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Communication with protected parties in legal proceedings
The way forward for CQC – something old, something new….
The Ombudsman, DoLS and triaging – asking the impossible?
Outsourcing and the Human Rights Act 1998 – the consequences
Commissioning care and support in Wales: new code of practice
Human rights watchdog to investigate home care legal obligations
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The Equality and Human Rights Commission is to examine the legal obligations of local authorities, care providers, the Care Quality Commission and central government as part of a major inquiry into the human rights of older people who need or receive home-based care.
The EHRC said that 81% of publicly funded home care is now provided by the independent sector, up from just 2% in 1992. It is estimated that more than a million older people currently receive such care.
The watchdog claimed that most independent providers are likely to be operating outside the direct reach of the Human Rights Act because they are not considered to be performing a “public function”.
Older people who receive home-based care are “acutely vulnerable to human rights violations”, the EHRC added, “yet the duties and responsibilities of those providing commissioning, funding or regulating the care and support system are far from clear.”
Sally Greengross, Commissioner at the EHRC, said: “Against a backdrop of budget cuts and public sector reform, local authorities are playing an ever-decreasing role as direct providers or funders of care and support, with the majority of older people receiving care from private and voluntary sector organisations or individuals.
“The complex web of provision has left older people and their families unclear whether and how their human rights will be protected. Equally, we believe those providing, commissioning or regulating care are unclear of their legal responsibilities and how to discharge them.”
The EHRC warned that, with older people and their families increasingly having to fund their care, there was a risk of care “being provided at the margins of, or even outside of, current regulations and beyond the reach of human rights obligations”.
The terms of reference for the inquiry include identifying:
- The extent to which public authorities are effective in protecting and promoting the human rights of older people , including those paying for their own services, in the initial and ongoing assessment of their needs, commissioning home based care and support and subsequent contract management
- Good practice in the promotion and protection of human rights of older people in home based care
- Public authorities’ understanding of their duties under the Human Rights Act in relation to promoting and protecting the human rights of older people requiring or receiving home based care and support
- The extent to which the legal framework for human rights and community care adequately protects and promotes the human rights of older people requiring or receiving home based care and support services
- The extent to which appropriate information, advice and advocacy is provided to older people directly purchasing home based care and support in order to protect and promote their human rights
- The extent to which inspectorate and regulatory bodies, including professional regulatory bodies, protect and promote the human rights of older people requiring or receiving home based care and support services and the extent to which it is appropriate for them to do so
- The scope for enhancing the role of inspectorate and regulatory bodies, including professional regulatory bodies, individually and collectively
- The extent to which people, including the families of older people requiring or receiving care and support, based on their experience, have confidence that the system will promote and protect their human rights.
The EHRC said its recommendations would be used to inform the practices of local authorities, regulators and providers of home based care, as well as the Commission's own work. The watchdog is also keen to influence the Independent Commission on social care reform and the independent Commission on a Bill of Rights.
The Inquiry will publish its findings and recommendations in December 2011.
NHS Confederation warns against cost shunting in social care
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The NHS Confederation has called on the NHS and local government to work closer together to provide social care, with its deputy director of policy warning that simply shunting costs from one part of the system to the other would be a “totally inadequate response” to the challenge of caring for elderly people.
Speaking at the National Children and Adult Services Conference yesterday, Jo Webber said the NHS and local government needed to join forces and change services in a bid to get “the maximum bang for every buck on behalf of service users”.
Webber acknowledged that the NHS Confederation and many people in local government were concerned about the impact of the current public spending round on social care.
“But the challenge of difficult financial times is one we simply have to prove equal to,” she said. “The answer will lie in ever closer working between local government and the NHS, a willingness to consider pooled budgets, innovations like telecare and the savings and improved co-ordination which personalised budgets can bring.”
Webber admitted that “none of this is going to be easy”, predicting that this winter was likely to bring the first real test of the impact the spending squeeze would have on the vulnerable and elderly, and the services they rely on.
She added: "Simply shunting costs from one part of the system will prove to be a totally inadequate response to the challenge of caring for elderly people.
“The only way we get the maximum bang for every buck on behalf of service users will be to work closer together and squeeze as much value as possible from the money available for social care."
Getting Personal
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The personalisation agenda is set to fundamentally change the way in which supporting people funding is allocated. Ronnie Tong and Nick Billingham look at some of the legal issues facing providers of care, including social housing providers who also provide support services or who work with third party support providers.
The proportion of service users on personal budgets in the last year has already doubled so personalisation is already under way. Some 13% of disabled adults, older people and carers who used community services were receiving personal budgets in 2009-10, up from 6.7% in 2008-9. It is estimated that this trend will continue with more and more service users taking control of their budgets.
Personalisation
Historically, individuals in need of community services would have their needs assessed by a social worker and then be told what services they require and the provider of that service. The Personalisation Agenda now places more control in the hands of the service user. Every eligible person who receives support provided by statutory services will have the choice of personal budgets under Personalisation. This will mean that service users will be able to manage their own budgets and buy their own support services.
The idea is that giving more choice to service users will potentially make them more independent. However, with the increase in service users opting for personalised budgets this will create a number of problems for service providers.
Reduction in funding
When service providers tender for services from local authorities, a budget is normally agreed to be paid to the service provider for the duration of the contract to provide support services. However, if a number of service users opt for personal budgets during the life of that contract, it is likely that the local authority will reduce the funding to the service provider. Local authorities will make direct payments to the individual service users so they can purchase their own support services.
The service providers overheads, such as staffing, will remain the same but with a reduction in the funding by the local authority this will potentially make the cost of the running the service financially impracticable. Service providers may then have to make decisions in terms of either cutting overheads (e.g. redundancies, reductions in pay etc) in order to make the provision of the service financially viable or in the worst case scenario serve notice of termination on the contract.
Changes in the business model
Service providers that normally rely on large scale supporting people contracts may have to start considering targeting self-funding customers, which will mean establishing a different business model. Service providers will also have to adapt the manner in which they market themselves and rather than telling purchasers what services they can offer, they may have to start listening to purchasers to establish the type of services they require.
TUPE
One of the biggest concerns for service providers who historically rely on large scale contracts is the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE). Traditionally when a service provider inherits a contract from another provider there is a service provision change under TUPE. The new service provider will inherit all the employees who were working on the undertaking which is being transferred to the new service provider.
In theory, a service provision change could occur if a service user decided, under personalisation, to purchase care services from another provider. If there has only been one employee working for that individual service user, it is possible that the employee could transfer to the new service provider under TUPE.
However, in the case where an employee is working for three service users and all three services users decide to purchase services from three different providers it is unlikely that TUPE will apply due to the fact that the services have fragmented to such a degree it would be impossible to identify which new service provider the employee should transfer to.
If the employee did not transfer to the new service provider this could potentially result in the employee being made redundant. Furthermore, if the employee originated from the local authority and remained on his/her original terms and conditions, redundancy costs and associated pension liabilities could be significant.
One way service providers could mitigate against this would be to ask the contracting local authority to indemnify them against redundancy costs in such situations. However, it is highly unlikely that a local authority would agree to such an indemnity particularly if this is sought after the contract has been entered into.
Alternative staffing models
Another way to mitigate against potential redundancies is to reassess the manner in which service providers staff their schemes. Due to the uncertainty of the required staffing levels for the duration of a large scale contract, employers may opt to place more employees on zero hour contracts or hire ‘bank workers’. However, this can cause problems in terms of the quality of service provided if the zero hour employees or bank workers do not work regularly and are unfamiliar with the policies and procedures of the employer.
Conclusion
Whilst the idea of personalisation seems to give great benefits to individual service users (more independence, greater choice, cheaper services etc) it does present a number of concerns for service providers. In particular service providers who are tendering for large scale contracts at present should bear in mind the possibility of losing a number of service users through personalisation and consider whether they would be able to operate the services with a reduction in funding due to personal budgets.
And in the housing management context
One issue which is exercising registered providers (RPs) in the care and support sector is the extent to which residents who accept a package of support services can withdraw from some or all of those services on the basis that they should be able to pick and choose as a result of the Personalisation Agenda.
For example, some residents in a sheltered housing scheme may decide they don't need or want warden services and want to spend their support money elsewhere. The question naturally arises whether they can do that unilaterally and what then happens to the warden if support payments reduce or stop as residents decide to buy other support services. Quite possibly the warden may have to be made redundant.
And of course, Supporting People (SP) authorities are also going to be looking to support providers they contract with to provide more flexible, innovative services. In other words, if services are not wanted by residents and the RP is not able to provide services which residents want, the RP is unlikely pass a QAF inspection and could risk decommissioning anyway.
So how do RPs in the supported housing sector deal with this? The answer from government and support advice agencies appears to be that support providers will need to be more flexible in how they provide support so that the residents have a greater choice in how they spend their individual budgets. This should mean that residents are less likely to try to withdraw from the support provided. But "should" is not really good enough. So how do RPs protect against residents withdrawing from services?
One option which has been piloted already is for the support recipient to be required under their support contract to pay towards certain 'core services' and then have an option to choose from a menu of optional services. There is no reason why the recipient of the support should not be required to choose from options made available by the particular support provider. So long as wide enough choice of services is provided in addition to the core services (which could include for example a warden service or an alarm call service) then the objective of personalisation and choice is achieved without undermining the scheme itself.
Of course, the extent to which support services can be treated as core services and others as optional services depends on the nature of the scheme. For example, an RP running a women's refuge could justifiably require an incoming tenant to accept a menu of standard support services with very little, if any, optional services. This is simply because the needs of women in a refuge are likely to be very similar and the support required very similar. The same could apply to a residential care home or an extra care scheme.
The issue of choice and optional services really arises in the context of schemes where the needs and backgrounds of the residents are more diverse. So, in a sheltered housing scheme, one increasingly finds very different needs as between 55 year olds and 80 year olds living in the same scheme. In these situations, the expectation will be that the RP provides a lot more choice, and the core (obligatory) services will be more restricted.
In summary, choice is a key ingredient of personalisation but choice does not mean a free for all.
Ronnie Tong is a solicitor specialising in employment and Nick Billingham is a partner and head of the housing management department at Devonshires. Ronnie can be contacted by email at
Model answers
- Details
In February 2010 the Law Commission published a consultation paper containing detailed proposals for the reform of adult social care law. On 14 September 2010, the government published its detailed response. Lee Parkhill and Dawn Braithwaite examine its approach.
In its White Paper Equity and Excellence: Liberating the NHS, the government cited its intention to bring together the Law Commission’s proposals on reforming adult social care law and proposals from the Commission on funding of long-term care, into a White Paper in 2011. The government’s response to the Law Commission’s proposals provides an indication as to how policy, and law, is likely to develop in this area when the 2011 White Paper is produced.
An interesting theme in the response was the government’s desire to change the language in this area; the term “community care services” was described as “outdated”. The response also stated that the term “social care needs” does not “reflect people’s experience nor encourage innovative responses” and suggested the term “needs for care and support” might be more appropriate term to adopt.
Although the government suggesting employing some new language, which the Law Commission had not proposed, the government and the Law Commission both agreed with the principle that the current legislative framework for social care is outdated and needs modernising. The government’s view is that expectations have changed and the social care system needs a legal framework that promotes personalised care, increases choice and control and can be used and understood by those that need to access support.
Set out below are the proposals on which the government agrees with the Law Commission, those in respect of which the government expressed reservations and those the government would like to consider in more detail before reaching a decision.
Proposals for changes to the overarching principles and processes which met with the government's approval
These included:
- Creating a set of defining statutory principles for adult social care law, to provide an overarching sense of the purpose and outcomes that social care should achieve
- Making assessments ‘need’ and ‘outcome’ focused rather than being focused on suitability for a particular service
- Using ‘co-produced’ self assessments as opposed to assessments being wholly created by professionals. However the government stated it does not currently see a role for pure self assessment
- Maintaining the current divide between health and social care, however the government stressed its desire to see greater integration between health and social care in service delivery, and this is evident in their response to some other key proposals, in particular in relation to the assessment process
- Retaining the current law which permits direct payments in social care
- Giving local authorities a power to request assistance from certain authorities, e.g. for assistance in assessing a service user or for assistance in providing services. The requested authority would be under a duty to give due consideration to the request. The government said it would like to give further consideration as to which bodies could be approached by the local authority, and whether the obligation on the other agency (‘to give due consideration to the request’) would change current practice.
- Establishing a legal duty to provide services for those ordinarily resident in a local authority’s area, and a power to provide services to those not ordinarily resident in the authority’s area. There would also be a duty to provide accommodation services needed urgently, regardless of ordinary residence
- Making clear that the responsibility for providing services to carers should rest with the local authority in which the cared for person lives
- Creating a power for local authorities to assess 16 and 17 year olds, to help improve transition between child and adult services, and
- Creating a statutory duty on local authorities to publish information on local services.
Proposed changes to specific services which met with the government's approval
These included:
- standardising the rules on determining which bodies are responsible for services under the Mental Health Act 1983, s. 117. The ‘ordinary residence’ test, which is relevant to most other services, does not currently apply under s. 117 but the government supports making ‘ordinary residence’ the applicable test
- Clarifying the roles of the NHS and local authorities under s. 117. The government is also, provisionally, in favour of splitting the duty so, for example, the NHS duty could be terminated while local authority s. 117 provision to an individual continues
- Extending the ‘Choice of Accommodation’ directions and the additional payment regulations to cover accommodation provided under s. 117 so individuals would get a legal framework to enable them to exercise choice over their accommodation provision, and would be able to pay a ‘top up’ for more expensive accommodation if they wish.
Proposals, or questions posed by the Law Commission, which the government expressed some hesitation about endorsing
These included:
- the proposal to enable portability of services by introducing (i) an enhanced duty to co-operate when service users move areas and (ii) creating a national portable needs assessment and national eligibility criteria. The government’s response acknowledged the problem here but added it is keen to consider the views of others before reaching a conclusion on the proposal
- the proposal to create a right to request an assessment. The government expressed concern that this could burden local authorities with vexatious requests, and also lead to a focus on the assessment process rather than delivery of services. The government is keen to consider responses from others on this issue
- the proposal to create a wider duty to assess carers (applicable not only to carers providing substantial care on a regular basis) and making the carer’s appearance of need the trigger for the assessment duty arising, as opposed to it being triggered by a request for assessment. The government was positive about this proposal’s focus on outcomes and the experience of the carer, as opposed to being focused on specific criteria. However the government said it would like to hear more about current practice, and would like to consider the resource implications for local authorities of the proposed changes.
Proposals where the government was undecided
These included:
- creating a mandatory national eligibility framework for carers services, which local authorities would have to use to decide whether or not to provide services to carers
- defining community care services by a short and broad list of services. The government expressed reservations about language, disliking the term ‘community care services’, and expressed a desire to avoid a list of services acting as a constraint to innovation in the type of services offered to meet needs. The government said it would prefer to see a list of activities which could achieve outcomes, but noted the difficulty of finding the right language to compose such a list
- placing a statutory duty on local authorities to produce a care plan for people who have assessed eligible needs. The government made a few suggestions about how this proposed duty could be altered including a suggestion that the duty should be in terms of ‘co-production’ with the individual. However the government recognized the legal complexity of establishing co-production given the need for a clear decision making processes, the need to determine legal entitlements and local authorities’ wider responsibilities to ensure consistency and fairness to all service users. The government also thinks this duty should reflect greater inter-agency working; the government said that other key agencies, such as the NHS, should play their full part in care planning to ensure that the resulting services are joined up from the outset. The response added it would be important to ensure that the duty does not lead to multiple care plans which would impede a multi-agency approach. The government is keen to discuss this proposal further with the Law Commission and is also keen to see the responses of others before reaching any firm conclusions.
Some of the proposals to abolish laws which met the government approval
These included proposals to:
- Abolish section 21, National Assistance Act 1948. This provision places a duty, and in some cases a power, to provide residential accommodation to people in need of care and attention. The Law Commission proposed that this be repealed, and that local authorities could use mainstream powers (under the proposed new legislation) to provide residential care. The important change would be, the Law Commission suggested, that eligibility would depend not on meeting the definition in s. 21 (being in need of care and attention not otherwise available) but on meeting the new general eligibility criteria. The government agreed in principle with this proposal but expressed concern to ensure that existing entitlement is not lost and suggested that further information be obtained, from ADASS, as to how s. 21 is currently used to ensure that current practice is not constrained and to ensure that any change does not overburden housing authorities.
- Abolish s. 47, National Assistance Act 1948. The government agreed in principle with the proposal to repeal this provision, which empowers local authorities to apply for a court order to authorise the removal people, who are living in insanitary conditions, who are in need of care and attention. The power is infrequently used and concern has been expressed that use of the provision be inconsistent with the Human Rights Act 1998.
Proposals on adult safeguarding and asylum seekers
The Law Commission’s proposals on adult safeguarding were, overall, received with less enthusiasm than other proposals. The proposal to retain a duty on local authorities to safeguard the property of people who are admitted to hospital or residential care was approved of, as too was the proposal to repeal of s. 47 of the National Assistance Act 1948 (see above). However three other significant proposals in the area of safeguarding were not endorsed at this stage, with the government indicating a desire to further consider policy on the issues. The three proposals were:
- a proposal the impose a duty on each social services authority to establish an adult safeguarding board, and to set out in law the functions and membership of the board, a legal requirement to share information and a duty to contribute to serious case reviews
- a proposal that an enhanced duty on relevant agencies to cooperate should include specific provision to promote co-operation in adult safeguarding investigations, and
- a proposal that ‘No Secrets’, or it successor, be linked clearly to a local authority’s statutory function to safeguard adults from abuse and neglect.
The government also signaled that further thought needed to be given on the issue which the Law Commission raised about services for asylum seekers. The government’s response states that it is considering the prohibition on people subject to immigration control accessing some adult social care services where they are solely destitute, or because of the physical or anticipated physical effects of destitution. This has been a high profile area, generating a great deal of litigation, so local authorities will be keen to hear the government’s further thoughts on this complex issue.
Conclusion
The law on adult social care law is extremely complex, with much of it being over 60 years old. The need for reform is clear, and the government is clearly committed to reform. The challenges involved in the task are considerable and they are unlikely to be eased by the sensitive policy issues associated with funding social care. Health and social care providers and commissioners will no doubt find the government’s response to be an interesting insight into current thinking, which we can expect the government to explain in more detail when the 2011 White Paper is published.
Lee Parkhill is a senior solicitor and Dawn Braithwaite is a partner at Mills & Reeve. Lee can be contacted by email at
Rationalisation of NHS estate needs to consider wider public sector, says TPP Law
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Opportunities to rationalise the NHS estate effectively will need to be considered in the context of the local public sector estate generally, a report by TPP Law has argued.
The report – Asset Management in Health and Social Care – said much greater emphasis is likely to be placed on efficiencies achievable through joining up with local authorities and other public sector bodies.
Co-location of different public services where the relevant bodies are working jointly could lead to the twin benefits of improved customer experience and cost savings, the firm added.
Peter Hill, Associate Director of TPP Law, said: “The healthcare and social care environment is of key importance to the patient experience, as well as being important for staff. Better outcomes for health are unlikely to be maximised unless the NHS estate can make a positive contribution to this.”
Hill suggested that this positive contribution could be brought about by selecting from a range of estate and asset management solutions tailored to local healthcare needs.
These solutions might involve an NHS body alone, joint working with another public sector body, partnership working between the NHS, third sector and social enterprise, or with the private sector.
“Whichever is chosen, solutions which provide both transformational change of patient experience and realisation of a sound estate strategy will be preferred; providers should be willing to offer innovative means of delivering both,” he added.
The report suggested that innovative asset management could prove vital if the coalition government’s radical reforms of the NHS are to work.
Under proposals contained in the government’s White Paper, strategic health authorities and primary care trusts will be scrapped, with primary power being put into the hands of GP consortia.
Mark Johnson, managing director of TPP Law, said: “Services may go mobile or be based around non-traditional locations. As care pathways are redesigned and cost pressures bite, the trend for moving services into the community will continue and remote working for health and social care professionals will proliferate. Cost savings from joint working and co-location will come to the fore.”
The report warned that efficiency in asset management in terms of good space utilisation, energy use and low lifecycle costs alone will not be enough.
It said the process of moving services away from acute provision back into the community is likely to be accelerated as a result of looming financial pressures. Another major development will be the opening up of the healthcare and social care markets to new providers including the third sector, social enterprise and “right to request” spin-out organisations.
A copy of the report can be downloaded here.
Quality of SCRs improves but one in six still "inadequate": Ofsted
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The quality of serious case reviews (SCRs) continues to improve but nearly one in six are still judged to be “inadequate”, Ofsted said today.
The watchdog looked at 147 SCRs for its Learning lessons from serious case reviews 2009-2010 report. It found that 42% were judged good, 42% adequate and 16% inadequate.
Ofsted warned that many of the cases reviewed “reveal the persistence of some key issues in practice which have contributed to shortcomings in the protection of the children involved”.
The report found that:
- The most common characteristics of the incidents were physical abuse or long-term neglect
- A consistent finding was a failure to implement and ensure good practice “even though established frameworks and guidance were available”
- There was often insufficient consideration of the child’s individual views and needs
- Statements from parents or other family members were not sufficiently challenged.
Ofsted’s report also revealed that “too often” agencies failed to share early enough information that could have contributed to a better understanding of children and their families. “For example, some parents within these reviews were receiving support from adult social care, adult mental health, substance misuse, housing and probation,” it said.
The SCRs covered incidents affecting 194 children. Some 90 of the cases related to child deaths, with the rest involving serious incidents.
Of the 194 children involved, 119 children were known to children’s social care services at the time of the incident. 90 children were receiving services as children in need, of which 49 were the subject of child protection plans. Some 31 of the children who had died were receiving children in need services.
Christine Gilbert, Her Majesty’s Chief Inspector, said it was encouraging to see that more reviews were being judged good, with fewer reviews inadequate.
She added: “The case studies highlight the complexities of the situations which social workers and others are responding to. In undertaking these reviews, agencies have been able to reflect on what happened and learn from their experience. They have identified gaps in their approach and most important, have agreed actions to improve the protection of children and so reduce the chances of such serious incidents from happening again.”
Baroness Shireen Ritchie, chairman of the Local Government Association’s children and young people board, said: “The death of even one child is one too many. The number of cases of this type being reported to Ofsted is down by nearly 50% compared to the previous 12 months but there is no room for complacency.”
Ritchie stressed that social workers were part of the solution not the problem, and had protected tens of thousands of vulnerable children at a time when their workload has been growing.
She added: “It is the over-riding aim of every council in this country and indeed virtually every parent – that we do everything within our power to keep every child safe from harm.
“Councils are working tirelessly to improve how they identify and protect children at risk from neglect and abuse, and an outside perspective does help. When things tragically go wrong they need to be examined. There is important work to be done within the police and NHS as well as at a local government level, and Ofsted also has a role to play in making things better.”
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