House of Lords portcullis
House of Lords
Session 2013 - 14
Internet Publications
Other Bills before Parliament

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

 

 

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

109

 

(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

 
 

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

110

 

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

 
 

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

111

 

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

 
 

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

112

 

(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

 
 

Care Bill [HL]
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

 
 

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

114

 

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

 
 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2013
Revised 22 October 2013