Please click on the links for the documents.

 

Applying ESF Guidance in ASC

ESF Escalation Flowchart supporting document – PMS

ESF escalation flowchart v5 ESF Guidance for Inspectors – Hospitals

ESF Guidance for Inspectors – PMS ESF Guidance for Inspectors

ESF Monitoring and Engagement Call Planning Template

ESF PPE Guidance – v latest

ESF Supporting Guidance for Inspector – Independent Health

ESF Supporting Guidance for Inspectors – Ambulance services

ESF Supporting Guidance for Inspectors – Childrens Homes

ESF Supporting Guidance for Inspectors – Dental

ESF Supporting Guidance for Inspectors – Dialysis services

ESF Supporting Guidance for Inspectors – Learning Disabilities and Autism Services

UPDATE – 30 May 2020

 

Since writing and posting the blog below, the government has updated its social distancing guidelines.  It includes the following:

If you have any of the following health conditions, you are clinically vulnerable, meaning you are at higher risk of severe illness from coronavirus. You are advised to stay at home as much as possible and, if you do go out, take particular care to minimise contact with others outside your household.

Clinically vulnerable people are those who are:

  • aged 70 or older (regardless of medical conditions)
  • under 70 with an underlying health condition listed below (that is, anyone instructed to get a flu jab each year on medical grounds):
  • chronic (long-term) mild to moderate respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis
  • chronic heart disease, such as heart failure
  • chronic kidney disease
  • chronic liver disease, such as hepatitis
  • chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), or cerebral palsy
  • diabetes
  • a weakened immune system as the result of certain conditions, treatments like chemotherapy, or medicines such as steroid tablets
  • being seriously overweight (a body mass index (BMI) of 40 or above)
  • pregnant women

 

As above, there is a further category of people with serious underlying health conditions who are clinically extremely vulnerable, meaning they are at very high risk of severe illness from coronavirus. You, your family and carers should be aware of the guidance on shielding which provides information on how to protect yourself still further should you wish to.”

 

The points set out below are intended to help providers start to prepare for visitors when guidance changes. They may also assist those who are already facilitating visits despite visits being in breach of regulations and guidance.  There is no guidance permitting visits to care homes yet other than for end of life care.  Facilitating visits therefore exposes providers to a range risks that can be mitigated but not eliminated even with the greatest of care.

 

 

 

The context

Healthcare Counsel’s Weekly zoom session on Wednesday centred on planning to open homes to  visitors.  I commented that providers who are not currently facilitating visits nevertheless need to start preparing now because there has been a pattern of guidance and law changing without notice.  True to form, yesterday afternoon the Prime Minister announced that social distancing guidance would be eased as of Monday so that up to 6 people from different households could meet outdoors even on private premises.  There is no reason to think that will not include grounds of care homes. [UPDATE: Note the updated social distancing guidelines above regarding clinically vulnerable and extremely clinically vulnerable groups].

Some providers  have already started to facilitate visits.   Some have held socially distanced garden tea parties.  Others have been arranging drive-through visits.  Until Monday, the visitors themselves would have been in breach of the regulations because visiting family is not covered by the regulations.  Moreover,  in both “Admission and Care of Residents during COVID-19 Incident in a Care Home”, published on 2 April  and “Covid-19: our action plan for adult social care” published on 15 April, the government recommended that visits should be limited to those who are at end of life.   CQC’s current guidance also reflects that.

It is easy to see why providers took a view, though.   Isolation from family is having a devastating impact on residents’ quality of life at at time when they may not have much life left.  Providers reported that some residents have become depressed and withdrawn without visits from their families, and some providers have even seen increases in physical frailty including pressure sores.

It is equally easy to why other providers have remained in complete lock-down.  As the guidance remains in force, it would be difficult to criticise a provider for following it, particularly given the nature and degree of the risks posed by Covid, set out below.  In contrast, the risks to residents and staff is real and grave.

Both those who have already opened up their homes to visits, and those who must now at least start planning to do so, need to consider the risks carefully and manage them effectively.

The Risks

For those planning to restart visits, the following risks must be considered:

  • Staff and residents contracting Covid from visitors.
  • Visitors contracting Covid from staff and residents.
  • Visitors contracting Covid from other visitors.
  • Heightened risks to clinically vulnerable residents.
  • Claims from staff, residents and/or visitors who contract Covid.
  • Regulatory enforcement in relation to resident safety.
  • Regulatory enforcement in relation to restricting visits.
  • Scrutiny from commissioners, public health, and safeguarding.
  • Embargos if there are new Covid cases or concerns about safety.
  • Insurers not covering any losses caused by Covid either because providers have not followed guidance and best practice or because they have withdrawn cover relating to Covid entirely when renewing insurance policies (several providers have reported this).
  • Data protection breaches in relation to handling information about Covid cases.
  • Staff concerns about being exposed to, and/or residents being exposed to, greater risk.

 

Managing the Risks

Points to consider include:

  • Compliance with the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. That will mean from Monday that visits can be in the grounds of care homes but must be outdoors.   Likewise, there should be no more than 6 people meeting together at a time, maintaining a minimum distance of 2 meters from those outside their own household.
  • Engaging with your local health protection team.
  • Discussing your plans with your insurance brokers and ensuring you have clarity as to the extent of your cover.
  • Consulting with staff and considering any concerns raised.
  • Drafting a policy and procedure regarding visits. This will include:
    • Preparing the environment, including cover for inclement weather.
    • How visit times will be staggered to ensure social distancing is maintained, and that there are sufficient staff available to facilitate meetings.
    • Duration of visits.
    • Cleaning the environment before and after each visit.
    • Deployment of staff.
    • Use of PPE by staff and visitors.
    • Obtaining resident consent (or LPA / Deputy / best interest decisions as appropriate for those lacking capacity).
    • Planning for each resident including risk assessments. Assessments should cover how the resident can safely access and meet visitors in the environment, and managing any particular challenges om ensuing that social distancing is maintained throughout the visits.
    • Consideration of how shielded residents will be protected from the risks of visitors.
    • How information about staff, residents and visitors relating to Covid will be processed
    • Maintaining contact through other means to supplement visits in person.
  • Drafting a visitors’ agreement in which visitors agree to comply with the visiting policy, including infection control and declaring any symptoms or exposure to anyone with symptoms in the preceding 14 days.

None of this will eliminate the risks set out above but  will help to mitigate that risk.  Providers should regularly keep up to date with government and CQC guidance.  SCIE usefully curates government guidance here: https://www.scie.org.uk/care-providers/coronavirus-covid-19

The next Healthcare Counsel Weekly Zoom will take place at 10.30 on Wednesday.  Please email me if you’d like the login details.  Please also let me know if there are any topics you’d like coveredjlandau@healthcarecounsel.co.uk.

These are my notes and reflections on this week’s Zoom.  As with last week’s session, it was clear that providers are often in novel and difficult situations without any clear guidance.  They are having to feel their own way through and find their own solutions.   This week, we discussed reusing medication, training, testing, and CQC’s Emergency Support Framework

Next week providers will be discussing financial support from Local Authorities.  Different LAs are offering differing levels of support.  What strategies have providers found most effective at accessing the funds? 

We will also be discussing planning to facilitate relatives’ visits.  Recent experience has shown that changes in the law and guidance about social distancing are changed very abruptly and without consultation.  This may affect guidance on visiting care homes.  Providers are also noticing how affected residents are by their increased isolation with many displaying low mood.  How can visits be arranged in a way that mitigates risk to residents, staff and visitors?  This is a crucially important topic and will no doubt prompt a thoughtful and informative discussion.  The Zooms take place on Wednesdays at 10.30am  Please email me if you’d like to join: jlandau@healthcarecounsel.co.uk

 

Reusing Medication

The Department of Health’s Standard Operating Procedure (‘the SOP’)  for reusing medicines in care homes is causing disquiet particularly in relation to end of life care medication.  Providers reported that a medicines training company is advising providers to treat reused medication as homely remedies.

I would caution providers against that.  CQC’s guidance on homely remedies suggests that providers should take advice from a healthcare professional, such as a GP or pharmacist on the use of such medication.

In contrast, paragraph 5 of the SOP states:

 

“Unless the product is being supplied under a PGD or a patient specific direction, a new prescription must be obtained prior to supply to the new patient.” 

 

The medicines training company is therefore wrong to suggest that end of life medication, or any medication that normally requires a prescription, may be treated as a homely remedy.  That advice implies that consulting a healthcare professional is sufficient, when in fact, a prescription is still required.

 

Furthermore, the usual requirements regarding controlled drugs remain firmly in place.  Obviously, those do not apply to homely remedies.

 

In short, I would only consider reusing medication as a last resort if there is a real supply issue.  I would in all cases ensure the medication is prescribed to the new patient before reusing it, and follow the permission and information provisions set out in the SOP.

 

Training

The regulatory requirement, and the duty of care, to ensure that staff are properly trained remains in force.  Providers are finding new ways of delivering the training – but they introduce their own risks.

Microsoft teams is proving a useful resource.  It enables training sessions to be delivered remotely across multiple sites.  Some providers with cinemas are using them effectively to deliver such sessions.  However, some staff have raised the point that they should continue to socially distance as far as possible and spending two hours in a room to receive training is not necessary.

Given the nature of Microsoft Teams and similar products, training could potentially be delivered in people’s homes, mitigating that risk.  Teams’ sessions can also be recorded so can be delivered when needed, and when staff are available.

As to effectiveness of training, that is a question that arises in respect of all training at all times, but it is particularly important to consider it in respect of online and remote training, which CQC inspectors are often sceptical about, and which may be new to some providers and/or staff.

Points to consider include:

  • Testing knowledge at the end of training
  • Seeking detailed feedback on training, and acting on it
  • Observing practice is in line with training
  • Considering training needs in response to incidents, in particular identifying any trends in incidents that might identify training needs across staff and services
  • Reflecting on training, and training needs, during supervisions
  • Providing refresher training at appropriate intervals.

Providers may also wish to see the Skills for Care page on training during Covid.  Skills for Care have developed 3 programs of training during Covid:  a rapid induction program; refresher training (8 topics for staff who urgently need refresher training because training has expired or will expire soon) and volunteer training.     All are delivered digitally by a number of accredited training providers.  Of note, there are no limits to the number of staff who can receive the rapid induction training without charge.

The page includes the following from Kate Terroni (Chief Inspector of Adult Social Care):

“We welcome the new guidance from Skills for Care on training staff during the COVID-19 crisis. We recognise that at this time providers will be prioritising providing care to people and that this may mean that training will be delayed. However, providers should make every effort to ensure that staff are competent, confident and skilled in providing safe care to the people using their service.

We understand the pressures that providers are facing and the difficult choices it may require them to make. We want to support providers in whatever way we can during this crisis period. We are on your side: we are here to work with you, to listen to you, and to support you with the inevitable tough decisions you will face.”

 

Incidentally, Skills for Care’s Guidance from other agencies page is a useful and well updated list of current guidance.

Testing

Providers are questioning whether frequent testing is helpful if it is taking up to three weeks for results to come back.  Testing at three week intervals may therefore be appropriate.  However, some providers are finding it difficult to find couriers to collect the samples before they expire, and many samples are still coming back with inconclusive results.

Testing residents with dementia is particularly difficult and there was discussion around needing to balance the quality of life with any benefits of testing.  Some older residents with capacity have declined tests on the reasonable ground that if they are asymptomatic, a positive test is unlikely to benefit them.

This is an area we will no doubt return to in coming weeks.  It would be interesting to hear from providers who have successfully overcome some of these issues.

 

CQC’s Emergency Support Framework (‘ESF’)

CQC’s records of the ESF calls are not an accurate account of what was discussed.  Some CQC inspectors are recording the calls which providers welcome as it ensures there is an accurate record.  However, practice in this regard seems to vary.

Providers have experienced inspectors objecting to managers having other people in with them during the call such as regional managers.   I commented that I found that very disappointing.  The calls are not inspections, let alone exams or tests.  The practice is not consistent with Kate Terrroni’s comments above.  I am contacting CQC to seek clarity on these points and meanwhile suggest that providers push back on any such objections, and take an accurate note of calls which they share with CQC and other stakeholders after the call.

Healthcare Counsel’s Weekly Zooms take place on Wednesdays st 10.30.  Contact jlandau@healthcarecounsel.co.uk for details.

 

The first session of Healthcare Counsel’s Weekly Zoom took place on Wednesday.  The sessions provide an open space for providers to share their experience and solutions about Covid.  They are held under the Chatham House Rule, so anyone on the call can use the information shared, but must not reveal the identity or affiliation of attendees.  On at least one occasion, holding the meeting under the Rule meant that a contributor shared information that they may otherwise have been cautious about disclosing.

The 45-minute session covered common current issues for providers including:

  1. HSE and CQC notifications
  2. Difficulties and variation in testing, including high numbers of inconclusive results
  3. Measures providers are taking to mitigate regulatory risks, and risks of claims
  4. How to manage staff who are nervous about returning to work
  5. Workforce issues including how to use agency staff safely
  6. PPE
  7. Dates of peaks

The feedback I received after the meeting was that participants found it both helpful and reassuring.   For example, in relation to the staff members who are too worried about Covid to return to work, that is a completely novel issue for providers.  Talking matters through with other providers facing the same issues can be invaluable.

There was also an acknowledgment of how difficult a period it has been.  One participant ended the meeting with an admirably clear message:   Stay Safe – Drink Gin.  I think everyone can understand where they were coming from.

From this Wednesday, the weekly Zooms will be at 10.30, and are scheduled for 45 minutes.  This week’s session will include discussion around training during Covid, and CQC’s Emergency Support Framework.  Please email me for the Zoom details:  jlandau@healthcarecounsel.co.uk.  Please also feel free to let me know if there are any ptopics you’d like included in the discussion, as well as any legal issues you’d like me to cover.

 

Another appeal against a CQC decision to refuse an increase in service user numbers in a LD home was dismissed last week.  As ever, CQC made the decision applying its Registering the Right Support guidance.

There has still  been only one successful appeal so it’s an uphill struggle to win such cases.

In this case, the Tribunal said: “The central and fatal omission … was the lack of objective evidence in support of the proposed model of care as the guidance, rightly in our view, demands if larger settings are to show they are as capable of delivering best practice as smaller settings”.

The Tribunal was also impressed by emails of support  from commissioners but regretted not being able to question them about their views.  No doubt many commissioners would be reluctant to put their heads above the parapet to that extent.  However, in the absence of live evidence, it seems the Tribunal will only attach limited weight to commissioners’ views.

The case  highlights that providers who have obtained expert evidence in support of their model of care and who are able to persuade commissioners to give evidence, stand the best chance of success.   These are points I made in my earlier analysis of Tribunal decisions in this area – see here for more detail on how providers can maximise their prospects of success when applying for an increase in service user number.

The full decision is available here.

 

 

 

How long do you have to be Good before you are rated as such?  The question arises from a common frustration in the sector.  A provider may temporarily drop the ball in relation to a service that results in an Inadequate rating.  The provider accepts the rating and does everything necessary to raise standards.  Often, that will include a change of manager and tightening of quality monitoring systems.  CQC returns within 6 months and recognises the improvement.  The content of the report couldn’t be more glowing.  However, CQC rates the service as Requires Improvement on the basis that not enough time has elapsed since the last inspection for the home to demonstrate ‘consistency’.  The provider argues that the content of the report plainly supports a ‘Good’ rating.  Who is right?

First, it is important to recall that there are two separate legal frameworks relevant to inspections: the regulations and the KLOES.  The reason for that was a political decision when ratings were re-introduced that the regulations should represent the minimum standards and providers should not be rated highly just for meeting minimum expectations.

Under the relevant legislation, the criteria for ratings are not the regulations but rather ‘whatever indicators of quality the Commission devises’.

Those indicators are set out in the KLOEs and rating characteristics.

Consistency is referenced repeatedly in the rating characteristics.  For example, the general descriptor of Requires Improvement for Safe, includes ‘The service has an inconsistent approach that sometimes puts people’s safety, health or wellbeing at risk’.

How should CQC assesses consistency?  CQC has helpful guidance on this point in its internal document Inspection Guidance – Judgments and Ratings.  The guidance is intended to help assess whether a location is achieving sustained and continuous improvement following a breach.  It sets out the following prompts to assist in that task:

  • Does the provider understand what went wrong and why? What is the evidence for this and how is this corroborated?
  • What has the provider learnt from the breach evidence?
  • How has this learning been put into practice?
  • Has the breach been resolved, and is the legal requirement now met? How has quality improved?
  • What has the provider done to put things right? Have relevant systems and processes, equipment or training been introduced which reduce or eliminate the risk of the breach happening again?
  • Is there ongoing support available for staff/managers to help prevent further issues?
  • Can the provider demonstrate that the improvements they have made are sustainable? What is the evidence to support this? What plans, checks or audits are in place to check that the changes made will continue to be effective in the future?
  • What do people using the service say about the improvements? What impact have the improvements had on them?

Those prompts are not objectionable, and indeed are sensible, providing they are used to judge relevant prompts rather than being used as a substitute.

Significantly, there is no reference in them to a minimum period of time before sustained and continuous improvement can be achieved.  That is appropriate.  Sometimes CQC will reinspect sooner than others following an inadequate inspection.  The key issue is what CQC finds when it inspects.  If the answer to the prompts are favourable to the provider, it should be rated accordingly.  The previous breaches will be covered in the previous reports that will, of course, remain available to anyone who wishes to research the compliance history of the service.

In its annual report following the re-introduction of ratings, CQC wrote that the ratings would give the public a better and more transparent understanding of the quality of different services, while also encouraging providers to improve.   Those objectives are not fully realised if ratings are based on poor quality which has since been remedied.    People encountering a ‘requires improvement’ rating will categorise the service exactly as such: that it requires improvement.  CQC would, unfairly and inaccurately, be placing it into a category with other services that truly do need to improve.

Providers facing this issue should draw it to CQC’s attention in the factual accuracy process.  If that does not resolve the matter, it can be raised through the rating review process as it is clearly an example of CQC not following its own process.

Please contact me if you need further information on this or any other regulatory issues or inquests:

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

https://www.healthcarecounsel.co.uk/

 

 

 

 

Coincidentally, CQC also announced this week that duplicate material had been discovered in 78 inspection reports.  Two experts by experience, and one specialist advisor, had copied the same content into their reports presumably to save time.  In respect of 40 of the inspections, CQC republished the reports with the material removed.  However, CQC withdrew the publication of the remaining 38 reports where the material had been written by a specialist advisor.

Mr Noble, a lawyer himself, recognised that there will be exceptional cases where non-publication (or delayed publication) would be justified.

Is that right and if so, what would constitute ‘exceptional circumstances’?

To answer these questions, it is useful to ask how a court would approach the question of withdrawing inspection reports.

A court would take a different approach to delaying publication pending a final hearing into a challenge about the inspection, to making a final decision about an inspection report after trial.  CQC’s guidance should reflect that distinction.

 

Delayed publication

By a further coincidence, the High Court yesterday handed down judgment in a case concerning an application for an interim injunction to prevent publication of an Ofsted report[1].   ­­Ofsted inspected a state school and rated it ‘inadequate’.  The governing body profoundly disagreed with the report and brought judicial review proceedings challenging the decision.  It also applied for an injunction not to publish the report until the trial was heard.

The judge comprehensively reviewed the authorities in the area.  The duty to publish is a significant consideration.    There is a public interest in inspection reports being published to which courts attach great weight.  Accordingly, the court will only consider an interim injunction in extreme cases.    Phrases used in the case law include ‘exceptional circumstances’ (as used by Mr Noble), ‘most compelling reasons’ and ‘pressing grounds’.  Examples include:

  • The public body had engaged in a vendetta
  • Deliberate desire to inflict damage on the reputation of the person criticised
  • Fraud
  • Corruption
  • Report is manifestly untrue or riddled with error

This is not an exhaustive list and decision makers must keep an open mind about what might exceptional.  As the allegations will not yet have been investigated, the test to apply is whether there is a strong prima facie (I would used the phrase ‘strong appearance’ in lay guidance) that an exceptional factor applies.

Relevance of CQC Quality Assurance

In this week’s case, the court was impressed with Ofsted’s quality assurance systems in relation to inspection reports.  That strongly influenced its judgment that a strong arguable case had not been made out that the exceptional circumstances applied.  CQC’s quality assurance systems, in contrast, were also the subject of recommendations by Mr Noble.  This week’s revelation about the 70 flawed reports shows that CQC’s quality assurance system has not been working for some time.  Furthermore, as I’ve previously argued, CQC remains in breach of a High Court judgment requiring it to consider providers’ challenges to CQC’s responses to factual accuracy corrections[2].  Complying with that requirement, rather than CQC managers cursorily reviewing every draft inspection report, would be a useful first step.   Until CQC can show that its quality assurance systems have improved, CQC should recognise that it is easier for providers to cross the threshold of a strong prima facie case.

Publication pending investigation

If CQC is not satisfied that there is a strong appearance that exceptional circumstances apply, it can lawfully publish the report pending an investigation into any matters raised.  As a matter of fairness, I would argue that CQC should also publish that the report is subject to an investigation and invite the provider, if it wishes, to summarise its concerns.  CQC should, of course, still go on to investigate the concerns.

Investigation and Final Decision

The requirement for ‘exceptional circumstances’ applies to the question of whether a court should withhold publication pending trial.   When it comes to a final decision, the court will apply conventional public law grounds which include:

  1. Irrationality – making judgments are bizarre or perverse.
  2. Failing to take into account relevant considerations.
  3. Taking into account irrelevant considerations.
  4. Failing to follow CQC’s internal guidance without good reason.
  5. Bias.
  6. Bad faith.
  7. Unfairness – for example by not giving the provider sufficient opportunity to state its position, such as an inadequate response to factual corrections.

The court will give CQC’s view a great deal of deference because it will regard it as being an expert regulator with trained staff, tasked with undertaking an important function in protecting vulnerable people.

If the grounds are made out, the court will then go on decide whether, in its discretion, to grant a remedy, for example a mandatory order requiring CQC to withdraw the report.   Given the high hurdle that the claimant would have cleared to reach this stage (especially deference to CQC), courts are likely to provide some remedy.

CQC is better placed than a court to investigate breaches of public law and so should do so in a fair and open manner  When public law grounds are made out, CQC should pull the report unless the report is capable of remedy, for example where some offending material can be withdraw without affecting the balance of the report, as CQC appeared to have found in respect of the reports containing duplicated expert by experience material.

In summary:

  1. CQC should withdraw a report pending investigation when there is a strong appearance that exceptional circumstances apply.
  2. If CQC publishes a report that is subject of a complaint, it should publish that fact, and a summary of the provider’s complaint if the provider wishes.
  3. CQC should investigate all complaints about inspections.
  4. CQC should apply standard public law principles to its final decision regarding publication.
  5. If it is in breach of public law duties, CQC should withdraw the report unless the breach can be remedied in some other way.

Please get in touch if you need advice about your CQC report or help setting out your complaint to CQC.

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

[1] R (on the application of the Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWHC 69 (Admin)

[2] R (on the application of Ssp Health Ltd) v Care Quality Commission (2016)

As click-bait goes, this may not be the most compelling question, but it’s hardly surprising that you clicked on the link. Arrears in fees affects cash flow and the debt needs to be funded, either through bank debt, or by reducing profit available for distribution.  Providers may accordingly wish to have clauses in their contracts that allow them to claim interest on arrears both to incentivise prompt payment and to ensure that should they not do so, the defaulting party bears the cost of late payment.

Naturally, the CMA has a view.  Or views as it turns out.  The draft guidance on care home contracts  (page 62) opined that a term was likely to be unfair if it required

‘residents to pay interest on outstanding fees at a rate excessively above your clearing bank’s base rate since it makes the resident pay much more than the cost of making up their default (emphasis added).’ 

That makes sense.  It ensures that a resident can be required to pay for the cost of their default but prohibits punitive costs above that.

However, the final version of the guidance (page 84) states that a term is likely to be unfair if it

“require residents to pay interest on outstanding fees at a rate above your clearing bank’s base rate, since it makes the resident pay much more than the cost of making up their default.”

The word ‘excessively’ disappeared.

This does not make sense.  It is simply not correct that a resident will necessarily ‘pay much more than the costs of making up the default’ if they are charged more than a clearing bank’s base rate.  On the contrary, it is likely that they will be paying less than the cost of the debt if they are only charged the base rate because the true cost of debt will never be as low as the base rate.

I asked the CMA whether this was an error in the final draft.  They replied as follows:

“To confirm, the word ‘excessively’ was intentionally removed from the CMA’s final advice before publication. The overall aim of the CMA’s advice is to help care home providers understand and comply with their obligations under consumer law (see paragraph 2.1 of the final advice). The CMA takes the view that advice to businesses should be as clear and certain as possible, so that businesses can be confident of complying with their legal obligations when they follow the advice. The word ‘excessively’ was removed because it was considered too vague in this context, and therefore unhelpful to care home providers when drafting their contract terms. Such vague and uncertain wording is open to misinterpretation and abuse and therefore increases the likelihood of a care home provider’s term (or practice) being found to be unfair by court (and therefore unenforceable).”

The CMA could have dealt with the uncertainty of the word ‘excessively’ in a far more commercially sensible way.  It could, and should, have said that a term was likely to be unfair if any interest charged was above the true cost of the debt to the provider.

Requiring providers to bear the cost of fee arrears would only lead to higher fees across the board, meaning that those who pay fees promptly are penalised by those who do not.  That is not fair.  It also does not encourage prompt payment.  Despite the CMA’s amended version, I think it highly unlikely that a term would be regarded as unfair if it did not more than pass the cost of debt to the person responsible for it.

This small example shows how much care and attention is needed to draft care home contracts that are both compliant with consumer law but are also commercially sensible.

Please contact me if you need help with your contracts or any other regulatory matters:

 

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

https://www.healthcarecounsel.co.uk/

The CMA’s guidance on care home contracts provides that care home contracts are likely to be unfair if they do not provide a clear, objective way of determining annual fee increases. The difficulty for providers is that they cannot predict accurately what elements of their costs will rise in any given year, and by how much.

The Care Provider Alliance (CPA) has published resources to help providers comply with the CMA guidance, including fourth model clauses regarding annual increases. The first is a fixed price for the duration of the contract. The second is a fixed increase each year. Both of those are unlikely to be commercially sensible in most cases because they fail to address the risk of costs increasing faster than fees. The third model clause increases fees annually by reference to a particular index (which can be chosen by the provider). The difficulty here is that some costs may increase by more than that index, which again means margins will be narrowed.

The fourth model allows providers to use more than one index, and also allows the provider to give different weight to each index based on the proportion each element makes of total costs. The example in the model clause (and it is just an example) is that staff costs make up 65% of total costs with the other 35% assigned as ‘non-staff costs’. In the example, 65% of the total fees each year will increase by the NMW and 35% by CPIH, one of the measures of inflation.

This comes the closest to making commercial sense because it recognises that different costs may rise by different amounts.  However, it is still flawed because the drafting assumes that the proportions will remain constant over time. That is very unlikely to be the case in reality. For example, if there are inflationary wage pressures (say due to Brexit and NMW), staff costs may become a higher proportion of providers’ total costs. The annual increases will therefore not provide for the full increase in staff costs, again eating away at the margins.

One possible solution is to break up costs into components, as suggested by the CPA’s fourth model clause but instead of attributing weights to each, each component will change annually to reflect the corresponding index.  The total fees will then be the sum of each adjusted index.  Using this model means that the proportions of costs each year are taken out the equation.   Each component will change to reflect the full increases in costs so providers’ cost inflation will be provided for in full. The model still provides the clarity and certainty required by the CMA. Indeed, this model is simpler to understand.

Getting this right is important for all providers but particularly for those whose placements last for several years when it’s essential that fees keep up with costs.

The CMA has become a powerful enforcer so it’s vital that providers have contracts that comply with its guidance whilst at the same time making commercial sense. Annual fee increases is just one example of this. Please contact me for further information.

Jonathan Landau, Barrister

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

https://www.healthcarecounsel.co.uk/

Last updated: 14 June 2020

Since publishing ‘Registering the Right Support’, CQC has been much more restrictive in accepting applications increasing the number of service users in locations for people with learning disabilities and/or autism.  This post draws from appeals heard by the Tribunal against decisions by CQC to refuse such applications.

The table set out below summarises the appeals.

Date of decision / Case

 

Application Appeal outcome Reasons
20 April 2020

 

Bleak House Limited v CQC

 

Increase number of service users from 19 to 24 Appeal dismissed 1.      ­­­National policy and guidance apply to all LD services, not just those for people with autism and/or challenging behaviour.

2.      Smaller services are more likely to be produce better outcomes for adults with LD.

3.      Choices were based on or influenced by group preference.

4.      The large prominent premises diminished the benefits that accrued to those who live in the community.

5.      Lack of objective evidence to show that the larger setting was capable of delivering better practice than smaller settings.

6.      The proposal did not amount to a genuinely innovative model of care.

7.      Very limited evidence of support from the LA, and no LA witness was put forward to answer questions at the hearing.

8.      Not clear who would be taking up the additional places.

9.      There would need to be compelling reasons backed by LA commissioners showing a critical local need to justify an increase in service users.

10.   No formal impact assessment had been carried out by Directors or Manager.

11.   Inadequate consultation with residents and those acting on their behalf.

 

See here for further comment on this c ase.

27 August 2019

 

Action for Care v CQC

 

Vary conditions – increase maximum number of residents from 6 to 8.

 

Appeal dismissed. 1.      Appellant failed to consult with service users, their families and representatives about whether there should be new service users.

2.      The impact on the current service users was not considered adequately or at all.

3.      There was no evidence of plans to mitigate the risk of increasing the numbers of residents at the location.

4.      Residential accommodation for those with autism should be in small, local community-based units of not more than six people and with well supported single accommodation.

5.      The location would not meet the present and future needs of a proposed service user as his mobility was deteriorating and this was not catered for in the design.  It was too small for people with proxemic issues (people who need space) and wheelchair users.

6.      The bungalow was too small for able bodied persons and was much too small for those with mobility issues.

7.      There were no kitchen or laundry facilities, and no space for them.

8.      Accommodation should be as close to a normal home as possible which was not the case in respect of the proposed accommodation.

9.      There was no evidence of attempts to meet the proposed service user’s needs in other accommodation.  There was therefore inadequate evidence that there was a local need for this type of accommodation.

 

23 July 2019

 

 

Lifeways Community Care v CQC

Add a location – 9 service users (original application was for 10) in a series of adjoining single storey buildings.

 

Appeal dismissed. 1.      National policy and guidance is to be followed except in exceptional or compelling circumstances.

2.      National Learning Disability Director and Senior Responsible Officer for the Transforming Care Programme said that site was ‘not close to…. what is an appropriate setting’ and had ‘many of the characteristics of the campus and congregate sites that are …. inappropriate’.  The home looked institutional because of its size and how it stood out from its surroundings.

3.      Focus should be on more independent living arrangements, not large residential provisions.

4.      The evidence of CQC’s National Professional Advisor for Learning Disabilities was not biased and was highly persuasive.  Her evidence was that the application did not meet national guidance because, among other things ‘it is not small-scale, is not domestic in style and is clearly different to the houses in the local area.  It has the appearance of a care facility, not of typical housing….It was a cluster model of service which has some features of a campus’.

5.      Another persuasive expert said the proposed home was very different to housing around it.  It had an institutional feel and created a sense of otherness.  It was placed in the community, but apart from it.

6.      The appellant’s own witness accepted that the proposal was not in accordance with national policy and guidance.

7.      Large spaces, communal garden and parking spaces increased the sense of and institutional campus style setting.

8.      The CCG had not been consulted and would have preferred small settings consistent with Registering the Right Support.

9.      The Tribunal visited and found the home had an institutional look and campus style which stood apart from the surrounding neighbourhood.  It was large and had many shared facilities.

10.   Service user groups had not been clearly identified by the appellant.

 

18 October 2018

 

Centurion Health Care Limited v CQC

 

Add a location – adding a further separate unit of 8 residents on a site with an existing unit of 6 residents.

 

Appeal allowed. 1.      The new unit was independent of the first and the site was not a campus style (as this was not a group or cluster of homes with shared facilities).

2.      CQC failed to exercise its discretion appropriately because it did not analyse the nature of the service users who would be placed at the location.  The decision had a whiff of policy about it.  CQC failed to consider whether conditions could have addressed any of its concerns.  They applied a ‘one size fits all’ approach contrary to its own guidance.

3.      Service users, like other people, should be able to choose whether or not to live in a town, city or village.  Service users with particular disorders may benefit from the peace of a rural setting.

4.      CQC wrongly equated geographical location with lack of engagement with the community.

5.      The commissioner’s market statement recognised the need for more ASD accommodation, including in rural locations, to avoid out of area placements.  There was accordingly a need for the location.

 

8 August 2018

 

Care Management Group Ltd  v CQC

 

 

Adding further 3 places increasing the maximum number to 10 in total. Appeal dismissed. 1.      No evidence of consultation with service users, their families or commissioners.

2.      ‘Registering the Right Support’ is statutory guidance, and even if were not, it is a material consideration.

3.      The setting was of a campus type.  It was distinctly congregate and institutional and precluded a feeling of a small-scale domestic setting and person-centred care.

4.      Recreational features and facilities involved timetables and are not used by the community at large.  Life was regimented and far removed from small scale settings within a community.

5.      Access to the community was limited, affecting the options, choices, dignity and independence others take for granted.

6.      Few people came onto the site, apart from courting couples (which provided an indication of how secluded and private it was).

7.      Distance from the community would have affected the amount of time that could be spent in the community.

8.      Lack of shared staff is not determinative of whether a setting is a ‘campus’ but in any event there were some shared staff.

9.      Service users were isolated from others; both within the setting and within the wider community.

10.   There was no real choice as to who residents would live with.

11.   “Quality of life improves with inclusion and when rights are fully respected.  [CQC’s National Professional Advisor for Learning Disabilities] does not recognise a separate group of people…. who cannot live in the community….. Experience shows that challenging behaviour is often reduced in the community”.

12.   It was not the Tribunal’s task to say whether guidance was right or wrong; it was to apply it in the context of the evidence, subject to proportionality.

13.   When registering services, CQC has a role in promoting the outcomes set out in national policy.  It is entirely appropriate for CQC to base regulatory decisions on ‘best practice’.

 

26 June 2017

 

Oakview Estates Ltd v CQC

Add a location – a residential unit of 6 beds, 18-65, on a site with an existing hospital already containing 23 beds over 3 buildings.

 

Appeal dismissed. 1.      Inadequate access to the community hindering ability to improve independence.

2.      Premises were clinical and not personalised.  There was no plan as to how residents would be able to regain access if they left the bungalow.

3.      Accommodation would need to be adapted to the least able person, impacting adversely on the others.

4.      No discharge plans or evidence that placement and discharge plans would be regularly reviewed (despite this being raised in the notice of proposal).

5.      Training plan had not been drafted.

6.      The same staff were to be used in the hospital and the care home despite different cultures between the two locations, in particular the hospital being more clinical.

7.      The culture is unlikely to change from a hospital setting.

 

 

Based on the decisions, providers can maximise their prospects of success by taking the following actions:

Before build

  • Read relevant guidance (set out at the end of the post) and design your services to comply with it.
  • Consider whether the service can be provided as supported living rather than residential care. There is often a fine line, and grey areas, between the two.  Seek legal advice on whether your new service can be configured as supported living.  If it is at all possible to avoid registration as a residential home, that is likely to be the best option in most cases.  There may be options you have not considered, such as leasing your property to a housing association that in turn leases it to service users.
  • Design accommodation so that it is as close to normal housing as possible, rather than institutional.  It may be useful to think of, and refer to, the accommodation as ‘homes’ rather than ‘units’.  Homes should have their own facilities (kitchens, laundry, lounges) and not be dependent on other buildings.
  • Avoid homes with more than 6 residents.
  • Consult meaningfully with service users and their representatives about your designs, your proposal to increase service user numbers, and the characteristics of who would live there. Respond to their views.
  • Draft assessments as to how additional residents may affect current residents, and draft plans to mitigate any adverse effects.
  • Obtain concrete evidence in writing from local commissioners about the need for the provision. Check local commissioning strategies and fit in with them.
  • Embed access to local community places and resources (including health and social care) in your plans. How will service users have similar access to those without learning disabilities and/or autism?  How will they, on a daily basis, do things outside their homes if they wish?
  • Embed options, choices, dignity and independence into your plans. Ensure there are a wide range of options available outside the grounds for people to choose from.  What educational, training, employment and leisure opportunities are there outside the grounds?
  • Plan the provision so that there are no shared staff and facilities between homes on the same site. As with accommodation for most people, leisure facilities should be accessed outside of homes rather than on the grounds.
  • Draft a comprehensive training plan to show how staff recruited would meet the needs of intended residents.
  • Ideally, any new home should be completely separate from others on the same site. If CQC accepts that it is appropriate for the application to be for a new location, rather than to increase the numbers in any current location, that will assist in showing that the home is not of a campus or congregate style. It may be appropriate to divide plots of land to reduce the feeling that the new location is on the same site as an existing service.
  • Try to engage with CQC about your plans (though be prepared that CQC may decline to do so until you have submitted an application).
  • Design the homes so that they are suitable for residents to live there in the long-term. Satisfy as much as possible of the ‘Real Tenancy’ test (see guidance documents below).
  • If the home is not appropriate for residents in the long-term you will need to make a strong case that the residents cannot be housed in more independent living and that discharge planning is embedded into your plans.
  • Consider putting your plans to a relevant expert in learning disabilities and/or autism, and a healthcare lawyer. Ironing out issues at this stage could improve your chances and reduce wasted costs down the line.

 

Before applying

  • Ensure that the application deals with all the matters above in detail and provide evidence in support. Satisfying CQC at this stage is the quickest and lowest cost option, so it merits investment of time.
  • Again, seeking expert and legal advice before submitting your application may improve your prospects of success.

 

Notice of Proposal stage

  • If CQC proposes to refuse the application, you have 28 days to submit representations.
  • Read the notice carefully and ensure that you respond to each and every point. One of the appeals listed below was unsuccessful, in part, because the provider did not address discharge planning, which was raised in the notice of proposal.
  • Be realistic that CQC is more likely to accept your representations if you reassure CQC about the issues it raised, rather than disputing them.
  • However, if you think CQC’s judgment is wrong on a particular issue, explain why and provide strong evidence to support that view.

Appeals

  • Think carefully about who can give weighty evidence in support of your case. If a highly regarded, independent expert in learning disabilities and/or autism regards your proposal favourably, that could carry some weight.
  • Consider calling commissioners who are supportive if they can clearly express how your service will benefit residents. Preferably, the evidence will support the proposition that your service is a good long-term option for some residents and will afford them a high quality of life with extensive choices in the community.  Otherwise, the evidence should explain why some residents are not yet ready for independent living (with examples of some failed placements before) and how your service will assist in that pathway.  Probe their views carefully before taking this course.  In one of the appeals below, a commissioner conceded the provider’s service did not conform with guidance.
  • Surprisingly, the evidence of families was not that important to the Tribunal in any of the cases.

 

GUIDANCE

 ‘Building the Right Support’, October 2015

Registering the Right Support’, CQC, June 2017.

‘Transforming Care: A national response to Winterbourne View Hospital’ (2012).

Learning disabilities and behaviour that challenges: service design and delivery’, NICE (March 2018)

Living in the Community.  Housing Design for Adults with Autism’, Andrew Brand, Kingswood Trust.­­­­

Creating Autism Friendly Spaces’, Simon Humphreys, National Autistic Society.

Supporting people with a learning disability and/or autism who display behaviour that challenges, including those with a mental health condition’, LGA, ADASS, NHS England, October 2015.

Planning Your House’, Challenging Behaviour Foundation.

The Real Tenancy Test – tenancy rights in supported accommodation’, National Development Team for Inclusion, revised November 2015

 

If you would like to discuss an existing application to CQC, or are considering applying, please do not hesitate to call me:

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

https://www.healthcarecounsel.co.uk/