UK: Care Homes Brief

Current News And Issues For The Care Home Sector
Last Updated: 18 January 2013
Article by Catherine Drew

Disclosure & Barring Service (DBS)

1 December 2012 saw the launch of the DBS which was established under the Protection of Freedoms Act 2012 and merges the functions of the Criminal Records Bureau (CRB) and the Independent Safeguarding Authority (ISA).

The CRB was an executive agency of the Home Office set up in 2002 to help organisations make safer recruitment decisions and enabled organisations in the public, private and voluntary sectors to identify candidates who may have been unsuitable for certain work, especially work which involved children or vulnerable adults.

Following the Bichard inquiry, the Vetting and Barring Scheme (VBS) was established under which the ISA's role was to make barring orders with the power to place and remove people from one or both of the barred lists - it maintained both the ISA's Children's Barred list and the ISA's Adults' Barred List. However, there was a perception and fear that the VBS went too far in requiring too many people to register with, and be monitored by, the VBS and shifted the responsibility for ensuring safe recruitment too much away from the employer and towards the state.

The DBS deals with disclosure, referrals and barring.

Disclosure: the DBS searches police records and, in relevant cases, barred list information, and then issues a DBS certificate to the applicant and employer to help them make an informed recruitment decision. The checking service currently offers two levels of DBS check; standard and enhanced. As the information released on DBS certificates can be extremely sensitive and personal, a code of practice for recipients of DBS certificates has been developed to ensure that any information they contain is handled fairly and used properly.

Referrals: part of the role of the DBS is to help prevent unsuitable people from working with vulnerable groups including children. Referrals are made to the DBS when an employer or an organisation such as a regulatory body has concerns that a person has caused harm or poses a future risk of harm to vulnerable groups including children. In these circumstances the employer legally must, or regulatory body may, make a referral to the DBS.

Barring: there are two principal areas where barring can occur:

  • Autobars - there are two types of automatic barring cases where a person has been cautioned or convicted for a "relevant offence'". Automatic barring without representations offences will result in the person being placed on a barred list(s) by the DBS irrespective of whether they work in regulated activity. Automatic barring with representations offences may, subject to the consideration of representations and whether the person has a link to regulated activity, result in the person being placed in a barred list(s) by the DBS; and
  • Referrals from an organisation that has a legal duty or power to make referrals to DBS. Typically there is a duty, in certain circumstances, on employers to make a referral to the DBS when they have dismissed or removed an employee from working in regulated activity, following harm to a child or vulnerable adult or where there is a risk of harm

A new test for regulated activity has been introduced which means the DBS can only bar a person from working within regulated activity with children or adults if it believes the person is or has been, or might in the future be, engaged in regulated activity. The only exception to this is where a person is cautioned or convicted for a relevant (automatic barring) offence and is not eligible to submit representations against their inclusion in a barred list.

Where a person is cautioned or convicted of a relevant (automatic barring) offence with the right to make representations, the DBS will ask the person to submit their representations and consider them before making a final barring decision.

New laws to be proposed on abuse and poor standards in care homes

The Government announced in December that directors and owners of companies that run care and nursing homes would face being held criminally liable for abuses that take place in those homes. The move comes in response to the Winterbourne scandal. The new plans (due to be announced in 2013) could lead to fines or prison sentences for directors who fail to safeguard vulnerable patients in homes that they operate.

The Government has also said that private companies which receive public funds to run care homes should be made "corporately accountable" for poor standards and that any "regulatory gaps" would need to be addressed.

Soaring social care costs prompt calls for cap

A report by Age UK and Carers UK has estimated that the extent of the losses to the economy because individuals are being forced to give up work to care for elderly or disabled relatives is in the region of £5 billion (£4 billion in pay and an estimated £1 billion in taxes) whilst carers are claiming some £300 million in benefits to help cover their living costs. Charities have warned that the "missing" £5.3 billion is equivalent to more than 0.3% of Britain's GDP. More than 300,000 people quit work in 2010/11 to look after relatives and the number is thought to be increasing because of continuing cuts to care budgets. Social Services chiefs estimate that care budgets have been trimmed by £1.9 million in two years in England at a time when the numbers of old people continue to rise, eligibility rules are being tightened and care charges are rising. Complaints have been made that there is a "care lottery" with widely varying levels of provisions in different parts of the country.

As part of its mid-term review, the Coalition Government has indicated that it will consult on protecting services where providers fail; make access to care more consistent; establish a universal deferred payments scheme to ensure no-one has to sell their homes to fund care; and enshrine in law entitlement to personal care budget. The Prime Minister has said that, before the Budget in March, the Government would set out details as to the capping of the "potentially huge cost" of social care. But no further details have yet been given although there have been suggestions that the Government is looking at a cap of £75,000 (the Dilnot report suggested £35,000).

The Tory leaders of Kent, Hampshire and Buckinghamshire county councils have written to the Prime Minister demanding the Government implements a limit on charges for elderly care whilst the leader of Kent's council has set up an e-petition calling for the cap to be in place by 2015. The Department for Health have said "There is no doubt capping costs - the principle recommended by Dilnot - is the best model. The key question is how to fund it sensibly given the current deficit. We are looking at how to achieve this, along with taking action to ensure people do not have to sell their homes to pay for care." Nick Clegg has since responded in the House of Commons to a question from former Care Services Minister, Paul Burstow, confirming that Government is prepared to legislate for a cap on care costs by 2015.

Commentators have also said that the cap is only one of two key reforms recommended by the Dilnot report and that the Coalition Government needs also to commit to the second – the raising of the means test threshold from the current £23,250 to the Dilnot report's recommended £100,000.

Independent Safeguarding Authority

A Court of Appeal case in 2012 (Independent Safeguarding Authority v SB) has held that, when considering an appeal by the ISA as regards its decision to include a person on the children's barred list, the Upper Tribunal (UT) was prevented by statute from revisiting the appropriateness of an individual being included on the list under the Safeguarding Vulnerable Groups Act 2006. The Court held that the ISA was particularly equipped to make safeguarding decisions whereas the UT was designed to adjudicate upon mistakes on points of law or findings of fact.

The case involved an individual, SB who had pleaded guilty to 22 offences of possessing and distributing indecent photographs of children relating to a sample of 20 images from the 1232 images found on two computers. Although most were at level one, there were more serious examples including six at level five. The ISA had placed him on the adults and children's barred list and then, following an application by SB, removed him from the adults' barred list but not from the children's list on the basis that he presented a future risk of harm to children. The UT had then ruled that the ISA had erred in law and removed SB from the children's list. The Court also held that the maintenance of public confidence was an important element in the balancing exercise between the interests of the public and those of an individual who had been convicted of serious offences involving indecent images of children.

David Prior to become Chairman of CQC

Dame Jo Williams resigned last year as chairman of the CQC following concerns and criticism after she asked an occupational health doctor to carry out a psychiatric assessment of a whistleblower, Kay Sheldon, without Miss Sheldon's consent. The doctor consulted was not a psychiatrist and had never met Mrs Sheldon and only spoke to her only briefly over the telephone. The Commons Health Select Committee criticised Dame Jo Williams' actions.

David Prior is currently Chairman of the Norfolk and Norwich University Hospitals NHS Foundation Trust and will take over as chairman of CQC on 28 January 2013.

Home care workers not properly vetted/abuse allegations

The BBC's Inside Out programme has discovered that more than 200 home care providers have been using staff who had not been properly vetted. The programme has also established that, despite increasing abuse allegations in care homes, the Care Quality Commission (CQC) is behind on its inspections. The programme discovered that last year in Essex alone there were 299 proven cases of abuse in care homes, double the previous year's figure. It also found some care homes were not being inspected regularly to check if they are meeting standards.

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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