Further reports of problems in the social care workforce

We have previously written about the challenges faced by the social care workforce in 2022 in terms of the challenges of recruiting and retaining staff, particularly in the post Brexit landscape. 

Researchers from the University of Warwick have been looking further into these issues, and their preliminary views suggest that what staff in this sector really want is better pay and conditions.

In particular, there is a big shortage of qualified nurses, and better pay would attract more nurses into the sector. The new National Insurance Health and Social Care Levy has recently come into force but only a very small proportion of that will go towards the social care sector, with most of it being earmarked for the NHS. 

Social care staff also report very difficult and strenuous tiring workloads. This has been made worse by the after effects of the Covid-19 pandemic, with social care staff telling researchers that they felt they were living by different rules from the rest of the general population. 

In addition to the above, The Observer reported last week that migrant social care workers, who make up a significant proportion of the social work workforce are often paying illegal high fees to recruitment agencies. Such fees effectively leave the workers in debt bondage or modern slavery. This no doubt adds to the further strains the sector is under. 

It seems inevitable that such stresses and strain the sector is under will lead to further statutory investigations and civil claims.  

Written by Associate, Jennifer Johnston

Scottish COVID-19 inquiry publishes academic scoping research on care homes during the pandemic and Scottish Government publishes National Care Service (Scotland) Bill

The Scottish COVID-19 inquiry has recently published 14 academic research reports commissioned as part of the planning process in the early stages of the inquiry’s work. This blog firstly considers two of the five reports published under the portfolio of “the provision of health and social care services”.

One of the reports, compiled by the School of Health and Social Care at Edinburgh Napier University notes that “Care home residents were subject to severe restrictions for many months, including bans on visits, being unable to leave the home, and being cared for primarily in their room. This caused great distress and is likely to have contributed in a number of cases to cognitive and emotional decline and even death. The need for some restriction was understandable, given the vulnerability of care home residents and the large number of deaths in the sector. However, the legal basis of the restrictions is unclear, and there was arguably discrimination in respect of this group, compared with the rest of the community. There is little evidence in the early months of consideration of the human rights of residents and their families including the proportionality of measures generally or in individual cases. Matters improved from autumn 2020, although the guidance on outbreaks meant that many residents still faced severe restrictions for many weeks.”

Another of the reports, prepared by Edinburgh University Law School, states that 50% of all COVID-19-related deaths in Scotland between March and June 2020 involved care home residents, and that a lack of testing before hospital patients were discharged to care homes contributed to COVID-19 outbreaks.

The points made in these reports has potential to further complicate the legal and factual issues for consideration in any COVID-19 claims against care homes, especially the point on a lack of testing before patient discharge from hospitals to care homes in the context of causation.

It is important to note that nothing in the research reports is binding on the inquiry. The inquiry will make its own findings and recommendations in due course. This inquiry, chaired by the Scottish Judge Lady Poole, was established on 28 February 2022. A link to the current terms of reference for the inquiry is here. A link to the inquiry’s website is here.

In a separate development, though with potential to impact on the future running of care homes in Scotland, the Scottish Government introduced to the Scottish Parliament a National Care Service (Scotland) Bill on 20 June 2022. If enacted, this legislation would allow Scottish Ministers to transfer social care responsibility from local authorities to a new, national service. The Bill also includes provisions to underpin what has become known as “Anne’s law”, designed to ensure that adult care home residents have the right to remain connected with those important to them. Another of the Bill’s provisions is to give Scottish Ministers a new power to issue directions to care homes on visiting arrangements including when the care home is experiencing an outbreak situation. The Bill will need to pass through three legislative stages at the Scottish Parliament before it may be passed for Royal Assent to become law for subsequent implementation. The legislative process itself is likely to take several months. A link to the Scottish Parliament’s webpage on this Bill is here.

Zoe McDonnell, partner and Greg MacDougall, partner  

Covid19 inquiry – revised draft terms of reference

In mid-March we noted the publication, for consultation and comment, of the draft terms of reference (TOR) for the independent inquiry into the national impact of Covid-19. The inquiry was set up by the Prime Minister and will be chaired by Baroness Hallett, a retired Court of Appeal judge.

Baroness Hallett’s team have analysed responses on the TOR and made several important revisions to the inquiry’s brief. The revisions proposed sharpen the TOR by, for example

  • placing greater emphasis on studying the impact on mental health of the pandemic
  • specifically including impacts on health and care workers, and on children and young people
  • examining the effects on the safeguarding and support for victims of domestic abuse
  • adding the effects of the closures of the travel and tourism sector and of places of worship as matters for consideration
  • looking at initial contacts with health services, advice lines and primary care, and
  • considering the impact on ante- and post-natal care

Other revisions of a more functional nature touch on the collaboration between national, devolved, and local government and add the use of research and expert evidence to the need to consider how data was used and made available.

The inquiry team also recommends reviewing not only how decisions were made, communicated and implemented but also how they were recorded. This point speaks to a concern that private e-mail or WhatsApp accounts may have been used rather than official departmental channels.

I am grateful to my colleague Rachel Quinn for carefully examining the documents and preparing the attached note which highlights Baroness Hallett’s proposed revisions. New text is shown in yellow and the turquoise highlighting shows text which has been moved.

The revised terms of reference for the inquiry were sent to the Prime Minister in May. At the time of writing, there has so far been no formal response. The inquiry continues to make some progress, however, and today announced the appointment of 49 junior counsel to assist with investigations, in addition to 11 QCs who were appointed at the beginning of May.

For the changes to the Annex: Recommended Terms of Reference, please click here and see the highlighted sections.

Written by Alistair Kinley, Director of Policy & Government Affairs (Alistair.Kinley@blmlaw.com).

EHRC report on bullying racism and harassment in the health and social care sector

The Equality and Human Rights Commission (“EHRC”) began an inquiry in late 2020 into the experiences of health and social care workers from a range of ethnic minorities. The inquiry focused upon lower paid roles and has now produced its final report. 

The final conclusions of the report were hampered by incomplete data on lower paid ethnic minority workers, in particular from the adult social care sector, which meant that it was difficult to know the true extent of any issues. However, the inquiry did find that low paid social care workers from ethnic minorities did experience different treatment at work. They were more likely to be employed on zero hours contracts which, of course, leads to poor pay and lack of job security. These workers also had less awareness of their employment rights and had a fear of raising any concerns. 

In addition, this group of workers has also been at the forefront of keeping the social care system going since March 2020 during the Covid-19 pandemic, and previous reports suggest ethnic minority workers in the health and social care sector were particularly affected by the Covid-19 virus. 

The inquiry report makes various recommendations to try and rectify these inequalities within the health and social care system such as:

  • A more systematic way of gathering data
  • Regulators to include within existing frameworks how to address equality issues and implication for welfare of staff
  • Strategies to ensure and promote awareness of employment rights
  • Address organisational cultures to raise concerns freely

The issues raised by this inquiry report may of course be the basis also of employment tribunal claims as well as civil claims for work related stress. Health and social care providers should be mindful of the findings of this report going forward. 

A copy of the report’s conclusions can be found here.

Written by Associate, Jennifer Johnston

Adult Social Care in 2022: immigration review and tackling recruitment shortages

The adult social care sector in England is facing significant challenges in recruiting and retaining staff, matters which could be affected by post-EU exit policies that seek to reduce net migration. The Migration Advisory Committee (MAC) recently reviewed these important issues and last month published a comprehensive report to government which runs to over 150 pages.

The key findings from the MAC – an independent, non-departmental public body that advises the government on migration issues – can be summarised as follows. The full report can be viewed here.

Conclusions

  • The adult social care sector in England faces a gap of 200,000 care workers by the end of this Parliament because of restrictions on immigration and a failure to attract UK workers to roles in the sector. Longer term, it is estimated there could be a shortfall of 1 million workers in the next 20 years.
  • Immigration policy cannot solve the crisis in the social care workforce, although it could mitigate some of the problems created by the shortage of care workers. The ending of freedom of movement of people (as a consequence of the UK’s exit from the EU) closed off a source of workers at a critical time for recruitment and retention.

Recommendations

  • Adopt a common framework for collecting data about the care workforce as a whole, because there is a “serious evidence gap about the labour market for directly-employed care workers, despite the role of public funds in employment many of them.”
  • Invest in training and career development to make social care more attractive for UK born workers.
  • Introduce a fully funded-minimum rate of pay for care workers that is greater than the National Living Wage. A minimum starting point should be £10.50 per hour “to be implemented immediately”. [The chair of the MAC, Professor Brian Bell, said that although this has already been implemented in Scotland it “however, will not be enough to address the issues and we urge the Government to go significantly further as quickly as possible.”]
  • Pay social care workers for hours at work even if their time is spent travelling or sleeping. The MAC considers that as long as these hours are not being adequately compensated, workers are being underpaid for their time spent at work and it recommends that where care is being provided through public funds, those funds should increase to reflect the additional costs involved.
  • Introduce more highly skilled roles to the Shortage Occupation List making it easier for employers to recruit from overseas.
  • Allow low skilled migrant workers enter the social workforce by revisiting the currently-suspended Tier 3 visa route (Tier 3 was designed for low-skilled workers filling specific temporary labour shortages via a temporary work visa).
  • Consider setting up umbrella body – possibly on a ‘pilot’ basis – to sponsor care workers from overseas. People who can demonstrate that their level of need requires live-in care would be able to recruit directly recruit from the umbrella body (this approach is modelled on SAWS, the Seasonal Agricultural Workers Scheme).

Commenting on the publication of the report, Dr Rhidian Hughes, Chief Executive of the Voluntary Organisations Disability Group (VODG), said:

“The Migration Advisory Committee’s report offers a further wake-up call for Government. The Voluntary Organisations Disability Group backs the Committee’s recommendation to fully fund a rate of social care pay above the National Living Wage. A fully funded £10.50 per hour social care rate would be a good start, but we know the true value of care work is much more. We need to be ambitious in rewarding talent for much-needed social care.”

What might it mean for civil claims?

The unprecedented recruitment challenges faced by the adult social care sector and highlighted in the MAC’s report might have some influence on civil courts assessing personal injuries claims which feature care needs. The recommendations in the report could play into arguments that privately funded care regimes are more appropriate than public sector provision.

The stand-out recommendation that carers be paid for travelling to work and for ‘sleeping in time’ could, if implemented, have a significant effect. It could risk re-opening the issues determined by the Supreme Court in Mencap v Tomlinson-Blake [UKSC 2018/0160] which held (a) that working time for the purposes of the National Minimum Wage did not include ‘sleep in time’ and (b) that carers should be paid only for time that they are awake and working.

A further concern is that if the costs of statutory funded care regimes increase as a result of some or all of the MAC’s recommendations being taken forward, that could have a ‘knock on’ effect on the cost of private care regimes. Should insurers detect significant increases in these heads of claim it will become ever more important to scrutinise the detail of proposed care regimes and, where necessary, to take a robust line on unreasonable costings.

The key question: will these recommendations be implemented?

The report was published towards the end of April, meaning there has been neither sufficient time for a formal response from government nor for any of the proposals to find their way into the new legislative programme outlined in the Queen’s Speech earlier this week.

The MAC’s recommendations, if implemented, face in to two sensitive topics for the current government: increasing public spending and opening up immigration. Those issues could very easily combine as a strong political headwind against implementation.

That said, the recommendations may well be seized on by other stakeholders in the sector as an additional element in ongoing campaigns about greater funding of public sector care. In the short term at least, the proposals from the Committee are probably not going anywhere. The first clues to the government’s reaction to them will have to await publication of the immigration Minister’s reply to the report and to Professor Bell’s covering letter of 27 April.

Written by Steve Lynch, Partner and Alistair Kinley, Director of Policy & Government Affairs issued on behalf of the Care, Statutory Funding and Rehabilitation SMG

Judgment in the Judicial Review into government’s care home policy

Yesterday the High Court provided its highly anticipated judgment in the matter of Gardner v Secretary of State for Health and Social Care (1), NHS Commissioning Board (NHS England) (2) and Public Health England (3).

The Claimants, Dr Cathy Gardner and Ms Fay Harris, had sought a judicial review of the Government’s early response to COVID-19, specifically in respect of discharging COVID-19 positive patients into care homes. The High Court found that whilst this took place during very difficult and trying circumstances, the First and Third Defendants only (namely the Secretary of State for Health and Social Care and Public Health England) had broken the law by discharging patients from NHS facilities to care homes.

Such patients were deemed “medically fit for discharge” and did not have any of the recognised symptoms of COVID-19 at the time of discharge from hospital. However Government guidance from the start of April 2020 said no negative COVID-19 testing was required. Sadly either such patients had asymptomatic COVID-19, or were yet to show symptoms, or they caught COVID-19 once in the care home.

Of course not only residents were affected, care home staff contracted the virus also and sadly some of those staff lost their lives due to COVID-19.

Although not discussed directly or dealt with in yesterday’s judgment, PPE for care homes was also in short supply at this time on a worldwide basis with resources in the UK being redirected to the NHS, which of course exacerbated the potential for transmission of the virus within care homes.

Response from Matt Hancock

Families of loved ones who died of COVID-19 in care homes at the outset of the pandemic have been speaking to the press, and their anger is largely directed against Matt Hancock, the former secretary of state for Health and Social Care. In March 2020 Mr Hancock had talked about throwing a “protective ring” around care homes, but in fact it seems that protective ring was focused towards the NHS, prompted perhaps by reports and footage of Italian health services being overwhelmed in February 2020.

Mr Hancock released a statement yesterday expressing sympathy to the families and saying he was reliant on advice from the now defunct Public Health England who did not highlight the role of asymptomatic transmission of COVID-19. This approach was echoed by the Prime Minister at Prime Minister’s Questions this week who said the government was not aware the virus could be transmitted asymptotically at the outset of the pandemic. However the judgment reveals that asymptomatic transmission was certainly being discussed at this time by the government’s medical advisors – for example Sir Patrick Vallance made public comments regarding this as early as 13 March 2020, and asymptomatic transmission of similar Coronaviruses is generally recognised amongst the medical community.

The claimants were not wholly successful in their action – their claims that there was a breach of Article 2 of the ECHR (Right to Life) and Article 8 (Right to respect for family and private life) were not successful.

Our Conclusion

We do anticipate that this judgment and the ensuing publicity is likely to encourage civil claims against the Government. In addition, private providers may also face further claims. Care homes of course were not mandated to take in patients being discharged from hospital, although they were put under severe pressure to do so by the Government.

Some homes did refuse to take patients and closed their doors in March 2020. Those homes that did take in discharged patients could be open to scrutiny and claims from families who now realise that their family member may have contracted COVID-19 as a result of this policy. However, in the absence of specific knowledge to the contrary, it seems unlikely that the Court will deem care providers negligent if they have followed Government guidance.

This article was authored by BLM associate Jennifer Johnston

Complaints and Claims – The Care sector staffing shortages after pandemic

We have written previously about the potential for claims arising from the social care sector as a result of staffing shortages. An interesting investigation report in this weekend’s Sunday People has highlighted the growing reports of abuse and injuries to elderly vulnerable care home residents in recent months.

The article (found here) suggests that the growing reports may be due to staffing shortages. The social care sector was already understaffed prior to the double whammy of Brexit and then the Covid-19 pandemic. There is a high level of job vacancies within the social care sector at present – up to 10% in comparison to 5.9% in May 2021.

The Sunday People article quotes from work undertaken by the social care watchdog Care Campaign for the Vulnerable which has seen complaints increase by 80% since the end of lockdown restrictions earlier this year.

Rising reports of abuse and injuries

These reports of abuse and injuries may also now be arising only now due to the fact that families will not have seen their family member or friends for many months due to lockdowns and restrictions on visiting care homes. When seeing a relative or friend in a care home after a gap in visits, the extent of any decline or deterioration may not have been obvious without regular visits, and their appearance and presentation after several months (for whatever reason) will no doubt be sadly shocking to them. Whilst family members or friends may not be directly involved in caring, they certainly play an important role in monitoring and advocating for their loved one’s wellbeing.

Why claims are becoming difficult to defend

We are already seeing some civil claims and investigation instructions relating to incidents or accidents that occurred in the care homes due to lack of staffing or lack of supervision of vulnerable residents.

In addition on considering the claims we are seeing it is becoming clear that they are likely to be more difficult to defend, as carers during this period recorded insufficient detail on the steps they were taking to care for a resident – or in some cases none at all.

It was initially envisaged that there would be a significant number of Covid-19 claims from residents and/or their families but what we are now beginning to see are the complaints and claims that do not directly involve Covid-19 but they are certainly an indirect result of the pandemic.

Jennifer Johnston, Associate, BLM

jennifer.johnston@blmlaw.com

High Court reconvenes in landmark judicial review

Over the last six days the High Court reconvened to hear the judicial review of Gardner v Secretary of State for Health and Social Care, NHS Commissioning Board (NHS England) and Public Health England.

The Defendants were accused of failing their duties to ensure the safety of care home residents due to prioritising the objective of obtaining further capacity in hospitals by discharging patients into care homes. It was also alleged they continued to fail their duty by encouraging care homes to follow a symptoms based approach in their published guidance, even when the science suggested that asymptomatic individuals could transmit the disease. These decisions were made during a critical period and involved a known vulnerable population which resulted in excess of 20,000 deaths.

Continue reading “High Court reconvenes in landmark judicial review”

Under unprecedented pressure: The Local Government & Social Care Ombudsman’s Report on COVID and Care

The Local Government and Social Care Ombudsman (the Ombudsman) has issued a report on the impact of COVID-19 on local authorities and care providers, dealing with the significant increase in pressure on these services caused by COVID-19. The report covers the period 1 April 2020-30 November 2021, reflects on complaints made by service users and members of the public and identifies common issues arising from such complaints.

Continue reading “Under unprecedented pressure: The Local Government & Social Care Ombudsman’s Report on COVID and Care”

Easing of COVID-19 restrictions – how will this affect the social care sector? 

The Prime Minister this week announced the end to the majority of COVID restrictions in England There will no longer be any legal requirement to self isolate and the availability of free PCR and lateral flow tests will be significantly reduced. 

What will be the effect on the social care sector?

Continue reading “Easing of COVID-19 restrictions – how will this affect the social care sector? “