CONSULTATION ON DRAFT REGULATIONS RELATING TO THE CARE ACT 2014

Consultation Paper

Introduction

Cross-border placements and dispute resolution

At present, there is currently no legislative basis for cross border placements for those who require care and accommodation. The Act creates a legislative basis for English local authorities to make cross-border placements for those who require care in residential accommodation in a devolved administration area. Equivalent provisions exist in Scottish, Welsh and Northern Irish legislation allowing authorities in those areas to make cross-border placements. These provisions will be supplemented further to allow local authorities to make cross-border placements comprising of accommodation with nursing care.

The policy intention of the cross-border placement arrangements is to ensure an appropriate division of financial and operational responsibility, where local authorities in one part of the United Kingdom place adults for whom they have a responsibility under legislation into residential care in another part of the United Kingdom. The Scottish Government has been working with devolved administrations to ensure that the framework achieves reciprocity.

To create a clear and consistent framework Schedule one also contains dispute resolution provisions that logically provides a mechanism to appoint the Scottish Minister, Secretary of State, Welsh Minister or NI Department should a dispute arise between local authorities in a cross border placement.

Provider Failure arrangements

Clauses 48 - 52 of the Act introduces the temporary duties that apply to Local authorities in England, Northern Ireland and Wales in provider failure situations to meet the needs of people in its area where a care provider is unable to carry on meeting those needs. In Scotland, Section 12 of the Social Work (Scotland) Act 1968 (" the 1968 Act") already places a duty on Scottish local authorities to provide or arrange care for any individual in their area who requires assistance in an emergency. The drafted regulations clarify the existing duties that are provoked to meet the needs of people whose needs were being met in their areas under arrangements made by an authority in England, Wales or Northern Ireland, where a care provider operating in Scotland can no longer continue to function due to business failure. The drafted regulations define business failure with reference to the different types of insolvency situations such as bankruptcy or entering into administration.

The rationale for the provider failure regulations is to ensure that the circumstances constituting provider failure in cross border cases is consistent with those already recognised in the context of intra Scottish placements.

The provisions of the Act will come into force in April 2015. The four administrations have worked together to agree the principles set out in Schedule One

The Care and Support (Cross-border Placements and Provider Failure: Temporary Duty) (Dispute Resolution) Regulations 2014

Regulation 1

The definitions of terms that apply in the cross-border placement arrangements can be found here. The meaning of "accommodation" is based on the definition in paragraph 12 of Schedule 1 of the Act. "Accommodation in Scotland" means residential accommodation in Scotland of a type which may be provided under or by virtue of section 12 or 13A of the 1968 Act, or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003, but not of a type specified in regulations under this paragraph.

Regulation 1(5)

This is aimed at capturing the terms in which a dispute would be expressed. Disputes have been captured in these regulations to cover situations that would consist of an assertion that another local authority is or was liable to meet needs or is or was liable to pay the costs of meeting those needs. As regards the latter, in a cross-border provider failure case, different authorities would be liable to meet needs and costs respectively so a dispute may arise in relation to costs without also being about liability.

Regulations 2 and 3

Regulation 2 and 3 details the generic scenarios taking into consideration the individual's physical location to conclude whether the Secretary of State, Scottish Minister, Welsh Minister or NI Department should determine the dispute. Regulation 3 introduces the Lead authority definition.

Regulation 4

This sets the process for referrals and demands co-operation from all involved parties to resolve the dispute as expediently as possible.

Regulation 5

It is explicit that the individual's care needs should not be interrupted whilst a dispute is being resolved. As such it is the local authorities responsibility to ensure that there is a continuity of care.

Regulation 6

Local authorities must ensure that these steps are satisfied prior to making a referral. Each step is essential for the referral to take place and provides further opportunities to resolve the dispute.

Regulation 7

This regulation clearly sets out the lead authority's role in the dispute resolution process.

Regulation 8

Local authorities have a period of four months to resolve the dispute and if they are unable to resolve the dispute it must be referred for a determination.Regulation 3

This regulation defines when the local authority where the individual is physically present should be provoked in a provider failure situation due to financial difficulties.

Regulation 4

Provider failure situations are defined here in detail to clearly set this regulation for financial failure only.

Regulation 5

This regulation details the duties of the 1968 Act that apply in a provider failure situation, including homecare needs that would need to be met in provider failure cases. Also this regulation includes residential care only without nursing care.