Care Sector Alert - Winter 2012

So how do these changes affect you?

Under the new scheme, the DBS will have combined responsibility for carrying out the previously exercised by the CRB and ISA.  From 1 December 2012, CRB checks will be known as 'DBS checks' and applications should be made to the DBS.  Other changes include a new DBS logo, application form and stationery.

The Protection of Freedoms Act 2012 introduced a new definition of 'regulated activity' (which individuals must be vetted to undertake). This has been scaled back and now only covers 5 million people, rather than the previous 9 million people (it will still exclude family arrangements and personal, non-commercial arrangements). It now only includes people providing health care, personal care, social work, assistance with cash, bills and/or shopping, assistance in the conduct of a person’s own affairs or transport for a person from place to place. It will also include anyone who provides day to day management or supervision of those people.

It is important that people working in the care sector are aware of the new requirements under the DBS, as, from 1 December 2012:

• individuals who undertake a 'regulated activity' will need to be vetted by the DBS;
• individuals who have been barred by the DBS (or previously by the ISA) will not be able undertake regulated activities; and
• anyone who knowingly employs a barred individual for a regulated activity is committing an offence.

If an employer or organisation dismisses or removes someone from are gulated activity because they have harmed or pose a risk to avulnerable individual, the employer is legally required to forward this information to the DBS.

Are you ready for the DBS?

• Do your staff, volunteers and clients know about the launch of the DBS?
• Do you need to update your documents, materials and website so that they refer to the DBS?

You can find further information at www.homeoffice.gov.uk/crbischanging

Contributed by Abigail Scholefield, Associate, Field Fisher Waterhouse LLP on 0161 200 1782

Sector publications and news

Children's directors plan to overhaul care system
Community Care, 24 October 2012

Investigations are to be conducted into how improvements can be made in permanence, stability and support for teenagers.

Councils 'must be more transparent about adult care performance'
Community Care, 1 November 2012

Councils have been asked to be more open with each other and local people by Peter Hay, Chair of Towards Excellence in Adult Social Care Performance (TEASC) programme board.

Behan to tell CQC staff: back new mission statement or leave
Community Care, 29 October 2012

David Behan, Chief Executive of the Care Quality Commission, says staff currently have three or four views between them of what the CQC should do, in light of a review he is conducting into the Care Quality Commission future strategy.

Unison issues charter to end low-wage, by-the-minute home care
Community Care, 11 October 2012

Unison has asked that councils make working conditions better for care homeworkers as 46% say they feel they often rush their work.

Care Quality Commission 

QB outline how high quality care will be maintained in the health care system
CQC, 16 August 2012

The National Quality Board (NQB) has outlined how quality will be maintained and improved in the health system.

Care regulators, professional bodies and unions join forces to launch Speaking Up charter
CQC, 15 October 2012

CQC has joined with other regulators, professional bodies and trade unions in launching the Speaking Up charter, a commitment to work together to support people who raise concerns in the public interest.

First Tier Tribunal for Health Education and Social Care

NJ v HCPC (2012)
UKFTT 596 (HESC) (03 October 2012)

A social worker (NJ) appealed the GSCC decision of 4 November 2010 to remove her name from the social care register, following misconduct findings. The allegations related to NJ's interaction with a service user (Adult C) and his family.  In particular, the case concerned NJ's failure to take appropriate action in respect of reported abuse of her daughter by Adult C. It was alleged that NJ's daughter disclosed to her that she had been indecently assaulted by Adult C, but this was denied by NJ. At the time of this appeal, Adult C was serving a prison sentence following a guilty plea to assaults on both the appellant's daughter and his own children.

The Tribunal considered that the allegations referred to it amounted to a 'gross error'; namely NJ's failure to report the conduct when she received the report of abuse from her daughter in 2006. It was felt that action should have been taken to inform social services or the police to ensure that other children were safeguarded. Although the failure was thought to be an isolated incident, it was referred to as a 'gross error' which meant that removal from the register was the appropriate sanction. The Tribunal highlighted that the confidence of the public in the profession would be greatly affected if a person remained on the register in such circumstances, and the consequences of such behaviour are plainly very serious indeed. The appeal was dismissed and the GSCC's decision to remove the appellant from the register was confirmed.

Julie Duckworth v HCPC (2012)
[2012] UKFTT 613 (HESC) (08 October 2012)

The appellant ('JD'), a fostering service social worker, appealed undersection 68 of the Care Standards Act 2000 against the decision by the GSCC to suspend her for a period of two years following findings of misconduct.

The Judge held that there had been a significant delay of almost two and a half years, by the GSCC in completing their investigation. The appellant had already been subject to an interim suspension for a period of 2 years whilst the GSCC carried out their investigation. She was initially suspended in September 2009 and the order was subsequently extended for the maximum period of two years without any hearing taking place.

JD did not dispute the findings of misconduct but appealed against the sanction. The Conduct Committee's decision was carefully considered along with all the other relevant factors. It was held that a suspension amounting to a total of almost five years in total was disproportionate to her misconduct, based on the substantial mitigation evidence presented. The appellant was considered to have shown remorse for her behaviour and demonstrated sufficient insight. The Panel took into account the medical evidence and actions taken by the appellant to address any concerns. They felt she was able to safely return to practice and should be reinstated to the HCPC register with immediate effect. The appeal was allowed and the decision to suspend the appellant was not upheld.

Independent Safeguarding Authority

See editorial above

Local Authority Cases

R (On the application of the Members of the Committee of Care North East Newcastle) v Newcastle City Council (2012)
EWHC 2655 (Admin)

Care North East Newcastle, a representative for care home providers within the Newcastle region, challenged the decision by Newcastle City Council ('the Council') to: (1) fix the rates payable for the financial year 2012/2013 and (2) to require providers to sign a contract and agree the new rates by 30 April 2012, otherwise the Council would refuse to make any new placements with those providers. The four grounds of challenge were that the Council:

(i)   failed to inform itself of the costs to care home providers of providing services before setting its rates and so acted contrary to the relevant guidance;

(ii)  acted irrationally and/or failed to take into account relevant considerations in reaching its decision to fix the rates;

(iii) failed to comply with its duties of consultation;

(iv) imposed contractual discounts on providers at lower than the "usual rate" and refused to place residents with any provider who refused to agree the discount and in doing so acted unlawfully.

The Claimant was successful on all four grounds. In relation to grounds one and two, Judge Gosnell held that it was clear that the Local Authority was obliged to have due regard to the actual costs of providing care and other local factors; the defendant had failed to do so before fixing rates and this was contrary to the relevant guidance. Furthermore, the Council was found to have either acted irrationally or failed to take into account relevant considerations, as they used an accountants report as the means to ascertain the actual cost of care but populated it in a misleading way, by making a 2% deduction for efficiency savings which was not justified and by stripping out return on equity from the calculations.

In relation to ground three, Judge Gosnell referred to the requirements for consultation as set out in R v North and East Devon HA ex p Coughlan. It was held that the views of the consultees were not accurately reported to the decision makers and the reasons behind the decision-making were not disclosed until after the decision was made. On the final ground, it was held that it was unlawful for the Council to refuse to place new residents with any care home who had not agreed to the discount the Council was seeking and the Council was abusing its dominant position in the market to drive down fees.

A declaration was ordered that the decision to fix the usual rates for care home providers was unlawful and should be quashed.  A declaration was also ordered that the Council may not refuse to place residents with providers if they decline to accept placements at discounted rates without agreement.

Davis v West Sussex County Council (2012)
EWHC 2152 (QB)

The Claimants (D), were the owners of a care home and applied for a judicial review of decisions made by West Sussex County Council ('the Council'), relating to allegations of abuse at the care home. A contract was agreed between the Council and the home regarding residents placed in the home. An investigation had taken place concerning allegations of abuse against one of the residents and D's contract had been terminated.  D's appeal was based on his claim that the determinations had been unlawful, due to the case conference procedure being unfair, D had not been given sufficient time to respond to the allegations against him and a second case conference had been conducted without his knowledge.  The Council argued that the relationship with D was exclusively contractual and a public law claim was not appropriate.

The application was granted on the basis that the Council had not complied with its own guidance and had not given D sufficient time to respond to the report. The case conference procedure was found to be unfair and unjust. The issues were not held to be fundamentally contractual, as D's complaints were essentially public law claims for which contractual remedies would have been inadequate. A declaration was made that the Council's actions were unjust and the decision should be quashed.