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Will new regulations help avoid litigation between local authorities?

Our People - Maria Nicholas
7 January, 2015

Local Government analysis: What impact will regulations for disputes relating to care and support between local authorities have on the sector?

Analysis 

Care and Support (Disputes Between Local Authorities) Regulations 2014, LNB News 27/10/2014 125

The procedures which local authorities must follow when a dispute arises between two or more authorities about the provision of a person’s care are set out.

What procedures are currently in place for disputes on care and support between local authorities?

There have not been set procedures to the same extent as the Care and Support (Disputes Between Local Authorities) Regulations 2014, SI 2014/2829 (the regulations). There has been some case law addressing the issue, for example, in Buckinghamshire County Council v Royal Borough of Kingston [2011] EWCA Civ 457, [2011] All ER (D) 200 (Apr) the Court of Appeal’s view was that consultation between local authorities prior to moving a service user to a new area would simply complicate the decision-making process, and it could lead to differences of opinion and, in turn, delay for the service user. The court suggested that if a duty of consultation was to be imposed, it should come from the government.

There have been guidance from the Department of Health (Ordinary Residence: Guidance on the identification of the ordinary residence of people in need of community care services, England, 2013) and directions (Ordinary Residence Disputes (National Assistance Act 1948) Directions 2010)). The guidance aims to try and reduce the number of disputes. However, in terms of procedures as to how to resolve disputes, it does not go into a great amount of detail. It sets out that a local authority should apply to the Secretary of State for determination, but that prior to that: 

‘[…] local authorities should endeavour to produce a jointly agreed statement of facts and other listed information as set out in direction 5 of the Ordinary Residence (National Assistance Act 1948) Directions 2010. Where there is information that local authorities are not in agreement with, these can be included separately in each local authority’s submissions. The period of time which is in dispute should also be provided.’ (p 6 of the guidance, Key Principles). 

The guidance also provides that one local authority must continue funding the individual until the dispute is resolved. Failing this procedure, a local authority can issue judicial review proceedings against another local authority.

What triggered the need for these regulations?

The absence of any detailed set procedures, which meant that matters could quickly escalate to time-consuming and expensive litigation. These regulations put down rules that each local authority has to follow, and they make clear that any argument over responsibility is not to be detrimental to the service user. 

What is the common cause of such disputes?

Most often the argument arises over ordinary residence, ie applying the test of ordinary residence–to which local authority does the responsibility for funding a person’s care fall? The matter has been historically complicated by the fact that different tests apply to different community care provisions. For example, the test in relation to the National Health Service and Community Care Act 1990, s 47 is different to that under the Mental Health Act 1983, s 117. The Care Act 2014 (CA 2014) does simplify matters somewhat, giving definitions of ordinary residence in CA 2014, s 39. With the introduction of CA 2014, we may see disputes arising in different ways, but no doubt they will continue to arise in some form or another, particularly when budgets are stretched. 

Is this likely to improve or hinder the current state of play in terms of resolving disputes?

I would say that these regulations are likely to improve the current state of play. It can be no bad thing to have a set procedure to encourage resolution and to ensure the service user is not disadvantaged in the meantime. The regulations require local authorities to:

  • share information
  • take all reasonable steps to resolve the dispute between themselves
  • engage in a constructive dialogue

The regulations are specific about what information local authorities should provide when a dispute is to be referred for resolution. 

It is also advantageous to local authorities, because clearly if they can avoid litigation this must be a good thing.

Interviewed by Nicola Laver.

This article was first published on Lexis®PSL Local Government and Lexis®Library on 19 November 2014.

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Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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