Did the authority make the necessary arrangements for a cross-border placement?
Schedule 1 only applies if the relevant authority has made the arrangements to provide the accommodation, or (in Scotland) secured the provision of the accommodation. Making such arrangements or securing provision entails more than just facilitating a move. In other words, there is a distinction to be drawn between, on the one hand, helping or assisting a move and, on the other hand, arranging or securing the provision of the accommodation. Only where the accommodation has been arranged or (in Scotland) secured by the authority will it be a cross-border placement for the purpose of Schedule 1.
An authority might assist a person with social care needs with their move by helping them to select the accommodation, and by transporting them to visit potential new care homes. The authority might even advise on the suitability of the accommodation to meet the person’s assessed social care needs and go on to help the person move in and settle. These actions constitute information, advice or assistance and do not in themselves amount to a placement for the purposes of Schedule 1. Unless the authority makes the arrangements for accommodation (e.g. by entering into a contract with the provider) it is unlikely that the person will be considered to have been placed by the authority.
This principle will apply irrespective of whether or not the person lacks capacity to decide where to live. In contrast, if the relevant arrangements have been made on behalf of the person – for instance by an appointed decision-maker (such as a guardian, attorney or deputy) or by a private individual (such as a friend, family member or carer) – this is unlikely to be a Schedule 1 placement.
It should be noted that authorities cannot escape responsibility if they are legally obliged to make the necessary arrangements for the placement. This obligation might arise, for example, if the adult did not have capacity to make their own arrangements and did not have someone in a position to make the necessary arrangements on their behalf. In such cases the adult would normally continue to be the responsibility of the area of the authority which should have made the arrangements.
The following case studies illustrate what may or may not amount to a cross-border placement.
Case study: Rosie, aged 89
Rosie is aged 89, and lived in a care home in England. She had lived there for over 10 years and had full decision-making capacity. Rosie was a self-funder and wished to move to a care home in Wales in order to be closer to her brother. She approached the local authority in England to seek help in arranging this.
The social worker assessed her, determined that she had eligible needs for accommodation and contacted the relevant social services team in Wales to identify suitable care home accommodation in the area. The social worker took her to visit a care home in Wales which Rosie felt might be suitable, and helped Rosie to make the final decision. The social worker also assisted Rosie with the move and remained in contact with her for a short time afterwards. However, it was made clear to the care provider throughout this process that Rosie had assets over the capital limits and was making her own contract with the care provider.
In this case the authority did not make arrangements with the care provider for Rosie’s accommodation. Therefore her accommodation in Wales did not fall within Schedule 1.
Case study: Douglas, aged 45
Douglas is a 45-year-old man with significant needs as a result of a brain injury sustained in a car crash. He was living in an intensive care NHS facility in England. While he has lived in England for most of his life, he originally comes from Scotland and his parents still live there.
Douglas lacked capacity to make decisions about his living arrangements and finances or to make arrangements for his own care. There was no attorney or deputy appointed.
Douglas was not eligible for NHS continuing health care but was assessed as ready to be discharged into residential care. His parents approached the social worker attached to the NHS facility for help in moving him back home to Scotland. His parents made it clear that they were physically unable to make the necessary arrangements.
The social worker contacted the home in the new area, and also arranged visits by Douglas and his transfer. The authority in England made the necessary arrangements to provide Douglas with accommodation in Scotland and in so doing entered into a contract with the care provider in Scotland for the provision of that accommodation. The authority also arranged for the provider to send invoices to the council.
In this case it is likely that the English authority would be considered to have made a Schedule 1 cross-border placement. The English authority therefore retains responsibility for meeting the person’s needs placement and he remains ordinarily resident in England.
Property disregard rules
Where an authority arranges permanent residential care for a person, the value of the resident’s main or only home is disregarded from the assessment (calculation) of a person’s means to pay for their care costs for the first 12 weeks in a care home. This is commonly referred to as the ‘12-week property disregard’. It is intended to provide ‘breathing space’ to enable people to consider how best to fund their accommodation. For some people this may involve a decision to sell their home in order to fund their care from the proceeds. For others, it allows time for the arrangement of a deferred payment agreement (see below).
During the 12-week disregard period, if the person’s accommodation is arranged by an authority, the person remains the responsibility of that authority. However, at the end of the 12-week period the value of the person’s home is taken into account in assessing means to pay (unless it remains the home of the person’s spouse, civil partner, partner or certain other relatives). This may result in the person remaining or becoming a self-funder and, by consequence, having to enter into, or remain in, a private contract for the accommodation, rather than being provided or continuing to be provided with accommodation by their placing authority.
It should also be noted that a different approach applies in Scotland. As stated earlier in this guidance the duty to provide accommodation arises on identification of need and the person in need being ordinarily resident or, at least, physically present in the local authority’s area at the time when the need for accommodation arises. Moreover, if a person with capacity moved into a care home in Scotland under private arrangements and is self-funding, the 12-week disregard would not apply. The disregard would only be provided when the authority itself requires because of need and/or eligibility for free personal and nursing care, to provide the accommodation and accordingly requires to assess the person’s ability to pay for it.
The operation of the 12-week property disregard rules in relation to cross-border placements is not certain. In relation to placements made by English authorities, it is likely that the 12-week property disregard only applies to care homes in England. (18)
Deferred payment agreements
Broadly speaking, deferred payment agreements enable people to postpone payment of the costs of meeting their needs for care and support in a care home. Deferred payments only exist in England, Scotland and Wales.
There are two types of deferred payments. In cases where the adult’s needs are met by the local authority the agreement is one under which the charges due to the authority for meeting those needs are deferred to a later date. If the adult is meeting his or her own needs the agreement is one under which the authority lends the adult a sum with which to pay the costs of meeting their needs in a care home and under which the date of repayment of the loan is deferred until a later date. This provides people with flexibility in relation to how their care costs are met. For example, deferring payment can help people to delay the need to sell their home if that is necessary in order to pay their care costs. The individual enters into an agreement with their local authority and the sums due are repaid from their estate at the end of the agreement (e.g. the agreement may be terminated automatically on the sale of the property or when the person dies, at which point the property is usually put up for sale). The individual usually grants the local authority a charge over their property for this purpose.
The responsibility for offering and funding a deferred payment agreement is with the placing authority. If the person accepts the offer and enters into a deferred payment agreement, their ordinary residence does not change and the placing authority remains responsible for funding their care and maintaining arrangements for accommodation on their behalf.
If the person decides against having a deferred payment agreement, having been offered it, then they will have to meet the costs of their care, and the placing authority (following full discussions with those involved) might decide to terminate its contract with the care provider. If this is the case, and they later require local authority funded social care services (including the option to enter into a deferred payment agreement), for instance because their funds have fallen below the relevant financial threshold, they should approach the authority in whose area the care home is located.
Transition from children’s to adult services and cross-border placements
In each of the four UK countries, when a young person with social care needs reaches the age of 18, the duty on authorities to provide accommodation and services under children’s legislation usually ends. In some cases the young person may have ‘looked-after status’. (19) This broadly means that the child or young person is in a local authority’s care by virtue of a care order or is provided with accommodation by a local authority in the exercise of their social services functions. A young person’s ‘looked-after status’ ends when they reach 18. However, the authority which was formerly responsible for them retains ongoing duties, for example to provide advice and assistance. These duties continue after the person has reached 18, and would normally be the responsibility of the placing authority. In Northern Ireland, unless a young person has been previously looked after by a health and social care trust, when a young person with social care needs reaches the age of 18, the duty on the health and social care trust to provide accommodation and services under children’s legislation usually ends.
The position of a young person who had been placed in a different area by a local authority in England has recently been considered by the courts. In ‘R. (Cornwall) v Secretary of State for Health’ the Supreme Court held that a young person – who lacked capacity and had been placed in foster care in South Gloucestershire which had been arranged by Wiltshire Council under the Children Act 1989 – continued to be ordinarily resident in Wiltshire when he reached 18. (20) The Court set out that the underlying purpose of both children’s and adult legislation is that ‘an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it’ and it would be highly undesirable for there to be a hiatus in the legislation whereby a young person placed in a different area would become ordinarily resident in that area on their eighteenth birthday. (21)
The implications of this judgement in respect of cross-border placements are unclear. It is possible that policy in this area will need to be reviewed by each of the four UK governments in the light of this judgement.