Contact: Richard Ellis, ext 7284 email: [email protected]

Kevin Gardner ext 7381 [email protected]

1. Summary

The following decision is sought:

1.1 That the entering into of a legal agreement with Hampshire Primary Care Trust clarifying the terms of the transfer of approximately £18.5m of funds to support services for persons with learning disabilities is approved.

2. Reason

2.1 The completion of the proposed legal agreement will ensure greater certainty in the timing and payment of funds necessary to support services for users. It should be emphasised that this does not constitute any new or additional funds, but rather an update and clarification of the terms of arrangements that have developed in recent years.

3. Other Options Considered and Rejected

3.1 Carrying on with existing arrangements is not considered an option as, due to the passing of time since the original funding transfers were agreed in the mid-1990s, the making of supplementary arrangements for the transfer of further funds, and successive reorganisations within the Health Service, some confusion has arisen as to the details of the arrangements for transfer of funds. The proposed legal agreement provides greater clarity in these arrangements and better protection of the interests of the Council and service users.

4. Conflicts of Interest Declared by the Decision Maker or Other Executive Member Consulted

None.

5. Dispensation granted by the Standards Committee

None.

6. Reason(s) for the Matter being dealt with if Urgent

Not Applicable

Approved by: ..................................... Date: ...................................

Councillor Felicity Hindson
Executive Member for Adult Social Care

Contact: Richard Ellis, ext 7284 email: [email protected]

Kevin Gardner ext 7381 [email protected]

1. Summary

1.1 This report invites the Executive Member for Adult Social care to authorise the entering into of a legal agreement with Hampshire Primary Care Trust clarifying the terms on which approximately £18.5m of funds are transferred to the County Council to support services for persons with learning disabilities. It should be emphasised that this does not constitute any new or additional funds, but rather an update and clarification of the terms of arrangements that have developed in recent years.

2. Recommendation

2.1 It is recommended that the entering into of a legal agreement with Hampshire Primary Care Trust clarifying the terms of transfer of approximately £18.5m of funds to support services for persons with learning disabilities is approved.

3. Background

3.1 In the mid-1990s, the County Council's Social Services Department worked with the then Health Authorities in Hampshire on implementation of a joint strategy for people with learning disabilities. An important component of the strategy was the transfer of responsibility from Health for the purchase of care for people with learning disabilities discharged from long stay health care institutions. The Council assumed responsibility for the assessment of need of such persons, through the care management process, and for the purchase of appropriate care - in most cases community based residential care.

3.2 The Council's acceptance of this transfer of responsibility was subject to there being an appropriate transfer of resources from Health. This was in keeping with Health Service guidance at the time which provided that, in respect of people being discharged from long stay Health institutions, the Health Service was responsible for negotiating arrangements with local authorities, including transfer of resources to assist the local authority meeting the community care needs of such people and of their successors who may otherwise have entered the institution. Legal agreements for the transfer of such funds were completed at the time with the relevant Health Authorities.

3.3 In the period since then, there have been a number of instances where further transfers of resources have been agreed at a local level. The passing of time, the moving on of the people concerned in those arrangements, and reorganisations within Health have contributed to some confusion arising in some places as to the terms on which the transfer of funds should be made. The total value of funds subject to transfer arrangements, in year 2005 - 06, is approximately £18.5m.

3.4 With the creation of the new Hampshire PCT in October 2006, discussions have taken place between the Council and the PCT to update and clarify these arrangements. These discussions have now reached a stage where the principles have been agreed, and a new legal agreement can therefore be entered into.

4. Summary of Key Terms

4.1 An issue for the Council has been that the annual inflationary rises that it is subject to, in its contractual arrangements with providers of care, should be reflected in the annual increases in funds received from Health. It has been agreed that such inflationary rises will be funded by Health, subject to the Council being under a duty to achieve efficiency savings wherever practicable, and not to agree cost increases with its providers that is anything other than best value in the use of public funds.

4.2 A key principle of the original guidance was that the funds transferred should be sufficient to assist in meeting not only the needs of the people discharged from long stay institutions, but also the needs of "successor generations" i.e. those who would otherwise have entered the long stay institution had it remained open. While this was reflected in the original agreements, issues have arisen where a person in receipt of services dies or otherwise ceases to be in need of support, and the Council substitutes another service user. In such circumstances, Health requires evidence that the needs of the substitute user are those of a genuine "successor". A process has been agreed whereby the Council may give notice of substitution, which can be accepted or challenged by Health. Where it is challenged, an independent assessment will determine whether the substitute has a "relevant service need" i.e. a need of equivalent type, severity and scale as the original user.

4.3 It has been agreed that payment of the total sum due (approximately £18.5m) will be made annually, at the commencement of the financial year. This will ensure that interest is received on these funds, which is factored in to cover the costs of care management.

4.4 Issues have arisen whereby Health have said that they are unable to make payment in certain cases due to insufficient supporting evidence being provided to satisfy audit purposes. The proposed agreement clarifies the Council's responsibilities in this regard. The Council will be required to provide an annual voucher, certified by the County Treasurer, confirming that the transferred funds have been spent on authorised purposes. The Council is also required to maintain records of expenditure which are open to inspection by Health, and provide quarterly reconciliation reports, clarifying the users in receipt of funded services and the services received. It is important that the Adult Services Department puts arrangements in place to honour these responsibilities, to ensure that future difficulties do not arise in recovering payment.

4.5 It has been clarified that the agreement can only be terminated if Health are able to make alternative arrangements for the continued provision of care services to the users affected.

4.6 Should Hampshire PCT ever be replaced by a successor body, it would be normal practice for the legislation by which the successor body is created to specifically provide for the transfer of existing contracts and liabilities to the successor body. This is precisely how liabilities under the existing agreements have been transferred from the old health authorities to the bodies that succeeded them.

5. Impact Assessments

5.1 The completion of the agreement will ensure greater certainty and clarity in the funding of services for users, many of whom have a disability.

6. Conclusion

6.1 The completion of the proposed agreement will afford better protection for the interests of the Council in recovering payment of funds due to it that are necessary to underpin vital services to users.