“We tell you, the provider, what the price of care is, and you have to accept our prices!”

Social care and health providers – care homes or personal care agencies, are, in the main, regulated activity providers, providing services for a fee, as a business or as a means of delivering public benefit, in support of a charitable purpose

They are doing it from choice, not a duty.

Having chosen to take on a client as a matter of contract, a provider does or course owe him or her a duty, a duty of care, but that doesn’t mean that the provider is then forever bound to go bust, in order to honour it!

Providers admit clients to their services, it being assumed that they are all professional enough to take on only so many with such needs as they expect to be able to cope with, at a price they are actually willing to bear to take – for a commercially sensible reason.

So, as long as they are willing, however reluctantly, to continue to honour the end user’s care plan that the council has used to flesh out the agreement for services, they are the key to the council’s own performance of its own public law duties toward the client.

They evidence their ‘willingness’ by signing up to prices that are unfeasibly low.

The sector has been used by councils to cut the cost of meeting their duty, because the provder market often proves to be more amenable than central government!

If a provider agrees to cut prices, without cutting the service, the client is not actually suffering, nor are their rights to a decent care plan being ignored – so long as it was good enough to start with, that is!

The provider’s margin, its profits, though, will suffer.

And the provider’s peace of mind, in terms of cutting the cloth forever more thinly, with ongoing worries about risk management.

If a provider is able to cut the price because the council also turns a blind eye to its also watering down the service – in a way which the woolliness of an ONLY  ‘outcomes based’ care plan has cleverly allowed – then the provider gets to keep the client, the council stays lawful, in public law terms because the plan has not been changed, but the service user gets less of something, or a lower quality of something. That’s the ‘horsemeat’ issue, in the care world, or the cream being watered down to skimmed milk or even WATER! Yikes!

If providers drop  the price, though, and so do all of their competitors, the sector will have handed the council sector the very evidence it needed in order to say that the cost of care has gone down….or could go down, yet further.

So providers, individually, are the bastions of the quality of adequate social care services, if only they have the guts, individually, and not ever as a cartel, to say ‘Hell No, We Won’t Go That Low!

If councils want cuts to care plans, they must be accountable for taking the risk, and must make those cuts lawfully!!

 

With regard to negotiations – on a re-tender, or on a fees review: do councils have a right to decide what they want to pay?

Only if providers have given it to them! The law of community care services – enforced by judicial review – is that if there is only one appropriate way to meet need, then the cost is irrelevant – the client is entitled. That’s how important Parliament actually deemed social care services for adults to be!

There is no inherent room within contract law for the idea that councils can manage the price of public services simply by offering to pay what they want to pay – not in private law, if they have already made binding contracts on different terms; and not in public law, because they have statutory duties to meet eligible assessed needs, if they can’t buy at the price they want, by going back to being a provider – however much it costs.

So the way they have to try to achieve their desired savings is by making the most of a local market where providers have been naïve, unaware or desperate enough to have already signed up to provide services for whatever the council can afford to pay, or where they all concede on fees reduction, out of a sense of there being no alternative option, if they want to remain open.

Of course providers should be generous to decent partners, in times of economic hardship, for commercial reasons – but it’s time to grow up as business people, even if one is a voluntary organisation, in CASCAIDr’s view.

And that means clients and their advocates need understanding of the cost of what is provided, and the public and private law legal frameworks under which it’s been agreed to provide it – and who can enforce those rights, and what to do about that, when it’s not the provider with standing to take that issue forward.

 

The recent Care England case against Essex County Council

Section 5(1) imposed a duty on the Defendant to promote the efficient and effective operation of a market in services for meeting care and support needs.

It was common ground that such a duty did not confer specific rights on individuals (or, a fortiori, individual care home providers).

Although the duty imposed by subsection 5(1) is general in character, it was common ground that it is capable of being enforced in an appropriate case, albeit only as a general duty, rather than one conferring individual rights.

The question to be asked is this:

“Did the Defendant, when it was making the July 2016 decision, have regard to the importance of ensuring the sustainability of the market for residential and nursing care?”

“The answer to this question has to be “Yes”. This is apparent from the terms of the Pricing Report, and was confirmed by Councillor Madden’s evidence.

The July 2016 decision was a decision to increase the fees paid to care home providers (despite the absence of any contractual obligation to do so).

The Claimant’s case was that an increase in rates was a good thing from the point of view of promoting the sustainability of the market, but that the increase decided on in July 2016 was too small.

The Claimant’s case, therefore, must be that there was a certain level of increase which was necessary if the section 5 duty was to be met.

What that level was (assuming there was one), and, in particular, whether it was more or less than the level of the increases decided on in July 2016, is not a judgment which this court could easily make on an application for judicial review, and certainly not on the evidence in this case.

It does not follow that, because some increase in fees was considered appropriate, the increase had to be one which addressed in financial terms each of the sources of financial pressure experienced by care home providers. That is not a necessary consequence of having regard to the sustainability factor.

The promotion of competition is inherent in the duty to promote an efficient and effective market.”

Care England submitted that it was incumbent on the Defendant, in order to comply with its obligation to have regard to the sustainability factor, to conduct sufficient enquiries.

“There is no doubt that the Defendant did obtain information about the care home market in Essex. That is apparent from the Pricing Report, the Confidential Appendix, the Costs of Care Report and Councillor Madden’s statement.”

“I am not persuaded that the Defendant did so little to inform itself about the market that it cannot say that it had regard to the sustainability factor.”

“Councillor Madden stated that, when making the July 2016 decision, his consideration was not limited to the matters set out in the Pricing Report.

He also said that, when he made the decision, he was confident that the new fees would ensure the efficient and effective operation of the care home market, would ensure that it remained sustainable in the long term and would enable the various care homes to deliver the agreed care packages at the required quality of care.

It is obvious that, if he had considered that option 2 was insufficient for these purposes, he could have explored alternatives between option 2 and option 3.

The Claimant contended that, contrary to paragraph 4.31 of the Guidance, the Defendant did not seek and/or have “evidence that fee levels for care and support services are appropriate to provide the delivery of the agreed care packages with agreed quality of care.”

I do not accept this contention. The Defendant’s day-to-day dealings with care home providers and the recent New Framework tender exercise provided ample evidence of this kind….

The fact that seven years without fee increases under the Old Framework Agreements had, according to Councillor Madden’s evidence, resulted in few care home closures, and even fewer for financial reasons, is a potentially relevant consideration.

There was no evidence that individuals’ care and support needs were not being met as a result of the rates paid by the Defendant.

The Claimants did not provide any evidence as to the actual costs to any actual care home provider of providing residential or nursing care.

The evidence before the Court does not justify a conclusion that the only rational way of having regard to the sustainability factor was to increase fees (which the Defendant was under no contractual obligation to increase) by more than the increases decided on in the July 2016 decision.”

 

If there is any doubt left in the mind of any provider, having read this, that things can carry on as they are, without legal literacy, we would want to just give up, quite honestly.

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