6 May 1994

CHOICE OF ACCOMMODATION - CROSS BORDER PLACEMENTS

Summary

1. The Social Work (Scotland) Act 1968 (Choices of Accommodation) Direction 1993 made it a duty of local authorities in Scotland to arrange places for people in residential care homes and nursing homes of their choice, subject to certain conditions. Some anomalies exist with regard to the placement of people across borders within the United Kingdom, and these will be corrected by orders arising from the Deregulation Bill. This circular describes interim procedures for recovering the costs associated with cross-border placements.

Background

2. By virtue of Section 13A of the Social Work (Scotland) Act 1968, local authorities in Scotland are restricted when making arrangements with nursing homes. They may only contract with homes where those who run them are registered under the 1968 Act as amended by the Registered Establishments (Scotland) Act 1987, or with private hospitals registered under Section 12 of the Mental Health (Scotland) Act 1984, or with homes specifically exempt from registration under the Nursing Homes Registration (Scotland) Act 1938. This legislation applied only in Scotland and therefore Scottish authorities may only make arrangements with nursing homes in Scotland. However, Section 12 of the 1968 Act places no specific requirements or restrictions on registration requirements for residential homes placements; authorities in Scotland, therefore, have powers to place people in residential accommodation outside Scotland.

3. Authorities in England and Wales are also currently restricted in the placements they can make and may not make arrangements directly with either independent residential care homes or nursing homes outside England and Wales. Authorities in Scotland making placements in homes in Scotland, of people ordinarily resident in England and Wales, should be aware that Section 86 of the 1968 Act provides for financial recovery costs from the authority of ordinary residence whether that authority is in Scotland, England or Wales.

4. For the purposes of this circular the term ‘independent’ refers to individuals not employed by any local authority under a contract of service or organisations which are not owned, controlled or managed by any local authority or more than one authority.

5. Orders arising from the Deregulation Bill, currently before Parliament, will be made to correct these anomalies. It is likely to take some months, however, before such orders have

legislative effect. In the meantime it is important that current procedures do not restrict client choice.

Scottish Residents seeking Nursing Home Places in England or Wales

6. English and Welsh authorities have discretion to make arrangements for people ordinarily resident in Scotland who need nursing home care and wish to enter registered nursing homes in their areas. The Secretary of State expects Scottish authorities to liaise with authorities in England and Wales for the latter to make appropriate arrangements. The Secretary of State for Health has made it clear that authorities should co-operate fully in any such arrangements. Although the contract for care will be between the home and the English or Welsh authority, the 2 authorities concerned should agree an appropriate financial arrangement so that the English or Welsh authority can recover the cost of making the arrangements (excluding the authority’s administration costs and the charges it makes directly on the resident) from the Scottish authority.

English or Welsh Residents seeking Residential Care or Nursing Home places in Scotland

7. Scottish local authorities have discretion to arrange residential and nursing accommodation in Scotland for people who live in England. Where prospective residents request it (or where their needs appear to demand it), the Secretary of State for Scotland expects Scottish local authorities to cooperate fully with English and Welsh authorities and to make the appropriate arrangements. Again, while the contract for care will be between the home and the Scottish authority, the 2 authorities should agree an appropriate financial arrangement so that the Scottish authority can recover the cost of making the arrangements (excluding the authority’s administration costs and the charges it makes directly on the resident) as provided for in Section 86 of the 1968 Act.

Financial Responsibilities and Continuing Care Reviews

8. Authorities involved in such arrangements should agree in writing their respective responsibilities for the continuing review of the person’s care needs, and for arranging any other services or support that becomes necessary. Whatever is agreed, it would be reasonable for the authority of ordinary residence to continue to bear the full costs of the arrangements for the person on the same basis as if it had itself made the contract with the home.

Choice

9. Authorities should seek to ensure that prospective residents are given the same freedom of choice that would be available to them under the Social Work (Scotland) Act 1968 (Choice of Accommodation) Directions 1983 including the choice of more expensive accommodation where a third party is willing to pay the difference.

Placements in Northern Ireland

10. It is not currently possible for Scottish authorities to arrange to pay for private nursing home care in Northern Ireland for its residents, nor for Health and Social Services Boards in Northern Ireland to pay for residential or nursing home accommodation arranged by Scottish authorities. The Northern Ireland Office hope that an equivalent deregulation initiative will, in due course, enable local authorities to purchase residential care and nursing home places throughout the United Kingdom and Northern Ireland.

Enquiries

11. Any enquiries about this Circular should be addressed to Neil Rennick, Social Work Services Group, Room 52, James Craig Walk, Edinburgh EH1 3BA (Telephone: 0131 244 5389). Further copies of this Circular are available from Mrs Ann Hampson, at the same address.

Yours faithfully

GAVIN ANDERSON