Care Bill [HL]

House of Lords

Session 2013 - 14
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Care Bill [HL]

108
Care Bill [HL]
Schedule 1 — Cross-border placements

Schedules
Schedule 1
Section 39

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
5
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
10
and Well-being (Wales) Act 2013 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—
15
“(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—
20
(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.
25
      (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
30
(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—
35
(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

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Schedule 1 — Cross-border placements
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(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)—
5
(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
10
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
15
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
20
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.
25
      (7)
The regulations may specify circumstances in which, in a case within sub-
paragraph (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
30
2     (1)
Where a local authority in Wales is discharging its duty under section 21 of
the Social Services and Well-being (Wales) Act 2013 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
35
(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 2013—
40
(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;
45
(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

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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
5
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 2013 by arranging for the
provision of accommodation in Scotland—
(a)
the adult is to be treated for the purposes of that Act as ordinarily
10
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
15
accommodation in Scotland in the exercise of its power under section 22 of
the Social Services and Well-being (Wales) Act 2013—
(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
20
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
25
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.
30
      (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
35
the Social Services and Well-being (Wales) Act 2013 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
40
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
45
section 22 of the Social Services and Well-being (Wales) Act 2013—
(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

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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
5
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
10
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.
15
      (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 sub-
paragraph (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
20
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
25
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
30
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 2013 as
ordinarily resident anywhere in Wales.
      (3)
Where a local authority in Scotland is discharging its duty under a provision
35
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.
40
      (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)”,
45
(b)
in subsection (2), for “such arrangements” substitute “persons for
whom such arrangements are made”, and

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(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
      (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
10
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
15
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
20
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 2013 as ordinarily resident anywhere in
Wales.
25
      (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
30
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.
35
      (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
40
kind referred to in this paragraph.
      (6)
The regulations may specify circumstances in which, in a case within sub-
paragraph (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).
45

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Schedule 1 — Cross-border placements
113

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
5
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
10
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.
15
      (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
20
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.”
25
      (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
30
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
35
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—
40
(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

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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
5
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
10
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
15
of paragraphs 1 to 4 of Schedule 1 to the Care Act 2013 (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 2013 (cross-
20
border 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
25
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
30
(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
35
resident in an area in England, Wales or Northern Ireland (as the case may
be), 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
40
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