Legal frameworks for cross-border placements
The legal frameworks governing cross-border placements are complicated and vary between jurisdictions. These frameworks include the Care Act 2014 in England, the Social Work (Scotland) Act 1968, the Social Services and Well-being (Wales) Act 2014 (when it is implemented in April 2016) and the Health and Personal Social Services (Northern Ireland) Order 1972.
The following is intended to provide a general overview of the main legal provisions that may be relevant. Health and social care practitioners should seek appropriate legal advice for detailed queries regarding the application of the law to individual cases.
Care Act 2014 and cross-border placements
New arrangements governing cross-border placements are set out in Schedule 1 to the Care Act 2014. Chapter 21 of the statutory guidance which accompanies this Act provides guidance on cross-border placements. (5) The four UK governments (England, Scotland, Wales and Northern Ireland) have worked together to agree Schedule 1 and Chapter 21 of the statutory guidance. In addition, Wales issued its own statutory guidance on cross-border placements in 2015, (6) which will be incorporated into the statutory Code of Practice relating to Part 11 of the Social Services and Well-being (Wales) Act 2014 from April 2016.
The following provides a general overview of Schedule 1 to the Care Act.
Paragraphs 1 to 4 of the Care Act 2014
These make provision to ensure that where an authority in England, Wales, Scotland or Northern Ireland places an adult into accommodation in another of those countries, in general, responsibility for the adult is not transferred (the meaning of a placement is discussed later in this guidance).
Paragraph 5 of the Care Act 2014
If authorities fall into dispute about a cross-border placement, they must request a determination of the dispute to be made if the dispute cannot be resolved within four months. Such determinations are made by the secretary of state or the relevant ministers or department in Scotland, Wales or Northern Ireland, depending on the circumstances. The process for determining disputes is discussed later in this guidance.
Paragraph 6 of the Care Act 2014
This enables an authority to recover the costs of providing accommodation in England, Wales, Scotland or Northern Ireland from an authority in another of those countries where the latter was liable to provide the adult in question with that accommodation.
Paragraph 8 of the Care Act 2014
This ensures that the general principles of non-transfer of responsibility (under paragraphs 1 to 4 of Schedule 1) remain unaffected where the adult in question is provided with NHS accommodation.
Schedule 1 also includes regulation-making powers to apply these cross-border provisions to specified types of accommodation and to where accommodation is being paid for by direct payments. The UK government and the devolved administrations will be keeping under review the possibility of exercising the regulation-making powers, in light of the implementation of cross-border placements and policy developments across all UK administrations.
Sections 48 to 52 of the Care Act 2014 impose duties on authorities in England, Wales and Northern Ireland to meet the needs of individuals in circumstances where registered providers of care are unable to carry on because of business failure.
In the event of provider failure in Scotland, local authorities have duties under Part 2 of the Social Work (Scotland) Act 1968 as specified in the Care and Support (Cross-border Placements) (Business Failure Duties of Scottish Local Authorities) Regulations 2013 (SI 2014/2839).
Details specifying the dispute resolution process in respect of cross-border placements are set out in the Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014 (SI 2014/2843) and Department of Health, ‘Care and support statutory guidance’ (October 2014).
At present, authorities in Wales may only place adults into accommodation in Wales or in England. From April 2016, when the Social Services and Well-being (Wales) Act 2014 comes into force, authorities in Wales will be able to make cross-border placements in Scotland and Northern Ireland.
Mental capacity law and cross-border placements
The law governing decision-making for or on behalf of adults who lack decision-making capacity can also be an important aspect of cross-border placements. The relevant law currently is:
- The Mental Capacity Act 2005 (which applies in England and Wales)
- The Adults with Incapacity (Scotland) Act 2000
- The Mental Health (Northern Ireland) Order 1986 and the common law
In Northern Ireland, the draft Mental Capacity Bill, if implemented, would mean that there would be a single statute governing all decision-making in relation to the care, treatment (for a physical or mental illness) or personal welfare of a person aged 16 or over, who lacks capacity to make a specific decision. The Northern Ireland Mental Health Order 1986 would no longer apply to those aged 16 or over.
Generally, the concept of ‘ordinary residence’ is a basis for determining which authority has responsibility for meeting an adult’s social care needs (including non-residential care needs). There is no statutory definition of ordinary residence. Its meaning and the principles for determining where a person is ordinarily resident have been developed through case law involving local authorities in England and Wales.
The leading authority on the meaning of ordinary residence in a statutory context is the speech of Lord Scarman in ‘R. v London Borough of Barnet ex p Shah  2 AC 30’. This confirmed that the words ‘ordinary residence’ should be given their ordinary and natural meaning, and refers to a person’s abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of theirlife for the time being, whether of short or long duration. This is known as the ‘Shah test’.
Difficulties arise when applying the Shah test to determine the ordinary residence of an adult who lacks capacity to decide for themselves where to live. In the case of ‘R. v Waltham Forest LBC Ex p Vale’, therefore, the court adapted the Shah test and established a two-part approach for determining the ordinary residence of a person unable to make decisions about where to live. (7) In the more recent decision of ‘R. (Cornwall Council) v Secretary of State for Health’, the Supreme Court – while acknowledging the unusual facts of the case – described these approaches as ‘complimentary, common sense approaches to the application of the Shah test’ and to identifying the requisite ‘settled’ purpose. (8)
The approach for determining a person’s ordinary residence in Scotland is different in that there is no requirement to adapt the Shah test in order to establish the ordinary residence of a person who does not have the requisite capacity to voluntarily decide where to live. The position in Scotland, in broad terms, is that a physical move does not change a person’s ordinary residence unless the person's residence in a place results from a voluntary decision for settled purposes (that decision having been competently taken by the person themselves or by someone authorised to make that decision on their behalf – i.e. an attorney, guardian or appointee with appropriate powers under an intervention order granted by the court). It follows that neither of the ‘Vale’ approaches for determining the ordinary residence of adults who lack capacity to decide where to live are applicable in Scotland. For further guidance see circular number CCD 3/2015. (9)
Each of the four UK administrations has issued guidance on determining a person’s ordinary residence. These guidance documents are listed below. Practitioners are advised to always refer to these when considering a person’s ordinary residence:
- in England – Department of Health, ‘Care and support statutory guidance’ (Chapter 19) (2014)
- in Scotland – Circular No. CCD 3/2015 – ‘Guidance on the recovery of expenditure on accommodation and services under section 86 of the Social Work (Scotland) Act 1968’ (2015)
- in Wales – Circular WOC 41/93: ‘Ordinary residence – personal social services’ (to be replaced by the statutory Code of Practice relating to part 11 of the Social Services and Well-being (Wales) Act from April 2016)
- in Northern Ireland – Circular PRSC 2/96, ‘Establishing ordinary residence: guidance for purchasing’ (1996).