closures, poor performance or maladministration of corporate duties.

14. Some respondents expressed their discontentment at the timing of when the regulations are provoked and applied in the care provider failure situation.

15. Amendments were requested in relation to the use of language in the final part of the regulations, the terms used to specify those that require local authority assistance is detrimental. The phrase used refers back to the Social Work Scotland Act 1968 ("the 1968 Act").