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

Part 3: dispute resolution process

Responsibility to pay for and provide care pending dispute resolution

43. Where disputes arise between local authorities regarding the ordinary residence of individuals, the local authority where the individual is present should, on a without prejudice basis, assume responsibility for assessing need and providing care whilst the dispute is resolved. Determination of ordinary residence must not delay the process of meeting the individual's needs.

44. Where the dispute has arisen due to service re-provisioning, for example as a consequence of de-registration of a care home, it is the Scottish Government's position that the local authority responsible for the original placement should continue to pay for the accommodation and/or services until any dispute is resolved. It is inappropriate to expect an independent provider to absorb the costs of care pending the resolution of a dispute.

Procedure for referring disputes for determination

45. Every effort should be made to resolve any disputes as quickly as possible, and local authorities will wish to put in place appropriate procedures for dealing with disputes.

46. Whilst it is a matter for local authorities to set their own procedures, it is suggested that the main elements outlined below for resolving disputes should be followed.

47. Local authorities will wish to correspond with each other in a timeous manner. Where a local authority corresponds with another authority, a timescale of one month is the suggested period within which the latter should issue a response.

• Operational managers in the local authorities concerned should make every effort to reach agreement in accordance with the principles set out in this guidance
• If agreement is not reached at operational level, legal advice should be sought and senior management should seek to agree responsibility for funding
• If agreement is still not reached, the details should be passed to the Directors of Social Work for them to negotiate an agreement

48. Where agreement cannot be reached within 4 months of the dispute commencing the authorities may wish to consider requesting a determination of ordinary residence under section 86(2). Local authorities should:

• Submit an agreed statement of facts to Scottish Ministers requesting a determination of ordinary residence under section 86(2) or where agreement on the facts cannot be reached, submit separate statements of facts to Scottish Ministers requesting a determination; and
• Provide relevant supporting documents.

49. The dispute should be treated as having commenced on the date that a local authority has issued a written request for reimbursement under section 86 to another local authority.

50. This guidance is in effect from 1^st June 2015. The date which the dispute commenced will determine which guidance is to be applied to the dispute. Local authorities do, however, have discretion to apply this guidance to disputes arising prior to the guidance taking effect. Where local authorities are unable to agree which guidance applies, Scottish Ministers will make a determination of ordinary residence in accordance with the guidance which is in effect at the date the request for a determination under section 86(2) is made by the local authorities.

51. Requests for a determination should be emailed or posted to the contacts given at the end of this circular.

52. In the interests of transparency, any information submitted by one party will be copied to the other for comment. A time limit for response will be set.

53. The Scottish Ministers, once in receipt of all relevant facts, will proceed to make a determination of ordinary residence under section 86(2) of the 1968 Act. The Scottish Ministers' decision is final subject only to judicial review.