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

Part 2: particular situations in which a person's ordinary residence may require to be determined

Recovering costs - accommodation provided under arrangements^[16] between local authorities

31. Section 86(5)(a) of the 1968 Act provides that where a local authority ("the responsible authority") performs the function of arranging accommodation for a person by making arrangements for it to be provided by another local authority ("the providing authority") the costs incurred in the provision of the accommodation can be recovered by the providing authority from the responsible authority.

32. Section 86(5)(b) of the 1968 Act provides that time spent in accommodation provided to an individual under such an arrangement is to be disregarded in determining an individual's ordinary residence for the purpose of recovering expenditure under section 86.

33. Section 86(4) of the 1968 Act applies where a Scottish local authority ("the responsible authority") performs a function under the 1968 Act (or any of the other enactments listed in that subsection) by making arrangements with another local authority or third party ("the provider"). Arrangements, in this context, means contractual arrangements whereby the provider (either a local authority or third party) undertakes to perform the function of accommodating or securing accommodation for a person on behalf of the responsible authority. Under such arrangements, the statutory duty to meet a person's needs for accommodation remains with the responsible authority whilst the contractual duty to make the necessary arrangements with a suitable care provider for a person's accommodation falls on the provider.

34. Liability for costs incurred in the provision of accommodation under any of the enactments listed in section 86(4) and in pursuance of such arrangements also remains with the responsible authority. Where the provider is another local authority then any costs incurred by the provider in carrying out the arrangements are recoverable from the responsible authority (section 86(5)(a)). Where the provider is a third party, payment of costs will be governed by the contract between the responsible authority and the third party provider. Any period during which the person is accommodated under the arrangements is to be disregarded in determining the person's ordinary residence.

Case Study 2

Mr Example 2 lives on his own in area A and has a package of care in his own home. His only son, John, lives in area B. Mr Example 2 is becoming increasingly frail and a bit forgetful and the neighbours regularly telephone John with concerns. John has a young family and full time job and is finding it increasingly difficult to travel back and forwards to check on his Dad. He asks local authority A to review his Dad's care package and Mr Example 2 is assessed as needing residential care. John would like his Dad to move into a care home near him and his Dad agrees that this would be a good move.

Local authority A then arranges for local authority B to provide Mr Example 2 with a place in a care home that meets his assessed needs and takes account of his choice as far as possible^[17]. The two councils enter into an arrangement as set out in Annex D which covers agreed arrangements for: financial assessments; reviews of care needs; and procedures for local authority A to re-imburse local authority B as appropriate.

Any time spent by Mr Example 2 in this care home under these arrangements is disregarded under section 86(5)(b) of the 1968 Act, for the purpose of determining his ordinary residence. Therefore, Mr Example 2 remains ordinarily resident in area A.

Alternatively, local authority A may decide to contract directly with a care home provider in area B and to remain fully responsible for reviewing care needs etc. Any time spent by Mr Example 2 in the care home under this contract would also be disregarded, under section 86(3) of the 1968 Act, as it is being provided by local authority A under the 1968 Act. Therefore, Mr Example 2 would remain ordinarily resident in area A.

35. Where the responsible authority is not in fact the authority of ordinary residence^[18], then the responsible authority can in turn recover the costs from the authority of ordinary residence.

Case Study 3

Mrs Example 3 lives in area A. She visits her daughter in area B and while there falls and breaks her hip. After a spell in hospital in area B, her mobility remains impaired with little if any potential for improvement. A local authority B social worker carries out an assessment, and concludes that she is unfit to return home even with a care at home package including equipment and adaptations and is in need of a residential care placement. Mrs Example 3 has a sister and two daughters in area C and would like to go into a care home near them. The family agrees with this.

All three local authorities concerned then work together as appropriate to secure a place in a care home for Mrs Example 3 that meets her assessed needs and takes account of her choice as far as possible^[19]. Subsequently, local authority B and local authority C enter into an arrangement under which local authority C agrees to provide, or secure the provision of, accommodation to Mrs Example 3 on behalf of local authority B.

Local authority A remains financially responsible for the care package as Mrs Example 3's ordinary residence has not changed as a consequence of her circumstances, for the following reasons:

• Mrs Example 3's visit to her daughter did not change her ordinary residence as she did not voluntarily adopt this residence for settled purpose, rather this was a temporary absence from her residence;

• time spent in hospital is disregarded under section 86(3) of the 1968 Act;

• time spent in accommodation provided under the 1968 Act is disregarded under section 86(3) of the 1968 Act; and
• time spent in the care home under arrangements between local authorities is disregarded under section 86(5)(b) of the 1968 Act.

Any expenditure incurred by local authority C as a result of this arrangement, can be recovered from local authority B under section 86(5)(a). Local authority B can recover this cost from local authority A, as Mrs Example 3 remains ordinarily resident in their area.

Alternatively, local authority A may make the arrangements for accommodation directly with local authority C. Under these arrangements, local authority C agrees to provide, or secure the provision of, accommodation to Mrs Example 3 on behalf of local authority A. Any expenditure incurred by local authority C as a result of this arrangement can be recovered from local authority A, under section 86(5)(a).

Recovering costs - services provided under arrangements between local authorities

36. The 2010 Regulations apply in respect of all services or facilities provided to enable a person to live in "accommodation with support" (as defined in those Regulations). The type of tenancy and type of accommodation is irrelevant, as the regulations link the definition of "accommodation with support" to an arrangement made under section 86.

37. In other words, where a local authority enters into an arrangement with another local authority in order to fulfil its statutory duties under any of the enactments listed in Regulation 2(1)^[20], the 2010 regulations provide for the recovery of expenditure incurred by the provider in the provision or securing the provision of those services or facilities from the authority on whom the duty to meet the individual's need falls. If the authority on whom the duty to meet the individual's need falls is not the authority in whose area the person is ordinarily resident, then further steps may, in turn, be taken to recover expenditure from the local authority of ordinary residence.

38. The Regulations also make clear that any period in which a person is residing under arrangements, in accommodation with support, shall be disregarded for the purpose of determining their ordinary residence for the purpose of section 86(1) of the 1968 Act.

39. Prior to the introduction of the 2010 Regulations, where a local authority assessed an individual as needing care at home or in a specialist setting, such as sheltered housing or supported housing, and arranged for that care in another local authority area, this would not have been disregarded for the purposes of establishing ordinary residence. The cost of any care services could therefore fall to the new local authority depending on the specific circumstances. As a consequence, local authorities with, for example, specialist units could end up paying for expensive care packages for those placed in the units by other authorities. Likewise, the authority making the placement could offload expensive care packages.

40. The Regulations are not intended to be used when someone in receipt of care at home decides to move to live in the area of another local authority. In such cases local authorities are encouraged to consider setting up transitional arrangements to help people to move.^[21]

Case Study 4

Mr Example 4 lives in his own home in area A and suffers from multiple sclerosis. He requires community care services at home to assist him with his daily living. He is recovering from alcohol dependency and needs supported accommodation to help with his rehabilitation.

There are no appropriate rehabilitation units in area A and the local authority therefore arranges for Mr Example 4 to go into a rehabilitation unit in area B and agrees the arrangements for the provision of community care services with local authority B (see Annex E).

The 2010 Regulations apply, accordingly, the cost of community care services provided by local authority B can be recovered from local authority A and Mr Example 4's ordinary residence has not changed as a consequence of the placement: this period is disregarded for the purpose of determining his ordinary residence.

On completion of his rehabilitation, A would arrange for Mr Example 4 to return home with the appropriate package of home care services. If Mr Example 4 decides instead to move permanently to area B, his ordinary residence would change and the costs of care services at home would fall to local authority B at the conclusion of any period of transitional funding.

Recovering costs - accommodation and/or services provided by means other than arrangement between local authorities

41. There will be cases where accommodation and/or services are provided by a local authority to a person not ordinarily resident in that authority's area, otherwise than by arrangement with another local authority. For example, where a local authority responds to the urgent needs of a person in their area or where the local authorities concerned fail to agree the terms of an arrangement.

42. In the absence of an arrangement, the costs are likely to be recoverable from the local authority of ordinary residence^[22] under section 86(1), depending on the specific circumstances.