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

Chapter 1: Introduction

1.1 The Scottish Government launched a public consultation to inform recommendations on the legislation to support the 2014 Act that extends to Scotland. This report presents the views expressed by respondents to the consultation proposals.

Background to the consultation

1.2 The 2014 Act received Royal Assent in May 2014, this underpins the reform of care and support in England making provisions for:

• reforming the law in relation to care and support for adults;
• the law relating to support for carers;
• safeguarding adults from abuse or neglect;
• care standards;
• establish and make provision about Health Education England;
• establish and make provision about the Health Research Authority and for connected purposes to regulate assessments of the ethics of health and social care research.

1.3 At present section 12 of the 1968 Act places a duty upon Scottish local authorities to provide community care services within their area. Eligibility for such services arises both from an individual having a physical presence in the local authority area and from the individual being assessed as having a need that calls for the provision of care. An individual is not excluded from receiving community care services from a Scottish local authority by reason of being ordinarily resident outwith that local authority's area.

1.4 In addition sections 48 - 52 of the 2014 Act imposes duties on local authorities in England, Wales, and on Health and Social Care trusts in Northern Ireland, in the event of the failure of a provider of care services in a local authority area (through bankruptcy, entering administration etc), service users who are either temporarily or permanently located in another local authority area and who are using the services of a provider which fails are guaranteed to receive support in order to ensure that their service is not interrupted by said provider's failure.

1.5 It is worth reiterating that section 12 of the 1968 Act already places a duty on Scottish local authorities to provide or arrange care for any individual in their area who is requiring assistance in an emergency situation. The provisions of the 2014 Act place a similar duty on English and Welsh local authorities and Northern Irish Health and Social Care Trusts to meet the individual's needs of care and support for as long as considered necessary in relation to an individual that is ordinarily resident in Scotland. It will also allow those authorities to reclaim the costs of meeting those needs from the Scottish local authority in whose area the individual is ordinarily resident.

1.6 The Care Act provisions will come into force in April 2015. The four administrations have worked together to agree the principles in Schedule One and sections 48 - 52 of the 2014 Act.

1.7 The Department of Health launched a wider consultation on all the regulations and statutory guidance under part 1 of the 2014 Act at the end of May 2014. This included the regulations on provider failure and dispute resolution regulations (covering England, Scotland, Wales and Northern Ireland), and also draft guidance relating to cross-border placements and provider failure (which will be statutory for England only). The Department of Health intends to issue the guidance in England in October this year, to give local authorities time to become familiar with it and prepare for the new provisions coming into force in April 2015.

1.8 The Scottish government recognises the need to update the current guidance document CCD3/2010 that also applies to intra Scottish placements to reflect the framework introduced by the 2014 Act.

1.9 The consultation document titled Consultation on the Draft Regulations relating to the Care Act 2014 puts forward the regulations that have been agreed to achieve reciprocity and clarity in cross-border placements. The regulations set out the detail of the framework for cross-border placements, disputes resolution and provider failure situations.

Purpose of the consultation

1.10 The purpose of the consultation was to seek people's views about the legislative framework for cross-border placements. The consultation included three questions covering three key themes: making cross-border placements; dispute resolution process and provider failure situations.

1.11 The rest of this report sets out to explore responses received to these questions. Chapter 2 describes the method used to capture views to the consultation proposals. Chapter 3 focuses on the views expressed in the written responses.