CARE ACT 2014
The Act makes provision for a person ordinarily resident in England, with care and support needs and requires residential accommodation to meet those needs, to be provided with accommodation in another part of UK. It also allows for such placements in England for people ordinarily resident in Wales, or whose care and support is provided under relevant Scottish or Northern Irish legislation.
- 1. Principles and Purpose of Cross Border Placements
- 2. Definitions
- 3. Cross border Residential placements
- 4. Other Issues to be Considered during the Organisation of a Placement
- 5. Issues that may arise once a Placement has commenced
- 6. Handling Complaints
- 7. Reporting Arrangements
- 8. Disputes between Authorities
- 9. Provider Failure
- 10. Cross Border Arrangements for other Care Settings
1. Principles and Purpose of Cross Border Placements
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.
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.
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.
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 clinical commissioning group – CCG) 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 CCG will pay the costs.) The NHS standing rules have been amended to facilitate this. The first authority should inform the CCG of the arrangements being made and their formal consent sought. It is not expected that the CCG 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.