Archive for Care and Health Law Topics

The CMA and Care UK dispute over top-ups for residents entitled to Continuing NHS Healthcare

There’s been some pretty poor reporting, in the specialist and general press and online, of the outcome of the dispute between the Competition and Markets Authority and Care UK, a large care home company, over fees charged to residents entitled to Continuing NHS Healthcare, a funding status that obliges the NHS to pay for the care provided.

Care UK’s agreement to pay over £1m back to clients has been conveyed as  being all about additional payments, paid by individuals, on top of the NHS’s continuing health care fees (sometimes called top-ups). The majority of those affected will receive a pay-out of over £1,000 with some receiving substantially more, apparently.

The CMA is reported as contending that Care UK had broken consumer protection law by charging the additional fee because it was unfair and contravened NHS rules, which “require that Continuing Healthcare residents must not be required to pay towards their essential care.”

We think that the maths repay some consideration. £1m divided by 160 residents is £6250 each, on average. If these additional payments were £300 a week, and some residents are getting only £1000, then that means that these residents paid these top-ups for between 3–4 weeks, and 20 weeks – 5 months – but then stopped – which doesn’t make sense, because the fee would be ongoing for the duration of the stay.

The reports say the agreement came after the CMA launched legal action against Care UK in February 2019. But when one looks back to see what that was reported to be about, one finds that THAT dispute was about Care UK’s UPFRONT ‘admin’ fees, alleged to be breaking consumer protection law as a substantial non-refundable administration fee from residents for which they received no services or products. In that context, 1600 residents were affected, not 160, and some £3m was at stake. That represents £1875 each on average – but once again, a very small sum, equivalent to only 6 weeks of such supposedly ongoing fees?

It’s worth noting too, that when first embroiled in that dispute Care UK was saying that it was doing initial care assessments by way of example as to what the fees were for: we are guessing that some of the residents charged may have found the evidenced opinions in those assessments positively useful in going on to GET free CHC status in the first place.

When one appreciates the press release is short on detail, the reporting that 160 are now being paid back £1000 on average may mean for THAT type of upfront or admin fee, not a top-up.Each would begetting back £625 each, which would make much more sense as an upfront golden hello to a premium home that was giving them a great assessment which would help them get CHC, rather than an ongoing weekly top up.

Care UK’s stance

On the topic of additional payments, despite agreeing to pay these back, the Care UK spokesperson has now said: “The CMA’s action to stop us offering families the option of placing their loved ones in a premium home by making a personal contribution in addition to NHS funding is a backwards step in terms of consumer choice.

CASCAIDr can only agree – for reasons set out below.But we do not think that the company  should have wimped out on this footing: “We agreed to settle with the CMA to enable us to focus on the more pressing challenges facing the sector at present.” There was a much better reason, which we explain in our conclusion, below.

The spokesperson said this:

“Over the period we offered this option, Clinical Commissioning Groups (CCGs) were supportive of having access to additional homes, [ie ones that would not take the NHS rates offered, because uneconomic if one is in business to make a profit, we would add] and the small number of families involved, welcomed the additional choice it provided. The enhanced fee covered a range of benefits enjoyed by residents in a premium setting, including spacious en-suite rooms, on-site facilities such as cafes and cinemas, a wide range of lifestyle activities and a premium dining experience. These families always had the option of more modest, fully funded homes as an alternative.”

“In light of unclear NHS guidance and the widespread nature of these fees across the sector, we reject the CMA’s suggestion that they were unfair… As these fees are common practice with a great many other care home providers, we are at a loss to understand why the CMA has singled out Care UK.”

The so-called rules – from the 2018 Framework on NHS Continuing Healthcare

Here are the ‘rules’ in question – they are not laws, please note. They form part of government guidance about government policy, and as described, they are unclear, and easy to criticise, from a legally literate perspective!

The fact that the guidance assumes that people on CHC will have a care plan that is translated into a contract with the care home, that actually takes responsibility for what it is that the fee, already pre-agreed through procurement exercises, will actually cover, is particularly astonishing, for those who know anything about the way the sector works.

From a cursory reading of this ‘Guidance’ one would think that all such care homes all over the country are all signed up to the so-called nationwide NHS Continuing Healthcare E[lectronic] contract, but how wrong one would be!

Care homes have costing models based on their HQ costs and investment in LAND – they do not charge an individuated fee based on exactly what the person gets.

And they cannot be told how to operate; they are private businesses, whose rates and operating principles are either acceptable willing providers for the commissioning CCG’s perspective, or not.

We feel the urge for an FOI exercise, coming on, here!

Another part of the wording deserving of astute scrutiny (and then scorn!) is the point at which it suggests ensuring that any such ‘wants’ being separately contracted for should be met by ‘different’ staff to those delivering the services commissioned by the NHS! Clearly the authors have never worked in a care home.

Often, getting on to a CCG’s provider list will have required care homes to have signed up to arbitrarily low rates for whatever the needs of any CCG client then pushed through their doors might turn out to BE. Whilst that keeps the home’s beds filled most of the time, the CCGs will also need more suitable beds than they could ever get from the providers on that framework, to meet their own duties to all those qualifying for CHC!

So not only is it the exception rather than the rule that one can work out, from someone’s status as a CHC patient, or their decision support tool scores, OR their care plans (if they even have one of those), what the contractual obligation of the care home provider actually is by way of care inputs – it is also inevitable that these additional payments will always – in fact – BE “allowed”.  They are best seen as a collusive bridge that suit both parties to the main CHC contract – the care homes AND the NHS commissioners, in light of inadequate funding for the real cost of care, it is suggested, and a fact of life.

So now for a close look at these ‘rules’:

270. The NHS care package provided should meet the individual’s health and associated social care needs as identified in their care plan. The care plan should set out the services to be funded and/or provided by the NHS…

271. The decision to purchase additional private care services should always be a voluntary one for the individual. Providers should not require the individual to purchase additional private care services as a condition of providing, or continuing to provide, NHS-funded services to them. The CCG should make this clear when negotiating terms and conditions with the provider.

272. Where an individual advises that they wish to purchase additional private care or services, CCGs should discuss the matter with the individual to seek to identify the reasons for this. If the individual advises that they have concerns that the existing care package is not sufficient or not appropriate to meet their needs, CCGs should offer to review the care package in order to identify whether a different package would more appropriately meet the individual’s assessed needs.

274. There should be as clear a separation as possible between NHS and private care. In the Additional Private Care guidance, ‘separation’ is described as usually requiring the privately-funded care to take place in a different location and at a different time to the NHS-funded care. However, many individuals eligible for NHS Continuing Healthcare have limitations on their ability to leave their home due to their health needs. … For example, where a person receives 24-hour NHS-funded support by way of a care home package it may not be possible for privately-funded care to be provided at a time that is separate to NHS-funded care. However, in such circumstances, the private care should be delivered by different staff to those involved in delivering the NHS funded care at the time it takes place and they should not be delivering treatment, care or support identified within the care plan as being part of the NHS-funded service.

275. Based on the above principles, examples of additional private services which might be purchased separately include hairdressing, aromatherapy, beauty treatments and entertainment services.

Higher cost care packages

279. The funding provided by CCGs in NHS Continuing Healthcare packages should be sufficient to meet the needs identified in the care plan, based on the CCG’s knowledge of the costs of services for the relevant needs in the locality where they are to be provided.

280. Where an individual indicates a preference for higher-cost accommodation or services, the CCG should liaise with the individual to identify the reasons for their preference.

281. Where an individual’s indicated preference is identified by the CCG to be necessary to meet their assessed needs, the CCG should meet this as part of the NHS Continuing Healthcare package. For example, an individual with challenging behaviour may need to have a larger room because it is identified that the behaviour is linked to feeling confined, or it may be agreed that the individual requires a care provider with specialist skills rather than a generic care provider.

282. Where an individual’s indicated preference is not an assessed need, it is subject to the criteria outlined in the Additional Private Care guidance above. An example of this might be where an individual would like a larger room which is not related to their needs.

283. In some circumstances, individuals become eligible for NHS Continuing Healthcare when they are already resident in care home accommodation for which the fees are higher than the relevant CCG would usually meet for an individual with their needs. This may be where the individual was previously funding their own care or where they were previously funded by a local authority and a third party had contributed to the fees payable. This is permissible under legislation governing local authority provision but is not permissible under NHS legislation. For this reason, there are some circumstances where a CCG may propose a move to different accommodation or a change in care provision.

284. In such situations, CCGs should consider if there are reasons why they should meet the full cost of the existing care package, notwithstanding that it is at a higher rate. This could include that the frailty, mental health needs or other relevant needs of the individual mean that a move to other accommodation could involve significant risk to their health and well-being.

285. Where an individual in an existing out of area placement becomes eligible for NHS Continuing Healthcare the care package may be of a higher cost than the responsible CCG would usually fund for the person’s needs. The CCG should consider whether the cost is reasonable, taking into account the market rates in the locality of the placement. They should also consider whether there are other circumstances that make it reasonable to fund the higher rate. Examples might include: where the location of the placement is close to family members who play an active role in the life of the individual, or where the individual has lived there for many years and it would be significantly detrimental to the individual to move them.

286. CCGs should deal with the above situations with sensitivity and in close liaison with the individuals affected and, where appropriate, their families, the existing service provider and the local authority. Where a CCG is considering moving such an individual because there is no justification for funding a higher cost placement, any decisions on moves to other accommodation or changes in care provider should be taken in full consultation with the individual concerned and put in writing with reasons given.

287. Where the decision is made not to fund the higher cost package, the new accommodation and/or services should reflect the individual’s assessed needs as identified in their care plan. This should take into account personal needs such as proximity to family members. Individuals should be provided with a reasonable choice of providers wherever possible.

289. Where an individual becomes eligible for NHS Continuing Healthcare and has an existing high-cost care package, CCGs should consider funding the full cost of the existing higher-cost package until a decision is made on whether to meet the higher cost package on an ongoing basis or to arrange an alternative placement.

CASCAIDr’s commentary

This revised section on top-ups is actually less clear than the previous version, that additional payments will always HAVE to be permissible, as long as the item or notion driving that additional cost is not part and parcel of the assessed needs, nor part of the NHS contract for what it has bought.

The guidance fails to grapple openly with an obvious truth – there is no way that any person in the NHS can prevent a person from spending their own money on additional care, if they want some.

Therevision gets bogged down in trying to distinguish personal wants, which may be funded through a person’s paying for them, from wants that are inextricably bound up with the placement package that is required to cover the person’s needs, which could be paid for by the NHS as part of its fee, but where recoupment of the person’s extra contribution would be embarrassing and problematic to the NHS: it would look like NHS was charging for care.

It tries to suggest that ‘beauty’ treatments are on the acceptable side of the extras line (clearly these aren’t ever going to be a response to assessed needs) but that ‘higher cost’ homes are not permissibly funded through top-ups, when what it needed to say was ‘not permissible through top-ups that are funded directly by the NHS in full, and then recouped’.

Who knows whether this wording was deliberate and thus disingenuous, or just unfortunate?

It leaves the impression that a self-funder who wants to keep hold of their lifestyle choice of a larger room, nicer furniture, more facilities and higher staff ratios than the barely adequate minimum, after qualifying for CHC, cannot expect to stay where they chose to go before qualifying, and must therefore be moved on, for its own sake, when qualifying for CHC.

There’s nothing wrong with a care home accepting an ex-private funder on a CCG standard rate for standard care for a CHC person – with any non-needs related extras or shortfall being set as a percentage, or a chunk, and being met by relatives or the client, in a clearly separate contract, to get the home’s income back up to its headline rate.

It may be harder for a person and a care home to agree how to express that willingness, in advance, but not impossible, not with proper legal advice!

It has been clearly allowed for regarding s117 Mental Health Act aftercare arrangements – another group of fully funded clients, it should be noted.  

The trouble is, of course, it would mean that the NHS contract for CHC would have to identify what standard care is, for any particular level or profile of need, and until we found South Warwickshire CCG’s policy below, we would have bet money on the position that no NHS care commissioner or care planner in the history of CHC has ever wanted to have to do that

But here is South Warwickshire CCG’s 2019 policy, which is a model of its type, in our view, from a legally literate perspective.

Where an individual is funding additional non-healthcare or healthcare services, the associated costs to the individual must be explicitly stated and set out in a separate agreement which should be provided to the CCG to ensure the avoidance of duplicate costs, and for record keeping purposes.

If the individual chooses to hold a contract for the provision of additional services, it should be clear that the additional payments are not to cover any care provision (relating to the individual’s assessed needs) which is funded by the CCG.

In order to ensure that there is no confusion between the NHS and the privately funded services, the CCG will enter into a legally binding service agreement with the selected care provider which details the provision by that provider of a defined level of health and social care to the individual. This will expressly be independent of any arrangement between the selected care provider and the individual (and/or their representative) and will be expressed to continue notwithstanding the termination of any arrangements made between the individual (and/or their representative) and the care provider.

The implication in the NHS CHC framework that a CCG is actually going to force a move on someone who’s able to pay the shortfall, or who had contracted privately in advance with a posh care home to pay a top-up if they ever become a CHC patient, (or when they deplete under the local authority threshold for that matter) would be ridiculous.

In fact, the 2018 Framework properly provides many justifications – on the facts of the individual case – encouraging any CCG in that situation to accept that it may need to pay the home’s full amount.

The Framework MUST to do that, to be legal, because in this country, right now, both the Human Rights Act and the public law principle (that when one is bound to meet need, one must take all relevant considerations into account and do so appropriately) necessarily inform and pervade care planning law. CCGs can be judicially reviewed and not just complained about, for unlawful and indefensible stances on what constitutes an appropriate care plan, and it is worth noting that that is NOT mentioned in the Framework!

CASCAIDr’s conclusions

If one goes to the CMA’s cases page to look at the undertaking, one can see the offending contract term in the Care UK’s resident’s agreement to pay the top up.

It appears not to have been done in advance when a resident first entered the home, privately, being worded to cover both continuing residents and those newly qualifying for CHC from the outset.

It does say that the Care UK policy is not to keep a client if the fee is not what it has been charging or wishes to charge for a room, and says the agreement to make the shortfall payment is sufficient to waive that policy (thereby making it a condition, regardless of whatever sum it has agreed to take from the CCG!).

It is specifically made part of the agreement that it might not even be for an enhanced room! It simply refers to the shortfall, and not to any given element, enhanced service or extra, on top of what the basic service (the one that would have been contracted for by the NHS) would have been seen to involve.

And the agreement involved waiving any right, ever to allege that the shortfall amount was invalid, illegal, void or otherwise not payable.

So it is unsurprising, in light of that information, which is in the public domain, that Care UK fell on its sword; it was fortunate that the CMA allows corporate bodies in this position to resolve disputes without admission of wrongdoing.

We can only suggest that the CMA dispute could have been avoided, perhaps, if Care UK’s management had been better advised on the legal framework, and how to reflect what CAN be charged, and why, in its contracts. The terms under scrutiny took no account of the National Framework, however open to criticism that that Framework is, and amounted to claiming entitlement to double charge for facilities and services which had already been covered by the NHS contract.

We doubt that Care UK’s residents and their families will object to being repaid, or care to stand up for choices which they or their families made capacitated decisions about. But we think that suggesting that NOBODY can ever contract to pay an additional payment, for the future, and that that is a matter of legal rule, is misleading and irresponsible.

Other large care home management teams should take note if keen to avoid this sort of reputational debacle in future.

CASCAIDr Trading Ltd, the trading arm of CASCAIDr the charity, can always advise corporate care providers from the private as well as the voluntary sector on these matters: any profit from the charges goes to shore up the charity itself!

belindaschwehr@cascaidr.org.uk

Three LGO decisions focused on autism highlight some potentially relevant issues for public authorities

Statutory guidance states that local authorities must ensure that all frontline staff have general autism awareness so staff can identify potential signs of autism, understand how to make reasonable adjustments in their behaviour and communication.

The Autism Act 2009 required the government to produce statutory guidance for NHS and local authorities on working with autistic people. The guidance was originally published in 2010, and was updated in 2015. At paragraph 1.4, it says:

In line with the 2010 statutory guidance, local authorities should be providing

general autism awareness to all frontline staff in contact with adults with autism, so that staff are able to identify potential signs of autism and understand how to make reasonable adjustments in their behaviour and communication.

In addition to this, local authorities are expected to have made good progress on developing and providing specialist training for those in roles that have a direct impact on and make decisions about the lives of adults with autism, including those conducting needs assessments.

This expectation remains central to this updated statutory guidance”.

  1. Salford City Council (19 002 111)

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-002-111

What Happened

Mrs W was autistic and had a number of health needs which caused her to need support. Mrs W had never had a financial assessment and her care plan was both several years out of date and incomplete. This resulted in a dispute between herself and her support provider, and a complaint to the Council.

Findings

The LGO firstly highlighted that having a care plan so out of date and inadequate put Mrs W at an increased risk of harm, which was fault. An inadequate assessment leads to inadequate care, leading to (an increased) risk of harm.

The updated government 2015 statutory guidance under the Autism Act places a requirement on local authorities to provide general autism awareness training for all front line staff, as well as specialist training for those in particular roles.

The Council had not implemented this, which was fault. They had no-one trained in autism to undertake assessments. However, the LGO could not demonstrate that Mrs W suffered any actual injustice.

  1. Staffordshire County Council

https://www.lgo.org.uk/decisions/adult-care-services/other/17-014-693

What happened

Mr B had Asperger’s syndrome, a learning disability and OCD. The dispute with his Council related to his wish to move to supported living, which the Council felt his lower level of needs did not justify.

Mr B’s lawyer arranged for an assessment to be carried out by an independent autism specialist. This concluded that the Council’s assessment was flawed because it did not offer insight into Mr B’s communication difficulties and rigid thinking.

The specialist found that Mr B’s care and support needs had been significantly underestimated and the Council was failing to meet them: Mr B needed support from staff with a good understanding and experience of working with autistic adults.

Findings

The LGO found fault because the Council was unable to provide any evidence that its officers had autism training or previous experience of working with adults with autism. The Act places a legal requirement on local authorities that all assessors must have the skills, knowledge and competence to carry out the assessment in question.

Guidance also states that if an assessor does not have experience in a particular condition (such as autism), they must consult someone with relevant experience”. There was no evidence that they consulted specialists in relation to Mr B’s autism. Had they done so, the outcome of the assessment may have been different, and thereby the LGO could show that Mr B was caused a significant injustice.

3. Stockport Metropolitan Borough Council (18 014 455)

https://www.lgo.org.uk/decisions/adult-care-services/safeguarding/18-014-455

What Happened

Miss X had highly complex needs including Atypical Autism, learning disabilities and dyslexia. She was also diagnosed with a “communication disorder affecting both her receptive and expressive language skills”.

After a hospital stay, Miss X was discharged to Hostel H. It was clear that she was troubled and vulnerable. Her family requested safeguarding procedures begin, as they felt she was at risk of harm. Miss X was never formally given a care assessment and no safeguarding procedures were properly completed. A Learning Review began, but was not completed (Miss X passed away).

Findings

The LGO quoted the (NICE) Quality Standard on Autism (2014), which sets out minimum standards for delivery of services to those with autism. It says, ‘All health and social care practitioners involved in working with, assessing, caring for and treating people with autism should have sufficient and appropriate training and competencies to deliver the actions and interventions described in the quality standard’.

The Learning Review found some officers did not fully understand Miss D’s needs resulting from her autism and, therefore, the best way to communicate with her. The Council’s said it had no record of the duty housing officer who interviewed Miss D receiving any autism training. As a result, the Council missed an opportunity to communicate in the most effective way with Miss D. This was fault.

Again, the LGO emphasised the link of lack of autism support, back to inadequate, or in this case, a complete lack of a care plan or assessment. Without an up to date care plan, needs cannot be properly identified and the Council cannot plan how they will meet those needs. Notwithstanding the duty to assess any adult with an appearance of need for care and support, Miss D had strong indications of eligible needs

The LGO went into great length about the Council’s failings to properly assess, start safeguarding procedures, and delays in general. However mention of autism training was brief.

Comparisons

So it is noteworthy that the remedies across the three cases included:

  • Arranging for all relevant staff to receive appropriate training on autism and making reasonable adjustments
  • Reviewing of assessment(s) by appropriately trained/ skilled persons and/ or a specialist assessor
  • Financial payment to redress fault.

It is also noteworthy that the LGO in all cases highlighted the importance of care plans when assessing Council failings.

The LGO was readier to find a Council at fault for inadequate assessments, rather than inadequate autism training.

The LGO could find the causal link, the actual injustice caused to the complainant, by comparing the care they received and the care they should have been receiving according to their plan (or their last plan).

In comparison with issues to do with autism training, the level of detail discussed by the LGO was brief. (See for example decision one, where no injustice was identified from the lack of autism training)

Considerations/ learning for all public authorities:

  1. Is autism awareness training for all front line staff (including LA and CCG staff) mandatory and appropriately refreshed?
  2. Do training records evidence compliance with statutory / NICE requirements across SW practice?
  3. Are we confident that staff know when to seek additional specialist support?
  4. Are staff with additional specialist autism skills available, either to undertake assessments etc or to support those who are doing so? If yes, from where / whom / and within what timeframe?
  5. Are all relevant staff able to recognise the need to make reasonable adjustments and adequately skilled in making such adjustments, to avoid discrimination?
  6. Communication needs are a theme across these three decisions: how do we ensure that our communication with individuals takes account of their communication needs e.g. needs are noted at first contact and further routine opportunities thereafter, so that information is provided in a format they can understand?

A summary reminder of the Accessible Information Standard requirement is embedded within this document

Whistleblowing and Pida

The topic of whistleblowing has always been controversial, and particularly so with reference to the NHS and social services. In recent times the term has gone from being associated with the disclosure of an employer’s confidential information to the press (by what were perceived, more often than not, to be disgruntled employees), to being more commonly understood as the raising of concerns about malpractice occurring within an organisation, either with the employer itself, or outside the organisation – with a regulatory body or with the media. There can be no denying the need that those with responsibility for the care and protection of vulnerable people should be able to speak up, without fear of reprisals, where there is suspicion of malpractice affecting the care or safety of those people, yet it wasn’t until 1999, with the coming into force of the Public Interest Disclosure Act, that such workers obtained the unequivocal protection of the law.

The common law has always recognised a public interest exception to the general duty of confidentiality. The 1968 case of Initial Services v Putterill affirmed that the exception extends to any misconduct of such a nature that it ought in the public interest to be disclosed to someone having a proper interest to receive it. A disclosure, for example, to the police by a care worker in a residential home that one of the residents is being sexually abused would be justifiable in the public interest.

In Attorney-General v Guardian Newspapers (the ‘Spycatcher case’), the House of Lords described the public interest exception in yet wider terms, suggesting that the public interest in maintaining confidence may be overridden wherever there is a countervailing public interest in disclosure which is sufficient to override it.

Whilst this public interest exception might offer a ‘just cause’ defence to employees to a suit for breach of confidence by the employer, it is of limited assistance to employees who, feeling compelled to make a disclosure about some organisational malpractice, find themselves on the receiving end of disciplinary action, particularly where that action falls short of dismissal.

The North Wales inquiry into child abuse in care homes and, more recently, the inquiry into events at the Bristol Royal Infirmary (BRI), are just two examples which highlighted the need for staff to be able to raise concerns about suspected abuse and other malpractice and to be safe from reprisals in so doing. Stephen Bolsin, the anaesthetist who raised concerns about the unusually high infant mortality rates following heart surgery at the BRI, felt forced out of the NHS as a result.

Well-publicised cases such as that of Graham Pink, who was dismissed for gross misconduct after the Guardian newspaper published letters he had written raising concerns about staffing levels on his ward, alerted the NHS to the need to take action, and in 1993 the NHS Executive published its Guidance for Staff on Relations with the Public and the Media (EL(93)51), setting out the rights and responsibilities of staff when raising issues about health care concerns. The Guidance called on NHS Trusts to establish local procedures for handling staff concerns, whilst exhorting staff to raise concerns informally, in the first instance, with their line manager. Where it was not possible to resolve concerns informally, the procedure should allow for the concern to be referred up through line management to the highest level of local management and finally to the Chairman of the Trust or Authority.

That guidance was followed in 1997 by the Secretary of State’s letter to Chairmen of Trusts and Health Authorities on Freedom of Speech in the NHS, emphasising the need to ensure that any member of NHS staff feels able to raise concerns about health care matters in a responsible manner without fear of victimisation. Importantly, the letter highlighted that ‘gagging clauses’ – all encompassing confidentiality clauses treating any information as confidential and disclosure without prior consent as an automatic disciplinary offence – were contrary to NHS Executive policy. An accompanying letter from the Director of Human Resources stated that where there were well-founded reasons for staff not wishing to raise concerns through the usual management chain, other avenues should be open to them. As a minimum requirement, the investigation of staff concerns raised in confidence could be entrusted to a senior manager or Board member given specific responsibility for such matters.

Most recently, the Department of Health’s ‘No Secrets’ guidance stresses that it is the responsibility of all staff to act on any suspicion or evidence of abuse or neglect and to pass on their concerns to a responsible person/agency and directs staff and employers to the provisions of the Public Interest Disclosure Act 1998. Aside from a moral or ethical responsibility, we think that this duty might be able to be spelt out of the law of negligence, or the positive obligations owed by public authorities, under the Human Rights Act, although it would be the employer, rather than the individual staff member, who would be sued for harm arising from the organisation having ignored the signs. To this extent, it is perhaps likely that employers will begin to include such an obligation as part of their contractual terms when taking on staff, and this in turn will necessitate certain guarantees for the employee, of freedom from victimisation.

The Public Interest Disclosure Act came into force in 1999. The stated aim of the Act is to protect workers who make certain disclosures of information in the public interest. It does this largely by inserting a new Part IVA into the Employment Relations Act 1996.

The Act is very broad in scope, covering virtually all workers, including trainees, contractors, agency workers, homeworkers and all NHS health professionals. The usual restrictions as to minimum length of service and age do not apply, so that workers are protected from the first day of employment. The Act makes it unlawful for a worker to be subjected to any detriment, including reprisals by colleagues and disciplinary action; and a dismissal for making a ‘protected’ disclosure is automatically unfair. There is no cap on compensation, and should an employer fail to comply with a re-employment order made by an Employment Tribunal, the Tribunal will make a further award of compensation of up to £11,440. ‘Gagging clauses’ in contracts of employment or severance agreements, which purport to prevent the making of a protected disclosure, are rendered void, and employers should review their use of confidentiality clauses to ensure that they do not fall foul of the Act’s provisions.

Only ‘qualifying’ disclosures are capable of protection under the Act. A qualifying disclosure is defined in section 43B as any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following-

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

The term ‘any legal obligation’ is extremely broad. It includes, for example, the breach of a statutory or regulatory requirement, contractual obligations, common law obligations such as negligence, and breach of administrative law. In Parkins v Sodexho Ltd, the EAT held that there could be no distinction between an employer’s ordinary legal obligations and a legal obligation on the employer that arose from the contract of employment. Staff who complain about a breach of their employment contract and are then subjected to a detriment as a result, would therefore be able to bring a claim under the PIDA 1998

Protected internal disclosures

The Act sets out the circumstances in which a qualifying disclosure is capable of being a protected disclosure. An obvious intention of the legislation is to encourage workers to raise concerns internally, at least in the first instance, and where a qualifying disclosure is made to the employer or the person with legal responsibility for the matter, the worker has to satisfy the relatively low threshold of acting in good faith and holding a ‘reasonable belief’ in the truth of the information. Reasonable belief does not mean that the information has to be correct: it is sufficient that the worker held the belief and that it was reasonable for him to do so. Where the worker is employed by a body some or all of whose members are appointed by the Government, the same requirements apply if the worker chooses to report the matter straight to the sponsoring Department. Thus NHS staff may go direct to the Department of Health in making a qualifying disclosure, provided they act in good faith and hold a reasonable belief in the truth of the information.

Disclosure to prescribed bodies

Certain regulatory bodies have been ‘prescribed’ for the purposes of the Act. In order to be protected, a worker who makes a qualifying disclosure to a prescribed body must, in addition to acting in good faith, hold a reasonable belief that the information disclosed, and any allegation contained in it, are substantially true (s43F). This a higher threshold than that required for internal disclosures. It suggests that the worker must be able to show some good factual basis, or some good evidence, to support his or her belief. Again, however, this does not impose a requirement that the information be correct, provided that the worker is honestly mistaken in that belief and that the belief was reasonable. There is no requirement that the disclosure should have first been made to the employer. The disclosure must be made to the prescribed regulator responsible for the particular matter, in order to be protected. The General Social Care Council has indicated that it will be the body prescribed to receive concerns from social care workers about poor standards of care for vulnerable people, including abuse and neglect. The full list of prescribed persons and the matters for which they are prescribed is available at www.dti.gov.uk/er/individual/pidguide-pl502.htm#app1

Wider external disclosure

The Act makes provision for wider external disclosures to be protected. This would include, for example, disclosures to the media, to the police and to non-prescribed regulators. Unsurprisingly, the threshold is high. In addition to the requirements set out above in relation to prescribed persons, the disclosure must not be made for personal gain, and the worker must either have had a reasonable belief that he would be victimised if he made the disclosure internally; or that the information would have been concealed or destroyed by the employer and there was no prescribed person or body to whom the disclosure could be made; or the worker must show that he had previously made a disclosure of substantially the same information to the employer. The disclosure must also be reasonable in all the circumstances.

Factors which a Tribunal will take into account in deciding whether an external disclosure is protected include the identity of the person to whom the disclosure was made (a disclosure to the police about suspected abuse is more likely to be protected than one to the media), the seriousness of the alleged malpractice; the response of the employer to any previous disclosure to it of the alleged malpractice; whether the disclosure breached any duty of confidentiality owed to a third party; and whether the worker complied with any procedure he or she was authorised by the employer to use.

Where the subject matter of the disclosure is exceptionally serious, the disclosure will be protected if it meets the test for disclosures to prescribed regulators and is not made for personal gain. The disclosure must also be reasonable, having particular regard to the identity of the person it was made to. The Act does not define ‘exceptionally serious’, but again a disclosure about the physical or sexual abuse of someone in care would be likely to fall within this category. Where legislation provides for a reward to be paid in respect of information received, this does not constitute   ‘personal gain’ under the Act.

The importance of responding promptly and appropriately to staff concerns about malpractice is illustrated by the case of Blandon v ALM Medical Services Ltd. Mr Blandon, a nurse, reported his concerns about the welfare and care of patients at the home where he was working to his employer’s PA, Mr Sinclair. Mr Sinclair responded that he would deal with Mr Blandon’s concerns on his return from holiday. Some 10 days later, whilst Mr Sinclair was still on holiday, Mr Blandon became concerned about a further deterioration in standards of care and took his concerns to the SSI. Following an inspection of the home, the SSI wrote to the proprietor indicating that at least four out of Mr Blandon’s six concerns were substantiated and should be addressed. Mr Blandon was subsequently disciplined for his conduct, first receiving a written warning, followed swiftly by dismissal. He brought a complaint in the employment tribunal, which found that the company was in breach of the PIDA 1998. The disclosure was a qualifying one in that the allegations amounted to a health and safety danger and/or a breach of a legal obligation and/or criminal offence. Although the SSI is not a prescribed body under the Act, Mr Blandon’s disclosure to it qualified for protection as:

he had held a reasonable belief that his concerns were substantially true and had acted in good faith;

the disclosure was not made for personal gain and there had been a previous disclosure of substantially the same information to the employer;

the SSI was an appropriate body to go to and, given the seriousness of the concerns, it was reasonable for Mr Blandon not to wait for Mr Sinclair to return from holiday.

The tribunal also noted that the company did not have a whistleblowing policy in place. It awarded Mr Blandon £13,000 in compensation for unfair dismissal and £10,000 for the detriment he suffered in receiving the written warning.

As can be seen from the above case, although the Act does not oblige employers to put in place whistleblowing procedures, the absence of such procedures will increase the likelihood of a wider external disclosure being protected. HSC 1999/198, which is the Department of Health’s guidance to the PIDA 1998, states that every NHS Trust should have in place local policies and procedures to comply with the provisions of the Act. The National Minimum Standards for care homes for older people, for care homes for younger adults, for domiciliary care and for residential family centres, all include a requirement for procedures for responding to suspicion or evidence of abuse or neglect – including whistleblowing – and that all allegations of neglect and abuse are followed up promptly and action taken and recorded.

The annotated notes to the PIDA 1998 and further information on whistleblowing policies and procedures can be obtained from the website of the charity Public Concern at Work.

RELATED TOPICS leading to further specific questions

Confidentiality

Information Sharing

Data Protection in Health and Social Services

 

Welsh Social Care legislation

The Social Services and Well-being (Wales) Act 2014 aims to introduce solutions to the specific issues affecting social services in Wales. The Act received Royal Assent on 1st May 2014.

The Act marks the first time that a coherent legal framework has been established for social services in Wales, where social care law has been derived from English law, and after the Assembly was set up, through policy announcements and separate regulatory law and regulations, but no separate over-arching statute governing the basics. It identifies the promotion of individual rights, self-determination and prevention as the main ways to transform social services and improve the welfare of vulnerable children and adults. The Act aims to ensure that people have access to clear information, advice and assistance by placing their voice and rights at the centre of decisions about their care and support.

The main aims of the Act are as follows: to

o    bolster the protection of vulnerable people at risk through strengthening the powers for the safeguarding of children and adults;

o    ensure people are assessed on what they need, rather than just on what services are available locally;

o    strengthened duties to assess before a person arrives in a new area, so that there is continuity of care over the transition;

o    provide individuals with greater control over how their needs are met by facilitating an increased take up of direct payments to meet people’s care and support needs;

o    establish a ‘National  Outcomes Framework’ that outlines what children and adults should expect from social services, and allows for achievements and areas of improvement to be identified;

o    provide carers with more rights to ensure that they have similar rights to those that they care for, by giving actual rights to have eligible needs met;

o    establish a ‘National Adoption Service’ to improve the outcomes of children requiring a permanent family;

o    improve the co-ordination of the work of public authorities in order to enhance the well-being of individuals; and

o    facilitate the making of complaints and representations regarding social care and palliative care;

Important links

The Social Services and Well-being (Wales) Act 2014 can be found at http://www.legislation.gov.uk/anaw/2014/4/enacted.

 

Welfare Services and the NAA

‘Welfare services’ is the generic name given to a wide range of non-residential services for which there is power to provide or arrange under s29 National Assistance Act 1948, or under s45 of the Health Service and Public Health Act 1968.

Day care, centres, support, signposting, facilitating finding accommodation in the independent sector, are all part of s29 service provision.

 

The main features of s29 are as follows:

 

it contains some duties, some powers (see Duties vs Discretions topic for consequences of the difference)

service eligibility depends on the person being thought by the authority in question to come within the definition of disabled – ie the qualifying criteria are that the person is

‘Blind’ or

‘Deaf’ or

‘Dumb’ or

has ‘a mental disorder of any description’

OR

Is ‘permanently and substantially handicapped’ by ‘illness, injury, or congenital deformity’

 

ordinary residence on the part of the applicant for services is required if a duty is to be triggered, but is not required in all cases for there to be a power to provide the service – thus it cannot be a criterion for eligibility for an assessment at the outset;

there is a minimum age limit of 18 or over.

The s45 power is specifically directed at older persons, but is only a discretion, and not a duty. It has never been tested whether this difference means in effect that a service could be withdrawn, for budgetary reasons, notwithstanding that someone had been assessed as needing a service under this particular provision. Ordinary residence plays no part in eligibility for s45 services.

As far as charging for any service provided under s29 is concerned, s17 of HASSASSA 1983 Act applies to s29 services and therefore services are chargeable, according to the reasonable domiciliary charging policy of the authority in question. It has been established by the Powys CBC ex p Hambidge no. 1 case that s2 CSDPA services are also chargeable because they are simply a specific manifestation of s29 provision.

Circular LAC 93 10 provides more detail as to the Secretary of State’s approvals and directions for the purposes of planning for the s29 function. It may be viewed on COIN, at http://tap.ccta.gov.uk/doh/coin4.nsf/Circulars?ReadForm

 

TUPE

Site visitors will know that TUPE and the European Acquired Rights Directive from whence it came, constituted a framework for protecting employees in the event that the undertaking in which they work is transferred. The principle covers transfers of contracts as well as entire businesses, because TUPE extends to undertakings, businesses and parts of businesses.

 

The history of TUPE’s application has ebbed and flowed. Early on, caselaw established that the transfer of goodwill was all important when an alleged TUPE transfer might have been a closure and a re-start, thus suggesting that what had occurred had not been a transfer. In such cases one needs to consider whether what rises from the ashes is substantially the same as what went before. Then the Sophie Redmond case, although not a UK case, made it clear that TUPE would apply to ‘Contracting Out’ by local government, even though the service ceased in-house.

For a while the safest assumption was that TUPE applied in all situations; then the Suzen case changed all that and things went from the sublime to the ridiculous. After Suzen it looked for a while as if it might be arguable that a transferee of an undertaking (ie domiciliary care for a particular client group) in a labour intensive business (ie where there was not much else to the undertaking other than labour) could avoid TUPE simply by deciding not to take on any of the employees of the transferor. Whilst it is now clear that if the transferee takes on the majority of employees this is a factor in favour of there being a transfer, it is not clear how far the courts will look at the conduct of a transferee who does not take on any staff, in deciding whether a transfer took place. The recruitment crisis is at such a pitch in social care that it is hard to envisage a situation where the employees will not in fact be needed!

 

Recent case law has re-asserted that the essence of the test for a transfer is still whether there is a new employer responsible for operating something identifiable as an autonomous economic entity – that is a TUPE transfer.

 

The UK took advantage of the Presidency of the EU to update and improve the amendment to the original Directive underlying our own TUPE regulations. The amendments implemented member states to provide for the transfer of pension rights, and in the public sector that has been translated into guidance that broadly comparable rights should be given. Amendments to our own regulations are expected by the end of 2003. The December 1999 Regulations also allowed for employees of organisations providing services or assets to local authorities to join the local government pension scheme.

 

In 2003 the Cabinet Office produced instructions which it believes to apply to local government through the means to give directions with regard to Best Value and Procurement policies, whereby LAs must require bidders to not only assume that TUPE will apply, plus provide broadly comparable pension entitlement to the Local Government Pension Scheme arrangements to transferring and new recruits, BUT ALSO to promise not to employ new recruits (seemingly without limit as to time) on terms less favourable than the transferees were obliged to offer to the transferring employees. At the same time, however, the Government seems to think that the Retention of Employment Model, whereby NHS support staff remain within the public service, and are merely seconded to the private contractor in a PPP or similar scheme, avoiding TUPE, is necessary and appropriate for the implementation of government policy about getting the private sector involved in Health Care. It remains to be seen whether someone will argue that TUPE did apply and that the transferring NHS body had no discretion to regard the employee’s employment as continuing in the NHS. . ..

 

Certainly it is the government’s intention that the application of TUPE will become the general rule. It does look as if the tide is now heading back in favour of TUPE application, if there is such a thing as a trend. But for now we have to struggle with competing lines of precedent in the courts.

 

One needs to ask, how do the TUPE principles work in the context of the mixed means of commissioning, given that no one entity will be operating the whole of the authority’s residential care function, or the domiciliary care function of a local authority? Should we be looking at separate aspects of those services, for instance – by client group, such as ‘older persons’, ‘learning disabilities’, ‘drug and alcohol’ clients, or by addresses (eg of specific care homes or districts) or service types such as ‘shopping’, ‘bathing’, ‘cleaning’, ‘intimate personal care’ etc?

 

The most topical question in an era of personalisation, let alone mass de-commissioning and service provision change, is the impact for Direct Payments for Adult Social Care of the TUPE Regulations

People are naturally worried about the impact on choice and control, in the context of individuals, changing their arrangements for care and support.

TUPE thoughts

Basically, where the purchaser used to be the council, and the purchaser is now the original service user, through a genuine Direct Payment – that is probably not a traditional TUPE transfer or a service provision change, so the staff do not transfer to the new provider – i.e. the service user or an agency chosen by him/her. The word ‘genuine’, is important, because of the Daynes case – more on this, soon.

Where the council was, and still is the purchaser, and it’s just the provider who is different; or where the service user was the purchaser, and now the agency chosen by that same client purchaser, is different, it is at least possible if not probable that TUPE applies – the service provision change sort of transfer as well as old style ‘undertaking’.

Since this sort of work is labour intensive, not asset reliant, whether there is an intention to transfer the employees or not assumes a greater significance than it otherwise might. The risk might be particularly clear in a Slivers of Time sort of a set-up where there will be a close link between the original agency worker and the client, instead of the client just having to make do with whoever is allocated by the agency.

The meaning of ‘undertaking’ may be relevant: the regulations apply to public and private undertakings engaged in economic activities, whether or not they are operating for gain – it could be said that a person buying services to meet their own needs was not an undertaking engaged in an economic activity, because there is no business purpose, perhaps. This may be why there are no cases about TUPE regs forcing an individual to take on a previous provider’s staff.

TUPE worries in the context of direct payments

  • Supposing the service user has a direct payment and has an employee. And then the service user gives up the DP. The Council re-provides, either by direct in-house provision or through a contracted agency. What happens to the service user’s old employee? No SPC is a possible outcome, because the identity of the purchaser is now different and what is being done is the discharge of a statutory function. But it is possible that an old style transfer might arise
  • Supposing the service user qualifies for NHS Continuing Health Care – does the employee under a previous DP arrangement, have the right to transfer to the PCT or their chosen agent? The purchaser is again different, and although the content of the package may stay the same, the service user is now getting health care services because of their change of status, not social care. So maybe there would be no old style transfer, either.
  • Supposing the service user has a direct payment and engages an agency. The service user then re-commissions from another agency for the same task description. Do the Regs apply because of the service provision change? Possibly, if there was an organised grouping of employees – such as a specific member of staff or team of staff concentrating on the client.
  • Supposing the Client has a direct payment but loses capacity to manage the DP – even with assistance. A relative is appointed by the council to be the Suitable Person. Does the old employee automatically transfer to the new Suitable Person’s employment, because of TUPE? The Suitable Person, in law, is not carrying out the client’s contracts ‘for’ them, as statutory agent; the SP is going to buy services or employing the person in his or her own name, and must be able to decide. Ie the ‘different purchaser’ approach suggests No Service Provision Change, but termination of the worker’s contract with an offer of another one by another person. If a self-funding person acquired a welfare Deputy or a lasting power of Attorney holder then took over, there would be no cessation of employment, and no need for a TUPE transfer to be considered, as such, as those roles do carry with them the authority of a statutory agent.

The Daynes saga – a TUPE sham!

A council had a bit of a problem with a poor provider, and ratcheting up the performance with a ‘carrot and stick’ approach simply did not work. It was ultimately decided to terminate the contract. But the contract was for a clear chunk of service for particular clients who were geographically linked and with similar needs.

At the last moment a council officer had the wizard wheeze of suggesting that the council should award direct payments to the clients in question, to avoid the application of TUPE. This was done, and the clients somehow decided (despite their mental impairments) to pool their direct payments and choose the preferred provider of the council.

Provider no. 1 did not have any other work for the staff, so suggested that TUPE applied, so as to transfer the staff over to Provider no. 2. Assets of the first provider company were also intended to transfer to the second provider – care plans that the contractor had done, etc. Proceedings were launched, and the council was joined in as an interested party.

What happened?

The tribunal learned all about personalisation over an 11 day hearing with good employment and local government law barristers on the case.

The Chair said that social care policy had to take second place to employment law, and that these direct payments were a sham and clearly intended to avoid TUPE, and should be ignored.

The council had to pay provider no. 2 to get rid of the staff that had been entitled to TUPE over.

The case is actually very helpful, for what it might (but does not necessarily) imply: if a direct payment is a genuine choice of the client, it amounts not to a service provision change, by the council, but the cessation of a provision function by the council, and the commencement of a purchasing function by the client, possessed of money which has become his or hers to spend privately.

Putting this another way, if the DP is real, and not imposed or foisted upon the client, the fact that the ultimate ‘human’ purchaser is not the same as the first ‘council’ purchaser, means that the SPC rules can’t apply, and that TUPE does not necessarily apply to create an old-style transfer.

 

 

Summary of advice given by Employment Lawyers, but never made public:The TUPE Regulations provide employment rights to employees when their employer changes, as a result of a transfer of an undertaking. But there’s been an extension of TUPE to cover service provision change, when a purchaser changes purchasing arrangements to a new provider.

 

 

The Advice, obtained from Employment Law experts, Short Richardson and Forth, examines the implications of the TUPE regulations for people choosing to take a Direct Payment form of personal budget.

 

 

The question asked of the law firm was whether a TUPE transfer inevitably occurs, could occur, or could not occur, when a personal budget is taken by an individual as a direct payment, for the purposes of either employing a carer or contracting with an agency or service provider to provide care. The relevant staff potentially benefiting from transfer to the employment of the individual or to the agency chosen by the client would be the staff of the council, or the council’s contractor, who had previously been active in the delivery of care and support arrangements for the service user in question. Choice and control could be severely curtailed if TUPE effectuates a transfer. The Advice concludes that there is little risk of this being the approach of a Tribunal, despite the prevalence of the stance “TUPE applies 99% of the time”.

Direct payments legislation allows the service user for a direct payment in lieu of being owed a statutory duty by the council, to meet eligible assessed needs. He or she can make whatever arrangements to meet their own needs as preferred, as long as the money is spent within the confines of the kinds of services that would have been bought for them by the Council under community care legislation, and meets the assessed eligible needs, including employing someone. Some choose to form a contract of service with one or more workers who are known as personal assistants, or a contract for services with companies that employ their own workers to deliver services.

Having analysed the effect of the regulations governing direct payments with regard to what happens to the council’s provision duty, during the currency of a Direct Payment, the Advice concludes that a council’s statutory duty of provision is suspended, effectively, if and for so long as the council maintains its offer to make a direct payment. It concludes that this legislative structure does not connote a relationship of principal and agent, so far as the council and the direct payment client are concerned, or the delegation of the council’s function of making arrangements to meet needs, to the client. It explicitly provides for the displacement of the statutory function in certain circumstances, but provides for its resurrection as soon as the council is less than satisfied by the efficacy of the person’s own arrangements to meet need. It is thought that this may be relevant to how a tribunal would look at the facts and its interpretation of the consequences, when the issue comes to be decided.

The Advice analyses whether the transfer of an undertaking occurs (ie an economic entity, which retains its identity), when a Direct Payment is chosen, and a person is employed – and secondly, whether a service provision change occurs for the purposes of the Regulations.

The Advice concludes that it is doubtful that there could ever be a service provision change when a person takes a direct payment for the purposes of employing someone or contracting with a third party care provider, given that the wording of the relevant regulation requires that the client on whose behalf the activities are carried out – both before and after the change – must be one and the same. When a council is procuring services, it is the client, in a contractual sense, and once a person has taken a direct payment, that person becomes the purchaser and the client, so ‘the client’ is no longer the council. Before the election, those services were previously carried out by the staff of a contractor on the council’s behalf, or by staff of the council itself for the council, since the activities were the discharge of the statutory provision function. The direct payment legislative structure does not appear to make the recipient of the payment into the agent or the sub-contractor of the council for the purposes of one and the same provision function that is imposed by statute on the council.

In addition, what can be said as a matter of general principle is that where “activities” are different in terms of the position before and after the transfer there can be no service provision change for the purpose of the Regulations. Since the motive behind taking a direct payment is choice and control, the Advice concludes that in most cases that the activities will generally be carried out differently, even if the outcome is the same.

The Advice is less certain that there could never be an old-style TUPE transfer in a direct payment situation, because the test of whether there is a transfer of an undertaking is quite different from that under the regulation for service provision change.

The Advice takes the view that a service user who takes a direct payment for merely buying in services for their own purposes (as a consumer, rather than as a producer) could not be said to be taking a transfer of an ‘economic entity’ – such is defined by regulation 3(2) as “an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.”

The Advice deals with an employment tribunal case of Daynes, involving a so-called direct payment in which both a service provision change and a standard business transfer were found to have occurred. However, the Advice explains why the facts of that case probably explain the particular decision. In particular, the Tribunal called the direct payment arrangement a ‘sham’, designed to avoid the application of the Regulations, and consequently looked beyond the labels applied to the arrangements. The facts as found actually fit the Advice authors’ analysis of the service provision rules regulations (the client both before and after the change, was, in reality, the council, simply changing its service provider) and with general TUPE principles about the transfer of an undertaking, once the services have been characterised as asset-reliant rather than labour intensive. The Advice does not therefore take the case to be of any weight in relation to the correct analysis of TUPE application in the context of a genuine decision on the part of an informed service user or their Suitable Person to take on a direct payment.

The Advice asserts that it could only be in a small minority of cases in which a transfer could be found. The main reason given is that transfers are governed by a multi-factorial test and the mere change of a service provider is not a transfer for these purposes. It does not suggest that it could NEVER be said that a transfer would arise from the client’s choice to take a direct payment. One example where TUPE might well apply is where a service user has been the subject of a specialist package in a particular setting where a person chooses a direct payment after a package in which a small number of specially skilled and trained staff have been allocated to servicing the person’s complex needs on a shift pattern, to the exclusion of all other work. An adult service user, fitting this service profile, or their Suitable Person, if the service user lacks capacity to understand the significance of the issue, must therefore receive explicit information about TUPE before using a Direct Payment to consider employing a carer if they have been previously served through council arrangements by one or more individuals who were engaged only on that person’s care and support package. Similarly, if an adult uses the direct payment to contract with a third party care provider and positively asks for the current carer or carers employed by the Council or a previous contractor to be engaged by the third party provider to deliver the services in the same manner as before, a transfer could ensue. Where the activities are labour intensive, the taking over of employees (or the fact that the employees were not taken on) can be a decisive factor in the transfer analysis. Assuming that care and support activities were seen as “labour intensive”, whether TUPE applied to create a transfer would therefore depend on whether the employees(s) are actually taken over.

Part II of the Advice goes through a hypothetical contracting out exercise by a council to a local authority Trading Company. This is then followed later by the decision of a large number of clients to take direct payments, spend them in various ways, and then some return to the council’s own commissioned arrangements. Part II analyses how the principles in Part I might be applied by a Tribunal, considering TUPE. The following conclusions may be drawn from the Advice:

  • Out-sourcing part of a council service for the first time to one provider – TUPE very likely to apply (on both ‘service provision change’ and old-style transfer grounds)
  • Outsourcing a service to many providers – TUPE may not apply, because of fracturing
  • Mini-competition for redistribution of the original domiciliary care contracts as between the council and old and new contractors – TUPE very likely to apply, but not so likely in relation to staff now working on wider range of contracts eg for self funders
  • Mini-competition for redistribution of only ¾ of the original domiciliary care contracts because of election of clients now to take a direct payment – TUPE still likely to apply in relation to what remains of the council’s need to contract, albeit for fewer clients
  • Individual clients electing to take direct payments – TUPE likely not to apply, other than in a small minority of specialist care package situations
  • Direct payment clients pool their payments and buy as a group – TUPE slightly more likely to apply but by no means probable.
  • Direct payment clients buy separate services from different agencies – TUPE not likely to apply to transfer previous provider’s staff to new agencies.
  • Direct payment client changes his or her package from an agency purchase to an employee – TUPE not likely to apply to transfer agency worker to client’s own employment
  • Direct payment client changes package from having an employee to using an agency – TUPE likely to apply to transfer the employee to that agency, albeit not necessarily to the client’s care package contract. This position, once it is understood in the care sector, may make it hard for clients to get agencies to take them on as clients, after they have tried employing individuals for themselves. It also has implications for what Direct Payment Support organisations are going to have to tell clients about direct payments pros and cons, in general.
  • In-sourcing of an ex-direct payment client’s package back to the council – TUPE capable of applying but improbable, unless the council decides to meet the need in the same way as before.
  • “Unregulated” workers can be employed by a direct payment client. If the council was faced with a possible “TUPEing” in of certain employees who they could not normally employ legally or lawfully, that would seem to present the council with the opportunity of dismissing those employees, after transfer, for an ETO reason i.e. an economic, technical or organisational reason entailing changes in the work force.

Further enquiries should be made of the firm itself.

The latest case on TUPE in social care – Addison v Community Integrated Care

The issue was whether the sole or principal reason for the dismissal of loads of ex NHS staff was a transfer and therefore automatically unfair under the TUPE regs.

The staff had transferred in 1996!! But in 2011, 15 years later, Cumbria said that unless CIC would find a way of cutting its prices it would not keep the work, and CIC refused. CIC had tried to negotiate, and then dismissed the staff and offered new contracts.

The Tribunal found that clearly but for the transfer the staff would not have been selected for dismissal, but that it was not the sole or principal reason for the transfer!

However, the BUT FOR… test was not applicable, because the real question was what was the reason that caused the employer to dismiss the staff, and the sole or principal reason was the employer’s need to make savings in order to retain the Cumbria Council work. Mere passage of time would not destroy the causal link between the transfer and a dismissal, but in this case the need to make the savings amounted to a supervening event some 15 years after the transfer and so the dismissal was not automatically unfair.

All providers need to discuss this with HR staff, and make it clear that at some point they might have to take the unions on, if councils start quoting this to providers, regarding why they could cut their fees, regardless of the TUPE obligations.

 

Transport

We often hear general complaints that councils expect people to get themselves to the services they have been assessed as needing. Councils’ transport-related powers and duties are found all over the place in local government legislation, not just in one statute, or one community care statute. Thus it is hard to give any clear analysis as to the legality of such a stance, since it would all depend on the context, and the function concerned.

What is clear is that most of the transport functions of local authorities are powers, and not duties, and the general principle would therefore be that powers do not have to be exercised if there is no money available – they are discretionary.

If authorities want to save money by cutting back on transport or concessionary travel, it will therefore generally be lawful for them to do so, subject to two very important principles. They must never say ‘never’, for to do so is to have fettered the relevant discretion, which is in itself unlawful. Individual requests must be properly considered, against a policy, for sure, but always bearing in mind that the case might need to be treated as exceptional.

Secondly, authorities must ask themselves what the Administrative Court would be likely to say if on a community care assessment the authority has acknowledged that there is a clear need for a certain service, but then gone on to deny transport, having been told by carers that without it there is no way the client is able to get there under their own steam. To us, it seems a bit too like unreasonableness, to acknowledge a need, and offer to provide a service eg a place at a daycare facility, but then deny the individual the means to get it. This would be all the more so if the client is mentally incapacitated.

Now the Carers and Disabled Children Act is in force, it is all the more important that carers – those who often contribute the most in terms of time, let alone petrol, involved in transporting of learning or physically disabled persons backwards and forwards to facilities – appreciate that the Act gives them the right to a service in their own right, and that this can be a direct payment in lieu of a service, such as the money for taxi fares, perhaps for sharing journeys with other local people who need help. The test for eligibility is related to sustaining the carer in their current caring contribution, and anything that eases the load may be more cost-effective than providing the transport from council resources, or alienating the carer to the point of giving up the role altogether.

Health, Social Services’ and Local Authorities’ joint working powers under the Health Act cover integrated transport services but we do not know if any of the approved projects relate to this service area.

We think that the specific Chronically Sick & Disabled Persons Act services related to transport are as follows:

s2(1)

(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home, or assistance to that person in taking advantage of educational facilities available to him;

(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said s29 [NAA] or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;

 

The Equality Act

 has changed the sex race and disability discrimination duties under the old Sex and Race discrimination legislation.

The Equality Act Part 11, s149-159, deals with the duties placed on public sector bodies and positive action duties (s158).

The public sector equality duty s149 replaces the duties that public bodies had under the Race Relations Act, the Sex Discrimination Act and the Disability Discrimination Act, and it brings in some key changes. It has been in force since April 2011.

The new section says that the public authority must in the exercise of its functions, have due regard to the need to do three things:

  • Eliminate discrimination, harassment or victimisation
  • Advance equality of opportunity between people who share a relevant protected characteristic, and those who do not – this duty is elaborated upon in the following way: having due regard to removing disadvantages suffered by people with the characteristics, meeting their needs where those are different from other people’s, and encouraging such people to participate in public life or other activates where representation is low.
  • Foster good relations between these groups by in particular tackling prejudice and promoting understanding.

 

Discrimination and protected characteristics…

It has also expanded the scope of the Public Sector Equality Duty from Disability, Race and Sex to cover the following categories: Disability, Race, Sex, Religion, Sexual Orientation, Marriage and Civil Partnership, Pregnancy and Maternity, Age and Gender Reassignment (or Transgender).

Discrimination here refers to treatment of a person within a category which is less favourable than the treatment of others in another category or the rest of the population in general.

The Equality Act could be said to strengthen existing law – as follows:

Section 1 places a new duty on certain public bodies (e.g. LAs) to consider socio-economic disadvantage when making strategic decisions about how to exercise their functions;(eg the FACS threshold, de-commissioning, grant funding voluntary bodies etc). (not yet in force, as far as I know).

The duty to consider how their decisions might help to reduce the inequalities associated with socio-economic disadvantage will apply to the listed public bodies, which have strategic functions – these include Government departments, local authorities and NHS bodies. In addition, the duty will apply to other public bodies which work in partnership with a local authority to draw up the sustainable community strategy for an area, when they are drawing up that strategy. These partner public bodies are specified in the Local Government and Public Involvement in Health Act 2007.

 

The underlying aim or objective of the PSED

The objective behind the duty is to ensure that consideration of equality issues forms part of the routine, day-to-day decision making and operational delivery of public authorities, and the purpose of the specific duties is to ensure better performance of the duty.

The specific duties will therefore be imposed on almost all of the public authorities subject to the duty. The only exceptions are a few very small organisations for which the imposition of the specific duties would not be proportionate or sensible.

How to comply – the essential mindsets

The following principles, drawn from case law, explain what is essential in order for the Equality Duty to be fulfilled. Public bodies should ensure:

  • Knowledge – those who exercise the public body’s functions need to be aware of the requirements of the Equality Duty. Compliance with the Equality Duty involves a conscious approach and state of mind.
  • Timeliness – the Equality Duty must be complied with before and at the time that a particular policy is under consideration or decision is taken – that is, in the development of policy options, and in making a final decision. A public body cannot satisfy the Equality Duty by justifying a decision after it has been taken.
  • Real consideration – consideration of the three aims of the Equality Duty must form an integral part of the decision-making process. The Equality Duty is not a matter of box-ticking; it must be exercised in substance, with rigour and with an open mind in such a way that it influences the final decision.
  • Sufficient information –the decision maker must consider what information he or she has and what further information may be needed in order to give proper consideration to the Equality Duty.
  • No delegation –public bodies are responsible for ensuring that any third parties which exercise functions on their behalf are capable of complying with the Equality Duty, are required to comply with it, and that they do so in practice. It is a duty that cannot be delegated.
  • Review –public bodies must have regard to the aims of the Equality Duty not only when a policy is developed and decided upon, but also when it is implemented and reviewed. The Equality Duty is a continuing duty.

Who has to have due regard? Decision makers, helped by:

  • Board/Cabinet members – in how they set strategic direction, review performance and  ensure good governance of the organisation.
  • Senior managers – in how they oversee the design, delivery, quality and effectiveness of the organisation’s functions.
  • Equality and diversity staff – in how they raise awareness and build capacity about the Equality Duty within the organisation and how they support staff to deliver on their responsibilities.
  • Human resources staff – in how they build equality considerations in employment policies and procedures.
  • Policy makers – in how they build equality considerations in all stages of the policy making process including review and evaluation.
  • Communications staff – in how they ensure equality information is available and accessible.
  • Analysts – in how they support the organisation to understand the effect of its policies  and practices on equality.
  • Front line staff – in how they use equality considerations in the delivery of services to the public.
  • Procurement and commissioning staff – in how they build equality considerations in the organisation’s relationships with suppliers.

 

The Regulations and Specific Duties which go with it…..

The government is empowered under the Act to impose specific duties on public authorities by regulations.

The purpose of the duties is to ensure better performance by the public authorities listed in the Regulations of their duty to have due regard to the matters set out in paragraphs (a) to (c) of section 149(1).

They achieve this, by requiring authorities to prepare and publish objectives, setting out what they intend to achieve in order to further the aims of the duty, and to publish information demonstrating their compliance with the duty.

 

What’s the bottom line, under the new regulations?

The revised regulations introduced much greater flexibility to the earlier proposals. In particular, the earlier proposals included a number of prescriptive publication requirements, which were deemed by Ministers to be unduly onerous. Public bodies would have been required to publish all the details of their engagement with interested parties in determining their policies and their equality objectives; the equality analysis they had done in determining their policies; and the information they had considered when undertaking that analysis.

The revised regulations simply require public bodies to publish their equality objectives, and information to demonstrate their compliance with the duty. This information is likely to encompass some of the information set out above, but the revised regulations give public bodies much greater freedom and flexibility in meeting this requirement. This is in line with the Government’s broader approach to the public sector – to reduce bureaucracy and increase transparency.

Over a ten year period the net benefit from consolidating the equalities duties is expected to be in the region of around £110m to £205m (net present value terms) compared to the cost of the current duties.

Specific regulations applying to councils

  • Regulation 2 requires a public authority listed in the Schedules to publish information to demonstrate its compliance with the duty. A public authority listed in Schedule 1 must do this not later than 31 January 2012 and at least annually thereafter.
  • Regulation 2(4) requires public authorities listed in the Schedule to publish information relating to persons who share a relevant protected characteristic who are affected by their policies and practices.
  • Regulation 3 requires each public authority listed in the Schedules to prepare and publish one or more specific and measurable equality objectives, that it thinks it should achieve to further the aims set out in the duty. They are required to publish these objectives no later than 6 April 2012 and at least every 4 years thereafter.

Equality impact assessments

Before the Equality Act 2010, public bodies had a responsibility under the law to comply with the Disability, Race and Gender Equality duties in making policies or carrying out functions, by carrying out what is known as an equality impact assessment (EIA).

An EIA simply meant assessing how the policies and decisions of a public body are likely to affect or have affected people in a protected category, e.g. older or disabled people; looking for ways to promote equality; and removing any negative aspects that may be discriminatory. It is done by gathering information on the impact of the policy or function, consultation with relevant individuals or organisations and analysis of its effect. An EIA has to be far-reaching and comprehensive, analysing the potential of the policy to give rise to discrimination.

Under the Equality Act 2010, public bodies no longer have a legal duty to carry out an EIA, but most have continued to do so and this is likely to continue to be seen as good practice in compliance with the Public Sector Equality Duty.

Also, although public bodies no longer a legal duty to carry out an EIA, an individual or organisation that believes a Government body has not carried out an EIA before making a policy or decision, may still apply for judicial review of the policy or decision if it is likely to result in discrimination.

 

To do an EIA or not to do an EIA, that is the question…….

“8.15 The specific duties will require a public authority to publish information to demonstrate its compliance with the duty. This is likely to include details of the analysis it undertook and the information on which it was based. It is also likely to include details of any engagement or consultation that it undertook in complying with the duty.

The Government did not wish to impose a burden on public authorities to publish details of every single meeting that it has with its staff and members of the public, and every single document that it considers during the exercise of a function. Public authorities should be able to decide what information would be proportionate to disclose for this purpose and the public should be free to challenge authorities if they require more or for it to presented differently. They simply signal flexibility to public bodies, in how they demonstrate their compliance with the regulations. The Government believes this is the right approach.

Views on the effect of the revisions on EIAs

  • “…8.12 There was much less agreement as to whether the revised regulations would achieve greater transparency and accountability. In particular, a number of voluntary and community organisations were concerned that removing the requirement to publish details of equality analysis, information, and engagement would mean that such analysis and engagement would simply not happen.
  • 8.13 The Government has noted this view, but does not share it, and strongly believes that the case law from the previous equality duties supports this position.
  • 8.14 The duty requires public authorities to have due regard to the matters set out in section 149(1) of the Act and it is implicit that when exercising their functions they will need to consider any impact on people with relevant protected characteristics. Case law  on the previous equality duties established that active consideration of the likely effects of different policies and programmes on people with relevant protected characteristics is inherent in having ‘due regard’ to the matters set out in section 149(1); and that in some cases this may require some evidence gathering, and engagement or consultation with people affected by its decisions.”

 

Myths and truths:

The Equality Duty does not impose a legal requirement to conduct an Equality Impact Assessment – nor is there is any practical need to conduct one. Compliance with the Equality Duty involves consciously thinking about the three aims of the Equality Duty as part of the process of decision-making. That will entail understanding the potential effects of the organisation’s activities on different people, but there is no prescribed process for doing this. Keeping a simple record of how decisions were reached will help public bodies show how they considered the Equality Duty. Producing an Equality Impact Assessment after a decision has been reached will not achieve compliance with the Equality Duty.

The Equality Duty does not mean that public bodies have to examine equality issues where they are not relevant to the matter in hand. Where it is clear from initial consideration that a policy will not have any effect on equality for any of the protected characteristics, no further analysis or action is necessary. For example, if a public body is conducting a review in relation to an issue which has no implications for equality – such as an evaluation of the effect of coastal pollution on marine life – undertaking a formal consultation or analysis addressing equality issues where it is evident that the Equality Duty is not relevant would be pointless and is not required.

The Equality Duty does not require public bodies to take disproportionate action on equality. Public bodies should take a proportionate approach when complying with the Equality Duty – in practice, this means giving greater consideration to the Equality Duty where a function or policy has the potential to have a substantial effect on discrimination or equality of opportunity for the public or the public body’s employees, and less consideration where the potential effect on equality is slight.

The Equality Duty does not require public bodies to treat everyone the same. Rather, it requires public bodies to think about people’s different needs and how these can be met. So the Equality Duty does not prevent public bodies providing women-only services – for example, for female victims of sexual violence or domestic violence. Indeed, such services may be necessary in order to ensure women have access to the services they need.

The Equality Duty does not require public bodies to treat all religions as being equal or to treat all religious festivals equally. For example, a public body displaying a Christmas tree every year in its reception area would not be a breach of the Equality Duty.

The Equality Duty does not require public bodies to make services homogeneous or to try to remove or ignore differences between people. So, for example, it does not mean that a public body must stop providing age-appropriate services for people of different ages, or that it can no longer commission some services to be provided by different faith organisations. Faith organisations are sometimes well-placed to deliver services which meet the particular needs of their  community.

Enforcing compliance with the Equality Duty

There is no explicit requirement to refer to the Equality Duty in recording the process of consideration but it is good practice to do so. Keeping a record of how decisions were reached will help public bodies demonstrate that they considered the aims of the Equality Duty.

The Equality Act makes very clear that any proceedings for enforcement of the Public Sector Equality Duty must be in public law. This means it has to be done through judicial review, in the High Court.

An individual cannot bring an action against a public body for breach of an individual contract, e.g. you cannot use the Public Sector Equality Duty to sue your council for failing to pay you for gardening services rendered. For this you would have to go to the normal courts.

The EHRC can institute judicial review proceedings where it believes that there has been a breach of the provisions of the Equality Act in general by a public body. It also has a specific power to make an application for judicial review where a public body has breached the general and/or specific duties of the Public Sector Equality Duty.

The EHRC also has a power to intervene in judicial review claims filed by individuals and organisations to help in clarifying the law. In this context its role is neutral (i.e. it does not support one side or the other).

What the EHRC can do

As the body with legal responsibility to enforce compliance with the duty, the EHRC will assess the complaint and, if is seen to be substantial, it will take up the complaint under its own procedure in the following ways.

Compliance notices: It will assess the public body’s compliance with both the general and specific duties and issue what is known as a compliance notice, where there has been a breach of either or both of the general and specific duties. In addition, where it suspects the duty has been breached it may enter into an agreement with the body requiring it to take certain steps to comply with the duty, for which it would agree not to issue a compliance notice.

Judicial review: A person whose rights have been affected by a breach of duty is able to make an application for judicial review to the High Court. Judicial review is the application an individual or organization can make to the Court, challenging an action by a public body, where it is believed the action has been lawful.

How the duty applies to older people

Equality protection was extended to include age and in particular the duty of public bodies to consider persons in the age category. Older people thus now have the full  protection previously accorded to other categories.

It is important to make it clear that the Public Sector Equality Duty as it relates to older people is in addition to rights that they have under the other parts of the Equality Act, such as equality in employment, goods and services, etc.

What this means, is that people can:

–     require public bodies to have due consideration to age equality in making policies and decisions – like quality of life and aspirations and spending patterns, for instance – why is ‘24 hour care’ an adequately expressed care plan, for an older person, when it wouldn’t be, for a younger one?

 

–     challenge a decision or policy of a public body, where it has failed to consider the impact of the decision on older persons (either by not carrying out an equality impact assessment or not considering the results of the equality impact assessment, where it has carried out one).

In summary, the new Public Sector Equality Duty has given older persons (the age category) the right to have their interest considered by a public body when decisions are being made, using all the facilities available under the Equality Act and its supporting regulations, as well as other existing judicial and legal means.

Please note that the Public Sector Equality Duty – after all this – is now the subject of an early review, by the Coalition government, before the reporting duties have even been and gone. Perhaps the recent spate of judicial reviews must have had something to do with that!

  • “…the duty has also come with some degree of administrative and regulatory burden; publishing information and objectives takes up management time.”
  • This has clearly influenced the Government’s decision to review the PSED to see whether “it is operating as intended”.
  • To date however, the Government has not provided any further details on the remit of its review. Public authority employers will therefore have to await further announcement before they consider what effect the review might have on their business practices.

 

 

The Chronically Sick and Disabled Persons Act 1970

is just one of the pieces of legislation in England which defines the parameters of social care services – the things Councils have always been able to arrange, if they feasibly came within the following highlighted words – but services a right to which has always depended for the individual, on a prior finding of necessity, ie eligibility.

Even when a person is eligible, however, in a particular domain of NEED, it has always been up to the council to decide whether they would meet the need in a particular way, because the council is the decision maker on appropriateness of service provision.

 

The Act envisages arrangements by the council, needing to be made, in order that a person’s identified needs be met, for the following things or activities.

Section 2:

(a) the provision of practical assistance for that person in his home;

(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;

(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;

(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;

(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;

(f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise;

(g) the provision of meals for that person whether in his home or elsewhere;

(h) the provision for that person of, or assistance to that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone,

 

One of the debates since Personalisation became government policy, is what might people want to spend the money on? And are all such things actually – in legal terms – really social services?

Thinking very hard about stretching the language in the legislation above, is one way of answering this question:

  • Gym membership (or any club membership, even if it’s one a bunch of personal budget recipients set up for themselves), massage, a buddy for using public transport, taxis, an escort for socialising, art therapy, season tickets or subscriptions to activities such as the theatre, football – paying for all these things could logically come under “facilitation of” / “access to” recreational facilities or ‘instruction’ or ‘outings’ if people were eligible for them under FACS guidance in the first place.
  • Life coaching, specialist communication assistance (eg for a deafblind person), emotional support, financial management support, a personal trainer: “instruction in how to overcome the effects of one’s disability”, or even – “practical assistance in the home” – likewise, if eligible, once again
  • Any classes or courses – likewise…
  • A person to provide support at college or university: assistance to that person “in taking advantage of educational facilities available to him”
  • Transport: “provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29”
  • Emergency respite at one’s house: practical assistance in the home
  • Supervision at home: night-sitter services – see LAC (93)10
  • Telecare, Helpline, commode, electric scooter, recliner chair etc, air conditioning, grab rails, cot sides, a stair lift, electronic tracking device, fall monitor etc: the provision of any additional facilities designed to secure [the person’s] greater safety, comfort or convenience
  • A computer, a Wii, Guitar Hero, ‘brain trainers’: the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;
  • Caravans:  recuperative holidays or holiday homes – see LAC (93)10
  • Gardening, cleaning, ironing, shopping, home handyman services, financial management support: practical assistance in the home or ‘home help’
  • Cocaine? Cannabis? Cigarettes? All these are ‘recreational facilities’ of a kind, but one is illegal and harmful, but allegedly fun. One is illegal but allegedly therapeutic. And one is legal and a source of vital tax income to the government, but clearly harmful, even in moderation… so it is unlikely that a court would mandate purchase of any of these things out of a community care budget!
  • Reputationally difficult things: What about spending a direct payment on an agency that is playing fast and loose with the illegal worker rules – the recipient is not committing an offence, it’s the agency. But it is public money, being spent on an illegal worker. The LA does not have to agree to anything it does not want to agree to. So this one is hard to call, in legal terms. If it wants to take the risk, on the basis that it’s for the police to pursue, and to stop the funding would destroy the care relationship which is working really well, it could also educate its Members better, to deal with the press politely but by reference to the legal framework, if it wants to.
  • What about things that just make us feel happier? Or less miserable? Are these things community care services?

For instance, what about a pet, for the sheer loving of one…? Great for one’s happiness and heart-rate, according to the evidence, but difficult to force into the language in any of the Acts from which the notion of community care services are derived. It’s hard to argue in favour of pets, though it obviously makes sense, given the evidence…because there are no community care services specifically for addressing social isolation or stimulating a person that could be stretched to cover buying and maintaining a pet. A pet is not a recreational facility, in the ordinary use of the word.  FACS guidance and Personalisation Agenda emphases on ‘outcomes’ have ignored the law, underlying social services funding, unfortunately.

  • The purchase of sex or somewhere to engage in it?: It is not illegal to spend money on securing a sexual activity for oneself. Paying for sex when you know that the other person has been exploited, by being subjected to threats, force or deception, is criminal, and is a strict liability offence. But sex is clearly a leisure activity and could arguably be regarded as a game or an outing…. And help with accessing it could certainly be agreed to be a vital need, in a person-centred holistic assessment, under something as woolly as FACS – referring back to VITAL roles and relationships, it is suggested. It is not a crime to sell sex, although the contract is unenforceable for public policy reasons. Street offences are what prostitutes and those searching for sex are criminalised for, and it could even be said to be good for the area to get if off the streets, some would say.  Would advocates call it ‘practical assistance in the home’! Probably not, but why shouldn’t it be seen as “instruction in one’s own home, or elsewhere, as to how to overcome the effects of one’s disability”? Since it may be illegal to buy sex for someone else, and it is definitely illegal to buy it for someone mentally incapacitated, perhaps this represents a bright, shining outcome for the idea that once the money is a direct payment, then it’s as if it’s private money, in the client’s hands, and no longer the money of the local authority, no longer being used to procure anything, in the ordinary sense of public procurement?

 

  • Councils will not be looking forward to the media attention if they take up this opportunity and start filling up PBs with money for this activity – and they don’t have to – but they have to be careful as to how they say no. Getting it wrong could mean judicial review / a human rights claim under article 8 (respect for private life, and one’s sexuality).

 

 

 

The Better Care Fund

Background

What is the Better Care Fund?

The main aim of the Better Care Fund (‘BCF’) is to transform local services in order to ensure that people are provided with better integrated care and support, and in doing so help local areas to manage the common pressures within this sector and improve their own long term sustainability.

By facilitating the integration of care and support, it is hoped that this will enable health services to improve the lives of some of the most vulnerable people in society and give them more control over their own care and support. Ultimately, it is hoped that the BCF will help health services to offer service users a better quality of life. The BCF will also build upon the work that is already being carried out by Clinical Commissioning Groups (‘CCGs’) and councils, by making the most appropriate care for each individual more accessible.

What is included in the Better Care Fund?

The BCF comprises of £3.8bn of funding in 2015/2016 to be spent locally on health care in order to achieve the aforementioned aims. In 2014/2015, along with the £900m transfer already planned from the NHS to adult social care, a further £200m will be made available in order to assist localities with laying the necessary groundwork ahead of the BCF in 2015/2016. However, this money will only be given to councils that have jointly agreed and signed off two-year plans for the BCF.

Whilst there are no new requirements for the pooling of budgets in 2014/2015, the requirements for the use of the £200m are the same as those outlined within the guidance from the Department of Health to NHS England (December 2012) on the funding transfer from NHS to social care in 2013/2014:

  1. The funding must be used to support adult social services in each local authority, which also has a health benefit
  2. Each local authority must agree with its local health partners how best to use the funding within social care, and the results that they hope to achieve from this; and ‘Health and Wellbeing Boards’ will be the natural place to discuss with NHS England, CCGs and councils about this
  3. Councils and CCGs must have regard to the Joint Strategic Needs Assessment for their local population, and existing commissioning plans for both health and social care, when deciding how the funding should be used
  4. Local authorities, councils and CCGs must demonstrate how the funding will appreciably have a positive impact on social care services and the outcomes for service users

The BCF includes £130m of NHS funding for carers’ breaks, and £300m of NHS funding for reablement services. Local plans will therefore need to set out the level of resource that will be dedicated to carer-specific support, and local plans will also need to show a continued focus on reablement. Also, the BCF includes funding for costs to councils resulting from care and support reform. Whilst this money is not ring-fenced, local plans should show how the new duties are going to be met.

How should councils and CCGs develop and agree a joint plan for the Fund?

A condition of accessing the BCF’s money is that CCGs and councils must jointly agree plans for how the money will be spent, and these plans must meet certain requirements. Each statutory Health and Wellbeing Board will then sign off the plan for its constituent councils and CCGs. In doing so, it will be necessary to ensure that the Fund is developed as a fully integral part of a CCG’s wider strategic and operational plan, and the unit of planning chosen by a CCG must be consistent with the boundaries of the Health and Wellbeing Board (or Boards) with which it works.

Whilst the specific priorities and performance goals in the plan are reserved for each locality, it is recommended that each locality:

  1. Aggregates the ambitions set for the BCF across all Health and Wellbeing Boards
  2. Assures that the national conditions have been achieved
  3. Understands the performance goals and payment regimes that have been agreed in each area

The six national conditions, as mentioned above, are as follows:

  1. The plans must be jointly agreed by the constituent Councils, the Health and Wellbeing Board and the CCGs
  2. The plans must include an explanation of how local adult social services will be protected within their plans
  3. The plans must confirm how they will provide 7-day services to support patients being discharged and prevent unnecessary admissions at weekends (or otherwise, why their plans will not be able to provide such services)
  4. The plans must secure better data sharing between health and social care, based on the NHS number
  5. The plans must ensure a joint approach to assessments and care planning and ensure that, where funding is used for integrated packages of care, there will be an accountable professional
  6. The plans must identify what the impact will be on providers in their local area, including if the impact goes beyond the acute sector

Comment

The general consensus is that the BCF represents the best opportunity yet for local services to collaborate in order to improve the health and lives of people within their communities The flexibility and scope for tailoring the delivery of local services that has been given to local authorities, CCGs and care and support services when formulating their operational plans under this model is especially appreciated. It is hoped that the scope given to innovation and creativity here, when producing ambitious health and social care programmes, will be particularly important when bringing about important change for the lives of many service users. The ultimate aim of the model is thus to achieve a ‘seamless pathway of care that delivers the best possible health outcomes for people’ (Jon Rouse).

Whilst the overall direction of moving to integrated models of care and pooling health and social care budgets has been widely supported, the following risks have been identified about the model (The Guardian).

Firstly, the fund is not comprised of any new or additional money. The money contained within the BCF is derived solely from NHS and social care budgets. Therefore, unless the new integrated models of care supported by the BCF deliver equivalent benefit straight away, it is feared that the service being delivered to patients will be worse. A further concern within the scheme relates to the apparent inconsistencies regarding funding. Whilst, on the one hand, councils have been told that their spending power will be unaffected, because the £3.8bn will be spent on local authority services; the NHS has also been told that the protection of their funding will be maintained. Both cannot be correct. Also, many regard this scheme to be a huge risk given the scale and speed with which it is being undertaken, without significant additional investment, nor any assurance that these new models are working well before the old models have been discontinued. It must also be conceded that whilst integrated care models will undoubtedly produce better outcomes for patients, there is little guarantee that they will also be more cost-effective and efficient.

Further, whilst this scheme is predicated on a collaborative approach that has already been seen within certain local health and social care economies, there is no guarantee that similarly prosperous partnerships will be engendered across the scheme on a large scale. If, for example, the scheme begins to be consumed by doubt as to whether a truly integrated model can be achieved, riddled by division between health and social care over scarce funds, and overcome by a wholly adversarial environment as service deliverers seek to protect their corners; it is unlikely that the BCF will be able to achieve its overriding aims.

A final concern relates to potential risks to the NHS service delivery, resulting from taking £2.1bn out of mainstream NHS service delivery. Sir David Nicholson has told CCGs that the fund will require savings of over £2bn in existing spending, implying an extra productivity gain of 2-3% across the NHS as a whole in 2015/2016. Given the clear difficulties in achieving 4% savings a year, increasing this to 6-7% seems to be immensely over-ambitious.