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

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.   

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New ‘Speaking up’ guidance for GOC registrants

On 28 October 2021, the General Optical Council (GOC) launched new ‘Speaking up’ guidance, previously known as ‘Raising concerns with the GOC (whistleblowing) policy.’ The guidance is aimed at helping both individual and business registrants identify where they need to consider the professional requirement to speak up when a patient or public safety may be at risk. It should be read alongside the GOC Standards for Optometrists and Dispensing Opticians, Optical Businesses and Optical Students. It should also be considered in conjunction with the GOC’s professional duty of candour. The guidance is split into two parts, with Part 1 applying to individuals and Part 2 to business registrants.

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Delving Deeper into care rates

The BBC has this week reported on data obtained from a number of sources in respect of care rates in the UK. The figures will be of interest to personal injury practitioners attempting to value the cost of care.

Figures at a glance

  • The Homecare Association considers the true minimum hourly rate for a care agency carer in the UK is £21.43
  • The average hourly rate for a directly employed carer is £24.94 according to software company The Access Group
  • The government has announced a £162.5m fund for carers having already confirmed a £5.4bn levy for social care over the next three years

Analysis

BLM’s Care, Statutory Funding and Rehabilitation Subject Matter Group has crunched the numbers from these data sources and note that data collected by the Homecare Association includes care rates that provide for a profit element of 60p per hour which, based on the quoted rate of £21.43, is a 3% mark-up.  Local authority (LA) payments for care do not cover the minimum cost set out by the Homecare Association. Whereas the private care rates obtained by The Access Group include a mark-up of £4.11 which is around 19%. Therefore, what the report suggests is a very wide discrepancy in profit margins between LA funded care and private care.

This report from the Homecare Association coincides with the release of the updated ASHE figures which shows an average increase in care rates across the 60th-90th percentile of 2.6%. BLM’s Actuarial Subject Matter Group will be analysing these findings.  It is important to note that the figures provided in the ASHE data largely cover state funded care rates, which, as the Homecare Association study shows, are much lower than private care rates typically seen in catastrophic injury claims funded by insurers.

BLM’s own experience is that private care rates have seen a steady increase in recent years, with support worker/rehabilitation assistant rates reaching as high as £26 per hour.  This links in with data obtained from The Homecare Association which found Wiltshire to be the area in the UK attracting the highest hourly rates for carers at £26.11. Whereas Halton is only attracting hourly rates of £12.68, highlighting the inequality in care rates across the country with the most deprived areas having the lowest carer rates.

It remains to be seen if private care rates will continue to rise.  The answer could be gleaned from data obtained from ‘Skills for Care’ who have found that:

  • Vacancy rates in carer roles are now back above their pre-pandemic levels
  • Since March 2021, there has been a decrease in jobs (filled posts) of around -1.8%
  • In 2020/21 adult social care jobs increased by 2.8%.  In domiciliary care services jobs increased by 7.4%

The data suggests a struggle in recruiting carers which will of course lead to a higher demand and therefore potentially increasing care rates. BLM will continue to monitor this position and the effect it will have on the costs of future care.

This update has been written for the Care, Statutory Funding and Rehabilitation Subject Matter Group at BLM. For more information on our Subject Matter Groups, please click here.


Written by Phillip Sturley at BLM (phillip.sturley@blmlaw.com)

The Assisted Dying Bill: the potential regulatory implications for health professionals

On Friday 22 October, Baroness Meacher’s Assisted Dying Bill progressed to the Committee Stage after being debated in the House of Lords. If enacted, it will undoubtedly be a seminal moment in healthcare law. It would permit medical professionals to lawfully prescribe end of life medication to terminally-ill adult patients of mental capacity who are reasonably expected to die within six months (and voluntarily making such a request), essentially legalising physician-assisted suicide. Although the majority of speakers were in favour of the bill, Hansard reveals how many members hold great concern for the safeguarding of vulnerable individuals and for the impact the bill may have on the public’s trust in doctors. It is therefore entirely understandable why this issue is prompting such widespread debate.

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Gardner v Secretary of State for Health and Social Care – Judicial Review Further Update

The public challenge brought by claimants Dr Cathy Gardner and Fay Harris in respect of the government’s COVID-19 hospital discharge policy reconvened on Friday, 22 October. The days’ submissions followed from the adjourned hearing on Tuesday, 19 October, reported here. This blog will explore the key issues addressed at the hearing, and consider the way forward for the claimants’ case.

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What is the UK’s legal position on compulsory vaccination?

It has been confirmed that the COVID-19 vaccination will become compulsory for staff that care for the elderly and vulnerable. In enforcing such a requirement, organisations are likely to face a number of issues and potential pitfalls, and it is important therefore to explore the key steps if you are considering introducing compulsory vaccination for staff or those deployed in the organisation.

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Removing COVID restrictions – what will be the effect on the Social Care Sector?

The vast majority of COVID-19 restrictions are set to be removed in England on 19 July.  It’s worth noting that deaths in care homes with the involvement of COVID-19 have reduced substantially in recent months – see here for the most recent ONS statistics on reported deaths from care homes. But will this downward trend continue once restrictions are removed generally across the population, especially in view of rising infection levels? 

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Tort reform ideas outlined in maternity safety report?

Last week the Commons Health and Care Select Committee published what is likely to be a very significant report examining safety issues in NHS maternity care. The primary focus of the report is improving patient safety by learning from well-documented failings in East Kent, Shrewsbury and Morecambe and the report makes important recommendations on this aspect. A second strand of the inquiry was to review the effect that the current clinical negligence claims and litigation process has on improving outcomes and to consider if changes are necessary. The Committee found that they are and this blog summarises its recommendations on that topic.

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Optics: Remembering the basics during these extraordinary times

As the optical profession adapts to a new way of working, there are a number of themes that run through the guidance produced by the General Optical Council and professional bodies in response to the COVID-19 pandemic; professional judgement, communication and record keeping. Keeping these fundamental principles in mind should help practitioners navigate their way through these turbulent times.

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