By Debbie le Quesne

Archive for May 2014

CQC penalty notices and why we should have a measured response

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The Care Quality Commission has this year been busy issuing penalty notices over breaches in conditions of registration.

Most services have to have a registered manager as ‘part of the deal’ in being operationally compliant.

And sometimes there is good, compelling evidence why sometimes care businesses are without a registered boss.

Often, as staff move onwards and upwards, the vacancies are hard to plug. Getting the right person on deck is paramount to both the smooth running and general ambience of the service – but it all takes time

There’s some great advice in the latest edition of the Brunswicks’ Care Review, a great source of legal updates and mostly presented in a way all of us can understand.

It appears that editor Keith Lewin has had a bulging postbag relating to the penalties issue and he offers some wise words in response.

Firstly, “a penalty notice can only be applied with a care provider’s agreement.”

He advises that those with recruiting issues should be “slow to accept” them. In such circumstances and providing there is good documented evidence, a penalty notice is not an appropriate response.

He also goes on to explain the industry-wide and direct consequences of acceptance.

I quote: “There are consequences for individual care providers of meek acceptance; first, there is the beginning of a record of non-compliance which CQC will undoubtedly refer to in more formal penalty situations, for example, when before a court or tribunal.

“That said, there is a more wide-spread consequence for all care providers when many accept the penalty. It is this – that the regulator becomes convinced that in order to drive change in the sector, first change the rules, then tell people about those changes, provide a period of grace for people to become compliant, at the end of which give inspectors the stick of issuing penalty notices to send a message to all care providers by making an example of the few.”

What concerns me deeply is that the ‘stick’ approach, he says, is “expected to be deployed more in future.”

His reasoning is to be found in the CQCs board of management papers for its meeting last week.

Let me quote some more: “Andrea Sutcliffe, Chief Inspector of Adult Social Care and Corporate Lead for Registration, reported that there was a 57% increase in the number of new registered managers in 2,439 care services which CQC targeted in a six-month period which ended in April.

“I therefore suspect that CQC management will use that statistic to drive through change in the sector at a time when care fee payments from the majority of commissioners of care, local authorities, are still exercising considerable downward pressure on care fees.

“Therefore, for the future, I expect that in matters of provider delinquency CQC will take a much less tolerant approach and that similarly, it can be expected to issue penalty notices.”

Make sure your paperwork is in order! Enjoy the weekend.


Night hospital discharge system must change

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The practice of discharging thousands of NHS patients from hospitals in the middle of the night – despite bosses ordering a crackdown to stop it – made Sky News headlines.

In a special investigation the news team found the “number of patients leaving hospital in England between 11pm and 6am has actually risen in the last two years.”

Way back in April 2012, NHS called on hospitals to cut down on overnight discharges following a series of cases where vulnerable patients had been left to make their own way home.

Some of those vulnerable patients are elderly and in care. It’s a shameful state of affairs.

Clearly the NHS needs to free up beds – but like this? No way!

Figures obtained by Sky News following Freedom of Information (FOI) requests show that despite pleas for it to end, the practice is still widespread and in many cases rising.

Figures show more than 300,000 patients have been discharged late at night since 2012 – an average of around 400 a night. Tens of thousands of those patients were over 75.

A Sky online report claims that “experts say that patients often end up in care homes in the middle of the night.”

Let me quote some more – Nadra Ahmed, chair of the National Care Association, says: “They [the residents] are going back without any relevant information about how their care might have changed, what the diagnosis might have been, their paperwork is not following because people are off duty and often without the relevant medication they need for the following day or even through the night.”

Now the National Care Association is attempting to gather information on how many residential-setting residents this has affected within its membership. The data would be useful and I would encourage a good response . . . please!

But for me there’s a more important question to address: If these patients can be discharged, why no during the day? Many service users who have emergency admissions are left waiting with their carers for hours and delays sometime result in overnight stays. It’s the economies of madness.

Frankly it’s a shambles and here are the stark facts as reported. News asked 160 NHS trusts in England how many patients had been discharged between 11pm and 6am in the past three years.

“Of those, 72 trusts provided figures for all three years. In 41 cases, the number of patients discharged overnight increased.

“In 31 cases the proportion of patients discharged between 11pm and 6am increased. In three trusts it remained the same.

“Of the 72 trusts that replied, 152,472 patients were discharged between 11pm and 6am in 2011/12, rising to 152,479 in 2013/14.

“The figures also reveal that 20,152 were aged over 75 in 2011/12; 19,728 in 2012/13 and 18,548 in 2013/14.

“The proportion of patients discharged overnight remained the same at 2.41%.”

Is this the evidence for poor social care funding?

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I’m sorry, but the whole business of the Local Government Ombudsman seeing a 130% increase in adult social care complaints since 2009 has got to me.

I read there were almost 2,500 complaints made about adult social care to the ombudsman last year alone,

And I also learn that more complaints are made about assessment and care planning than any other issue.

Well, what a surprise! As local authorities struggle to balance their books with ever-decreasing funds for social care, something must give.

And is this the evidence? Probably. Assessments are, after all, the place where monies are spent or saved.

Last year, 442 complaints included concerns in this area, a 7% increase on the previous year, the Guardian online reports.

The newspaper highlights the case of Peter, who lives at home with his mother. He has autism, epilepsy and learning disabilities. “After his NHS funding was withdrawn, the council assessed his needs but failed to comply with its legal duty to agree an aftercare plan,” the article says.

I desperately feel for social workers because many I now acting unwillingly, I believe, as frontline auditors. What a mess we are in!

The 2013 LGO review notes, according to the newspaper, that the 2,456 complaints for that year are “a small number in the context of 1.3 million users of adult social care in England. However, 40% of the total number of complaints the LGO receives are concentrated on 25 council areas.”

As for care reviews, the report shows councils “are getting this basic obligation wrong.”

Dr Jane Martin, local government ombudsman, is quoted as saying: “Over the last few years there have been a number of reviews that have looked at healthcare complaints. We must not wait for a crisis in adult care to examine more closely the way social care commissioners and providers deal with complaints.”

The LGO received 218 complaints and enquiries from private providers, just 9% of all adult social care complaints.

The review adds that while this may reflect good satisfaction, it may also mean that the public is unclear about how and where to raise concerns.

I’m sorry to keep beating the same old drum about funding, but I’ve been saying for years that if we cut, cut, cut in the way we are doing now, there are serious consequences.

Remember: The barometer of society is measured in how we treat (indeed, fund) its most vulnerable.

Ombudsman complaints soaring over social care

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Social care complaints to the ombudsman have rocketed in the last five years.

In fact, I read in the Guardian online that they have more than doubled.

In an interesting twist, East Sussex Council believes that rather than being evidence of a worsening service, it all to do with people being able to make their voices heard.

In a new ombudsman report the council is sited as the English authority that generated most social care complaints per head of population to the local government watchdog.

And according to East Sussex, the trend is because of “excellent signposting” for complaints. If this is not wholly true, this is very clever media spin. I do note, however, that the number of complaints upheld was below average.

Quoting the council, the local authority is reported as saying in the Guardian: “In East Sussex people’s right to go to the LGO is actively encouraged as a positive step if they are unhappy with our approach.”

The report goes on to say that others may take a different view of the figures, which “show a rise of 130% between 2009 and 2013 in all social care complaints received by the ombudsman.

“Almost 2,500 complaints and inquiries were dealt with last year. This has made social care the fastest growing area of the LGO’s work and also the area with the highest rate of complaints upheld (46%).”

It worries me that the Guardian report tells us that the majority of complaints concern assessment of need, care planning and funding or charges. However, it adds, complaints about residential care are rising fastest and last year accounted for more than twice the number of grievances about home care.

It’s the first time the LGO has named councils that attract most complaints. In the top five are Walsall, East Sussex, Redbridge in east London, Blackpool, and Bromley in south London.

It is true that like never before, people are aware of the complaints mechanism and I believe the majority of local authorities with which I deal have a robust information system in place to inform clients of their complaints mechanisms.

But I can’t help feeling disappointed, I know that East Sussex is a long drive from the Midlands where much of my work is done, but to me the geography is immaterial. Everyone needing this kind of care intervention should be happy with all aspects of its delivery, but we live in an imperfect world. That imperfection in social care is fuelled, I believe, not only by flaws in humanity, but by an on-going unwillingness to fund the industry properly.

With a General Election now on the horizon, let’s see what political pledges for change will be made.

As ever, the West Midlands Care Association will be happy to remind politicians of all persuasions just what they have committed themselves to.

Ruling to send shockwave through the care industry

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Nestling in the columns of Brunswicks’ Care Review are details of a legal ruling that is about to see wages of some carers rocket while simultaneously providing another hurdle for hard-pressed providers.

The issue centres on whether a care worker should be paid the National Minimum Wage for ‘sleeping night duty’.

It’s an old chestnut that until now has escaped a legal precedent.

But now we have a definitive view, as expressed by the Employment Appeal Tribunal which very recently had to consider the point in Esparon (trading as Middle West Residential Care Home) v Slavikovska

The case wins a large editorial display in the Brunswicks’ publication. I quote: “In short, the decision is that a worker who undertakes sleeping nights must be paid for all of the hours ‘at work’ whether awake or sleeping.

“Care providers can be expected to have a deluge of requests for payment by workers when they become aware of the ramifications and effect of the decision.” Indeed!

The case arose because of the Home Office making it a condition of employing Ms Slavikovska that the employer paid her £7.02 per hour.

HM Revenue and Customs had previously conducted an audit of the provider and determined that staff employed on the same terms as Ms Slavikovska were being paid National Minimum Wage!

Let me quote some more, so there’s no misunderstanding: “Another decision covering this and another issue, namely, whether domiciliary workers should be paid for travel between service users came before the Employment Appeals Tribunal, although one differently constituted from that in the Slavikovska case.

“In Whittlestone v BJP Home Support Limited, Langstaff J, held that a care worker who was required to sleep-in premises in which three learning disabled adults lived in case they should need help in the night was ‘’working’ and accordingly, the NMW applied to all the hours.

“Further, and it should be of great concern to domiciliary providers, Langstaff J, also held that when travelling between assignments at the homes of a number of different service users throughout the day, that time too should be regarded as ‘time work’, to use the technical phrase, and is to be paid for at not less than the NMW.“

Editor Keith Lewin rightly says in his piece that it will “send shock waves throughout the sector.”

With that thought, I’ll bow out of the blog for the long weekend. Have a great bank holiday.

Key industry findings not the case for Midland operators

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Increasing national profit trends in care home business as reported in the latest research data do not necessarily reflect the industry’s economics in the Midlands.

The Care Homes Review document, compiled by real estate advisory organisation Colliers International, reveals that although there has been little change from 2012, the outlook is brighter.

It reports profitability is now “up slightly” from the first half of 2013 in both the personal care and nursing sectors; with personal care profit margins at 31.7 per cent and nursing care profitability at 28.7 per cent.

Nick white, senior surveyor in the Colliers international Healthcare team is quoted: “There appears to be positive news for elderly care homes, which are maintaining levels of EBITDAR [Earnings Before Interest Tax Depreciation, Amortisation And Rent)].

“This is in a period when local authority fees have generally not been increasing with inflation. We have found that many of the more successful operators are focussing on self-funding residents and continue to closely control costs.”

The report adds; “Profit margins in the long-term elderly sectors remained steady, increasing only marginally over the last half of 2013. However, EBITDAR margins for specialist care homes have decreased for the third consecutive period, after remaining relatively stable since 2010.”

But the green shoots of any recovery are scare in the Midlands with my West Midland Care Association offering a very measured response to the findings.

Although this report shows an increase in profit across the country, this is not reflective of the situation in the West Midlands were the average residential care home charges about £430 and the average nursing home fees are £520.

These figures include a small top-up element paid by families, as they local authority rates are less.

With these figures and still-increasing outgoings, many businesses are struggling to have investment sleeve for the future and frankly, the outlook is not great.

The Colliers’ data is based on key performance indicators (KPIs) and the spectrum of providers includes national corporates, regional private companies and operators of single homes.

Occupancy rates have risen in all three sectors – residential (personal care), nursing and specialised care. Occupancy in the nursing and specialist sectors is around 90 per cent; whereas, occupancy levels in the personal care sector remains just under, the report says.

Average weekly fees fell in both of the long-term elderly care sectors; with nursing sector fees showing the greatest decrease over the second half of 2013 (2 per cent). However, specialist care fees have increased by more than 4.5 per cent in the second half of 2013.

Outgoings for wages across the sectors are marginally lower than in first half year of 2013.

In the West Midlands Care Homes Occupancy has remained the same, despite local authorities trying to reduce numbers and keep people in their own homes.


Human rights court ruling could raise the bar on dignity

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Stopping night calls to a retired, disabled ballerina was illegal, – or at least initially – according to the European court of human rights.

But the ruling allows our government “wide discretion in balancing the needs of vulnerable individuals with the economic wellbeing of the state,” the Guardian online report says.

The decision could impact significantly the level of support local authorities are required to provide.

The case was brought by stroke victim Elaine McDonald, a former prima ballerina with the Scottish Ballet, against Kensington and Chelsea Council and the UK government.

She has been left with limited mobility and at night she needs to go to the toilet regularly.

In November 2008, the council reduced the amount it was prepared to pay for her care and declined to fund a night-time assistant. They proposed she use incontinence pads.

The provision of night care would cost,

The council argued that the cost of the night service – £22,270 a year – would have to be paid out of the adult social care budget from which all other community care services for adults in the applicant’s borough were funded.

But the Strasbourg court ruled that the UK violated McDonald’s rights between November 2008 and November 2009 because the local council had failed to carry out a full assessment of her care plan.

But here comes the sting in the tail: The British government was ordered to pay €1,000 (£813) in compensation for breaches of article 8 of the European convention of human rights, which guarantees respect for family and private life. She was also awarded €9,500 for expenses and legal costs.

The court added (Guardian report): “From 4 November 2009 onward, there is no doubt that the interference [in her rights] was in accordance with the law [after the care plan was reviewed]. The court accepts that the interference pursued a legitimate aim, namely the economic wellbeing of the state and the interests of the other care users.”

McDonald submitted that if forced to use incontinence pads she would “lose all sense of dignity” and, as a consequence, she would suffer considerable distress.

The local authority said using would ensure the applicant’s safety and provide her with greater privacy and independence in her own home.

It’s a difficult one, this case . . . but undoubtedly a landmark ruling which could effect the decision-making process in many other cases.

Basically it means that if social care services are cut under social services reviews, councils will have to take into account the impact on the dignity of the individuals who will be affected.

And a final thought: How can we fix a cost on the indignity that Elaine McDonald OBE endures in processing her most personal elements of her care though the British legal system.