The recovery of expenditure on accommodation and services under section 86 of the Social Work (Scotland) Act 1968: guidance

Executive Summary

This guidance^[1] explains how Scottish local authorities should determine a person's ordinary residence for the purpose of recovering, under section 86 of the Social Work (Scotland) Act 1968 ("the 1968 Act"), expenditure incurred in the provision of accommodation etc.

This circular comes into force on the 1^st of June 2015 and replaces Scottish Government Circular CCD 3/2010. It contains guidance only and is not intended to be a definitive interpretation of the law, which is a matter for the Courts. Local authorities are, however, encouraged to follow the guidance to help achieve consistency and equity across Scotland.

Section 86 of the 1968 Act applies in respect of accommodation and/or services provided as well as payments made under:

• the Social Work (Scotland) Act 1968;
• Part II of the Children (Scotland) Act 1995;
• the Children's Hearings (Scotland) Act 2011;
• Sections 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003;
• Self-directed Support (Scotland) Act 2013

Whilst this guidance primarily relates to individuals moving between areas within Scotland, provision is made in respect of cross-border residential care placements between the different territories of the UK in order to ensure local authorities are aware of the framework for such placements provided for under Schedule 1 to the Care Act 2014. The Scottish Government is working with the other administrations in England, Wales and Northern Ireland to issue Joint Best Practice Guidance to provide local authorities with further clarity on cross-border placements.

Where a dispute regarding an individual's ordinary residence arises between local authorities which may ultimately require to be determined by Scottish Ministers under section 86(2) of the 1968 Act, this guidance should be followed in order to determine ordinary residence. Where agreement cannot be reached, procedures are outlined for dispute resolution.

Flowcharts providing an overview of how to determine ordinary residence are annexed to the guidance.^[2]

This guidance has been developed with assistance from a working group with representatives from COSLA, SOLAR, Alzheimer Scotland and Scottish local authorities. For additional background, the working group papers can be accessed at: http://www.gov.scot/Topics/Health/Support-Social-Care/Financial-Help/OrdinaryResidence/ORCBWG