Q&A

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:

  • Disputes between different local authorities as to which has statutory responsibility to fund services for individual
  • Disputes between local authorities and CCGs about whether services should be funded by a local authority or by a CCG
  • Disputes between NHS England and either a local authority or a CCG about which body has responsibility for funding which services for an individual

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 much does the service cost?

This is a fixed-price service. The cost in any individual case will depend on the seniority of the expert and the volume of papers and complexity of the dispute.  For a dispute involving one lever arch file background papers and submissions by 2 public bodies not exceeding 15 pages, the expert’s cost will be as follows:

  • QC:  £2,500 plus VAT
  • Very Senior Junior (12 years’ Call or more):  £2,000 plus VAT
  • Senior Junior (8 to 12 years’ Call): £1,500 plus VAT
  • Junior (under 8 years’ Call):  £1,000 plus VAT

Additional fees may be incurred if the parties seek to rely on more than 1 lever arch file of documents or, in rare cases, a hearing is needed before the expert can produce a determination.

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.

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