This resource is a dispute resolution service designed to assist public bodies in resolving disputes about which public body should meet the cost of providing health, social care and education services to a patient or service user.
‘Who Pays?’ is a dispute resolution service designed to assist public bodies in resolving disputes about which public body should meet the cost of providing health, social care and education services to a patient or service user.
Public bodies delivering health, social care and education services have duties to fund services for individuals for who they have statutory responsibilities but can act unlawfully if they fund services for individuals where they have no vires to do so.
Identifying “Who Pays” for expensive health social care and education services for an individual can lead to protracted, legally complex and expensive disputes between public bodies. At present, there can often by no authoritative, neutral process to adjudicate in such disputes. Such disputes can be deeply destructive of vitally important working relationships between CCGs and between CCGs and local authorities.
This service offers a fast, cost effective and legally authoritative means of resolving disagreements between public bodies about which public body should fund services for a specific patient or service user.
The benefits of this service for public bodies and those providing legal advice to public bodies include:
The dispute resolution service can lead to fast and authoritative answers to dispute between:
To schedule a phone call to discuss a referral, please email Richard Bolton, rbolton@landmarkchambers.co.uk.
The Landmark Chambers ‘Who Pays?’ Expert Determination Service is intended to assist local authorities, NHS bodies and patients/service users achieve clarity about which public body is required to fund healthcare, social care and educational services for an individual who has eligible needs. We have divided the process into seven stages as follows:
Stage 1: Initial Inquiry
The Landmark Practice Managers are approached by an NHS body or a local authority or someone acting on their behalf to seek assistance with resolving a question about which public body is required to fund healthcare, social care or educational services for a particular individual who has eligible needs. The Practice Manager will send out a letter to the proposed parties explaining the nature of the service, who is available to act as an expert, the timetable and the costs.
The parties can receive a copy of the standard contract on request from Richard Bolton rbolton@landmarkchambers.co.uk. A separate letter will be sent by the Practice Manager to the public bodies for forwarding to the individual service user or their family to enable them to take part in the proposed process.
Stage 2: The parties sign the referral agreement and nominate the expert
The parties and the expert sign the Expert Determination Agreement and the timetable for the process commences. The Practice Manager will send all parties and the Service User or their representative a copy of the Expert Determination Agreement. The Practice Manager will also send out a letter explaining what happens next and inviting evidence submissions within four weeks.
The Practice Manager will also send out a letter to the Service User or their family to explain the process and to invite them to send any representations or evidence within four weeks.
Stage 3: Evidence Submissions
Within four weeks, the parties send the expert, the other party and the service user of their family a single lever arch file of copy documents (not originals) to a maximum amount of 300 pages (double sided copied) which constitute the evidence and representations to support their case. There may also be evidence from the individual or their family, but the form of that material is for the individual service user or the family. A party is entitled to submit additional evidence but this will result in an additional fee payable by that party (see below).
Stage 4: Response
The parties and the service user or their family have 14 days to respond to the material provided by the other party.
Stage 5: Initial Review by expert
Within the next 14 days, the expert conducts an initial review of the papers and either:
At this point the expert also decides whether there is sufficient material to reach a conclusion on paper or, exceptionally, that he or she considers that it is necessary to hold an oral hearing to hear submissions or hear evidence on disputed facts (in which case the arrangements will need to be made for that hearing).
Stage 6: Determination writing
The expert considers the papers, identifies the relevant legal framework, resolves factual issues (usually on the papers) and writes the determination (with a target of doing so within a further two weeks). The expert can reach such conclusions as appear appropriate to the expert from the papers and can resolve factual conflicts if, on the balance of probabilities, the papers suggest any facts are more likely than not to be correct.
Stage 7: End stages
The Determination is provided to the parties and the Practice Manager sends out fee notes of sums owing to the expert (with no separate fee charted by chambers) as a result of the process.
What is Landmark’s ‘Who Pays’ Expert Dispute Resolution Service?
A swift, economical and expert service to assist public bodies resolve disputes between them about which public body should meet the cost of providing health or social care services to a patient or service user. It is focused on resolving the “who pays” question – for local authorities and NHS bodies.
Which public bodies can make use of the service?
This service is likely to be useful to local authorities, clinical commissioning groups, NHS England. It may also be useful where local authorities or CCGs have disputes with patients, service users or their representatives.
What types of disputes can be referred to the service?
The following are the main types of disputes can be referred for resolution:
What statutory schemes are covered by the service?
The service covers individuals who have a right to services under the Care Act 2014, the National Health Service Act 2006, after-care services under section 117 of the Mental Health Act 1983 and disputes about which statutory regime applies to individual, including disputes about entitlement to NHS Continuing Healthcare.
How does the dispute resolution service work?
The public bodies who have been unable to agree between themselves or with a service user which public body is responsible for funding which service for an individual jointly appoint a barrister from Landmark Chambers to act as an expert to provide a report identifying which public body should be responsible for funding which services. The precise procedure to be followed is set out in the procedure document which can be accessed here. The parties sign an expert determination agreement which defines the terms upon which the expert is instructed. An example of an agreement can be accessed here.
Who pays the service?
The public bodies agree between themselves in advance whether they wish to share the costs of the service equally or whether the expert shall direct which public body shall pay the costs of the service.
How long does it take to produce a report?
A timescale is agreed at the point of instruction, but should typically be less than 2 months from signing the contract to the receipt of the determination.
Are there hearings or is this a paper-based process?
This is intended to operate as a paper-only service. A hearing to resolve disputed facts or questions of law is not usually part of the initial service but may be needed in a very small number of cases.
Will the expert’s report constitute a binding decision?
The public bodies must agree in advance whether the expert’s report will be binding or advisory.
Will the report remain confidential?
The process will be confidential to the parties but has to be disclosed to the service user.
Can the expert be called up on to advise either public body at a later stage?
No. Once the expert has been instructed to produce his or her report, that barrister cannot be instructed by either party at a later stage in relation to the dispute.
What happens if there are disputes of fact between the public bodies?
The expert is entitled to make findings of fact on the papers as well as producing a report concerning the legal consequences of agreed facts. However, in the unusual case where the outcome depends on the resolution of facts which the expert cannot ascertain from the papers provided, the report will identify those facts and explain the consequences for the decision of the resolution of those facts. The public bodies will then be invited to consider an appropriate process seeking to resolve the facts.
Can the service constitute a dispute resolution procedure for the purposes of the National Framework on NHS Continuing Healthcare and NHS Funded Nursing Care?
Yes.
Does the Service constitute an alternative to a reference to the Secretary of State under section 40 of the Care Act 2014?
Yes. This service is an alternative to local authorities making reference to the Secretary of State. The section 40 procedure is an option for local authorities. Using this service should result in a far quicker outcome for local authorities but the Secretary of State does not charge fees this dispute resolution process.
Will the expert report make findings or recommendations concerning reimbursement of any public body which has funded services to date?
Yes. The report will explain whether any payment should be made by one public body to the other to meet any costs which have been incurred to date to provide services to an individual. If the report is binding, the terms of the report will require to be complied with by the referring public bodies. If the report is advisory, the report will recommend payments to be made but those recommendations will not be binding.
Can be service be used to resolve disputes between public bodies and service users or their families?
Yes. The Service can be used to produce reports where there is a dispute between a public body and a service user, and thus can be offered as an alternative to judicial review proceedings. In such case, the fees for the service are required to be met by the public body.
Who should a public body contact to discuss a referral?
The scheme is managed by the Landmark Practice Managers. Key contacts are Richard Bolton and Ben Connor who can be contacted on 0207 430 1221.
What arrangements exist for anyone who wants to complain about the service provided by an expert?
Barristers from Landmark Chambers who are appointed as experts are unable provide legal advice to any party to an expert determination. Their role is to act as an impartial expert to the best of their ability. Any party which has a complaint about the conduct of the barrister in fulfilling this role is entitled to follow the Landmark Chambers complaint policy which can be accessed via the Chambers website or by contacting the Practice Managers.
