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

Part 4: Related matters

Cross-border framework

54. This guidance primarily relates to individuals moving between different areas within Scotland.

55. Schedule 1 to the Care Act 2014 makes provision for cross-border residential care placements between Scotland, England, Wales and Northern Ireland. Schedule 1 provides that where an individual is placed into residential accommodation in any of these territories, their ordinary residence does not change and the placing authority retains responsibility for the individual.

56. The Care and Support (Cross-border Placements) (Business Failure Duties) (Scotland) Regulations 2014 provide that, where an individual is placed cross-border into Scotland that there should be no interruption to the individual's service provision as a result of provider failure. In other words, where the care provider is no longer able to provide care to the individual due to circumstances of provider failure, for example, bankruptcy or entering administration, the individual should not experience any gap in their service provision.

57. In such cases, the Scottish local authority in whose area the individual is residing will (in accordance with its duties under section 12 or 13A of the 1968 Act) be required to ensure that the needs of the individual continue to be met until such time as the placing authority can make alternative accommodation arrangements. Schedule 1 provides that the Scottish local authority can recover expenditure incurred from the local authority of ordinary residence.

58. The Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014 set out who is to determine disputes. The regulations provide that where the adult in question is living (or, in a case where the adult is homeless, is physically present) in the same territory as that in which an authority which is party to a dispute is situated, the dispute is to be determined by the 'responsible person' in relation to that authority. The 'responsible person' is, in relation to a local authority in England, the Secretary of State, in relation to a local authority in Wales, the Welsh Ministers, in relation to a local authority in Scotland, the Scottish Ministers and in relation to an HSC trust in Northern Ireland, the Department of Health, Social Services and Public Safety.

59. Section 5 of the Community Care and Health (Scotland) Act 2002 will be commenced and in force in June 2015. Section 5 enables Scottish local authorities to make arrangements for the provision of residential accommodation, or residential accommodation with nursing, to persons so in need, in 'appropriate establishments'^[23] cross-border.

60. Joint Best Practice Guidance will be issued in due course by Department of Health, Scottish Government, Department of Health, Social Services and Public Safety and Welsh Government to provide local authorities with further clarity on cross-border placements.

Free personal and nursing care

61. Where an individual has been assessed as needing personal or nursing care by a Scottish local authority under section 12A of the 1968 Act, and the care is provided under the 1968 Act, the individual cannot be charged for the care covered by section 1 of the Community Care and Health (Scotland) Act 2002^[24].

62. The costs of providing personal and nursing care services to an individual who is ordinarily resident in another local authority area can be recovered from that other authority.

Case Study 5

Mrs Example 5 lives in area A and local authority A has assessed her as needing residential care with nursing. The financial assessment is conducted and Mrs Example 5 is assessed as having sufficient means to pay for her care package. Mrs Example 5 is entitled to free personal and nursing care.

Local authority A takes account of Mrs Example 5's wish to move to area B to be near her sister, and helps her find a suitable care home in local authority B's area (either directly or by asking local authority B to help). Local authority A then enters into a contract with the care home in local authority B for the free personal and nursing care element of the care. They also agree a protocol with local authority B covering the review of Mrs Example 5's care and an agreement to pay for the care when Mrs Example 5's capital falls below the capital threshold.

Mrs Example 5's ordinary residence has not changed as a result of her move into a care home in local authority B as she is being provided with residential care under the 1968 Act, therefore, section 86(3) of the 1968 Act applies.

(a) Self-arrangers

63. Free personal and nursing care is an entitlement for those who are assessed by a local authority as having personal or nursing care needs that call for the provision of services. If a self-arranger^[25] wishes to access free personal and nursing care, they will have to express this to the local authority and proactively request a needs assessment.

64. The Scottish Government has produced guidance on the entitlement to free personal and nursing care by self-arrangers, which can be accessed here: http://www.sehd.scot.nhs.uk/publications/CC2010_01.pdf

Case Study 6

Miss Example 6 sells her home in area A and moves into a care home in area B to be beside the sea. She applies to local authority B for a care needs assessment and is assessed as needing residential care. Local authority B provides free personal care. As Miss Example 6 is now ordinarily resident in their local authority area, local authority B cannot recover the cost of accommodation or of the care package in so far as this relates to her personal care.

Miss Example 6 then decides of her own accord to move to a new luxury purpose built care home back in area A and arranges the move herself. She then applies to local authority A for a needs assessment and is assessed as needing residential care. Local authority A then provides the free personal care as Miss Example 6's ordinary residence has changed again.

(b) Cross-border

65. Scottish Government guidance on free personal and nursing care provides that placements in Scotland of people ordinarily resident in local authority areas in England, Wales and Northern Ireland are not eligible for free personal and nursing care payments.

This guidance can be accessed here: http://www.scotland.gov.uk/Resource/Doc/55971/0015597.pdf

66. Funding responsibility for placements made under Schedule 1 to the Care Act 2014 rests with the placing authority. Where an individual is entitled to free personal and nursing care and is placed cross-border into England, Wales or Northern Ireland, into residential accommodation by a Scottish local authority, that authority is responsible for paying the free nursing care costs at the applicable rate in the area where the individual has been placed.

Transitional arrangements for individuals moving of their own accord

67. Where an individual chooses to move between local authority areas of their own accord, without local authorities entering into an arrangement (other than a transitional arrangement), such a move will not attract the ordinary residence disregards in section 86 or the 2010 Regulations. The individual's ordinary residence is likely to change and the local authority in the area to which the person has moved will, therefore, become responsible for the provision of the care and for the costs, as illustrated in the scenarios below.

68. In such cases it can be extremely difficult for them to do so without being sure that the care services they need will be in place when they do move. The Scottish Government is aware of a number of cases where individuals have been unable to move as the local authority for the area in which the individual wishes to move will not accept responsibility for providing the care services until the person is physically present there. Nor will the existing local authority help with arranging the care in the new area, for fear of being held responsible for the cost of that care in perpetuity. This can cause considerable distress to the individuals concerned.

69. The Scottish Government continues to promote choice of accommodation wherever possible. Where a person has shown a definite intention to move between local authority areas on a permanent basis and has sought the assistance of local authorities, those authorities should provide as much help as possible in facilitating the move. Transitional funding may be needed, and the attached protocol at Annex F provides for the cost of the existing care package to be met by the original authority for a period of a minimum of 3 months (or an alternative period to be agreed by both local authorities) in order to allow the new local authority time to review the care needs and put in place the appropriate services. At the end of the period of transitional funding, the new local authority would then become responsible for providing and funding the individual's care.

Case Study 7

Mr Example 7 is quadriplegic as a result of a serious injury while playing rugby. He lived in area A with his wife and the council adapted his house and provided a care package to enable him to live at home. His marriage broke down and he decided to return to area B to be near his family and friends. He secured a tenancy in a specially adapted house with the help of a voluntary organisation.

Local authority A then contacted local authority B to set up a protocol in which they agreed to pay for Mr Example 7's care package for a period of 3 months from the date of his move. Local authority A agreed to pay the cost of the care package they had assessed Mr Example 7 as needing during the 3 month transitional period, but at local authority B prices. Local authority B arranged for the care package to be put in place, based on local authority A's assessment, and recovers the costs from local authority A.

Local authority B reviewed the care package after 2 months and decided to increase the package with immediate effect. Local authority A continued to pay the original agreed amount until the transitional arrangements came to an end and local authority B met the cost of the additional care. At the end of 3 months, local authority B took over responsibility for paying for the full care package and for conducting the financial assessment.

Case Study 8

Miss Example 8 requires a wheelchair for mobility and has other care needs. She has lived in area A for the last 20 years to be near her work. Her family live in area B and when she retires she decides to buy a house near them. Before she can move she needs to have a care package in place. Local authority A contacts local authority B to set up a protocol in which local authority A agrees to pay for Miss Example 8's care for a transitional period of 3 months from the date of her move. Local authority A agree to pay for the care package they have assessed Miss Example 8 as needing but at local authority B's prices and they remain responsible for the financial assessment and for calculating Miss Example 8's contribution towards the cost of the care, during the transitional period.

Local authority B reviews the care package after 1 month, and as Miss Example 8 is receiving a lot of support from her family, decide to reduce the care package after duly taking account of the unpaid carer's wishes. Local authority B notify local authority A of the change in the package and local authority A pays the reduced amount until the end of the transitional period, at which stage local authority B assumes full responsibility for the care package and financial assessment.

Direct payments

70. In setting up agreements or transitional arrangements for the provision of accommodation and/or services in another area, the local authorities concerned should take account of Direct Payments and ensure there is not a gap in provision of payments, services and support. The protocols at Annexes D, E and F include a section on Direct Payments.

Homeless people

71. Where a homeless person is in need of urgent social work services, the local authority of the moment should provide these services while any dispute about ordinary residence is conducted. Decisions on where the responsibility for the funding of such services rests, based on ordinary residence, should be decided subsequently. The test of ordinary residence is not the same as that of local connection used in the homelessness legislation. Local connection for these purposes is defined in section 27 of the Housing (Scotland) Act 1987 - further information can be found in the Code of Guidance on Homelessness: http://www.scotland.gov.uka76747a0-efcd-4a2e-9551-9e3e66d60bc7

Responsibility for healthcare within the NHS

72. The framework for establishing responsibility for an individual's care within the NHS is set out in Health Department Letter 2013.06 issued in March 2013: http://www.sehd.scot.nhs.uk/mels/CEL2013_06.pdf

Enquiries and feedback

73. This guidance aims to clarify the legislation and guidance and sets out a number of case studies for illustration. There will of course be many situations not covered specifically in the guidance. The application of the overarching principles above and the provisions in the 1968 Act and associated regulations will provide the basis for councils to reach an equitable agreement which meets the needs of the individual. However, we are happy to answer enquiries and receive feed-back on the guidance and to consider on-going requests for any amendments necessary to strengthen or clarify it.

Please contact:

careforolderpeople@scotland.gsi.gov.uk

Integration and Reshaping Care Division
Directorate for Health and Social Care Integration
Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG