UK: Care Home Brief - July 2012

Last Updated: 8 August 2012
Article by Rachel Warren

Funding of Social Care

The Government has now agreed, in principle, to introduce a cap from 2015 on the amount which people will have to contribute towards the cost of social care as recommended by the Dilnott report. However, no indication has been given yet as to how much the contribution will be; or when it will come into effect. As a result, the uncertainty regarding the future funding of social care continues. The Dilnott report recommended a limit of £35,000 but many expect the Government, when it does make a decision, to recommend a much higher threshold, with potentially a separate cap also for the socalled "hotel costs" for living expenses.

The Government has also proposed a loans scheme (to be introduced from April 2015) under which a person can borrow funds from their local council with the loan, plus interest, to be paid back after that person's death. This is intended to help those people (estimated at 40,000 each year) currently forced to sell their homes to cover care costs. The scheme has been criticised by some as a "death tax" on the basis that an individual could still be forced to sell their home albeit after their death rather than be able to leave it to their children whilst others have queried whether/how councils will be able to fund the scheme.

Confidential Information

In the recent case of Churchill Retirement Living Ltd v Luard 2012, Churchill Retirement applied for the continuation of an injunction prohibiting a former employee from using information contained in documents which he had downloaded onto a memory stick before starting employment with another company. Much of the information contained in the documents was commercially sensitive as it included a contact list, details of Churchill Retirements Living Ltd's sites, and information for calculating building costs. The Court held that there was an arguable case that the information was confidential and that the injunction should continue. This case demonstrates the importance of having information governance policies in place; and appropriate terms dealing with confidential information in employment contracts.

Ability to Apply for Judicial Review

The Courts have also recently held that a care home owner was not able to challenge Caerphilly County Borough Council's decision to terminate its contract to care for elderly dementia sufferers by way of Judicial Review. The care home owner had argued that section 145 of the Health and Social Care Act 2008 meant that it performed a public function and so the Council's decision to terminate its contract was subject to Judicial Review. The owner also argued that it had standing to bring a claim for judicial review on behalf of its residents under article 8 of the convention on human rights (the right to respect for private and family life). The Court held that, although providing care home accommodation with personal care was an exercise of a public function, this did not include all aspects of the arrangements between the care home owner and the Council.

In addition, the contract between the care home owner and the Council did not allow proceedings to be brought in public law. The Court also held that the care home owner could not bring article 8 claims on behalf of its residents as it was not the "victim" for these purposes.

Queen's Speech 2012: Draft Bill on Social Care

The Government has announced a draft bill dealing with care and support for disabled and elderly people in England. The bill is intended to modernise and simplify the legislation governing social care, and will respond to the recommendations made by the Law Commission as part of its three year review of social care. It will also aim to give people greater control over their care and increased choice. However, as has been widely reported, the draft bill will not deal with the difficult issue of funding for social care.

Care Quality Commission - Inspection Programme for Home Care

The CQC has announced that it is carrying out 250, unannounced, inspections of home care services over a period of three months. These inspections will form part of the CQC's "themed inspection programme" of home care. The inspections will involve CQC inspectors accompanying care workers to people's homes and accompanying managers in order to carry out spot checks. Telephone interviews with the service users will also be carried out.

Two in Three Private Care Homes Unsafe

People with learning disabilities in privately run institutions are twice as likely to receive unsafe and poor quality care compared to the NHS. Only I in 3 private homes and hospitals inspected by the CQC was providing acceptable standards of care and adequately protecting vulnerable residents from abuse compared with two-thirds of NHS institutions. Individuals with learning difficulties were also more likely to stay longer in private institutions. The CQC said that the inspections raised important questions about the patterns of commissioning behaviour and practices across England including reviewing care plans for people in treatment and assessment services so that they can move on to appropriate care settings. The report also said that there are still lessons to be learned by providers about the use of restraint whilst many of the failings identified were the result of care not being centred on the individual. The CQC says that too often people were fitted into services rather than services being tailored to people's individual needs.

Number of Whistleblowers Increasing

More than 4,300 whistleblowers have come forward to the CQC in the past 16 months to complain about the treatment of elderly and disabled people in care. More than 50% of the cases were judged sufficiently serious to trigger an inspection.

The level of complaints has increased 2,500% from December 2010 to March 2012, from 22 a month in December 2010 to 556 in March 2012. The whistleblowers include staff in care homes, relatives and workers such as hairdressers. Complaints included inadequate staffing levels, lack of respect for residents' dignity and assaults on residents.

Unregistered Service Providers Prosecuted

The CQC has successfully prosecuted a company for carrying out cosmetic procedures when it did not have the necessary registration.

The Northern had been carrying out liposuction procedures at two independent clinics. However, the premises were not registered, and, in addition, the company was not registered to carry out this regulated activity. The company entered a guilty plea and was fined £40,000 and ordered to pay the prosecution's costs of £22,548. In addition, the doctor who had been carrying out the procedures was referred to the General Medical Council.

This case demonstrates that the CQC is prepared to prosecute providers if they do not have the necessary registration, and that the level of fines, on conviction, can be substantial.

Terra Firma to acquire Southern Cross for £825m

Terra Firma, the private equity group chaired by Guy Hands, recently announced that it has agreed a £825m debt and equity deal for Four Seasons Health Care arranged by Goldman Sachs and Barclays with RBS reinvesting alongside Terra Firma. The deal is expected to close in mid-July. Unions expressed concern that the new owners may seek to cut costs but Terra Firma said that it was committed to further investment in the business in order to achieve long-term sustainable growth and that its "number one priority" was to ensure that Four Seasons delivered consistent high-quality care and peace of mind for residents, service users and their families.

Four Seasons is currently the largest independent provider in a £15 billion market in the UK with 445 care homes (with 22,364 beds) and 61 specialist care centres, with 1,601 beds. Four Seasons became the UK's largest elderly care provider last year after acquiring 140 homes from Southern Cross.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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