Disputes between authorities relating to cross-border placements
It is important to note that, wherever possible, disputes should be avoided. The likelihood of a dispute should be minimised if the authorities work closely together. Disputes are most likely due to poor communication or a lack of communication altogether.
But where a dispute does arise it is important to emphasise that any dispute must not prevent, interrupt, delay or otherwise adversely affect the provision of services to the individual
The four UK governments have agreed specific dispute resolution processes for cross-border placements. These are set out in the Care and Support (Cross-border Placements and Business Failure: Temporary Duty) (Dispute Resolution) Regulations 2014 (SI 2014/2843) (the 2014 Regulations). The following is a summary of those regulations.
The dispute resolution process applies to any dispute about the application of paragraphs 1 to 4 of Schedule 1. This could include disputes arising in connection with situations where arrangements for cross-border accommodation have been made and there is a question about whether a particular authority had a duty to make those arrangements.
The following is a summary of paragraphs 1 to 4 of Schedule 1 and the 2014 Regulations.
Who considers disputes?
The relevant department/ministers of the UK government and of the devolved administrations in Scotland, Wales and Northern Ireland have responsibility for determining cross-border disputes. The following have legal responsibility for determining disputes (these are referred to as the ‘responsible person’):
- the secretary of state (in relation to a dispute involving a local authority in England where the person is living in England)
- the Welsh ministers (in relation to a dispute involving a local authority in Wales where the person is living in Wales)
- the Scottish ministers (in relation to a dispute involving a local authority in Scotland) where the person is living in Scotland) and
- the Department of Health, Social Services and Public Safety in Northern Ireland (in relation to a dispute involving a health and social care trust where the person is living in Northern Ireland).
Thus, legal responsibility for determining a dispute will generally depend on which country the person is living in when the dispute is referred. If the person is living in the same country as that in which an authority which is party to a dispute is situated, the dispute will be determined by the relevant minister or department for that authority. For example, if the person has been placed by a Scottish local authority into a care home in England, and the dispute arises after the person has moved, the dispute should be referred to the secretary of state (in England).
In all other cases, the relevant department/ministers for the authorities who are in dispute will agree between themselves who is to determine the dispute. This will arise where the person is not living in the same country as an authority which is subject to the dispute.
The process for determining disputes
Before a dispute is referred
The authorities concerned must take a number of steps before referring a dispute. In the statutory guidance which accompanies the Care Act 2014, the authority which has accepted responsibility is referred to as ‘the lead authority’.
The lead authority must:
- identify all the authorities which are parties to the dispute as soon as reasonably practicable after the date on which the dispute arises
- coordinate discussions between those authorities in an attempt to resolve the dispute
- 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
- provide to the adult or carer to whom the dispute relates, or to the relevant person’s representatives, such information as appears to it to be appropriate about progress in resolving the dispute.
The 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 nominate, as soon as reasonably practicable after the date on which the dispute arises, an individual who will act as the point of contact within that authority in relation to the dispute, and provide the other authorities in dispute with the contact details of that individual
- each engage in constructive dialogue with other authorities to bring about a speedy resolution
- each comply, without delay, with any reasonable request made by the lead authority to supply information
- each keep the other authorities in dispute informed of information which appears to it to be relevant to the determination of the dispute.
When a dispute is referred
When a dispute is referred, the following must be provided to the responsible person:
- a letter signed by the lead authority stating that the dispute is being referred and identifying the provision of the Care Act which the dispute is about
- a statement of the facts
- copies of relevant 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 by the authorities in dispute 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
- a statement that the authorities in dispute agree that the person has, or lacks, capacity – or information relevant to the question of whether the adult has or lacks capacity
- any other relevant information.
The authorities in dispute may make legal submissions within 14 days of sending the referral, 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 (i.e. minister or Northern Ireland department) to whom the dispute has been referred must:
- consult other relevant responsible persons (i.e. ministers or NI department) in determining the dispute
- notify those responsible persons of their determination.
If the responsible person (i.e. minister or Northern Ireland department) determining the dispute asks any of the authorities in dispute to provide further information, that authority must comply without delay.