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

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

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? “

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”