CQC Quality Statements

Theme 3 – How the local authority ensures safety in the system: Safe systems, pathways and transitions

We statement

We work with people and our partners to establish and maintain safe systems of care, in which safety is managed, monitored and assured. We ensure continuity of care, including when people move between services.

What people expect

When I move between services, settings or areas, there is a plan for what happens next and who will do what, and all the practical arrangements are in place.

I feel safe and supported to understand and manage any risks.

1. Introduction

People with care and support needs may decide to move home just like anyone else, for example to be closer to family, for education or employment opportunities, or because they simply want to live in another area. Where they do decide to move to a new local authority area and as a result their ordinary residence status will change (see Ordinary Residence chapter), it is important to ensure that care and support is in place during the move, so the person’s wellbeing is maintained.

In circumstances where a person is receiving local authority support and moves within their current local authority (for example, moving between homes in the same area), they remain ordinarily resident within that authority and it must continue to meet their needs. Where the person chooses to live in a different local authority area, the local authority that is currently arranging care and support and the authority to which they are moving must work together to ensure that there is no interruption to the person’s care and support.

This chapter sets out the process local authorities must follow to ensure that the person’s care and support continues, without disruption, during and after the move. These procedures also apply where the person’s carer is receiving support and will continue to be required after the move. In addition to meeting their responsibilities set out in this chapter, the current local authority has other responsibilities that continue to apply during this process (see the chapters on Promoting Wellbeing, Preventing, Reducing or Delaying Needs, Information and Advice, Integration, Cooperation and Partnerships, Assessment, Eligibility and Care and Support Planning chapters).

The aim of this process is to ensure that the person with care and support needs will have confidence that arrangements to meet their needs will be in place on the day of their move. Local authorities are expected to achieve continuity of care by ensuring that the second authority has completed a needs assessment and developed a care and support plan for the individual prior to the day of the move. Where the second local authority has been unable to complete a needs assessment before the day of the move, for example due to the logistics of assessing a person a long distance away or because they want to assess the adult in their new home, it must continue to meet the needs and take into account outcomes identified in the adult’s current care and support plan until it has carried out its own assessment.

The key to ensuring that the adult’s care continues without interruption is through both local authorities working together and keeping the adult (and their carer, where relevant) at the centre of the process.

2. Making an informed decision to move to a different local authority

When thinking about the possibility of moving, an adult may want to find out information about the care and support available in one or more authorities. Local authorities may already make much of this information publicly available under its Care Act duties (see Information and Advice chapter), and they should provide any extra information requested by the adult and where relevant, their carer.

Local authorities can provide the adult and their carer with relevant information or advice to help inform their decision. When providing relevant information and advice, local authorities should guard against influence over the final decision. The authorities can, for example, provide advice on the implications for the individual’s care and support (and their carer’s support), but the final decision on whether or not to move is for the adult and, if relevant, the carer to make.

The prompt provision of this information will help the adult make an informed decision and assist the process if the adult decides that they want to move.

3. Confirming the intention to move

The continuity of care process starts when the second authority is notified of the adult’s intention to move. Local authorities may find out about the person’s intention to move from the individual directly or through someone acting on their behalf, who may contact either the first authority or the second authority to tell them of their intentions. If the person has approached the first authority and informed them of their intention to move, the first authority should make contact with the second authority to let them know that the person is planning on moving to their area.

When the person has confirmed their intention to move with the second authority, the authority must assure itself that the person’s intention is genuine. This is because the duties in the Care Act start from this point.

To assure itself that the intention is genuine, the second authority should:

  • establish and maintain contact with the person and their carer to keep abreast of their intentions to move;
  • continue to speak with the first authority to get their view on the person’s intentions;
  • ask if the person has any information or contacts that can help to establish their intention.

When the second authority is satisfied that the person’s intentions to move are genuine, it must provide the adult (and the carer if also intending to move), with accessible information about the care and support available in its area. This should include but is not limited to, details about:

  • the types of care and support available to people with similar needs, so the adult can know how they are likely to be affected by differences in the range of services available;
  • support for carers;
  • the local care market and organisations that could meet their needs;
  • the local authority’s charging policy, including any charges which the person may be expected to meet for particular services in that area.

Where the person moving currently receives a direct payment to meet some or all of their needs, the first authority should advise the person that they will need to consider how to meet any contractual arrangements put in place for the provision of their care and support. For instance, any contracts they may have with personal assistants who may not be moving with them.

4. Supporting people to be fully involved

The person may request assistance from either the first or second authority in helping them understand the implications of their move on their care and support, and the authority should ensure that they have access to all relevant information and advice. This should include consideration of the need for an independent advocate in helping the person to weigh up their options (see Independent Advocacy chapter).

There will be situations where the adult may lack capacity to make a decision about a move, but the family wish to move the adult closer to where they live (see Mental Capacity chapter).

In such situation the local authority must first carry out supported decision making, supporting the adult to be as involved as possible and must carry out a capacity assessment and where necessary then take ‘best interests’ decisions. The requirements of the Mental Capacity Act 2005 apply to all those who may lack capacity.

5. Preparing for the move

Once the second authority has assured itself that the adult’s (and where relevant the carer’s) intentions to move are genuine, it must inform the first authority. At this stage, both authorities should identify a named staff member to lead on the case and be the ongoing contact during the move. These contacts should make themselves known to the person and lead on the sharing of information and maintaining contact on progress towards arranging the care and support for the adult and support for the carer. These contacts should be jointly responsible for facilitating continuity of care within an acceptable timeframe, taking into consideration the circumstances behind the adult’s intention to move, such as a job opportunity.

The second authority must provide the adult and carer with any relevant information that it did not supply when the person was considering whether to move.

When the first authority has been notified by the second authority that it is satisfied that the person’s intention to move is genuine, the first authority must provide it with:

  • a copy of the person’s most recent care and support plan;
  • a copy of the most recent support plan where the person’s carer is moving with them;
  • any other information relating to the person or the carer (whether or not the carer has needs for support), that the second authority may request.

The information the second authority may request may include the most recent needs assessment if the person’s needs are not likely to change as a result of the move, the adult’s financial assessment, any safeguarding plan that have been completed for the individual, and, where a Deprivation of Liberty has been authorised for a person who is moving to a new local authority area, a new referral for a Deprivation of Liberty must be made to the new local authority.

6. People receiving Services under Children’s Legislation

The continuity of care provisions in the Care Act do not apply for people receiving services under children’s legislation. Where such a person has had a transition assessment (see Transition to Adult Care and Support chapter) but is moving area before the actual transition to adult care and support takes place, the first local authority should ensure that the second is provided with a copy of the assessment and any resulting transition plan. Similarly, where a child’s carer is having needs met by adult care and support in advance of the child turning 18 (following a transition assessment), the first local authority should ensure that the second is provided with a copy of the assessment and the carer’s support plan.

7. Assessment and Care and Support Planning

If the person has substantial difficulty and requires help to be fully involved in the assessment or care planning process and there is no other suitable person who can support them, they must be provided with an independent advocate. In this case the advocate should be provided by the second authority because it takes over the responsibility for carrying out the assessment and care planning with the individual (see Independent Advocacy chapter).

The second authority must contact the adult and the carer to carry out an assessment and to discuss how arrangements might be made. The second authority should also consider whether the person might be moving to be closer to a new carer and whether that new carer would benefit from an assessment.

Throughout the assessment process, the first authority must keep in contact with the second authority about progress being made towards arranging necessary care and support for the day of the move. The first authority must also keep the adult and the carer informed and involved of progress so that they have confidence in the process. This should include involving them in any relevant meetings about the move. Meetings may be held online / via video call where there are long distances between the local authorities involved. Having this three way contact will keep the individuals at the centre of the process, and help ensure that arrangements are in place on the day of the move.

All assessments, for adults with care and support needs and carers, must be carried out in line with the processes described in the Assessment chapter. The adult and the carer, and anyone else requested, must be involved in the respective assessments. The assessments must identify the person’s needs and the outcomes they want to achieve. These could be the same as the outcomes the first authority was meeting or they could have changed with the person’s circumstances.

The assessment must consider whether any preventative services or advice and information would help either person meet those outcomes. The assessments should also consider the individuals’ own strengths and capabilities and whether support might be available from family, friends or within the new community to achieve their outcomes. In carrying out the assessments, the second authority must take into account the previous care and support plan (or support plan) which has been provided by the first authority.

Following the assessment, and after determining whether the adult or carer has eligible needs, the second authority must involve the adult, the carer and any other individual the person requests, in the development of their care and support plan, or the carer’s support plan as relevant, and take all reasonable steps to agree the plan. The development of the care and support plan or carer’s support plan should include consideration of whether the person would like to receive a direct payment (see Care and Support Planning chapter).

The second authority should agree the adult’s care and support plan and carer’s support plan, including any personal budget, in advance of the move to ensure that arrangements are in place when the person moves into the new area. This should be shared with the individuals before the move so that they are clear how their needs will be met, and this must also set out any differences between the person’s original plan and their new care and support or support plan. Such differences could arise where the range of services in one local authority differs from the range of services in another. The second authority must also explain to the adult or carer where there are any differences in their needs.

The care and support plan should include arrangements for the entire day of the move. This should be agreed by the adult, the carers (existing and new as relevant) and both authorities. The first authority should remain responsible for meeting the care and support needs the person has in their original home and when moving. The second authority is responsible for providing care and support when the person and their carer move into the new area. The person moving is responsible for organising and paying for moving their belongings and furniture to their new home.

In considering the person’s personal budget, the second authority should take into consideration any differences between the costs of making arrangements in the second authority compared with the first authority and provide explanation for such a difference where relevant. Where there is a difference in the amount of the personal budget, this should be explained to the person. It should also look to ensure that the person’s direct payment is in place in a timely manner since, for example, the person moving may have a personal assistant that is also moving and will require payment.

8. Health and Social Care Needs

The adult and their carer may have health needs as well as care and support needs. Both local authorities should work with their local Integrated Care Boards (ICBs) to ensure that all of the adult’s and carer’s health and care needs are being dealt with in a joined-up way.

Who Pays? (NHS England) sets out the framework for establishing which NHS commissioner will be responsible for commissioning and paying for a person’s NHS care.

If the person also has health needs, the second local authority should carry out the assessment jointly with their local ICB. Alternatively, if the ICB agrees, the second authority can carry out the assessment on its behalf. Having a joint assessment ensures that all of the person’s needs are being assessed and the second authority can work together with the ICB to prepare a joint plan to meet the adult’s care and support and health needs. Where relevant, the local authority may use the cooperation procedures set out in the Care Act to require cooperation from the ICB, or other relevant partners, in supporting with the move (see Integration, Cooperation and Partnerships chapter).

Providing joint care and support and health plans will avoid duplication of processes and the need for multiple monitoring regimes. Information should be shared as quickly as possible with the minimum of bureaucracy. Local authorities should work alongside health and other professionals where plans are developed jointly to establish a ‘lead’ organisation which undertakes monitoring and assurance of the combined plan. Consideration should be given to whether a person should receive a personal budget and a personal health budget to support integration of services (see Personal Budgets chapter).

9. Equipment and Adaptations

Many people with care and support needs will also have equipment installed and adaptations made to their home. Where the first authority has provided equipment, it should move with the person to the second authority where this is the person’s preference and it is still required and doing so is the most cost effective solution. This should apply whatever the original cost of the item. In deciding whether the equipment should move with the person, the local authorities should discuss this with the individual and consider whether they still want it and whether it is suitable for their new home. Consideration will also have to be given to the contract for maintenance of the equipment and whether the equipment is due to be replaced.

As adaptations are fitted based on the person’s accommodation, it may be more practicable for the second authority to organise the installation of any adaptations. For example, walls need to be checked for the correct fixing of rails.

Where the person has a piece of equipment on long-term loan from the NHS, the second local authority should discuss this with the relevant NHS body. The parties are jointly responsible for ensuring that the person has adequate equipment when they move (see Integration, Cooperation and Partnerships chapter).

10. Copies of Documentation

The second authority must provide the adult and the carer and anyone else requested with a copy of their assessments. This must include a written explanation where it has assessed the needs as being different to those in the care and support plan or the carer’s support plan provided by the first authority. The second authority must also provide a written explanation if the adult’s or carer’s personal budget is different to that provided by the first authority.

11. Where the Second Authority has not carried out an Assessment before the Day of the Move

The second local authority is generally expected to have carried out their needs assessment of the persons moving prior to the day of the move. However, there may be occasions where the authority has not carried out the assessments or has completed the assessments but has not made arrangements to have support in place. This might happen where the second authority wants to assess the person in their new home and consider if their needs have changed, for example because they have started a new job or are now in education, or they have moved to be closer to family. The second authority must still have made contact with the adult and their carer in advance of the move.

Where the full assessment has not taken place prior to the move, the second authority must put in place arrangements that meet the adult’s or carer’s needs for care and support as identified by the first authority. These arrangements must be in place on the day of the move and continue until the second authority has carried out its own assessment and put in place a care and support plan which has been developed with the person.

The second authority must involve the adult and carer, and any relevant independent advocate, as well as any other individual that either person may request, when deciding how to meet the care and support needs in the interim period. The authority must take all reasonable steps to agree these temporary arrangements with the relevant person.

12. Matters the Second Local Authority must Consider when making Arrangements

The Care and Support (Continuity of Care) Regulations 2014 require the second authority to have regard to the following matters when meeting the person’s needs in advance of carrying out their own assessment:

12.1 Care and support plan

The adult’s care and support plan, and the carer’s support plan if the carer is also moving, which were provided by the first authority. The second authority should discuss with the adult and the carer how to meet their eligible needs and any other needs that the first authority was meeting that are not deemed as eligible but were included in either plan.

12.2 Outcomes

Whether the outcomes that the adult and the carer were achieving in day-to-day life in their first authority are the outcomes they want to achieve in the new authority, or whether their aims have changed because of the move.

12.3 Preferences and views

The preferences and views of the adult and the carer on how their needs are met during the interim period.

The second authority must also consider any significant difference to the person’s circumstances where that change may impact on the individual’s wellbeing, including:

12.4 Support from a carer

Whether the adult is currently receiving support from a carer and whether that carer is also moving with them. Where the carer is not also moving, the second authority must consider how to meet any needs previously met by the carer, even if the first authority was not providing any service in relation to those needs.

12.5 Suitability of accommodation

Where the new accommodation is significantly different from the original accommodation and this changes the response needed to meet the person’s needs. For example, the adult may move from a ground floor flat to a first floor flat and now need assistance to manage stairs.

Where the person has received equipment or had adaptations installed in their original home by the first authority, see Section 9, Equipment and Adaptations.

12.6 Access to services and facilities

Where the services and facilities in the new area are different, and in particular fewer than those in the originating area; for example access to food deliveries or other food outlets, access to public transport, or access to leisure or recreational facilities, the person’s workplace. A move from an urban to a rural environment could bring this about.

12.7 Access to other types of support

Where the person was receiving support from friends, neighbours or the wider community and this may not readily be available in their new area. For example, where the person makes use of universal services such as local authority day services, drop in support, or befriending schemes, and these are not available in the new area

If the person has substantial difficulty in being fully involved in the assessment, care planning or review process the second authority should consider whether the person needs an independent advocate or whether their original advocate is moving with them (see Independent Advocacy chapter).

The second authority should ascertain this information from relevant documentation sent to them or by talking to the individuals involved, and the first authority.

The adult or carer should not be on an interim care and support (or support) package for a prolonged period of time as a tailored care and support (or support) plan must be put in place. The second authority should carry out the assessment in a timely manner.

13. When the Adult does not move or the move is Delayed

There are a range of reasons why a person might not move on the designated day. This may be, for example, because they have become unwell or there is a delay in exchanging contracts as part of a house sale. Where there has been a delay because of unforeseen circumstances, both authorities should maintain contact with the person to ensure that arrangements are in place for the new date of the move.

If the person’s move is delayed and they remain resident in the area of the first authority, they will normally continue to be ordinarily resident in that area and so the first authority will remain responsible for meeting the person’s and the carer’s needs. Both local authorities may have incurred some expense in putting arrangements in place before the move was delayed. In such circumstances each of the authorities should consider agreeing to cutting their losses incurred in preparing continuity of care.

In circumstances where the second authority has not assessed the person prior to the move and is planning to meet needs based on their original care and support plan, but it transpires that the individual does not move to the second authority (and so the first authority remains responsible for providing care and support), the Care Act does provide for the second authority to be able to recover any costs it incurred from the first authority. In deciding whether to recover these costs the second authority may want to consider, for example, whether the first authority was aware that the person was not going to move and had not told the second authority or whether the first authority was not aware and was unable to advise the second authority not to make arrangements. The second authority should consider whether it would be reasonable to recover their costs depending on the circumstances of the case.

14. Disputes about Ordinary Residence and Continuity of Care

Where local authorities are in dispute over application of the continuity of care provisions, the authorities who are parties to the dispute must not allow their dispute to prevent, delay or adversely affect the meeting of the person’s needs. Where the authorities cannot resolve their differences, steps must be taken to ensure that the person is unaffected by the dispute and will continue to receive care for the needs that were identified by the first local authority (see Ordinary Residence chapter).

15. Making complaints

It is important that individuals have confidence in the assessment process and the wider care and support system. Therefore any individual should be able to make a complaint and challenge decisions where they believe a wrong decision has been made in their case. Anyone who is dissatisfied with a decision made by the local authority can make a complaint about that decision and have that complaint handled by the local authority (see Complaints chapter).

16. Further Reading

16.1 Relevant chapters

Preventing, Reducing or Delaying Needs

Assessment

Eligibility

16.2 Relevant information

Chapter 20, Continuity of Care, Care and Support Statutory Guidance (Department of Health and Social Care)

Quality Statement 3: Continuity of Care and Support (NICE)

Chapter 20, Continuity of Care, Care and Support Statutory Guidance (Department of Health and Social Care)

Quality Statement 3: Continuity of Care and Support (NICE)

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CQC Quality Statements

Theme 3 – How the local authority ensures safety in the system: Safe systems, pathways and transitions

We statement

We work with people and our partners to establish and maintain safe systems of care, in which safety is managed, monitored and assured. We ensure continuity of care, including when people move between services.

What people expect

When I move between services, settings or areas, there is a plan for what happens next and who will do what, and all the practical arrangements are in place.

I feel safe and supported to understand and manage any risks.

Please note: This chapter gives a broad overview of the relevant legislation and guidance, however, this is an area which is likely to be impacted upon by ongoing case law, and legal advice should be sought as appropriate in relation to specific cases.

In addition, NRPF guidance states it will also be necessary to have policies in place that address NRPF service provision, including how discretionary powers are exercised towards particular groups, for example, pregnant women without children.

1. Definition and Eligibility

1.1 Definition of No Recourse to Public Funds

The term no recourse to public funds (NRPF) applies to people who are subject to immigration control and who do not have any entitlement to welfare benefits or public housing.

The definition of ‘subject to immigration control’ is set out in section 115 Immigration and Asylum Act 1999 (‘exclusion from benefits) and includes people who:

  • require leave to enter or remain in the UK but do not have it (for example an illegal entrant, Appeal Rights Exhausted Asylum seeker or a visa overstayer);
  • have leave to enter or remain in the UK which is subject to a condition that they do not have recourse to public funds (e.g. the spouse of a settled person, a Tier 4 student and their dependents or those with leave to remain as a visitor or under ‘family or private life rules’); or
  • have leave to enter or remain in the UK given as a result of a maintenance undertaking (e.g., they are adult dependant relatives of people with settled status).

The statement ‘no public funds’ will be written on the person’s immigration documentation, if they have immigration permission with NRPF.

People who have no recourse to public funds are not entitled to receive the following welfare benefits:

  • Attendance Allowance;
  • Carer’s Allowance;
  • Child Benefit;
  • Child Tax Credit;
  • Council Tax Reduction (sometimes called Council Tax Benefit);
  • Discretionary Welfare Payment;
  • Disability Living Allowance;
  • Housing Benefit;
  • Income Support;
  • Income based Jobseeker’s Allowance;
  • Income based Employment and Support Allowance;
  • Personal Independence Payment;
  • Severe Disablement Allowance;
  • Social Fund Payment: budgeting loan, sure start maternity grant, funeral payment, cold weather payment and winter fuel payment;
  • State Pension Credit;
  • Universal Credit;
  • Working Tax Credit.

They also have no entitlement to local authority housing or assistance from the local authority in relation to homelessness.

However, there are several exceptions to the rules regarding public funds, which are set out in the Home Office Guidance on Public Funds. This means that a person who has leave to remain with NRPF may be able to claim certain benefits without this affecting their immigration status when they:

  • are a national of a country that has a reciprocal arrangement with the UK;
    have an EEA national family member, including a British citizen;
  • make a joint claim for tax credits with a partner who has recourse to public funds; or
  • have indefinite leave to enter or remain as an adult dependent relative during the first five years they are in the UK (during which time they can claim non-means tested benefits).

People who are subject to immigration control may require the support of an interpreter in their contact with adult social care.

1.2 Recourse to Public Funds

People with the following types of immigration status will have recourse to (be able to access) public funds:

  • indefinite leave to enter or remain or no time limit (apart from an adult dependent relative);
  • right of abode;
  • exempt from immigration control;
  • refugee status;
  • humanitarian protection;
  • leave to remain granted under the family or private life rules where they are accepted by the Home Office as being destitute or at risk of imminent destitution;
  • discretionary leave to remain, for example:
    • leave granted to a person who has received a conclusive grounds decision that they are a victim of trafficking or modern day slavery;
    • destitution domestic violence concession;
    • unaccompanied asylum-seeking child leave.

See Section 1.1, Who has NPRF? Assessing and Supporting Adults who have no Recourse to Public Funds (England) for further information.

1.3 EEA nationals and other family members

The EEA is made up of all the European Union (EU) member states, plus Iceland, Lichtenstein and Norway. When the term ‘EEA national’ is used to refer to a person’s immigration position in the UK, this will also include Swiss nationals, whose rights are set out in bilateral treaties.

For a full list of EEA countries, please see Appendix A.

2. Assessment and Provision of Services

See also Assessing and Supporting Adults who have No Recourse to Public Funds (England): Practice Guidance for Local Authorities (NRPF Network).

2.1 Establishing the responsible authority

At the pre-assessment screening stage, in ascertaining the facts when an adult with NRPF requests assistance, the local authority should establish whether it is the responsible local authority, that is, whether the person is ordinarily resident within its area (see Ordinary Residence chapter).

2.2 Sharing information

The person should be informed as to how and why information about them may be shared with other agencies, including the Home Office, and confirm their understanding of this. Permission will be required from them in order to share or obtain information from legal representatives and voluntary sector agencies.

2.3 Check immigration status

An immigration check should be carried out to establish any eligibility for public funds under immigration legislation. The adult must be asked to provide evidence of their nationality and, if relevant, evidence of their immigration status in the UK. Immigration status checks can be obtained online from the Home Office or from NRPF Connect if your local authority is a member.

When a person requests care and support, the local authority will need to establish their nationality and immigration status for several purposes:

  1. to ascertain any possible entitlement to welfare benefits, housing assistance, employment or Home Office asylum support;
  2. to identify whether the person is in an excluded group and so can only be provided with care and support where this is necessary to prevent a breach of their human rights;
  3. where a person is in an excluded group, to find out whether any immigration claims are pending with the Home Office or appeal courts, or other legal barriers preventing them from leaving the UK or returning to their country of origin.

Evidence of nationality and immigration status may be established on documents provided by the person requesting support, but local authorities can also check immigration status directly with the Home Office or NRPF Connect.

2.4 How to check immigration status

Local authorities which have signed up to use the NRPF Connect database can obtain a status check by creating a new case on the system and a response will be provided in line with the service level agreement. Once a case has been created, the local authority can obtain further updates via NRPF Connect from the Home Office while the person remains in receipt of support and can update the Home Office about any change of circumstances. Please see NRPF Connect for more information.

Local authorities who are not using NRPF Connect can use the online service on gov.uk.

2.5 Duty to inform the Home Office

The local authority is required to inform the Home Office of:

  • any person they suspect or know to be unlawfully present in the UK; and
  • a refused asylum seeker who has not complied with removal directions.

This duty should be explained to adults who present to the local authority.

3. Legal Restrictions on Providing Assistance under the Care Act 2014

3.1 Adults subject to immigration control who are destitute but have no additional needs

The Care Act 2014 states a local authority may not meet the care and support needs of an adult or carer (nor prevent the needs for care and support of an adult) to whom the Immigration and Asylum Act 1999 applies and whose needs for care and support have arisen solely:

(a) because the adult is destitute,

(b) because of the physical effects, or anticipated physical effects, of being destitute.

A person is destitute if:

(a) they do not have adequate accommodation or any means of obtaining it (whether or not their other essential living needs are met); or

(b) they have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.

3.2 Destitution Plus Test

The courts have held that a mental illness counts as a physical effect of destitution. However, where there is another possible cause of mental illness other than destitution, the local authority is not prevented from assisting that adult. Where the adult passes the ‘destitution plus test’ under the Care Act, this is interpreted to mean that there is a need for care and support which is material to such a degree that some other factor makes the adult’s situation more acute other than destitution or the effects or anticipated physical effects of destitution.

Case Law

In R (PB) v Haringey LBC [2006] EWHC 2255 (Admin) the court considered that if the applicant‘s depression arose from factors other than destitution, it could not say destitution and its physical effects were the sole cause. In R (Pajaziti) v Lewisham [2007] EWCA Civ 1351 LBC, the claimant’s mental health problems made the need for shelter and warmth more acute and it did not arise solely from destitution.

3.3 Adults who are not eligible for support and assistance

The Nationality, Immigration and Asylum Act 2002 (amended) states that the following five classes of person are ineligible for support and assistance under the Care Act 2014:

1) persons granted refugee status by another EEA State and their dependants;

2) EEA nationals and their dependants (but not UK nationals or children);

3) failed asylum seekers who fail to comply with removal directions, and their dependents;

4) persons unlawfully present in the UK. This includes:

  • people who have overstayed their visas;
  • illegal entrants;
  • refused asylum seekers who made their application for asylum in-country i.e. at the Home Office rather than at the port of entry.

5) failed asylum seekers with dependent children who have been certified by the Secretary of State as having failed to take steps to leave the UK voluntarily.

Whilst those coming within this category are not entitled to ‘support or assistance’ or duties towards carers of the Care Act, a local authority can provide information and advice (see Information and Advice chapter) or prevention (see Preventing, Reducing and Delaying Needs chapter).

The Care Act acts as a sorting mechanism, therefore, to distinguish between those subject to immigration control:

  • who might be accommodated and supported by the Home Office under the Immigration and Asylum Act 1999, for example asylum seekers or failed asylum seekers; or
  • who might potentially be accommodated by a local authority under the Care Act 2014.

A local authority has the power to provide care and support to people who met the criteria for such services under the Care Act which may include persons who are:

  • asylum seekers and other people not excluded by the Nationality, Immigration and Asylum Act 2002;
  • failed asylum seekers who are in breach of the immigration laws and other persons who are excluded by Nationality, Immigration and Asylum Act 2002 but it may be necessary to provide support to avoid a breach of a person’s rights under the ECHR

providing that: such persons need the sort of care that is normally provided in a home (whether ordinary or specialised) or that would be effectively useless if the applicant had no home and unless those needs ‘have arisen solely because:

(a) the adult is destitute; or

(b) of the physical effects, or anticipated physical effects, of being destitute.

4. Asylum Seekers

When an asylum seeker or refused asylum seeker requests care and support from social care, a local authority will be able to refer such a person to the Home Office for asylum support.

 4.1 Local authority assessments

When an asylum seeker presents with an appearance of need, they must be assessed in the usual way under the Care Act 2014 and provided with care and support if they have eligible needs. While an asylum seeker is waiting for a decision from the Home Office, or final determination following any appeals against a refusal, they are not subject to any exclusion from social care support, so eligibility for care and support will be established solely on the outcome of the needs assessment.

Where an asylum seeker (who has received the final determination of their asylum claim) presents with an appearance of need, they must be assessed in the usual way under the Care Act, but the provision of care and support may be subject to a human rights assessment depending on their immigration status and whether they are in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002.

Local authorities can only refer an asylum seeker to the Home Office for accommodation without undertaking a needs assessment when the person has presented without an appearance of need.

An asylum seeker who has presented with an appearance of need, and therefore requires a Care Act assessment, can only be referred to the Home Office for support when the relevant assessments have been completed and the local authority has determined that there is no duty to provide assistance.

If interim care and support, including housing, has been provided under section 19(3) pending the outcome of the assessment, then it is good practice for the local authority to assist the person to apply for asylum support. NRPF Connect can be used to communicate with the Home Office to ensure the application is processed as quickly as possible.

4.2 Section 95 Home Office support

A person with a pending asylum or Article 3 human rights application (or appeal) may apply for support from the Home Office under section 95 of the Immigration and Asylum Act 1999 when they are destitute (have no accommodation and / or cannot afford to meet their essential living needs).

They can also apply for emergency support from the Home Office under section 98 of the Immigration and Asylum Act 1999 and may receive support while the Home Office make a final decision on their application for section 95 asylum support.

Support will continue to be provided until the asylum claim is finally determined following any appeals the person has lodged. When the person is granted leave to remain or becomes ‘appeal rights exhausted’ following an unsuccessful claim, they will be issued with 21 days’ notice to leave their accommodation.

4.3 Home Office support for destitute asylum seekers

In certain circumstances, destitute refused asylum seekers may be provided with support from the Home Office under section 4 of the Immigration and Asylum Act 1999. They need to show that they:

  • are taking all reasonable steps to leave the UK;
  • are unable to leave the UK due to physical impediment;
  • have no safe route of return;
  • have been granted leave to appeal in an application for judicial review concerning their asylum claim; or
  • require support to avoid a breach of their human rights, for example they have made further submissions for a fresh asylum claim.

The support provided comprises accommodation and subsistence, which is intended to cover the costs of food, clothing and toiletries, through a card that can be used in shops but not to withdraw cash. Subsistence support cannot be provided independently of accommodation.

The following organisations provide information and asylum support:
Home Office
Migrant Help (assistance with applications)
Asylum Support Appeals Project (assistance when support is refused)

5. Modern Slavery

See also Modern Slavery chapter

Local authorities must consider and investigate when they suspect a person may be a victim of trafficking or modern slavery, or when a confirmed victim who has NRPF requests care and support or requires housing.

5.1 Safeguarding duty

Section 42 of the Care Act 2014 requires a local authority to undertake an enquiry to establish whether any action needs to be taken to prevent or stop abuse or neglect, where there is reasonable cause to suspect that an adult in its area who has needs for care and support is experiencing or is at risk of this and is unable to protect themselves from the abuse or neglect due to their needs.

The Care and Support Statutory Guidance (paragraph 14.17) specifies that abuse or neglect includes modern slavery, which encompasses: slavery; human trafficking; forced labour; domestic servitude; and where traffickers and slave masters use whatever means they have at their disposal to coerce, deceive and force individuals into a life of abuse, servitude and inhumane treatment.

A person’s nationality or immigration status should not prevent a local authority from following its safeguarding procedures in such circumstances. Schedule 3 of the Nationality, Immigration and Asylum Act 2002 does not prevent the local authority from undertaking an enquiry and taking any necessary action to stop abuse or neglect.

When a person is identified as being a potential victim of trafficking or modern slavery, the local authority must notify the National Referral Mechanism (NRM). Where the person has NRPF, the safeguarding plan will need to explore what housing options are available. This could include:

  • housing available through the NRM;
  • consideration within the needs assessment to establish whether accommodation can be provided under the Care Act 2014;
  • consideration as to whether section 1 of the Localism Act 2011 will require the local authority to provide housing to prevent a breach of human rights.

5.2 National Referral Mechanism support

Local authorities are under a duty under section 52 of the Modern Slavery Act 2015 to notify the Home Office about a potential victim of trafficking or modern slavery. A referral should be made to the NRM if the person’s consent is obtained.

If the person does not consent to a referral to the NRM, there is still a duty to notify the Home Office of potential victims using the online reporting form.

When a referral is made to the NRM, housing and subsistence support are provided by the Salvation Army and partner organisations for 45 days during the recovery and reflection period. This period provides time for the person to consider their options. They should receive a conclusive grounds decision about whether they are a victim of trafficking or not as soon as possible after 45 days. When they receive a positive grounds decision they are entitled to a further 14 days’ support, but extensions are considered on a discretionary basis by the Home Office. During this period, victims are expected to decide whether to return to their country of origin or apply for discretionary leave to remain, which if successful will allow the person to have recourse to public funds. If the person receives a negative conclusive grounds decision, then their support will only continue for two days.

5.3 Local authority support

A victim of trafficking or modern slavery may be eligible for accommodation under the Care Act 2014. Where this does not apply, the local authority would need to consider using section 1 of the Localism Act 2011 to provide support.

5.3.1 Care Act 2014

A potential or confirmed victim of trafficking may request a needs assessment to establish whether they require care and support, including accommodation. Therefore it is highly likely that such a person will present with an appearance of need, and so would need to be assessed under the Care Act 2014.

When a person is in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, the local authority will also undertake a human rights assessment because care and support can only be provided where this is necessary to prevent a breach of a person’s human rights.

5.3.2 Localism Act 2011

In some cases, victims of trafficking or modern slavery will not qualify for care and support under the Care Act, so cannot be housed under the Act. When a person is not receiving support through the NRM and does not have any alternative means of accessing housing, the local authority must consider whether to use its power under section 1 of the Localism Act 2011 to provide accommodation.

Access to immigration and other specialist advice will be essential to help establish whether the person has an entitlement to benefits, for example, whether an EEA national has a right to reside or what options a non-EEA national without any immigration permission may have.

6. Human Rights Considerations

Whilst taking into account the legal restrictions outlined above, local authorities cannot carry out their duties in any way that breaches a person’s human rights. In all situations, the local authority should provide support where necessary to avoid a breach of a person’s human rights. The local authority should assess the person’s needs if there would be a breach of human rights if support is not provided.

In practice this means that local authorities must undertake a human rights assessment to consider whether, or to what extent, the circumstances are such that the bar on providing support or assistance under the Care Act should be lifted in order to avoid a breach of human rights.

If a case is open to the local authority, it can proceed directly to a human rights assessment. This will involve considering whether the adult is freely able to return to their country of origin without there being any breach of their human rights. If there are no legal or practical barriers to return, the local authority does not have a duty to support such an adult.

Legal and practical obstacles can include factors such as lack of travel documents or being temporarily unable to travel due to a medical condition. The local authority may therefore use the human rights assessment to consider how these obstacles might be overcome. Contacting relatives or finding out about services in the country of origin may help facilitate their return.

If there are obstacles in place that mean the person cannot leave or they are taking reasonable steps to plan for leaving the United Kingdom (UK), it may be necessary to continue to provide support to them for human rights reasons. If the person accepts the offer of assistance to return to their country of origin, support should normally continue until they leave.

Case Law

Local authorities must consider the case of Limbuela v Secretary of State [2005] UKHL 66, 3 WLR, in which it was determined that a decision which compels a person to sleep rough, or be without shelter, and without funds usually amounts to inhuman treatment and therefore engages Article 3 of the European Convention on Human Rights (ECHR). The House of Lords ruled that it was incompatible with Article 3 to refuse support to destitute asylum seekers. The Lords attempted to identify the point at which deprivation becomes so grave that the state is obliged to intervene and provide support. The state has a duty to provide support when:

….. it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by a denial of shelter, food or the most basic necessities of life.

Human rights issues centre on:

Article 3: prohibition on torture or inhuman or degrading treatment or punishment; and

Article 8: respect for private and family life.

The applicant may have alternative means of support in the UK that is family, friends or charity. If they have been in the UK for a long time, it is appropriate for the local authority to ask how long they have been supported and why it has now ceased.

Article 8 may mean a person’s right to family is not just limited to the applicant, for example there may be a relationship between a child and a non-custodial parent to consider. An Article 8 right is not absolute; but a breach is permissible if the grounds are subject to justification and a proportionality assessment.

Case Law

ZH (Tanzania) v Secretary of State of the Home Department [2011] UKSC4: if there are children involved the best interest of the individual child is paramount, but this is not determinative in a proportionality assessment.

Under the Children Act 2004 the local authority “must make arrangements for ensuring that – (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children…”

In an email to the NRPF Network dated 29 July 2015, the Home Office and Department of Health confirmed that:

  • the Nationality, Immigration and Asylum Act 2002 prevents excluded groups from receiving ‘support or assistance’ under the Care Act (see 3.2 Adults Ineligible for Support and Assistance;
  • local authorities may undertake needs assessments for adults requiring care and support and carers;
  • local authorities may meet urgent needs for care and support whilst undertaking the relevant assessments;
  • there is no prohibition on a local authority undertaking its general duties with regards to providing information and advice or prevention.

7. Role of the Local Authority

7.1 To provide information

There is no prohibition on a local authority undertaking its general duties with regards to providing information and advice or prevention. Practitioners should help non-EEA nationals who are not seeking asylum to access immigration information to establish an appropriate pathway.

When a person is provided with care and support under the Care Act 2014 or is accommodated under the Localism Act 2011, the local authority will need to ensure that staff are equipped to assist the person to establish financial independence. There is a duty to promote wellbeing as well as reducing costs incurred from funding accommodation and financial support. A solution to a person’s destitution will often be achieved by obtaining a form of immigration status that will allow recourse to mainstream welfare benefits and housing services.

It is unlawful to provide immigration advice that relates to a person’s specific circumstances unless the adviser is registered with the Office of the Immigration Services Commissioner (OISC), or is exempt from registration, for example, a solicitor registered with the Solicitors Regulation Authority.

7.2 Pre-assessment screening: all cases

In all cases, in establishing the facts of the case when an adult with NRPF requests assistance, the local authority should:

  1. establish whether it is the responsible local authority, that is, whether the person is ordinarily resident within its area (see Ordinary Residence chapter);
  2. carry out an immigration check to establish any eligibility for public funds under immigration legislation. The adult must be asked to provide evidence of their nationality and, if relevant, evidence of their immigration status in the UK. Immigration checks can be obtained online from the Home Office or via NRPF Connect.;
  3. check whether there are any legal restrictions on providing assistance (see Section 3, Legal Restrictions on Providing Assistance) and
  4. establish whether it needs to meet urgent needs for care and support, including the provision of accommodation.

7.3 Adults subject to immigration control who are destitute, but have no additional needs

  • Do they fall within the statutory bar to the provision of care, support and prevention under the Care Act, because their needs arisen solely as a result of destitution and are they subject to immigration control? (see Section 3.1 Adults subject to immigration control who are destitute but have no additional needs above);
  • If so, a human rights assessment should be undertaken to assess whether, or to what extent, the bar on providing support or assistance should be lifted in order to avoid a breach of human rights (see Section 6, Human Rights considerations);
  • If not (that is, they have additional needs not arising solely from destitution), an assessment of needs should be undertaken in the usual way. These include situations where there is a possibility or evidence that a migrant has additional mental or physical health, learning disability or social care needs, or any safeguarding concerns (see Adult Safeguarding chapter).

7.4 Adults who are not eligible for support and assistance under the Nationality, Immigration and Asylum Act 2002

  • Do they fall within the statutory bar to the provision of care and support?
  • If so, there is no restriction on the local authority providing information and advice or prevention;
  • If so, a human rights assessment should be undertaken to assess whether, or to what extent, the bar on providing support or assistance should be lifted in order to avoid a breach of human rights( see Section 6, Human Rights Considerations);

7.5 Eligibility for services

A local authority may support an adult when these conditions apply. They:

  • are destitute according to the Immigration and Asylum Act 1999;
  • they have a dependent child;
  • they are not receiving, having applied for, or are potentially eligible for Home Office support for refused asylum seekers.

7.6 Eligibility for other services

A person with NRPF is prohibited from accessing specified welfare benefits, homelessness assistance and an allocation of social housing through the council register; they are not excluded from accessing other publicly funded services because of the NRPF condition.

However, there are often eligibility criteria attached to these services which relate to a person’s nationality or immigration status or are linked to receiving certain welfare benefits. It is therefore important to be aware of what services a person with NRPF may be entitled to access.

7.6.1 Housing

A person with NRPF can rent a property from a housing association if they apply directly to the housing association. They cannot rent a housing association property if this was applied for through the local authority housing allocations list, because this is a public fund for immigration purposes.

7.6.2 Education

When applying to undertake further education (aged 16 years +), a person with NRPF will only be able to undertake a course for free if they meet the funding criteria; immigration status and length of residence in the UK will be relevant factors.

7.6.3 NHS treatment

Services delivered by a GP, treatment for certain contagious diseases and accident and emergency treatment at a hospital, are free of charge to everyone regardless of their immigration status.

The main groups of people who will be charged for NHS treatment are:

  • visa overstayers;
  • illegal entrants;
  • refused asylum seekers (who are not receiving Home Office support or accommodation under the Care Act 2014).

7.7 Complying with the Care Act following a grant of leave to remain

Where social care is funding non-supported housing as part of a care and support plan for a person with NRPF, and a change in immigration status means that the person now has recourse to public funds, then assistance with approaching a housing authority and claiming benefits will need to be provided.

Section 23 of the Care Act 2014 does not allow the local authority to provide accommodation under the Care Act when it could otherwise be provided under the Housing Act 1996, so this transfer of responsibly must occur as soon as possible after the person becomes eligible for housing assistance. It is also important that any care package being provided is not interrupted if the person moves into different accommodation.

8. Refusing or Withdrawing Support

Care and support can be refused or withdrawn following a change of circumstances.

The Care Act 2014 requires a local authority to record the assessment decision in writing and to communicate the outcome to the person requesting support. This would apply when a person:

  • is assessed as having no eligible needs under the Care Act or, following a review, no longer has eligible care and support needs, and the local authority has also decided not to use its discretionary powers under section 19(1) of the Localism Act 2011 to provide housing;
  •  is in a group excluded by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, and is to be refused support following a human rights assessment that concludes they can return to their country of origin to prevent a breach of human rights.

The assessment outcome should state why the person is not eligible, or no longer eligible for support.

When a person with NRPF has been provided with accommodation pending the outcome of an assessment and this is to be withdrawn, reasonable notice must be given to allow them to make alternative arrangements. What constitutes reasonable notice will depend on the person’s circumstances, with 21 days being a reasonable minimum period.

When a person has another support option available to them, for example, Home Office asylum support, then it would be good practice for the local authority to support their application for this and liaise with the Home Office to follow up the progress of the application through NRPF Connect.

8.1 Practice point on terminating support

Where support is to be terminated, this decision should be made by the service manager who should be informed by a current assessment record.

The social worker should inform the adult of this decision which should be confirmed in writing and should include the 28 day notice period from when support will terminate. It should also advise the person to seek legal advice if they disagree with the decision. The letter should be translated into the person’s first language as appropriate.

8.2 People excluded from support and returning to country of origin

This applies to people who are in a group excluded from support by Schedule 3 of the Nationality, Immigration and Asylum Act 2002. When the provision of care and support is being refused following a human rights assessment, which has determined that a person can return to their country of origin, then assistance with the return must be offered. This could be provided by the Home Office or local authority.

It will normally be appropriate for the local authority to provide accommodation and financial support whilst return is being arranged.

Where a person refuses an offer of assistance with return to their country of origin and remains in the UK when they have no current immigration permission and no legal barrier preventing them from returning, they would need to be advised of the risks and difficulties of living in the UK unlawfully:

  • the Home Office may undertake enforcement action to remove them from the UK;
  • they will not have permission to work (working when a person has no immigration permission to do so is a criminal offence);
  • private landlords will not be able to rent, sub- let or set up a paying lodging agreement with a person who has no immigration permission;
  • they will not be able to obtain many types of non-urgent NHS treatment unless they can provide full payment upfront, including hospital treatment, some mental health and possibly even drug and alcohol services;.
  • they will not be able to open a bank account, may have any accounts held closed or frozen, and will be breaking the law if they drive, whether they hold a licence or not.

Where the local authority has lawfully determined that a person can freely return to their country of origin, but the person refuses to do so, the courts have found that any hardship or degradation suffered will be a result of their decision to stay in the country and not as a result of any breach of human rights by the local authority.

8.3 Home Office funded return

The Home Office can fund and arrange travel for people who wish to return to their country of origin.

Any person who is living in the UK without immigration permission or has been refused permission to enter or stay in the UK can apply to undertake a voluntary return. This includes EEA Nationals who are not exercising a right to reside.

The Home Office will organise and fund the flight but will expect the person to arrange their own documentation. The Home Office can normally only provide additional support in obtaining documentation when a person has a vulnerability which means that it would be difficult for them to do this by themselves.

However, the person will not be able eligible for an assisted return if they:

  • were being investigated by the police or detained by the Home Office;
  • have been convicted of an immigration offence and given a deportation order;
  •  have already been given humanitarian protection, indefinite leave to remain or refugee status;
  • have been informed they are a ‘third country case’; or
  • are a European Economic Area (EEA) or Swiss national (unless they have been confirmed to be a victim of trafficking).

A person will usually only have one opportunity to apply for an assisted return.

Methods of contacting the Home Office:

  • people can apply online or contact the helpline: 0300 004 0202
  • email: voluntaryreturns@homeoffice.gov.uk
  • local Home Office Immigration Compliance and Enforcement Teams may facilitate voluntary returns involving EEA nationals.

8.4 Local authority funded return

Local authorities have the power to fund a return to the country of origin, although this may arise from different legislation depending on the person’s nationality or immigration status.

For EEA nationals and people with refugee status granted by another EEA state, the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 provide a power to:

  • purchase travel tickets to enable the person to return to their country of origin, and
  • provide time-bound interim accommodation pending the return to the country of origin, but not cash payments.

9. Good Practice Points

Local authorities need to be consistent, lawful and efficient in their response when assisting people with NRPF. The following good practice points have been established by the NPRF Network working with partner authorities and agencies.

  • ‘A specialist and targeted response is required to administer services effectively; ensure there is an identified lead practitioner or team to deal with NRPF cases.
  • Local authorities lacking a specialist NRPF worker should ensure that staff undertaking needs assessments for people with NRPF are adequately supported because any practitioner carrying out an assessment under the Care Act 2014 must have: ‘the skills, knowledge and competence to carry out the assessment in question and is appropriately trained’, and where knowledge is lacking, ‘must consult a person who has expertise in relation to the condition or other circumstances of the individual whose needs are being assessed in any case where it considers that the needs of the individual concerned require it to do so’.
  • Establishing internal protocols and having regard for the legislation and case law referenced in this guidance will help ensure that NRPF cases are identified at point of referral and dealt with consistently. This may include how discretionary powers are exercised towards particular groups, for example, pregnant women without children.
  • Provide an interpreter if this is required.
  • Obtain immigration status information and monitor caseloads and expenditure using NRPF Connect, which will also inform the Home Office of local authority involvement in case. This information contributes to the only national data source on NRPF service provision.
  • A local authority will usually establish whether it has a duty to provide support to an adult with NRPF by undertaking two steps:
  • Pre-assessment screening – establishing the facts of the case prior to assessment
  • Assessing need – determining eligibility for the provision of services’. (NRPF Network, Good Practice Points).

10. Further Reading

10.1 Relevant chapters

Interpreting, Signing and Communication Needs

Modern Slavery

10.2 Relevant information

Assessing and Supporting Adults who have No Recourse to Public Funds (England): Practice Guidance for Local Authorities (NRPF Network) 

Guidance for Adult Social Care (NRPF Network)

No Recourse to Public Funds Network

Appendix A: Full List of EEA Countries

  • Austria;
  • Belgium;
  • Bulgaria;
  • Croatia;
  • Cyprus;
  • Czech Republic;
  • Denmark;
  • Estonia;
  • Finland;
  • France;
  • Germany;
  • Greece;
  • Hungary;
  • Iceland (not EU member);
  • Ireland;
  • Italy;
  • Latvia;
  • Lichtenstein (not EU member);
  • Lithuania;
  • Luxembourg;
  • Malta;
  • Netherlands;
  • Norway (not EU member);
  • Poland;
  • Portugal;
  •  Romania;
  • Slovenia;
  • Spain;
  • Slovakia;
  • Sweden.
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CQC Quality Statements

Theme 3 – How the local authority ensures safety in the system: Safe systems, pathways and transitions

We statement

We work with people and our partners to establish and maintain safe systems of care, in which safety is managed, monitored and assured. We ensure continuity of care, including when people move between services.

What people expect

When I move between services, settings or areas, there is a plan for what happens next and who will do what, and all the practical arrangements are in place.

I feel safe and supported to understand and manage any risks.

1. Principles and Purpose of Cross Border Placements

1.1 Purpose

People’s health and wellbeing are likely to be improved if they are close to a support network of friends and family. In a small number of cases an individual’s friends and family may be located in a different country of the UK from that in which they reside.

In the production of a care and support plan, the authority and the individual concerned may reach the conclusion that the individual’s wellbeing is best achieved by a placement into care home accommodation (‘a residential placement’) in a different country of the UK. The Care Act sets out certain principles governing cross border residential care placements.

As a general rule, responsibility for individuals who are placed in cross border residential care remains with the first authority. This guidance sets out how the first and second authorities should work together in the interests of individuals receiving care and support through a cross border residential placement.

1.2 Principles

The four administrations of the UK (England, Scotland, Wales and Northern Ireland) have worked together to agree cross border placements and the Care and Support Statutory Guidance (2016). Underpinning this close cooperation have been two guiding principles that those involved in making cross border residential care placements should abide by.

A person centred process

The underlying rationale behind cross border placements is to improve the wellbeing of individuals who may benefit from a cross border residential care placement. If an authority, in creating an individual’s tailored care and support plan, believes a cross border placement could be appropriate they should discuss this with the individual and / or their representative. In making the resulting arrangements, authorities should and in certain cases, must have regard to views, wishes, feelings and beliefs of the individual (see Promoting Wellbeing).

Reciprocity and cooperation

The smooth functioning of cross border arrangements is in the interests of all parties – and most importantly the interests of those in need of a residential placement – in all authorities and territories of the UK. It is not envisaged that authorities will suffer significant added financial disadvantage by making cross border placements. All authorities are expected to co-operate fully and communicate properly. In the circumstances where individuals may need care and support from the second authority (for example in the event of unforeseen and urgent circumstances such as provider failure) the second authority may have a duty to meet such needs and there should be no delay in the discharge of such a duty (arrangements to recoup costs can always be made subsequently).

Local authorities in England making a cross border placement should be aware that in general the duties specified in the Act, and the statutory guidance, apply to cross border placements as they apply to placements within an authority’s own area. The guidance applies to cross border placements of any duration.

2. Definitions

First authority: the local authority or health and social care (HSC) trust which places the individual in a cross border residential placement

Second authority: that local authority or HSC trust into whose area the individual is placed or to be placed.

3. Cross border Residential placements

Authorities should follow the following broad process for making cross border residential placements. Authorities may wish to adapt this process to fit their needs, but in general, authorities should aim to follow, as far as possible, the processes set out below.

Authorities may wish to designate a lead official for information and advice relating to cross border placements and to act as a contact point.

These steps should be followed whenever a cross border residential placement is arranged by an authority, regardless of whether it is paid for by that authority or by the individual.

3.1 Step 1: Care and support planning

A need for a cross border residential care placement will be determined as part of the overall care and support plan prepared by the authority, in partnership with the individual concerned.

Authorities should, in assessing care and support needs, establish what support networks (for example friends and family) the individual concerned has in their current place of residence. In discussions with the individual and other relevant parties, enquiries should be made as to whether a support network exists elsewhere. Alternatively, the individual (or their family or friends) may proactively raise a desire to move to an area with a greater support network or to move to an area for other reasons.

Authorities should give due consideration as to how to reflect cross border discussions with the individual in the care and support planning process (see Care and Support Planning).

Where it emerges that residential care in a different territory of the UK may be appropriate for meeting the person’s needs, the authority should inform the individual concerned (and / or their representative) of the potential availability of a cross border placement if the individual (and / or their representative) has not already raised this themselves.

Should the individual wish to pursue the potential for a cross border placement, the authority will need to consider carefully the pros and cons. Questions the authority may wish to address could include:

  • Would the support network in the area of the proposed new placement improve (or at least maintain) the individual’s wellbeing?
  • What effect might the change of location have on the individual’s wellbeing? How well are they likely to adapt to their new surroundings?
  • Is the individual in receipt of any specialist health care? Will the locality of the proposed new placement allow for the satisfactory continuation of this treatment?
  • Where the individual lacks the mental capacity to decide where to live, who is the individual’s representative? The representative should be consulted and in certain cases there will be a duty to involve such persons in carrying out a needs assessment.

With the permission of the individual concerned (or their representative), the authority should approach the friends and /or family of the individual concerned who are resident in the area of the proposed new placement (and, any friends and / or family in the area of their current residence) to seek their views on the perceived benefits of the placement and any concerns they may have.

Should a cross border placement still appear to be in the interests of the individual’s wellbeing, the authority should take steps to investigate which providers in the proposed new placement area exist and which are likely to be able to meet the needs of the individual. The authority should conduct all necessary checks and exercise due diligence as it would with any other residential placement.

In preparing a care and support plan, authorities should (and in England must) involve the individual, any carer of the individual, and any person whom the individual asks the authority to involve or, where the individual lacks capacity to ask the authority to involve others, any person who appears to the authority to be interested in the individual’s welfare. In involving the individual, the authority should (and in England must) take all reasonable steps to reach agreement with the individual about how the authority should meet the needs in question.

The individual should be kept informed and involved throughout the process. Their views on suitable providers should be sought and their agreement checked before a final decision is made. The benefits of advocacy in supporting the individual to express their wishes should be considered throughout and relevant duties met (see Independent Advocacy).

The individual should also be informed of the likelihood of the first authority giving notification of the placement to the second authority, seeking that authority’s assistance with management of the placement or with discharge of other functions, for example reviews, and of what this would involve. Where, for example, this would involve the sharing of information or the gathering of information by the second authority on behalf of the first (see Section 3.2 below), the individual should be informed of this at the outset and their consent sought.

Authorities should strive to offer people a choice of placements.

3.2 Step 2: Initial liaison between first and second authority

Once the placement has been agreed in principle (with the individual concerned and /or their representative) and the authority has identified a potential provider they should immediately contact the authority in whose area the placement will be made.

The first authority should:

  • notify the second authority of its intention to make a cross border residential care placement;
  • provide a provisional date on which it intends for the individual concerned to commence their placement;
  • provide the second authority with details of the proposed provider;
  • seek that authority’s views on the suitability of the residential accommodation.

The initial contact can be made by telephone, but should be confirmed in writing.

The second authority has no power to ‘block’ a residential care placement into its area as the first authority contracts directly with the provider. In the event of the second authority objecting to the proposed placement, all reasonable steps should be taken by the first authority to resolve the issues concerned before making the placement.

Following the initial contact and any subsequent discussions (and provided no obstacles to the placement taking place have been identified) the first authority should write to the second authority confirming the conclusions of the discussions and setting out a timetable of key milestones up to the placement commencing.

The first authority should inform the provider that the placement is proposed, in the same way as with any residential placement. The first authority should ensure that the provider is aware that this will be a cross border placement.

The first authority should contact the individual concerned and /or their representative to confirm that the placement can go ahead and to seek their final agreement. The first authority should also notify any family / friends that the individual has given permission and / or requested to be kept informed.

The first authority should make all those arrangements that it would normally make in organising a residential care placement in its own area.

3.3 Step 3: Arrangements for ongoing management of placement

A key necessity is for the first authority to consider with the second authority, arrangements for the ongoing management of the placement and assistance with the performance of relevant care and support functions.

The first authority will retain responsibility for the individual and the management and review of their placement. In this regard, the authority’s responsibilities to the individual are no different than they would be if the individual was placed with a provider in the authority’s own area.

However, it is recognised that the practicalities of day to day management of a placement potentially hundreds of miles distant from the authority may prove difficult.

As such, the first authority may wish to make arrangements for the second authority to assist with the day to day placement management functions for example where urgent liaison is required with the provider and /or individual concerned, or with regular care reviews which are for the first authority to perform (in accordance with its statutory obligations), but with which the second authority may be able to assist (for example by gathering information necessary for the review and passing this to the first authority to make a decision).

It should be made clear that ultimate responsibility for exercising the functions remains with the first authority (they are obtaining assistance with the performance of these functions or, where applicable, authorising the exercise of functions on their behalf).

Any such arrangement should be detailed in writing, being clear as to what role the second authority is to play and for how long. Clarity should also be provided on the regularity of any reporting to the first authority and any payment involved for services provided by the second authority.

3.4 Step 4: Confirmation of placement

When the placement has been confirmed, the first authority should notify the second authority and detail in writing all the arrangements made with the second authority for assistance with ongoing placement management and other matters. The first authority should also confirm the date at which the placement will begin.

The second authority should acknowledge receipt of these documents /information and give its agreement to the arrangements in writing.

The first authority should provide the individual concerned and /or their representative with contact details (including whom to contact during an emergency) for both the first and second authority. If required, it is expected that the first authority will be responsible for organising suitable transport, and for the costs of it, to take the individual and their belongings to their new placement.

As would be the case normally, the first authority will normally be responsible for closing off previous placements or making other necessary arrangements regarding the individual’s prior residence.

4. Other Issues to be Considered during the Organisation of a Placement

4.1 Timeliness of organising and making a placement

Steps 1 to 4 should be conducted in a timely manner; the time taken should be proportionate to the circumstances.

4.2 Self-arranged placements

The Care and Support Act Statutory Guidance does not apply in relation to individuals who arrange their own care. Individuals who arrange and pay for their own care will normally become ordinarily resident in and /or the responsibility of the area to which they move. It does apply to individuals who pay for their own care where that care (cross border placement) is arranged by an authority.

5. Issues that may arise once a Placement has commenced

5.1 Where the individual requires a stay in NHS accommodation

Should the individual placed cross border need to go into NHS accommodation for any period of time, this stay will not interrupt the position regarding ordinary residence or responsibility deemed under cross border arrangements under the Care Act.

If, while the individual is in NHS accommodation, a ‘retention’ fee is payable to the care provider to ensure the individual’s place is secured, this will be the responsibility of the first authority.

5.2 Where the individual requires NHS funded nursing care

Should the individual being placed require NHS funded nursing care, the arrangements for delivering this should be discussed between the first authority, the NHS body delivering the care, the NHS body funding the care and the care provider prior to the placement commencing. Early (indeed advance) engagement with the NHS in such circumstances is important in ensuring smooth and integrated provision of services in cross border placements. The NHS body (likely the Integrated Care Board / ICB) responsible for paying for the care in cross border placements will need to ensure it follows the procedure in the NHS standing rules, including considering whether the person in question qualifies for a higher level of care, for example, NHS Continuing Healthcare (see NHS Continuing Healthcare).

Where the need for nursing care becomes evident after the placement has commenced, the relevant authorities should work together to ensure this is provided without delay.

The four administrations of the UK have reached separate bilateral agreements as to which administration shall bear the cost of NHS funded nursing care required for individuals placed cross border into residential accommodation.

In the event of cross border placements between England and Scotland or between England and Northern Ireland (in either direction) the health service of the country of the first authority will be responsible for nursing costs. (In England therefore, the individual’s responsible ICB will pay the costs.) The NHS standing rules have been amended to facilitate this. The first authority should inform the ICB of the arrangements being made and their formal consent sought. It is not expected that the ICB would withhold consent; any change in costs associated with the care would be likely to be negligible.

In the event of a cross border placement between England and Wales (in either direction), the second authority’s health service will be responsible for the costs of NHS nursing care. However, in the event of a cross border placement between Wales and Scotland, Wales and Northern Ireland, or between Scotland and Northern Ireland, the first authority’s health service will retain responsibility for the costs of NHS funded nursing care.

5.3 Where the individual’s care needs change during the placement

In the event that an individual’s care and support needs change during the course of the placement, these should be picked up in the course of a review and the care and support plan amended as needed.

The first authority retains responsibility for review and amendment of the individual’s care and support plan, although it may have agreed with the second authority that the latter will assist it in certain ways. In this case, clarity and communication will be important as to each authority’s roles (see Review of Care and Support Plans and Delegation of Local Authority Functions).

6. Handling Complaints

If the complaint relates to the care provider, it should normally be made to the provider in the first instance and dealt with according to the complaints process of the provider as governed by the applicable legislation, which will normally be the legislation of the administration into which the individual has been placed.

If the complaint relates to NHS care, it should be dealt with according to the legislation governing such complaints in the relevant territory of the UK.

Complaints regarding the first authority should be dealt with by the first authority in accordance with the relevant legislation of that territory of the UK. As should complaints regarding the care and support plan. Complaints regarding the second authority should be dealt with by the second authority.

If referral to the health ombudsmen is necessary this should be made to the ombudsmen whose investigation the provider or authority in question is subject to, in accordance with the governing legislation. See subsequent section for how to deal with a dispute that might arise between two or more authorities.

7. Reporting Arrangements

There is no legal requirement for authorities to notify national authorities that a cross border placement has taken place. However, as UK wide cross border placements will generally be a new occurrence, it will be sensible to record the number of placements occurring to best inform future application of the policy. Therefore, authorities should record the number of placements made into their area from other territories of the UK and vice versa.

8. Disputes between Authorities

If authorities have regard to and apply the suggested process and procedures outlined above and, more importantly, if the first and second authority work together in a spirit of reciprocity and cooperation and promptly communicate in order to ensure matters go smoothly, there should be no need for dispute resolution. A dispute is most likely to occur because of lack of communication or following a communication breakdown / misunderstanding between first and second authority during the process of arranging the placement.

The four administrations of the UK have worked together on the process of resolving a dispute. The regulations therefore state:

  • a dispute must not be allowed to prevent, interrupt, delay or otherwise adversely affect the meeting of an individual’s care and support needs;
  • the authority in whose area the individual is living at the date the dispute arises is the lead authority for the purposes of duties relating to coordination and management of the dispute.

In the event of a dispute between two authorities where the individual is living in the area of one of those authorities when the dispute is referred, the Ministers / Northern Ireland Department (NID) in whose jurisdiction that area lies would determine the dispute. In the event of other disputes between authorities, the Ministers / NID in whose jurisdiction those authorities sit would decide between themselves as to who would determine the dispute.

Before a dispute is referred to the relevant Ministers / NID, the authorities concerned must take a number of steps. These include the following. The lead authority must:

  • coordinate the discharge of duties by the authorities in dispute;
  • take steps to obtain relevant information from those authorities;
  • disclose relevant information to those authorities.

Authorities in dispute must:

  • take all reasonable steps to resolve the dispute between themselves;
  • cooperate with each other in the discharge of their duties.

Each authority in dispute must:

  • engage in constructive dialogue with other authorities to bring about a speedy resolution;
  • comply with any reasonable request made by the lead authority to supply information.

When a dispute is referred, the following must be provided:

  • a letter signed by the lead authority stating that the dispute is being referred and identifying the provision of the Act which the dispute is about;
  • a statement of the facts;
  • copies of related correspondence.

The statement of facts must include:

  • details of the needs of the individual to whom the dispute relates;
  • which authority, if any, has met those needs, how they have been met and the relevant statutory provision;
  • any relevant steps taken in relation to the individual;
  • an explanation of the nature of the dispute;
  • details of the individual’s place of residence and any former relevant residence;
  • chronology of events leading up to the referral;
  • details of steps authorities have taken to resolve dispute;
  • where the individual’s mental capacity is relevant, relevant supporting information.

The authorities in dispute may make legal submissions and if they do, they must send a copy to the other authorities in dispute, and provide evidence that they have done so.

The Responsible Person (that is Minister or Northern Ireland Department) to whom the dispute has been referred must:

  • consult other responsible persons (that is Ministers or Northern Ireland Department) in determining the dispute;
  • notify those responsible persons of their determination.

9. Provider Failure

In the event that a provider with which cross border arrangements for an individual have been made or funded fails and is unable to carry on the care activity as a result, the authority in whose area that individual’s care and support needs were being met has duties to ensure those needs continue to be met for so long as that authority considers it necessary.

Close communication and cooperation between the first and second authority throughout will be important.

In the event of provider failure in Scotland, local authorities are required to perform duties provided for under Part 2 of the Social Work (Scotland) Act 1968 and the Care Act 2014.

The Act enables the authority hosting the placement to recover costs from the authority which made or funded the arrangements.

If a dispute later emerges, for example regarding costs incurred as a result of the provider failure situation, the dispute regulations will apply (see Section 8. Disputes between Authorities).

10. Cross Border Arrangements for other Care Settings

The guidance covers cross border placements into care homes.

It also applies to a placement into England which consists of shared lives scheme accommodation or supported living accommodation (that is where the second authority is in England).

It does not cover shared lives and supported living arrangements made by a first authority in England for a placement into a second authority in Scotland, Wales or Northern Ireland.

It makes provision for regulation making powers with respect to applying cross border principles to accommodation provided by means of direct payments and / or cases where services other than accommodation are arranged by a local authority.

See Cross border Case Studies.

11. Further Reading

11.1 Relevant chapters

Care and Support Planning

Ordinary Residence

Information Sharing and Confidentiality

11.1 Relevant information

Out-of-Area Safeguarding Adults Arrangements (ADASS, 2016)

Chapter 21, Cross Border Placements, Care and Support Statutory Guidance (Department of Health and Social Care)

See also Cross Border Placements Case Studies, Resources

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