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? “

Hughes v Rattan – better or worse?

On 4 February the Court of Appeal handed down the latest decision in a series of cases addressing the issues of vicarious liability (VL) and non-delegable duty of care (NDDOC).

This area of law has, in recent years been litigated particularly in dental negligence cases. The decision comes hot on the heels of the Court of Appeal’s decision in Pawley v Whitecross Dental care Limited and Petrie Tucker and Partners Limited which was covered in this blog last December.   

Continue reading “Hughes v Rattan – better or worse?”

Consultation on ending Vaccination as a Condition of Deployment in health and all social care settings

In the wake of the COVID-19 pandemic, the care sector has seen thousands of care home workers resign or be dismissed, following the introduction of mandatory vaccination legislation on 11 November 2021. The current legislation requires mandatory vaccination for care home workers within CQC registered care homes that provide accommodation for people needing nursing or personal care, unless they can evidence a valid exemption. It is estimated that the care home workforce has lost around 40,000 staff as a result.

After growing concern over the stability of the health and social care sector, the Secretary of State for Health and Social Care, Sajid Javid has announced to Parliament that the government will launch a consultation on ending Vaccination as a Condition of Deployment (VCD) in health and all social care settings in the United Kingdom. This move came days before the 3 February 2022 deadline for unvaccinated NHS workers, who have been facing  an ultimatum of having their first dose of vaccine or being dismissed.

Subject to the responses received to the consultation and parliamentary approval, the Secretary of State will revoke the regulations.

Continue reading “Consultation on ending Vaccination as a Condition of Deployment in health and all social care settings”

Difficulties in sourcing domiciliary care as No.10 hints at mandatory vaccinations u-turn

We have written recently about the difficulties being faced by both English social care providers and NHS England regarding mandatory vaccination against COVID-19.  This is a real concern in view of staff shortages in the social and health care sectors. 

At present, the issue of staff shortages in social care are extreme and anything that further impacts on the workforce is going to have a major effect.  For example we have seen recent news reports where families have had to resort to their own ways of funding care – see here.   Whilst in this instance it’s unclear why the private provider could not continue the care package, we consider such scenarios are sadly likely to become commonplace.   

We have had significant experience in handling claims that have arisen from domiciliary care usually due to issues involving carers missing appointments.

However there has been a hint today that the government may relinquish the policy of requiring mandatory vaccination against COVID-19 for health and social care staff in England, in view of the lesser severity of the Omicron variant, and in view of the unpopularity of the decision with the workforce and unions.   A decision will apparently be made by the government in the next few days. See here for further information.

It’s unclear however how those staff who have already lost their jobs due to the vaccine requirements will view any potential change in policy, and whether they would seek legal redress on this issue. 


Written by Jennifer Johnston at BLM (jennifer.johnston@blmlaw.com)

How to approach implementing the mandatory vaccination regulations: new NHS England guidance and care home operational guidance explained

As has been widely reported in the media, the Government has passed new regulations, approved by Parliament, extending the scope of mandatory vaccination for staff in the health and social care sector. In my latest blog post on mandatory vaccinations, I set out the amendment to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and what this could mean for the health and social care sector. NHS England has now published its Phase Two guidance on the implementation of these new regulations which came into effect on 7 January 2022, requiring all health and social care workers to be double vaccinated against COVID-19 by 1 April 2022.

Continue reading “How to approach implementing the mandatory vaccination regulations: new NHS England guidance and care home operational guidance explained”