Statutory Instruments
2014 No. 2843
Social Care
The Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014
Made
20th October 2014
Laid before Parliament
28th October 2014
Coming into force in accordance with regulation 1(2)
The Secretary of State makes these Regulations in exercise of the powers conferred by sections 39(8) and 125(7) and (8) of, and paragraph 5(9) to (11) of Schedule 1 to, the Care Act 2014(1).
In accordance with paragraph 11 of Schedule 1 to the Care Act 2014, the Secretary of State has obtained the consent of the Welsh Ministers, the Scottish Ministers and the Northern Ireland Department(2) to the making of these Regulations.
Citation, commencement and interpretation
1.—(1) These Regulations may be cited as the Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014.
(2) These Regulations come into force as follows—
(a)in so far as they make provision for the resolution of a dispute about the application of section 50 of the Act (temporary duty on local authority in Wales), these Regulations come into force—
(i)on the date that section 50 of the Act comes fully into force, or
(ii)if later, immediately after paragraph 5(9) of Schedule 1 comes fully into force(3);
(b)in so far as they make provision for the resolution of a dispute about the application of paragraph 2(2) to (8) of Schedule 1 (placements from Wales to England, Scotland or Northern Ireland under the Social Services and Well-being (Wales) Act 2014(4)), these Regulations come into force—
(i)on the date that Part 4 of the Social Services and Well-being (Wales) Act 2014 comes fully into force, or
(ii)if later, immediately after paragraph 5(9) of Schedule 1 comes fully into force; and
(c)for all other purposes, these Regulations come into force immediately after paragraph 5(9) of Schedule 1 comes fully into force.
(3) In these Regulations—
“accommodation” means accommodation in England, accommodation in Wales, accommodation in Scotland or accommodation in Northern Ireland(5);
“the Act” means the Care Act 2014;
“authority” means local authority in England, local authority in Wales, local authority in Scotland or HSC trust(6);
“dispute” means dispute about the application of—
section 48 (temporary duty on local authority in England) or 49 (section 48: cross-border cases) of the Act to the case of an adult(7) or a carer(8), in so far as the dispute is between a local authority in England and a local authority in Wales, a local authority in Scotland or an HSC trust;
section 50 (temporary duty on local authority in Wales) or 51 (temporary duty on Health and Social Care trust in Northern Ireland) of the Act to the case of an adult or a carer; or
any of paragraphs 1 to 4 of Schedule 1 (cross-border placements) to the case of an adult;
“HSC trust” means Health and Social Care trust established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991 (Health and Social Care trusts)(9);
“lead authority” has the meaning given in regulation 3;
“needs” (except in regulation 5(3) and (5)) means—
in respect of duties falling on local authorities in England, in relation to an adult, needs for care and support and in relation to a carer, needs for support;
in respect of duties falling on local authorities in Scotland, needs which must be met under section 12 or 13A of the Social Work (Scotland) Act 1968 (social welfare services and residential accommodation with nursing)(10) or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (care and support services etc.)(11);
in respect of duties falling on local authorities in Wales, needs which must be met or are to be met under section 35, 36, 40 or 45 of the Social Services and Well-being (Wales) Act 2014 (meeting care and support needs of adults and support needs of a carer);
in respect of duties falling on HSC trusts, needs which must be met under Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 (general social welfare)(12) or which may be met under section 2 of the Carers and Direct Payments Act (Northern Ireland) 2002 (services for carers)(13);
“referred” in relation to a dispute, means referred for determination under paragraph 5 of Schedule 1 (dispute resolution), and “referral” is to be construed accordingly;
“Responsible Person” means the Secretary of State, the Welsh Ministers, the Scottish Ministers or the Northern Ireland Department;
“Schedule 1” means Schedule 1 to the Act.
(4) For the purposes of these Regulations, the following are Responsible Persons in relation to authorities—
(a)in relation to a local authority in England, the Secretary of State;
(b)in relation to a local authority in Wales, the Welsh Ministers;
(c)in relation to a local authority in Scotland, the Scottish Ministers;
(d)in relation to an HSC trust, the Northern Ireland Department.
(5) References in these Regulations to the date on which a dispute arises (however expressed) are references to the first date on which a written communication is sent by one of the authorities which are parties to the dispute to another of those authorities raising an issue about—
(a)the application of any of sections 48 to 51 of the Act to the case of an adult or a carer; or
(b)the application of any of paragraphs 1 to 4 of Schedule 1 to the case of an adult.
(6) In regulations 6 and 7 and for the purposes of the duty in regulation 8, a reference to the authorities which are parties to a dispute includes (where different) a reference to the lead authority in relation to that dispute, but this does not apply in relation to regulation 6(2)(a), (4)(a) or (5)(b) or to regulation 7(3)(h).
(7) In a case where a person is homeless, references in these Regulations (however expressed) to a person living in an area or a place are to be read as references to that person being physically present in that area or place.
Responsibility for determination of disputes
2.—(1) The Responsible Person which is to determine a dispute between authorities is to be determined as follows.
(2) Where the authorities which are parties to the dispute (“the authorities in dispute”) include a local authority in England, and the adult or carer to whom the dispute relates (“the relevant person”) is living in England as at the date the dispute is referred (“the relevant date”), the dispute is to be determined by the Secretary of State.
(3) Where the authorities in dispute include a local authority in Wales, and the relevant person is living in Wales as at the relevant date, the dispute is to be determined by the Welsh Ministers.
(4) Where the authorities in dispute include a local authority in Scotland, and the relevant person is living in Scotland as at the relevant date, the dispute is to be determined by the Scottish Ministers.
(5) Where the authorities in dispute include an HSC trust, and the relevant person is living in Northern Ireland as at the relevant date, the dispute is to be determined by the Northern Ireland Department.
(6) In any other case, the dispute is to be determined by whichever of the persons who are Responsible Persons in relation to the authorities in dispute, those persons agree is to do so.
Lead authority in relation to disputes
3.—(1) For the purposes of these Regulations, the lead authority in relation to a dispute is the authority in whose area the adult or carer to whom the dispute relates is living as at the date on which the dispute arises.
(2) If that authority (“A”) is not one of the authorities which are parties to the dispute—
(a)those authorities must, without delay, bring to A’s attention A’s duties under these Regulations; and
(b)A is not under those duties until the date on which A is aware of, or could reasonably be expected to have been aware of, those duties.
Notification etc
4.—(1) This regulation applies where a referral is—
(a)made to a Responsible Person by authorities in accordance with regulation 8; or
(b)sent to a Responsible Person by another Responsible Person pursuant to paragraph (4).
(2) In the following provisions of this regulation, the Responsible Person to whom the referral is made or sent is referred to as the “Relevant Responsible Person”.
(3) If the dispute falls to be determined by the Relevant Responsible Person, that person must—
(a)in determining the dispute, consult all persons who are Responsible Persons in relation to the authorities which are parties to the dispute (“the authorities in dispute”); and
(b)prior to notifying those authorities of the outcome of the determination, notify those Responsible Persons of that outcome.
(4) If the dispute does not fall to be determined by the Relevant Responsible Person, that person must—
(a)as soon as reasonably practicable after receiving the referral, send the referral to the Responsible Person by whom it appears to the Relevant Responsible Person the dispute falls to be determined or, in a case within regulation 2(6), to all persons who are Responsible Persons in relation to the authorities in dispute; and
(b)notify the authorities in dispute of the action taken pursuant to sub-paragraph (a).
(5) For the purposes of this regulation, a reference to a dispute falling, or appearing to fall, to be determined by a Responsible Person (however expressed) is a reference to that dispute so falling, or appearing to fall, to be determined pursuant to regulation 2.
Responsibility for meeting needs pending determination of dispute etc
5.—(1) The authorities which are parties to a dispute must not allow the existence of the dispute to prevent, delay, interrupt or otherwise adversely affect the meeting of the needs of the adult (“the adult”) or carer to whom the dispute relates.
(2) This paragraph applies where a dispute concerns—
(a)section 48(2), 50(3) or 51(3) of the Act (temporary duty to meet needs); or
(b)any of paragraphs 1 to 4 of Schedule 1.
(3) Where paragraph (2) applies—
(a)the authority which is meeting any needs for accommodation of the adult on the date on which the dispute arises must continue to meet those needs; and
(b)if no authority is meeting those needs as at that date, the authority in whose area the adult is living as at that date must do so from that date.
(4) The duty under paragraph (3) must be discharged until the dispute in question is resolved.
(5) The meeting of an adult’s needs by an authority pursuant to paragraph (3) does not affect the liability of that authority or any other authority for the meeting of those needs in respect of the period during which those needs are met.
Steps to be taken prior to referral of a dispute including steps to try to resolve a dispute
6.—(1) The authorities which are parties to a dispute (“authorities in dispute”) must, prior to the referral of the dispute, take the steps specified in this regulation.
(2) As soon as reasonably practicable after the date on which the dispute arises—
(a)the authority which is the lead authority in relation to the dispute must identify all the authorities which are parties to the dispute and co-ordinate discussions between those authorities in an attempt to resolve the dispute; and
(b)each of the authorities in dispute must—
(i)nominate an individual who will act as the point of contact within that authority in relation to the dispute; and
(ii)provide the other authorities in dispute with the contact details of that individual.
(3) The lead authority must—
(a)co-ordinate the discharge, by the authorities in dispute, of their duties under this regulation;
(b)take steps to obtain, from the other authorities in dispute, information which may be relevant to the determination of the dispute;
(c)disclose that information to the other authorities in dispute (if any); and
(d)disclose to the other authorities in dispute any information the lead authority itself holds that may help to resolve the dispute.
(4) The authorities in dispute must—
(a)take all reasonable steps to resolve the dispute between themselves; and
(b)co-operate with each other in the discharge of their duties under this regulation.
(5) Each of the authorities in dispute must—
(a)engage in a constructive dialogue with the other authorities in dispute, with a view to bringing about the speedy resolution of the dispute;
(b)comply, without delay, with any reasonable request for relevant information made by the lead authority; and
(c)keep the other authorities in dispute informed of information which appears to it to be relevant to the determination of the dispute.
(6) The lead authority in relation to the dispute must provide to the adult or carer to whom the dispute relates (“the relevant person”), or to the relevant person’s representatives, such information as appears to it to be appropriate about progress in resolving the dispute.
Contents of referral etc
7.—(1) Where a referral is made in accordance with regulation 8, the authority which is the lead authority in relation to the dispute which is the subject of the referral, must send a copy of the referral to all persons who are Responsible Persons in relation to the authorities which are parties to the dispute.
(2) Subject to paragraphs (8) and (9), the referral must include the following documents—
(a)a letter signed by the lead authority stating that the dispute is being referred and identifying the provision of the Act, the application of which the dispute is about;
(b)a statement of facts signed by each of the authorities which are parties to the dispute (“the authorities in dispute”) which includes the information specified in paragraph (3); and
(c)copies of all correspondence between the authorities in dispute which relates to the dispute.
(3) The information referred to in paragraph (2)(b) is—
(a)an explanation of the nature of the dispute;
(b)a chronology of the events leading up to the referral of the dispute, including the date on which the dispute arose;
(c)details of the needs of the adult (“the relevant adult”) or carer (“the relevant carer”) to whom the dispute relates since the beginning of the period to which the dispute relates;
(d)a statement as to which authority has met those needs since then, how those needs have been met and the statutory provisions under which they have been met;
(e)a statement as to any other steps taken by the authorities in dispute in relation to the relevant adult or the relevant carer and which may be relevant to the dispute;
(f)details of the relevant adult’s place of residence, and of any former places of residence which are relevant to the dispute;
(g)in a case where the relevant adult’s capacity to decide where to live is relevant to the dispute, either—
(i)a statement that the authorities in dispute agree that the adult has, or lacks, such capacity; or
(ii)information which appears to any of the authorities in dispute to be relevant to the question of whether the adult has, or lacks such capacity;
(h)details of the steps that the authorities in dispute have taken to resolve the dispute between themselves; and
(i)any other information which appears to any of the authorities in dispute to be relevant to the determination of the dispute.
(4) The authorities in dispute may submit legal arguments they are relying on in relation to the dispute provided that this is done within 14 days of the date on which the documents referred to in paragraph (2) are sent.
(5) If an authority submits legal arguments, it must—
(a)send a copy of those arguments to the other authorities in dispute; and
(b)provide evidence to the Responsible Person determining the dispute that it has done so.
(6) If the Responsible Person determining the dispute asks any of the authorities in dispute to provide further information, that authority must comply without delay.
(7) For the purposes of this regulation—
(a)a reference to lacking capacity (however expressed) is a reference to—
(i)lacking capacity within the meaning of section 2 of the Mental Capacity Act 2005(14);
(ii)being incapable within the meaning of section 1 of the Adults with Incapacity (Scotland) Act 2000(15); or
(iii)being incapable by reason of mental disorder within the meaning of Article 3(1) of the Mental Health (Northern Ireland) Order 1986(16);
(b)a reference to having capacity (however expressed) is a reference to not lacking capacity.
(8) Where the dispute is solely about the application of section 49(3)(c), 50(4)(c) or 51(4)(c) of the Act (recovery of costs), paragraph (3) is to be read as if sub-paragraphs (e), (f) and (g) were omitted and as if after sub-paragraph (i) there was inserted—
“(j)information as to the costs being sought to be recovered and a breakdown of those costs.”.
(9) Where the dispute is solely about the application of section 49(3)(a) or (b), 50(4)(a) or (b) or 51(4)(a) or (b) of the Act (duty to co-operate), paragraph (3) is to be read as if sub-paragraphs (c) to (g) were omitted.
Stage at which dispute must be referred
8. If the authorities which are parties to a dispute cannot resolve the dispute between themselves within four months of the date on which it arose, they must refer it for determination to the appropriate Responsible Person or, in a case within regulation 2(6), to all persons who are Responsible Persons in relation to the authorities in dispute.
Transitory provision
9. Pending the commencement of Part 4 of the Social Services and Well-being (Wales) Act 2014, in paragraph (c) of the definition of “needs” in regulation 1(3)—
(a)the reference to section 35 or 36 of that Act is to be read as a reference to—
(i)Part 3 of the National Assistance Act 1948(17),
(ii)section 45 of the Health Services and Public Health Act 1968(18),
(iii)section 117 of the Mental Health Act 1983(19), or
(iv)Schedule 15 to the National Health Service (Wales) Act 2006(20);
(b)the reference to section 40 or 45 of that Act is to be read as a reference to section 2 of the Carers and Disabled Children Act 2000(21).
Signed by authority of the Secretary of State for Health.
Norman Lamb
Minister of State
Department of Health
20th October 2014
EXPLANATORY NOTE
(This note is not part of the Regulations)
Schedule 1 to the Care Act 2014 (“the Act”) makes provision to ensure that where a local authority in England, Wales or Scotland, or a Health and Social Care trust in Northern Ireland (“an HSC trust”) places an adult in residential accommodation in another of those territories, in general, this does not result in the transfer of that authority’s responsibility for that adult. The relevant provisions are to be found in paragraphs 1 to 4 of Schedule 1.
Sections 48 to 52 of the Act impose duties on local authorities in England and Wales, and on HSC trusts, to meet needs of individuals in circumstances where registered providers of care are unable to carry on because of business failure.
These Regulations make further provision in relation to the resolution of disputes between authorities about the application of paragraphs 1 to 4 of Schedule 1, or of sections 48 to 51 of the Act (save for disputes between English local authorities about the application of section 48 which are not dealt with in these Regulations).
Regulation 2 sets out who is to determine disputes. The effect of this is that where the adult or carer in question (“the relevant person”) is living (or, in a case where the adult is homeless, is physically present) in the same territory as that in which an authority which is party to a dispute is situated, the dispute is to be determined by the Responsible Person in relation to that authority. In other cases, regulation 2(6) provides for the relevant Responsible Persons (i.e. persons who are Responsible Persons in relation to the authorities in dispute) to agree between themselves as to who is to determine the dispute. The Responsible Person in relation to an authority is: in relation to a local authority in England, the Secretary of State, in relation to a local authority in Wales, the Welsh Ministers, in relation to a local authority in Scotland, the Scottish Ministers and in relation to an HSC trust, the Department of Health, Social Services and Public Safety in Northern Ireland.
Regulation 3 sets out who the “lead authority” is for the purposes of duties imposed on such an authority under the Regulations. The lead authority is the authority in whose area the relevant person is living (or physically present) as at the date on which the dispute arises.
Regulation 4 imposes duties to be discharged by Responsible Persons upon receipt of a referral of a dispute. This includes a duty to consult other persons who are Responsible Persons in relation to the authorities in dispute when determining the dispute and to send on a referral to the appropriate Responsible Person where this has not been sent to the correct Responsible Person.
Regulation 5 sets out duties on authorities in dispute in relation to the meeting of needs until a dispute is determined. This includes a requirement, in the case of certain disputes, for the authority in whose area the person is living (or physically present) to meet an adult’s needs for accommodation in circumstances where no authority is meeting such needs as at the date on which the dispute arises. This does not affect the liability of that authority or any other authority for meeting those needs.
Regulation 6 sets out steps which authorities in dispute have to take before referring a dispute for determination.
Regulation 7 requires the lead authority to send a copy of the referral of a dispute to relevant Responsible Persons and sets out what must or may be included with a referral. The documents to be included are a letter from the lead authority, a statement of facts and copies of relevant correspondence. The authorities may also submit supporting legal arguments. Where a dispute solely concerns the recovery of costs or a duty to co-operate, regulation 7 omits the requirement to submit certain information and, in the case of a dispute solely concerning the recovery of costs, includes a requirement to submit information concerning the costs being sought to be recovered.
Regulation 8 sets out a duty to refer disputes if they cannot be resolved within a specified time.
Regulation 9 makes transitory provision in respect of the period before Part 4 of the Social Services and Well-being (Wales) Act 2014 is commenced.
A separate impact assessment has not been prepared for these Regulations. These Regulations are part of a package of legislative measures and the relevant impact assessment can be requested via careactconsultation@dh.gsi.gov.uk or Department of Health, Richmond House, 79 Whitehall, London SW1A 2NS and is available online at https://www.gov.uk/government/organisations/department-of-health.
2014 c.23 (“the Act”). The powers to make regulations are exercisable by the Secretary of State, see section 125(1). See also sections 49(4), 50(5) and 51(5) of the Act. Pending the commencement of Part 4 of the Social Services and Well-being (Wales) Act 2014 (2014 anaw 4), paragraph 2 of Schedule 1 to the Act has effect with the modifications set out in paragraph 14 of that Schedule.
See paragraph 12(9) of Schedule 1 to the Act as to the meaning of “the Northern Ireland Department”.
Paragraph 5(9) was commenced for the purposes of making regulations by S.I. 2014/2473.
2014 anaw 4 (“the 2014 Act”).
See paragraph 12 of Schedule 1 to the Act as to the meaning of “accommodation in England”, “accommodation in Wales”, “accommodation in Scotland” and “accommodation in Northern Ireland”. The meaning of “accommodation in Wales” has been modified by paragraph 14(5) of that Schedule pending the commencement of Part 4 of the 2014 Act.
See paragraph 12 of Schedule 1 to the Act as to the meaning of “local authority in England”, “local authority in Wales” and “local authority in Scotland”. The meaning of “local authority in Wales” has been modified by paragraph 14(6) of that Schedule pending the commencement of Part 4 of the 2014 Act. See also sections 49(5), 50(6) and 51(6) of the Act.
See section 2(8) of the Act as to the meaning of “adult”. See also section 80.
See section 10(3) of the Act as to the meaning of “carer”. See also section 80.
S.I. 1991/194 (N.I. 1). Article 10 has been amended by paragraphs 1 and 13 of Schedule 6 to the Health and Social Care (Reform) Act (Northern Ireland) 2009 (c.1) (“the 2009 Act”).
1968 c.49. Section 12 has been amended by paragraph 10(5) of Schedule 9 to the National Health Service and Community Care Act 1990 (c.19) (“the 1990 Act”), paragraph 15(11) of Schedule 4 to the Children (Scotland) Act 1995 (c.36), section 120(1) of the Immigration and Asylum Act 1999 (c.33) (“the 1999 Act”) and section 3 of the Community Care and Health (Scotland) Act 2002 (asp 5) (“the CCHSA 2002”), and is prospectively amended (from a date to be appointed) by section 46(1) of the Nationality, Immigration and Asylum Act 2002 (c.41) (“the 2002 Act”). Section 13A was inserted by section 56 of the 1990 Act and amended by section 120(2) of the 1999 Act, section 72 of, and paragraph 4(3) of Schedule 3 to, the Regulation of Care (Scotland) Act 2001 (asp 8) and paragraph 1(4) of Schedule 2 to the CCHSA 2002, and by S.S.I. 2011/211, and is prospectively amended (from a date to be appointed) by section 46(2) of the 2002 Act.
2003 asp 13. Section 25 was amended by S.S.I. 2011/211.
S.I. 1972/1265 (N.I. 14). Article 15 has been amended by section 121 of the 1999 Act, section 32 of, and paragraphs 1 and 3 of Schedule 6 to, the 2009 Act and by S.I. 1992/3204 (N.I. 20) and 1991/194 (N.I. 1); and is prospectively amended (from a date to be appointed) by section 46 of the 2002 Act.
2002 c.6. Section 2 has been amended by section 32 of, and paragraph 1 of Schedule 6 to, the 2009 Act.
1948 c.29. Functions of a Minister of the Crown under the National Assistance Act 1948 were, so far as exercisable in relation to Wales, transferred to the National Assembly for Wales by Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672) (“the TOFO”). Functions of the National Assembly for Wales were transferred to the Welsh Ministers by section 162 of, and paragraph 30 of Schedule 11 to, the Government of Wales Act 2006 (c.32) (“the GOWA”).
1968 c.46. Section 45 was amended by Schedule 3 to the Local Authority Social Services Act 1970 (c.42), paragraph 15 of Schedule 23 to the Local Government Act 1972 (c.70), Part 12 of Schedule 1 to the Statute Law (Repeals) Act 1978 (c.45), Schedule 2 to the Residential Homes Act 1980 (c.7), Part 1 of Schedule 10 to the Health and Social Services and Social Security Adjudications Act 1983 (c.41), section 42(7) of, and Schedule 10 to, the 1990 Act, paragraph 5(1) of Schedule 10 to the Local Government (Wales) Act 1994 (c.19), section 117(1) of the 1999 Act and paragraphs 33 and 34 of Schedule 1 to the National Health Service (Consequential Provisions) Act 2006 (c.43), and by S.I. 1968/1699, and is prospectively amended (from a date to be appointed) by section 45(6) of the Nationality, Immigration and Asylum Act 2002. Section 45 has been repealed in relation to Scotland by section 14(4) of, and Part 1 of Schedule 9 to, the Social Work (Scotland) Act 1968 (c.49). The functions of the Secretary of State under section 45 were, so far as exercisable in relation to Wales, transferred to the National Assembly for Wales by Schedule 1 to the TOFO. Functions of the National Assembly for Wales were transferred to the Welsh Ministers by section 162 of, and paragraph 30 of Schedule 11 to, the GOWA.
1983 c.20. Section 117 was amended by paragraph 107 of Schedule 1 to the Health Authorities Act 1995 (c.17), paragraph 15 of Schedule 1 to the Mental Health (Patients in the Community) Act 1995 (c.52), paragraph 12(17) of Schedule 4 to the Crime (Sentences) Act 1997 (c.43), paragraphs 42 and 47 of Schedule 2 to the National Health Service Reform and Health Care Professions Act 2002 (c.17), paragraphs 1 and 24 of Schedule 3 and Part 5 of Schedule 11 to the Mental Health Act 2007 (c.12), paragraph 3 of Schedule 1 to the Health Act 2009 (c.21), section 40 of the Health and Social Care Act 2012 (c.7) and by S.I. 2007/961. The functions of the Secretary of State under section 117 were, so far as exercisable in relation to Wales, transferred to the National Assembly for Wales by Schedule 1 to the TOFO. Functions of the National Assembly for Wales were transferred to the Welsh Ministers by section 162 of, and paragraph 30 of Schedule 11 to, the GOWA.