8.3 Cross Border Placements

1. Introduction

This policy sets out Lancashire County Council’s response to obligations placed on it by Section 39 of the Care Act 2014 in relation to individuals moving between different territories of the United Kingdom.

2. Policy Aim

The policy aims to:

• Support adults to receive residential care in a location that best achieves their wellbeing.
• Set out what to consider when planning and carrying out a cross-border placement.
• Set out the responsibilities of local authorities or Health and Social Care (HSC) Trusts in Northern Ireland, when placing people in care homes in different territories of the UK.

3. Principles

The four administrations of the UK (England, Scotland, Wales and Northern Ireland) have worked together to agree cross border placements and the Care and Support Statutory Guidance. Underpinning this close cooperation have been two guiding principles that those involved in making cross border residential care placements should abide by.

 3.1 A person centred process

The underlying rationale behind cross border placements is to improve the wellbeing of individuals who may benefit from a cross border residential care placement. The person should be kept informed and involved throughout the process. If such a placement is identified as a potential support during the care and planning process, staff should discuss this with you (or your representative or advocate). In making any subsequent arrangements, Lancashire County Council should -and in certain cases, must – have regard to the person’s views, wishes, feelings and beliefs. See also Wellbeing Principle policy).

3.2 Reciprocity and cooperation

The smooth functioning of cross border arrangements is in the interests of all parties – and most importantly the interests of those in need of a residential placement. All authorities are expected to co-operate fully and communicate properly. In the circumstances where individuals may need care and support from the second authority (for example in the event of unforeseen and urgent circumstances such as provider failure) the second authority may have a duty to meet such needs and there should be no delay in the discharge of such a duty (arrangements to recoup costs can always be made subsequently).

Local authorities in England making a cross border placement should be aware that in general the duties specified in the Care Act, and the statutory guidance, apply to cross border placements as they apply to placements within an authority’s own area. The guidance applies to cross border placements of any duration.

4. The Legal Framework

See also the policies on Ordinary Residence and Continuity of Care.

A cross border placement describes the placement (into a residential or nursing care home), and also applies to a placement into England which consists of shared lives scheme accommodation or supported living accommodation (for example where the second authority is in England) of a person with eligible care and support needs by one local authority into a provision located in another country of the UK (England, Wales, Scotland, Northern Ireland). Cross Border placement is dealt with in Section 39 and schedule 1 to the Care Act 2014 and in Chapter 21 of the Care and Support Statutory Guidance.

A cross border arrangement does not cover shared lives and supported-living arrangements made by a first authority in England for a placement into a second authority in Scotland, Wales or Northern Ireland.

An adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 will be treated as ordinarily resident in the area of the local authority in England or Wales which is under a duty to provide the adult with services by virtue of that section.

People’s health and wellbeing are likely to be improved when they live close to a support network of friends and family. In a small number of cases, a person’s friends and family may be located in a different country of the UK from that in which they currently live.

In developing a care and support plan, Lancashire County Council and the person concerned may conclude that the person’s wellbeing is best achieved by a placement into care home accommodation (‘a residential placement’) in a different country of the UK.  Additionally, cross border placements can occur when a person has extremely complex needs and there is no suitable provision in the country of the local authority arranging their Care and Support.

As a rule, people who are placed into a cross border placement remain ordinarily resident in the first local authority, meaning the meeting of their eligible needs remains the responsibility of that authority. This applies regardless of the placement duration. First and second authorities should work together in the interests of individuals receiving care and support through a cross border residential placement.

In some cases, Lancashire County Council will be the first authority; at other times Lancashire County Council will be the second authority – depending on whether the person concerned is being placed in or out of the Lancashire County Council area.

5. Cross Border Residential Placements

5.1 Step 1 – care and support planning

Any need for a cross-border residential care placement will be determined through the overall care and support plan prepared with you.

In planning to meet care and support needs, Lancashire County Council will establish what (if any) support networks (for example, friends and family) are in place where you currently live and find out whether a support network exists elsewhere. Alternatively, you (or your family or friends) may raise the possibility of a move to an area with a greater support network or to move to an area for other reasons.

If residential care in a different part of the UK appears to be appropriate for meeting your needs, Lancashire County Council will inform you (and/ or your family representative or advocate) of the potential availability of a cross-border placement and its suitability in meeting your needs and wishes.

If you wish to pursue a cross-border placement, Lancashire County Council will carefully weigh the pros and cons of such a move. This includes considering:

• Would the support network in the area of the proposed new placement improve (or at least maintain) your wellbeing?
• What effect might the change of location have on your wellbeing? How well are you likely to adapt to your new surroundings?
• Are you receiving any specialist health care? Will the locality of the proposed new placement allow for the satisfactory continuation of this treatment?
• Where you lack the mental capacity to decide where to live, who is your representative? The representative should be consulted and in certain cases there will be a duty to involve them.

With your permission (or the permission of your representative/advocate), Lancashire County Council will approach your friends and/or family who live in the area of the proposed new placement (and any friends and/ or family in the area of your current residence) to seek their views on the perceived benefits of the placement and any concerns they may have.

If a cross-border placement still appears to be in the interests of your wellbeing, Lancashire County Council will research the availability of providers in the proposed new placement area which are likely to meet your needs (see Wellbeing Principle policy). Lancashire County Council will conduct all necessary checks and exercise due diligence as it would with any other residential placement. The first authority may wish to make preliminary contact with the second authority to research the availability and quality of any potential providers.

Your views on suitable providers and your agreement will be sought before any final decision is made. Lancashire County Council will strive to offer a choice of placements. For more information on offering a choice of a type of accommodation, please see the Choice of Accommodation policy.

Lancashire County Council will also inform you that it will contact the local authority in the other area and ask for help with managing the placement or with discharging any other functions (e.g. care reviews). Where this would involve the sharing of information or the gathering of information by the other local authority on behalf of Lancashire County Council, you will be informed and your consent sought.

5.2 Step 2: initial liaison between the first and second authorities

Once the placement has been agreed in principle (with you and/or your representative) and a potential provider has been identified, the “first authority” should immediately contact the authority in whose area the placement will be made (the “second authority”).

The first authority should:

• Notify the second authority of its intent to make a cross-border residential care placement.
• Provide a provisional date on which it intends for your placement to begin.
• Provide the second authority with details of the proposed provider.
• Seek that authority’s views on the suitability of the residential accommodation.

The initial contact can be made by telephone but will be confirmed in writing.

The second authority has no power to ‘block’ a residential care placement into its area as the first authority contracts directly with the provider. In the event of the second authority objecting to the proposed placement, all reasonable steps will be taken by the first authority to resolve the issues concerned before making the placement.

Following the initial contact and any subsequent discussions (and provided that no obstacles to the placement are identified) the first authority should:

• Write to the second authority confirming the conclusions of the discussions, setting out a timetable of milestones up to the start of the placement.
• Inform the provider that the placement is proposed – just as with any residential placement.
• Ensure that the provider is aware that this will be a cross-border placement.
• Contact you and/or your representative to confirm that the placement can go ahead and to seek your final agreement.
• Notify any family/friends that you have given permission and/ or requested to be kept informed.
• Make all those arrangements that it would normally make in organising a residential care placement in its own area.

5.3 Step 3: arrangements for managing the placement

The first authority will retain responsibility the management and review of your placement: the first authority’s responsibilities to you are no different than they would be if you were placed with a provider in the authority’s own area.

However, the practicalities of day-to-day management of a placement potentially hundreds of miles away may create some difficulties.

The first authority may wish to make arrangements for the second authority to assist with any day-to-day functions (e.g., by helping to gather information necessary for a regular care review and passing this information to the first authority to make a decision) or authorise the exercise of functions on their behalf.

Any such arrangement will be detailed in writing and clearly state what role the second authority is to play and for how long. Clarity will also be provided on the regularity of any reporting to the first authority and any payment involved for services provided by the second authority.

5.4 Step 4: confirmation of the placement

Once the placement has been confirmed, the first authority should notify the second authority and detail in writing all of the arrangements made with the second authority for assistance with on-going placement management. The first authority should also confirm the date at which the placement will begin.

The second authority should acknowledge receipt of these documents and information and give its agreement to the arrangements in writing.

The first authority will provide you and/or your representative with contact details (including whom to contact during an emergency) for both the first and second authority. If required, it is expected that the first authority will be responsible for organising suitable transport, and for the costs of it, to take you and your belongings to their new placement.

The first authority will normally be responsible for closing off previous placements or making other necessary arrangements regarding your prior residence.

These steps will be conducted in a timely manner; the time taken should be proportionate to the circumstances.

6. Issues that can Arise once the Placement has Begun

6.1 If you require a stay in NHS accommodation

If you need to go into NHS accommodation for any period, then this will not change the situation regarding who is responsible for your care.

If, while you are in NHS accommodation, a ‘retention’ fee is payable to the care provider to ensure your place is secured, this will be the responsibility of the first authority.

6.2. If you require NHS Funded Nursing Care

If you require NHS funded nursing care, the arrangements for delivering this should be discussed between the first authority, the NHS body delivering the care, the NHS body funding the care and the care provider prior to the placement commencing.

In the event of cross-border placements between England and Scotland or between England and Northern Ireland (in either direction) the health service of the country of the first authority will be responsible for nursing costs. (In England therefore, your responsible Integrated Care Board (ICB) will pay the costs.) The first authority should inform the relevant ICB of the arrangements being made and seek the ICB’s formal consent sought. It is not expected that the ICB would withhold consent – any change in costs associated with the care would be likely to be negligible.

In the event of a cross-border placement between England and Wales (in either direction), the second authority’s health service will be responsible for the costs of NHS nursing care.

 6.3 If your care needs change during the placement

If your care and support needs change during the course of the placement, these changes should be picked up during the review of the care and support plan and amended as needed.

Responsibility to review and amend your care and support plan remains with the first authority, although it may have agreed with the second authority that the latter will assist it in certain ways. In this case, clarity and communication will be important as to each authority’s role.

7. Complaints

If the complaint relates to the care provider, it should first be made to the provider and dealt with according to their complaints process as governed by relevant legislation (this will normally be the legislation of the country into which you have been placed).

If the complaint relates to NHS care, it should be dealt with according to the legislation governing such complaints in the relevant territory of the UK.

Complaints regarding Lancashire County Council – whether it is acting as the first or second authority – should be dealt with by recourse to the Complaints Procedure . It is important to remember that the council acting as the first authority retains responsibility for your care and support plan throughout the period of the placement. As such, complaints should be handled by the first authority.

8. Disputes between authorities

A spirit of cooperation and reciprocity backed up by good communication between authorities should avoid the need for dispute resolution. A dispute is most likely to occur because of lack of communication or following a communication breakdown/misunderstanding between first and second authority during the process of arranging the placement.

The Regulations under Schedule 1 state:

• a dispute must not be allowed to prevent, interrupt, delay or otherwise adversely affect the meeting of your care and support needs.
• the authority in whose area you are living at the date the dispute arises is the lead authority for the purposes of duties relating to coordination and management of the dispute.

Before a dispute is referred to the Department of Health and Social Care, the lead authority must:

• co-ordinate the discharge of duties by the authorities in dispute.
• take steps to obtain relevant information from those authorities.
• disclose relevant information to those authorities.

Authorities in dispute must:

• take all reasonable steps to resolve the dispute between themselves.
• co-operate with each other in the discharge of their duties.

Each authority in dispute must:

• engage in constructive dialogue with other authorities to bring about a speedy resolution.
• comply with any reasonable request made by the lead authority to supply information.

8.1 Referring a dispute

When a dispute is referred, the following must be provided:

• a letter signed by the lead authority stating that the dispute is being referred and identifying the provision of the Act which the dispute is about.
• a statement of the facts.
• copies of related correspondence.

The statement of facts must include:

• details of the needs of the person 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 in relation to the person.
• an explanation of the nature of the dispute.
• details of the person’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.
• where the person’s mental capacity is relevant, relevant supporting information.

The authorities in dispute may make legal submissions and if they do, they must send a copy to the other authorities in dispute and provide evidence that they have done so.

9. Provider Failure

In the event that a provider fails, and Lancashire County Council has made cross-border arrangements with that provider, the second authority has duties to ensure those needs continue to be met for so long as that authority considers it necessary.

In such cases, close communication and cooperation between the first and second authority throughout will be important. In the event of provider failure in Scotland and Wales, the authority hosting the placement can recover costs from the authority that made or funded the arrangements.

See the Managing Provider Failure policy.

10. Further Reading

10.1 Relevant chapters

Care and Support Planning

Ordinary Residence

Information Sharing and Confidentiality

10.2 Relevant information

Chapter 21, Cross Border Placements, Care and Support Statutory Guidance (Department of Health and Social Care)

See also Cross Border Placements Case Studies, Resources