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

Chapter 3 : Analysis of Written Responses

3.1 This chapter provides a summary and analysis of the written responses to the Consultation on the Draft Regulations relating to the Care Act 2014. The chapter begins with an overview of who responded to the public consultation and then reports on the views of respondents on each of the themes of the regulations set out in annex 1 and 2 of the consultation document.

3.2 A total of 9 written responses were received from respondents in Scotland and further details on the respondents can be found at Annex 2.

Table 3.3: Respondent profile

Overview of the written responses to the consultation

3.4 All of the questions offered respondents the opportunity to provide a full textual response. The respondents all agreed with the principles of the regulations and some offered a broader contextual view proposing additional areas for consideration.

Questions 1

1. Do the regulations provide for an effective dispute resolution procedure?

3.5 All respondents stated they supported the overall policy intent and principles of the cross-border placement framework. However some held the view that the regulations required amendments to ensure that an equitable approach is being achieved. This would allow the principle of reciprocity being fully implemented across the UK. The rationale being that the current arrangements have demonstrated a gap exists between Scottish local authorities and English local authorities creating budget pressures of a great amount.

3.6 The positive support is demonstrated further by the request that pre-existing disputes are dealt with applying the new framework introduced by the 2014 Act. As the framework achieves a significant change in that it aims to be an equitable approach across the UK.

3.7 Regulation 2(6) specifies the responsibility for determination of disputes, however the current drafting does create confusion in so far that the reader is unclear on the intended purpose.

3.8 Responses also included the views that regulation 6 is reworded to provide a greater level of control for the individual or their representative as the current wording is not definitive on information sharing.

3.9 At present the regulations do not stipulate the precise age of an adult, however a response has been received to clarify the position as to whether the relevant age is eighteen or sixteen years of age. Furthermore views have been expressed that the regulations do not clearly define when a dispute arises as the current Scottish guidance document CCD 3/2010 does contain an explanation to this effect. Also some hold the view that the sharing of information with the Secretary of State/Ministers has a negative effect to imply that the determination is a joint decision. As such the Secretary of State/Minister should not have sight of the determination until it has been released into the public domain.

3.10 The common response to this question is that the regulations prescribe a period of time within which the local authorities must resolve the dispute and failing to do so within four months make a referral to the relevant Minister/Secretary of State. However the regulations do not specify a period of time within which a determination must be made. Also responses have been received to request an extension to six months rather than four months before a referral must be seeking a determination.

Provider Failure

Question 2

1. We invite views on the approach to defining business failure by reference to insolvency situations.

2. We also invite views on the insolvency situations listed, e.g. are they appropriate and clear. Should other situations be covered?

3.11 Overall responses received in relation to Provider failure convey support of the provider failure situations as they adequately dealt with matters of insolvency in Scotland.

3.12 However some hold the view that the regulations should extend beyond the scope of financial failure to include poor performance, where a company has been dissolved and struck off the register by the Registrar of Companies for failing to lodge an annual return and/or accounts. Furthermore there is a request that the regulations include partnerships where an individual has been sequestrated in an individual capacity and include Scottish Charitable Incorporated Organisations which are separate and distinct legal entities.

3.13 Other respondents expressed that the regulations were comprehensive and clear, although not covering unforeseen circumstances such as injury of Death. Although respondents acknowledged that these circumstances are already covered in other existing areas of legislation.

3.14 A number of respondents requested an amendment of the language used in regulation 5(1)(b) of The Care and Support (Cross-border Placements) (Business Failure [Duties]) (Scotland) Regulations 2014, "persons who are or appear to be in need of such accommodation by reason of infirmity, age, illness or mental disorder, dependency on drugs or alcohol or being substantially handicapped by any deformity or disability." The language used in the final part of the regulations is derived from legislation drafted in 1968, Social Work (Scotland) Act 1968.

3.15 Additional areas raised by a few of the respondents, local authority funding and the impact on commissioning was raised as an area for consideration. However this is beyond the scope of the consultation document and cannot be addressed.