Care Act SCHED 1 – CROSS-BORDER PLACEMENTS

 

Placements from England to Wales, Scotland or Northern Ireland

 

1          (1)        Where a local authority in England is meeting an adult’s needs for care

and support by arranging for the provision of accommodation in Wales, the adult—

 

(a)        is to be treated for the purposes of this Part as ordinarily resident in

the local authority’s area, and

(b)        is accordingly not to be treated for the purposes of the Social Services and Well-being (Wales) Act 2014 as ordinarily resident anywhere in Wales.

 

(2)        Where a local authority in England, in reliance on section 22(4), is making

arrangements which include the provision of accommodation in Wales,

section 22(4) is to have effect as if for paragraph (a) there were substituted—

 

“(a)      the authority has obtained consent for it to arrange for the

provision of the nursing care from the Local Health Board for

the area in which the accommodation is provided,”.

 

(3)        Where a local authority in England is meeting an adult’s needs for care and support by arranging for the provision of accommodation in Scotland—

 

(a)        the adult is to be treated for the purposes of this Part as ordinarily

resident in the local authority’s area, and

(b)        no duty under Part 2 of the Social Work (Scotland) Act 1968 or

sections 25 to 27 of the Mental Health (Care and Treatment)

(Scotland) Act 2003 applies in the adult’s case.

 

(4)        Where a local authority in England is meeting an adult’s needs for care and support by arranging for the provision of accommodation in Northern

Ireland—

 

(a)        the adult is to be treated for the purposes of this Part as ordinarily

resident in the local authority’s area, and

(b)        no duty under the Health and Personal Social Services (Northern

Ireland) Order 1972 or the Health and Social Care (Reform) Act

(Northern Ireland) 2009 to provide or secure the provision of

accommodation or other facilities applies in the adult’s case.

 

(5)        Section 22 (prohibition on provision of health services) is to have effect—

 

(a)        in its application to a case within sub-paragraph (1)—

 

(i)         as if the references in subsections (1) and (6) to the National Health Service Act 2006 included a reference to the National Health Service (Wales) Act 2006, and

(ii)        as if the reference in subsection (6) to a clinical

commissioning group or the National Health Service

Commissioning Board included a reference to a Local Health Board;

 

(b)        in its application to a case within sub-paragraph (3)—

 

(i)         as if the references in subsections (1) and (6) to the National Health Service Act 2006 included a reference to the National Health Service (Scotland) Act 1978, and

(ii)        as if the reference in subsection (6) to a clinical

commissioning group or the National Health Service

Commissioning Board included a reference to a Health Board or Special Health Board;

 

(c)        in its application to a case within sub-paragraph (4)—

 

(i)         as if the references in subsections (1) and (6) to a service or

facility provided under the National Health Service Act 2006 included a reference to health care provided under the

Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Social Care (Reform) Act (Northern Ireland) 2009, and

(ii)        as if the reference in subsection (6) to a clinical

commissioning group or the National Health Service

Commissioning Board included a reference to a Health and

Social Care trust.

 

(6)        Regulations may make further provision in relation to arrangements of the

kind referred to in this paragraph.

 

(7)        The regulations may specify circumstances in which, in a case within subparagraph (3), specified duties under Part 2 of the Social Work (Scotland)

Act 1968 are nonetheless to apply in the case of the adult concerned (and

paragraph (b) of that sub-paragraph is to be read accordingly).

Placements from Wales to England, Scotland or Northern Ireland

 

 

2          (1)        Where a local authority in Wales is discharging its duty under section 21

Of the Social Services and Well-being (Wales) Act 2014 by arranging for the provision of accommodation in England, the adult concerned—

 

(a)        is to be treated for the purposes of that Act as ordinarily resident in

the local authority’s area, and

(b)        is accordingly not to be treated for the purposes of Part 1 of this Act as ordinarily resident anywhere in England.

 

(2)        Where a local authority in Wales is arranging for the provision of

accommodation in England in the exercise of its power under section 22 of

the Social Services and Well-being (Wales) Act 2014—

 

(a)        the adult concerned is to be treated for the purposes of that Act—

 

(i)         in a case where the adult was within the local authority’s area immediately before being provided by the local authority with accommodation in England, as remaining within that area;

(ii)        in a case where the adult was outside but ordinarily resident

in the local authority’s area immediately before being

provided by the local authority with accommodation in

England, as remaining outside but ordinarily resident in that area, and

 

(b)        the adult concerned is not to be treated for the purposes of Part 1 of

this Act as ordinarily resident anywhere in England (unless the adult

was so ordinarily resident immediately before being provided by the

local authority with accommodation in England).

 

(3)        Where a local authority in Wales is discharging its duty under section 21 of the Social Services and Well-being (Wales) Act 2014 by arranging for the provision of accommodation in Scotland—

 

(a)        the adult is to be treated for the purposes of that Act as ordinarily

resident in the local authority’s area, and

(b)        no duty under Part 2 of the Social Work (Scotland) Act 1968 or

sections 25 to 27 of the Mental Health (Care and Treatment)

(Scotland) Act 2003 applies in the adult’s case.

 

(4)        Where a local authority in Wales is arranging for the provision of

accommodation in Scotland in the exercise of its power under section 22 of the Social Services and Well-being (Wales) Act 2014—

 

(a)        the adult concerned is to be treated for the purposes of that Act—

 

(i)         in a case where the adult was within the local authority’s area immediately before being provided by the local authority with accommodation in Scotland, as remaining within that area;

(ii)        in a case where the adult was outside but ordinarily resident

in the local authority’s area immediately before being

provided by the local authority with accommodation in

Scotland, as remaining outside but ordinarily resident in that area, and

 

(b)        no duty under Part 2 of the Social Work (Scotland) Act 1968 or

sections 25 to 27 of the Mental Health (Care and Treatment)

(Scotland) Act 2003 applies in the adult’s case.

 

(5)        But paragraph (b) of sub-paragraph (4) does not prevent a duty mentioned

in that paragraph from applying in the case of an adult who was ordinarily

resident in Scotland immediately before being provided by the local

authority with accommodation in Scotland.

 

(6)        Where a local authority in Wales is discharging its duty under section 21 of the Social Services and Well-being (Wales) Act 2014 by arranging for the provision of accommodation in Northern Ireland—

 

(a)        the adult is to be treated for the purposes of that Act as ordinarily

resident in the local authority’s area, and

 

(b)        no duty under the Health and Personal Social Services (Northern

Ireland) Order 1972 or the Health and Social Care (Reform) Act

(Northern Ireland) 2009 to provide or secure the provision of

accommodation or other facilities applies in the adult’s case.

 

(7)        Where a local authority in Wales is arranging for the provision of

accommodation in Northern Ireland in the exercise of its power under

section 22 of the Social Services and Well-being (Wales) Act 2014—

 

(a)        the adult concerned is to be treated for the purposes of that Act—

 

(i)         in a case where the adult was within the local authority’s area immediately before being provided by the local authority placements with accommodation in Northern Ireland, as remaining

within that area;

 

(ii)        in a case where the adult was outside but ordinarily resident

in the local authority’s area immediately before being

provided by the local authority with accommodation in

Northern Ireland, as remaining outside but ordinarily

resident in that area, and

 

(b)        no duty under the Health and Personal Social Services (Northern

Ireland) Order 1972 or the Health and Social Care (Reform) Act

(Northern Ireland) 2009 to provide or secure the provision of

accommodation or other facilities applies in the adult’s case.

 

(8)        But paragraph (b) of sub-paragraph (7) does not prevent a duty mentioned

in that paragraph from applying in the case of an adult who was ordinarily

resident in Northern Ireland immediately before being provided by the local authority with accommodation in Northern Ireland.

 

(9)        Regulations may make further provision in relation to arrangements of the

kind referred to in this paragraph.

 

(10)      The regulations may specify circumstances in which, in a case within subparagraph (3) or (4), specified duties under Part 2 of the Social Work

(Scotland) Act 1968 are nonetheless to apply in the case of the adult

concerned (and paragraph (b) of each of those sub-paragraphs is to be read

accordingly).

 

 

Placements from Scotland to England, Wales or Northern Ireland

 

3          (1)        Where a local authority in Scotland is discharging its duty under section

12 or 13A of the Social Work (Scotland) Act 1968 or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 by securing the provision of accommodation in England, the adult in question is not to be treated for the purposes of Part 1 of this Act as ordinarily resident anywhere in England.

 

(2)        Where a local authority in Scotland is discharging its duty under a provision referred to in sub-paragraph (1) by securing the provision of

accommodation in Wales, the adult in question is not to be treated for the

purposes of the Social Services and Well-being (Wales) Act 2014 as

ordinarily resident anywhere in Wales.

 

(3)        Where a local authority in Scotland is discharging its duty under a provision referred to in sub-paragraph (1) by securing the provision of

accommodation in Northern Ireland, no duty under the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Social Care (Reform) Act (Northern Ireland) 2009 to provide or secure the provision of accommodation or other facilities applies in the case of the adult in question.

 

(4)        In section 5 of the Community Care and Health (Scotland) Act 2002 (local

authority arrangements for residential accommodation outside Scotland)—

 

(a)        in subsection (1), after “the 1968 Act” insert “or under section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (care and support)”,

(b)        in subsection (2), for “such arrangements” substitute “persons for

whom such arrangements are made”, and

(c)        for subsections (5) and (6) substitute—

 

“(5) In subsections (1) and (3) above, “appropriate establishment”

means an establishment of such description or conforming to

such requirements as may be specified in regulations under

subsection (1).”

 

(5)        Regulations may make further provision in relation to arrangements of the

kind referred to in this paragraph.

 

 

Placements from Northern Ireland to England, Wales or Scotland

 

4          (1)        Where there are arrangements under Article 15 of the Health and Personal

Social Services (Northern Ireland) Order 1972 for the provision of

accommodation in England, the adult in question—

 

(a)        is to be treated for the purposes of that Order and the Health and

Social Care (Reform) Act (Northern Ireland) 2009 as ordinarily

resident in the area of the relevant Health and Social Care trust, and

(b)        is accordingly not to be treated for the purposes of Part 1 of this Act as ordinarily resident anywhere in England.

 

(2)        Where there are arrangements under Article 15 of the Health and Personal

Social Services (Northern Ireland) Order 1972 for the provision of

accommodation in Wales, the adult in question—

 

(a)        is to be treated for the purposes of that Order and the Health and

Social Care (Reform) Act (Northern Ireland) 2009 as ordinarily

resident in the area of the relevant Health and Social Care trust, and

(b)        is accordingly not to be treated for the purposes of the Social Services and Well-being (Wales) Act 2014 as ordinarily resident anywhere in Wales.

 

(3)        Where there are arrangements under Article 15 of the Health and Personal

Social Services (Northern Ireland) Order 1972 for the provision of

accommodation in Scotland—

 

(a)        the adult in question is to be treated for the purposes of that Order

and the Health and Social Care (Reform) Act (Northern Ireland) 2009 as ordinarily resident in the area of the relevant Health and Social Care trust, and

(b)        no duty under Part 2 of the Social Work (Scotland) Act 1968 or

sections 25 to 27 of the Mental Health (Care and Treatment)

(Scotland) Act 2003 applies in the adult’s case.

 

(4)        The reference to the relevant Health and Social Care trust is a reference to the Health and Social Care trust in whose area the adult in question was

ordinarily resident immediately before the making of arrangements of the

kind referred to in this paragraph.

 

(5)        Regulations may make further provision in relation to arrangements of the

kind referred to in this paragraph.

 

(6)        The regulations may specify circumstances in which, in a case within subparagraph (3), specified duties under Part 2 of the Social Work (Scotland) Act 1968 are nonetheless to apply in the case of the adult concerned (and paragraph (b) of that sub-paragraph is to be read accordingly).

 

 

Dispute resolution

 

5          (1)        Any dispute about the application of any of paragraphs 1 to 4 to an adult’s

case is to be determined in accordance with this paragraph.

 

(2)        If the dispute is between a local authority in England and a local authority

in Wales, it is to be determined by the Secretary of State or the Welsh

Ministers.

 

(3)        If the dispute is between a local authority in England and a local authority

in Scotland, it is to be determined by the Secretary of State or the Scottish

Ministers.

 

(4)        If the dispute is between a local authority in England and a Health and Social Care trust, it is to be determined by the Secretary of State or the Northern Ireland Department.

 

(5)        If the dispute is between a local authority in Wales and a local authority in

Scotland, it is to be determined by the Welsh Ministers or the Scottish

Ministers.

 

(6)        If the dispute is between a local authority in Wales and a Health and Social Care trust, it is to be determined by the Welsh Ministers or the Northern Ireland Department.

 

(7)        If the dispute is between a local authority in Scotland and a Health and

Social Care trust, it is to be determined by the Scottish Ministers or the

Northern Ireland Department.

 

(8)        In Article 36 of the Health and Personal Social Services (Northern Ireland)

Order 1972, after paragraph (2) insert—

 

“(2A) Any question under this Order as to the ordinary residence of a

person is to be determined by the Department.”

 

(9)        Regulations must make provision for determining which of the persons

concerned is to determine the dispute; and the regulations may, in

particular, provide for the dispute to be determined by whichever of them

agree is to do so.

 

(10)      Regulations may make provision for the determination of disputes between more than two parties.

 

(11)      Regulations may make further provision about determination of disputes

under this paragraph or under regulations under sub-paragraph (10); the

regulations may, for example, include—

 

(a)        provision requiring parties to a dispute to take specified steps before referring the dispute for determination under this paragraph;

(b)        provision about the procedure for referring the dispute under this

paragraph.

 

 

Financial adjustments

 

6          (1)        This paragraph applies where—

 

(a)        an adult has been provided with accommodation in England, Wales, Scotland or Northern Ireland, and

(b)        it transpires (whether following the determination of a dispute

under paragraph 5 or otherwise) that an authority in another of the

territories was, for some or all of the time that the accommodation

was being provided, liable to provide the adult with

accommodation.

 

(2)        The authority which made the arrangements may recover from the authority in the other territory the amount of any payments it made towards the making of the arrangements at a time when the other authority was liable to provide the adult with accommodation.

 

(3)        A reference to an authority is a reference to a local authority in England,

Wales or Scotland or a Health and Social Care trust in Northern Ireland.

 

7

 

(1)        In section 86 of the Social Work (Scotland) Act 1968 (adjustments between authorities providing accommodation), in subsections (1) and (10), after “a local authority in England or Wales” insert “and to a Health and Social Care trust in Northern Ireland”.

 

(2)        In subsection (2) of that section, after “the ordinary residence of a person

shall” insert “, in a case where there is a dispute about the application of any of paragraphs 1 to 4 of Schedule 1 to the Care Act 2014 (cross-border placements), be determined in accordance with paragraph 5 of that Schedule; and in any other case, the question shall”.

 

(3)        After subsection (10) of that section insert—

 

“(10A) A person who, as a result of Schedule 1 to the Care Act 2014 (crossborder placements), is treated as ordinarily resident in an area in

England, Wales or Northern Ireland (as the case may be) is to be

treated as ordinarily resident in that area for the purposes of this

section.

(10B) A person who, as a result of that Schedule, is not treated as ordinarily resident anywhere in England or Wales (as the case may be) is not to be treated as ordinarily resident there for the purposes of this

section.”

 

(4)        In section 97 of that Act (extent)—

 

(a) in subsection (1), for “sections 86 and 87” substitute “section 87”, and

(b) after that subsection insert—

 

“(1A) Section 86 of this Act shall extend to England and Wales and

to Northern Ireland.”.

 

 

Provision of NHS accommodation not to affect deemed ordinary residence etc.

 

8          (1)        In a case where, as a result of this Schedule, an adult is treated as

Ordinarily resident in an area in England, Wales or Northern Ireland (as the case maybe), the adult does not cease to be so treated merely because the adult is provided with NHS accommodation.

 

(2)        In a case where, as a result of this Schedule, an adult is not treated as

ordinarily resident anywhere in England or Wales (as the case may be), the adult continues not to be so treated even if the adult is provided with NHS accommodation.

 

(3)        In a case where, as a result of this Schedule, no duty under a relevant

enactment applies, the duty does not apply merely because the adult in

question is provided with NHS accommodation; and for this purpose

“relevant enactment” means—

 

(a)        Part 2 of the Social Work (Scotland) Act 1968,

(b)        sections 25 to 27 of the Mental Health (Care and Treatment)

(Scotland) Act 2003,

(c)        the Health and Personal Social Services (Northern Ireland) Order

1972, or

(d)        the Health and Social Care (Reform) Act (Northern Ireland) 2009.

 

(4)               In a case where, as a result of paragraph 2(2), (4) or (7), an adult is treated

as remaining within, or as remaining outside but ordinarily resident in, an area in Wales, the adult does not cease to be so treated merely because the adult is provided with NHS accommodation.

 

 

Direct payments

 

9          (1)        Regulations may provide for this Schedule to apply, with such

modifications as may be specified, to a case where accommodation in England, Wales, Scotland or Northern Ireland is provided for an adult by means of direct payments made by an authority in another of the territories.

 

(2)        The reference in sub-paragraph (1) to direct payments accordingly includes a reference to direct payments made—

 

(a)        under section 34 or 36 of the Social Services and Well-being (Wales) Act 2014,

(b)        as a result of a choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013, or

(c)        by virtue of section 8 of the Carers and Direct Payments Act

(Northern Ireland) 2002.

 

 

Particular types of accommodation

 

10        (1)       Regulations may provide for this Schedule to apply, with such

Modifications as may be specified, to a case where—

 

(a)        an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in the

regulations,

(b)        the adult is living in accommodation in England, Wales, Scotland or Northern Ireland that is of a type so specified, and

(c)        the adult’s needs for care and support are being met by an authority

in another of the territories providing or arranging for the provision

of services other than the accommodation.

 

(2)        In section 5 of the Community Care and Health (Scotland) Act 2002 (the title to which becomes “Local authority arrangements for residential

accommodation etc. outwith Scotland”), in subsection (1), at the end insert

“or for the provision in England and Wales or in Northern Ireland of a

service or facility of such other description as may be specified in the

regulations”.

 

 

Regulations

 

11        Regulations under this Schedule—

 

(a)        if they include provision relating to Wales, may not be made without

the consent of the Welsh Ministers;

(b)        if they include provision relating to Scotland, may not be made

without the consent of the Scottish Ministers;

(c)        if they include provision relating to Northern Ireland, may not be

made without the consent of the Northern Ireland Department.

 

 

Interpretation

 

12        (1)        This paragraph applies for the purposes of this Schedule.

 

(2)        “Accommodation in England” means accommodation in England of a type

specified in regulations under section 39 but not of a type specified in

regulations under this paragraph.

 

(3)        “Accommodation in Wales” means accommodation in Wales of a type

specified in regulations under section 163 of the Social Services and Wellbeing (Wales) Act 2014 but not of a type specified in regulations under this paragraph.

 

(4)        “Accommodation in Scotland” means residential accommodation in

Scotland of a type which may be provided under or by virtue of section 12

or 13A of the Social Work (Scotland) Act 1968, or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003, but not of a type specified in regulations under this paragraph.

 

(5)        “Accommodation in Northern Ireland” means residential or other

accommodation in Northern Ireland of a type which may be provided under Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972.

 

(6)        “Local authority in England” means a local authority for the purposes of this Part.

 

(7)        “Local authority in Wales” means a local authority for the purposes of the

Social Services and Well-being (Wales) Act 2014.

 

(8)        “Local authority in Scotland” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994.

 

(9)        “The Northern Ireland Department” means the Department of Health, Social Services and Public Safety in Northern Ireland.

 

(10)      “NHS accommodation” has the meaning given in section 39(6).

 

 

Consequential provision

 

13        In section 163 of the Social Services and Well-being (Wales) Act 2014 (ordinary residence), at the end insert—

 

“(5) For provision about cross-border placements to and from England,

Scotland or Northern Ireland, see Schedule 1 to the Care Act 2014.

(5) Am ddarpariaeth ynghylch lleoliadau trawsffiniol i Loegr, yr Alban

neu Ogledd Iwerddon neu o Loegr, yr Alban neu Ogledd Iwerddon,

gweler Atodlen 1 i Ddeddf Gofal 2014.”

 

 

Transitory provision

 

14        (1)        Pending the commencement of Part 4 of the Social Services and Well-

Being (Wales) Act 2014, this Schedule is to have effect with the modifications set out in this paragraph.

 

(2)        A reference to that Act in paragraphs 1, 3 and 4 is to be read as a reference to Part 3 of the National Assistance Act 1948.

 

(3)        In paragraph 2—

 

(a)        the references in sub-paragraphs (1), (3) and (6) to discharging a duty under section 21 of the Social Services and Well-being (Wales) Act 2014 by arranging for the provision of accommodation are to be read as references to providing residential accommodation under Part 3 of the National Assistance Act 1948;

(b)        the references in paragraph (a) of each of those sub-paragraphs to the Social Services and Well-being (Wales) Act 2014 are to be read as references to Part 3 of the National Assistance Act 1948;

(c)        sub-paragraphs (2), (4) and (7) are to be ignored; and

(d)        in sub-paragraph (10), the references to sub-paragraph (4) and

paragraph (b) of sub-paragraph (4) are to be ignored.

 

(4)        In paragraph 9, the reference to sections 34 and 36 of the Social Services and Well-being (Wales) Act 2014 is to be read as a reference to section 57 of the Health and Social Care Act 2001.

 

(5)        In paragraph 12, sub-paragraph (3) is to be read as if the following were

substituted for it—

 

“(3) “Accommodation in Wales” means residential accommodation in

Wales of a type that may be provided under Part 3 of the National

Assistance Act 1948 but not of a type specified in regulations

under this paragraph.”

 

(6)        In that paragraph, sub-paragraph (7) is to be read as if the following were

substituted for it—

 

“(7) “Local authority in Wales” means a local authority in Wales for the

purposes of Part 3 of the National Assistance Act 1948.”

 

(7)        This paragraph does not affect the generality of section 120(2).

 

 

 

The Government’s Explanatory Notes to the Bill for this Act say as follows:

 

“Schedule 1 makes provision for a person ordinarily resident in England, who has care and support needs and requires residential accommodation to meet those needs, to be provided with that accommodation in another part of the UK. It also allows for such placements to be made in England for people who are ordinarily resident in Wales, or whose care and support is provided under the relevant Scottish or Northern Irish legislation. It also makes similar arrangements for cross border placements not involving England i.e. Wales-Scotland, Scotland-Northern Ireland and Northern Ireland-Wales.

 

This means that people who wish to move into residential accommodation   across borders within the UK can choose to do so.

 

The types of accommodation to which this provision applies may differ for each administration depending on the legislation of each jurisdiction. Regulations and guidance, setting out how the process will work for each administration, will be made available.

 

Schedule 1 also provides power for regulations to apply these cross-border provisions to specified types of accommodation, for instance supported living placements, and where people receive a direct payment. Such regulations would ensure that an individual who arranges cross border residential accommodation using their direct payment would remain the responsibility of their original local authority.

 

If a local authority which has made a cross border placement falls into dispute with the authority where that person is placed, and cannot resolve the question locally, the local authorities involved may request a determination of ordinary residence to be made. Such determinations will need to be made by the Secretary of State (or a person appointed by the Secretary of State) or the relevant authority in Scotland, Wales or Northern Ireland, depending on the circumstances. Details specifying the dispute resolution process will be set out in regulations and guidance.”

 

 

 

 

 

Leave a Reply

Your email address will not be published.