Welcome

Welcome to the Winter 2023/2024 edition of Hempsons’ Social Care Newsbrief. We are delighted to continue to support all providers, large and small, working within one of the most, if not the most, challenging sectors in the UK.

We wait with baited breath for news of CQC’s changes to their inspection regime. One of the most common calls we receive on our free social care advice line is from providers who have had a less than ideal CQC inspection, so I’m trying to remain upbeat and positive that the new approach will be more transparent and there will be greater consistency of approach across the country. Time will tell!

This issue comprises articles across a range of themes including the CQC, inquests, and how to deal with vexatious families as well as an update on some recent employment law cases related to COVID-19 and their implications on disability discrimination, mask and personal protective equipment (PPE) requirements, and whistleblowing.

Premises can be the biggest liability both in terms of capital expenditure and inherent liabilities, and we have included an article that looks at ways in which you can limit your exposure to expensive repairs and dilapidations and avoid any unwanted surprises – regardless of whether you intend to own freehold or leasehold.

We are delighted to have an exclusive interview with Louise Bestwick, chief executive of Bradford Care Association and one of the founding partners of the new Yorkshire and the Humber Care Association Alliance. Louise has done great work in Bradford bringing providers together and supporting them, particularly through the challenging times of COVID-19, and her role alongside other local leaders is certain to ensure that the YHCAA will be an essential vehicle for providers up and down the county to have a stronger voice nationally to ensure social care becomes a government priority. Hempsons is delighted to be working with the Alliance and all its partners.

Finally, for the third year in a row Hempsons are delighted to have been nominated for ‘Legal & Professional & Business Services’ at the Care Sector Supplier Awards on 17 November 2023. Having won the award for the last two years, we’re hoping for a hat trick!

I hope there is something for everyone in this edition and please get in touch if you have any questions or comments.

Philippa Doyle

Partner and head of social care
p.doyle@hempsons.co.uk

This article first appeared in the December issue of Care Management Matters. Since drafting, further detail has been released by CQC around timescales, information gathering and format.

The CQC is changing the way it inspects and reports on services, but what are the evidence requirements for providers and what areas of the current system will remain the same? Philippa Doyle, partner and head of social care, shares her analysis of the new process.

CQC’s long-awaited Single Assessment Framework (SAF) is slowly being shared. Its implementation has been somewhat delayed, due to IT technicalities and resourcing, but we seem to have a clear(ish) timetable for providers to have access to the new portal in Autumn/Winter 2023, with social care providers in the South ‘going live’ first on 21st November and the rest of the country expected to go live in the new year.

Keep watching CQC’s website and sign up for updates to ensure you have the most up-to-date information.

Business as usual?

Whilst the SAF is badged as a full-scale change in the inspection process, that change sits with CQC, not with providers.

It is CQC that is changing the way it inspects, the questions it asks, how it rates, and how it reports.

For providers, it is business as usual.

The regulatory framework that underpins the delivery of care has not changed and is not changing. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Fundamental Standards of Care, enshrined in Part Two of those Regulations, are here to stay.

All of the good work that you and your teams have done so far and continue to do, and all the excellent policies and procedures you have in place can stay.

Keep ensuring your care planning is person-centred.

Keep ensuring your staff are up to date with training.

Keep ensuring your medicines management is carefully delivered, monitored, and audited.

Inspection insights

The SAF is CQC’s new inspection regime. The CQC says it will regulate in a smarter way, adapting and responding to risk, uncertainty, and demand. We have seen clear signs of that already. During and post-COVID-19, CQC inspections were led by risk. This meant that there were direct complaints to its helpdesk, whistleblowing allegations, and concerns raised by commissioners, which led to poorly performing services, or those perceived as being poorly performing, being at the front of the queue when it came to re-inspections. Long gone is the inspection programme where a good service would not expect to see CQC again for two years.

The four ratings of: Inadequate, Requires Improvement, Good, and Outstanding, remain.

The five key questions or domains of safe, effective, caring, responsive and well-led will also remain.

Understanding requirements

What will change is the introduction of quality statements, which replace the previous 300 or so key lines of enquiry.

These quality statements are phrased as questions and providers will be judged against the available evidence to show how those questions are met. Each statement is scored from 1 – 4 based on the quality of the evidence submitted to CQC.

At the end of the process, providers will be able to see very clearly exactly where their service is doing well, and where there are gaps that require extra attention. Those providers looking to increase their rating up to the next level will also be able to see how far away from achieving that rating they are and where they need to focus their efforts.

CQC has very helpfully shared the different types of evidence that might be required to answer each of the quality statements and this is where the SAF differs for different sector groups.

There are eight different sector groups:

Each sector group will have slightly different evidence requirements, but all the details are available on CQC’s website for a service to map across each quality statement and what evidence they need to put forward.

The evidence categories are all very familiar too and are all based on the work CQC currently carries out when it inspects a service.

There are six evidence categories:

Processes is one of the more notable ones for providers to be aware of – this is any series of steps, arrangements or activities which are carried out to enable a provider or organisation to deliver its objectives. CQC assessments will focus on how effective policies and procedures are. To do this, CQC will look at information and data sources that measure the outcome from processes. For example, CQC may consider processes that measure and respond to information from audits, look at learning from incidents and/or notifications and will review people’s care and clinical records.

Outcomes is a more NHS-based rather than social care-based evidence category. This will look at outcomes measured in the context of the service and the specifics of the measure. For example, mortality rates, emergency admissions and re-admission rates to hospital, infection control data, and vaccination and prescribing data. This information will be sourced from patient-level data sets, national clinical audits and initiatives such as the patient-reported outcome measures (PROMs) programme.

Uncertainty remains

What we regrettably can’t say at the current time is how much time CQC will give providers to upload evidence to the portal, how often information will be requested, or the format of the information you will have to upload. None of the requests should involve the need to create any new documents though – anything asked for should already be freely available, in just the same way as it might have been requested during previous inspections.

It might be most helpful for providers to look at the quality statements in context.

They are expressed as “I” and “we” statements.

The “we” statements show what is needed to deliver high-quality and person-centred care and the “I” statements reflect what people have said matters to them.

Using learning culture as an example:

The “we” statement reads:

We have a proactive and positive culture of safety based on openness and honesty, in which concerns about safety are listened to, safety events are investigated and reported thoroughly and lessons are learned to continually identify and embed good practices.

And the “I” statements are:

I feel safe and am supported to understand and manage any risks. I can get information and advice about my health, care and support and how I can be as well as possible – physically, mentally and emotionally.

The evidence categories CQC will use to judge and score your responses to those statements are as follows:

Feedback from partners –

Commissioners and other system partners – how well do you report safeguarding referrals and make notifications to CQC?

Health and care professionals working with the service.

Processes –

  • Duty of Candour records.
  • Evidence of learning and improvement.
  • Incident, near misses and events records.

The evidence submitted is then scored out of 1 – 4

4 = Exceptional standard.
3 = Good standard.
2 = Shows shortfalls.
1 = Significant shortfalls.

For example, if the service scored a 2 in learning culture, this would then feed into the overall scoring in the safe domain. Please see the table below for what an example service might look like:

Quality statement Score
Learning culture 2
Safe systems, pathways and transitions 3
Safeguarding 3
Involving people to manage risks 2
Safe environments 3
Infection prevention and control 2
Safe and effective staffing 3
Medicines optimisation 3
Total score 21
Maximum score (8Qs x 4) 32
Percentage for safe 65.6% = good

 

This particular service has scored some twos and some threes and when that is converted into a percentage, it has scored 65.6% which puts it squarely into the good rating.

The service can see where it needs to do better, for example, infection control. This enables providers to know where to concentrate their efforts to improve. The theory is that the service will be able to submit evidence to CQC of its improvements and if CQC is satisfied with it, the scoring would be adjusted, which for some services might see an uplift from Requires Improvement to Good.

The percentage scores are clearly laid out:

  • 25 to 38% = Inadequate
  • 39 to 62% = Requires Improvement
  • 63 to 87% = Good
  • Over 87% = Outstanding

So as a service, you can see whether you are “just” missing out on a rating, or if you’ve “just” made it into the next category.

Do be mindful that there are some rating limiters:

  • If the key question score is within good range but with a score of 1 for one or more statements, the rating is limited to Requires Improvement.
  • If the key question score is within outstanding range but with a score of 1 or 2 for one or more quality statement, the rating is limited to Good.

Transparency is key

I am very hopeful that this new way of inspecting, evidence gathering and reporting will provide a far more consistent and transparent approach to regulation. Evidence is key though, even more than it ever has been. Providers will be uploading A LOT of information onto the provider portal before a visit and CQC’s analysis of a service will only be as good as the evidence submitted. It is worth engaging with the different questions, and what evidence CQC is looking for, to ensure that what you provide is specific and relevant. It is no good telling CQC everything you know about a subject – you have to actually answer the exam question.

Hempsons has worked with providers for many years supporting them through the CQC process. Our Fundamental Standards of Care training packages for registered managers and front-line staff can help you navigate the regulations, improve the lives of the people you support and tick CQC boxes too. Do get in touch for more information on how we can support you.

Watch our latest CQC webinar

Philippa Doyle

Partner and head of social care
p.doyle@hempsons.co.uk

Fundamental standards of care training

Improve the lives of the people you support and tick some CQC boxes too…

We have established bespoke training packages to ensure you are operating in accordance with the fundamental standards of care.

As a provider, registered manager, or member of care staff operating a regulated activity, you must ensure your care and service operates in accordance with the fundamental standards set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations
2014.

When CQC inspects your service, they will speak to all staff and assess their understanding of these fundamental standards. It is therefore critical that all staff are clear about what their responsibilities are.

We provide bespoke training packages aimed at enshrining an understanding of how the fundamental standards of care apply to the everyday practice of your staff, and encouraging them to reflect upon how the care they provide sits within the framework and where improvements can be made.

Our training packages

We offer two training packages, catered specifically to either registered managers or front line staff.

Fundamental standards of care training for registered managers

We offer half day training sessions in small groups for senior management teams and registered managers. These sessions are designed to focus on:

Reg 9 – Person centred care
Reg 10 – Dignity and respect
Reg 11 – Need for consent
Reg 12 – Safe care and treatment
Reg 13 – Safeguarding
Reg 14 – Meeting nutritional and hydration needs
Reg 15 – Premises and equipment
Reg 16 – Complaints
Reg 17 – Good governance
Reg 18 – Staffing
Reg 19 – Fit and proper persons employed
Reg 20 – Duty of Candour
Reg 20A – Display of performance assessments

Fundamental standards of care training for front line staff

We offer two hour training sessions for front line staff, covering most of the above topics.

These sessions are designed to provide front line staff with a more practical approach to understanding their regulatory responsibilities in their day-to-day practice.

Find out more and register your interest, or get in touch with us to discuss your requirements.

Philippa Doyle

Partner and head of social care
p.doyle@hempsons.co.uk

Guidance for when a social care provider is called to an inquest

As we are all aware, deaths do unfortunately occur in social care settings and instances arise when social care providers are required to participate in the Coronial process and attend an inquest – the inquisitorial investigation into the circumstances of a death. Social care providers may be requested to assist HM Coroner with an inquest investigation by providing statements or oral evidence at a hearing. A Coroner has powers to compel the disclosure of any documentation, (including statements, investigation, care records, CCTV, training records) where information may assist the investigation.

Evidence may be required to provide chronological details of the care of an individual, details of a specific incident or event or a response to concerns raised in respect of care provided in the period prior to death.

Similarly, a Coroner will summons a witness to attend an inquest to provide oral evidence, where it is their view that they can assist with addressing the key questions of who, when, where and how an individual came by their death. Witnesses may include senior managers and care workers.

What are the common issues for social care providers at inquests?

The scope of any inquest investigation may vary and will be dependent on the particular circumstances. A social care provider may be required to provide evidence for an inquest as part of a wider inquiry which may include acute hospital trusts, community and secondary care or external organisations and agencies. A social care provider may then be required to play a small part in the inquest process, the evidence provided is however no less important.

Alternatively, the care provided to an individual in a social care setting may be crucial to establishing the cause of death and providing context for a death. In these instances, the evidence provided by a social care provider will be central to establishing the circumstances by which an individual died.

A Coroner’s investigation is concerned with the circumstances of death and this can include a particular incident, the presentation and care management of an individual prior to death or an investigation of particular concerns. Issues considered during the course of an inquest, particularly relevant to social care providers, can (and often have) included a consideration of the overall quality of care prior to death, staffing levels, training and supervision, communication and care planning, assessment and management of risks including in particular the management of falls risk, nutrition pressure sores, medication errors or incidents of abuse or neglect. Often central to an examination of these issues is the importance of clear and accurate record keeping, robust policies and procedures and appropriate training.

A Coroner has a duty to issue a Prevention of Future Death Report/Regulation 28 Report in circumstances where there is a concern that a risk of a future death may arise. This may relate to any issue that is evident during the investigation, causative or not. This duty emphasises the need to investigate and implement any learning following a death. An inquest will often consider the findings of any internal investigation. Providers should be clear that actions that have been undertaken to address any issues identified in
an internal investigation to ensure that the risk of a Regulation 28 report is mitigated.

Social care providers should be aware that these reports are published and shared with CQC. CQC may, of course, also attend an inquest and any concerns may then prompt further CQC inspections or enforcement action.

What do you need to consider?

Care providers should consider what support is required for staff (whether management or care staff) in preparing witnesses statements and to provide oral evidence at inquest hearings. If your organisation is requested to provide evidence and/or attend an inquest, consider seeking legal advice at an early stage, this will enable identification of potential risks and criticisms, management of disclosure and any associated regulatory or criminal proceedings, to ensure that appropriate representation is provided through the legal process.

Five top tips for social care providers

  • seek advice and support at an early stage
  • consider whether insurance provision for legal support for inquest is available
  • ensure staff provide contemporaneous accounts of incident/death and continue to ensure disclosure of any documentation is appropriately managed
  • do not underestimate the impact that participation in an inquest may have on staff, ensure staff are appropriately supported throughout the process -from collating written statements and evidence to attendance at an inquest to provide oral evidence
  • ensure that any learning from an incident is fully investigated and addressed

Liz Stokes

Partner
e.stokes@hempsons.co.uk

Top tips for managing vexatious families

We are seeing an increase in cases where tensions between providers and the families of service users are escalating to disputes and even placement failures. We set out below our top tips for managing these difficult situations.

It is, as ever, best to catch potential disputes early to diffuse them if possible:

  • be transparent
  • involve family members/friends in discussions around the care of their loved ones
  • listen to and act on criticism
  • train staff on how to respond to concerns

However, there will be circumstances where these measures fail to improve the situation, and a family member may become violent/aggressive or requires a disproportionate amount of staff time in responding to emails/phone calls. In these cases, we suggest additional measures as follows:

  • establish reasonable boundaries as to the timing and location of visits, the frequency of calls/emails and behaviour. A care home is private property and visitors are present only by way of the owner’s licence
  • agree a Contract of Expectations with the family including:
    • one spokesperson for the family
    • dedicated staff member(s) to lead on communication with the family when complaints/queries will be communicated and how – eg limited emails per week to a dedicated email address except as regards emergency issues (with a careful definition of what constitutes an emergency issue)
    • how these will be responded to, within what timeframe and by whom
  • follow your own policies and processes. If you do not have policies which deal with violence and/or aggression towards staff and vexatious complainants then consider establishing them as they provide a useful framework for dealing with these situations

A provider has the mammoth task of balancing the care of the service-user, the expectations of family members and the wellbeing of its staff. There will be times when the behaviours of family members threaten that careful balance. The aim of the measures above is to redress that balance. However, if this is not possible, adherence to these steps will stand you in good stead in the event of any legal or regulatory action.

Helen Claridge

Partner
h.claridge@hempsons.co.uk

Client spotlight -
Louise Bestwick,
chief executive,
Bradford Care Association

At a time of so many challenges social care providers can benefit from working together – and perhaps nowhere is that better illustrated than in Bradford, where the Bradford Care Association (BCA) has not only drawn the city’s disparate providers together but has ensured they have a voice in decisions affecting their future.

Louise Bestwick, chief executive of the Association since 2019, has been the driving force behind much of this. The Association is now working closely with the local authority and with the West Yorkshire Integrated Care System/board and its local integrated care partnership.

It’s a programme of work which started pre-pandemic but has accelerated since then. “Over the last 10 years we have established a more structured approach to supporting the care sector, working more collaboratively with the local authority and other system partners,” says Louise, who is also still involved in her family’s care home in Bradford. “We want to ensure that the provider perspective is heard and understood so we can implement the necessary changes and developments to support the care sector.”

Louise sits on the partnership leadership executive for the local integrated care partnership – Bradford District and Craven Health and Care Partnership. “We are very fortunate in Bradford that our LA & ICB recognise and support the important role of the care sector in the health & care system. This is not something that is widely replicated throughout the country,” she says. This includes being involved in system-wide pressure calls, for example, and gives a chance for the care sector’s concerns, suggestions and solutions to be aired.

And that can include bringing a note of realism to what is being asked of the sector – with numerous missives from the Department of Health and Social Care and NHS England which can be challenging for the predominantly small organisations to implement, especially when they involve extensive staff training.

“It is really important we advocate for the sector,” she says. “Quite often they don’t realise the full implications of policy suggestions on the sector and its workforce.”

Almost two years ago the BCA employed a workforce lead, Rachael Ross, who can also raise the concerns of the sector with partners, and works with other partners to bring funded projects and workforce improvement initiatives to Bradford. Louise sees getting the workforce needs of the social care sector into the future workforce plans of the local authority and the local NHS as crucial.

While she does not want local recruitment to be undermined, at the moment international recruitment has an important part to play. “International recruitment is an element of the solution,” she says. “But it is not the only solution.”

Working with other provider associations in the region (via the Yorkshire and the Humber Care Association Alliance), alongside the Association of Directors for Adult Social Services, has led to a £1.38m package of support for international recruitment.

One area being explored is whether an existing relationship between the West Yorkshire ICS and the Indian state of Kerala – which has focused on recruiting doctors and nurses previously – could be extended to include social care staff. A pilot scheme is being worked up with ICS funding which would see tailored training offered to potential recruits.

In the long term, Louise would like to see parity for social care staff with their counterparts such as NHS healthcare assistants – who are typically paid more than those working in the social care sector and also benefit from NHS pensions.

“We are a million miles away from that at the moment. But we are working with colleagues from the West Yorkshire ICB and local authorities to see whether the real living wage can be implemented for the care sector workforce as the next step to achieving parity” she comments. In 2021, the West Yorkshire Health and Care Partnership agreed a £12m package to support staff working for care providers. This enabled the April 2022 increase in the national living wage to be paid several months early at a time when the care sector was struggling to recruit. Louise described it at the time as “an important first step on the journey towards equity and parity with the NHS.”

“Many public sector employers pay their staff at least the living wage but don’t fund their commissioned care providers and other suppliers to enable them to pay it too,” she says.

And she suggests that roles could change in the future with more tasks traditionally carried out by NHS staff delegated to social care workers. “Additional training and the acquisition of new skills may be needed,” she says, but could then offer new career opportunities for staff. “It’s not without its challenges but I would be really happy to support my staff’s career progression in the health & care sector to begin working with us in social care and then progress into nursing or social work, with them returning to social care as their careers progress further perhaps into leadership roles,” she says. She is already working with local universities to offer placements to students from related disciplines and often takes international students who need a part-time job to fund their living costs.

But the sector’s workforce problems are not just at entry level. She is concerned about registered managers, many of whom are over 50. Often small providers have little succession planning for this vital role and there is limited continued professional development for those who step up to this demanding role. “There is not the training and development needed in place, there is no CPD pathway and little support for them, despite them carrying such a burden of responsibility on their shoulders,” she says.

She wants to develop a registered manager and deputy manager leadership and development programme with networking opportunities to support existing and aspiring managers.

But none of the problems are unique to Bradford, she says, and she works closely with other local care associations as part of Yorkshire and the Humber Care Association Alliance and is keen to share and adopt good practice over a wider area – “We pinch with pride and work collectively to support the development of new initiatives in the sector,” she jokes.

The BCA has looked proactively at quality issues offering quality workshops for registered managers and other leaders to look at some of the aspects of quality regulation. “Providers quite often have an overload of information and requirements,” she says. “We are very keen that whatever we do we provide tools, resources, templates ready to lift and shift into their organisations and adapt as necessary.” This can include subjects such as managing distressed behaviour in residents living with dementia and medication management.

The BCA has worked with Hempsons for many years and Hempsons is now a platinum partner with BCA, with benefits including: offering members access to a free legal advice line; social care webinars; and training around the fundamental standards of care. This is important for ensuring the quality of care that residents receive but also for Care Quality Commission inspections. “Hempsons have really helped us in terms of that,” says Louise. “And they are also supporting us with the implementation of the new CQC assessment framework and what that means for providers and all the other changes that will be required as a result. As a registered manager you need that clarity of information.”

Find out more about Bradford Care Association:

Whilst some industries have started to move past COVID-19 restrictions and their impact in the workplace, healthcare industries and social care providers in particular should remain particularly vigilant about potential legal issues that may arise in the aftermath of the pandemic. This article explores recent cases related to COVID-19 and their implications on disability discrimination, mask and personal protective equipment (PPE) requirements, and whistleblowing. It also offers valuable learning points and best practices for providers to navigate these challenges effectively.

COVID-19 as a disability: an evolving legal landscape

Recent Employment Tribunal cases have shed light on the evolving treatment of COVID-19 and long COVID as disabilities under the Equality Act. These cases have provided a glimpse of how medical advancements have compelled the law to adapt over time. In cases in both the English and Scottish Employment Tribunals rulings have been made in favour of claimants dealing with long COVID-19 and post-viral fatigue syndrome, recognizing them as disabled under the Equality Act 2010.

In Matthews v Razors Edge Group Ltd the claimant developed symptoms of COVID-19 in late March 2020 but suffered from ongoing symptoms including chronic fatigue, poor blood circulation, low iron levels and asthma. These symptoms were ongoing in June 2020 when she entered into discussions with her employer about a potential return to work. The Tribunal found that the symptoms were capable of being long term and ruled that she was disabled at the relevant time.

A similar verdict was reached in Burke v Turning Point Scotland. The claimant tested positive for COVID-19 in November 2020, and experienced severe headaches, fatigue, joint pain, loss of appetite, concentration difficulties, and other symptoms related to long COVID and post-viral fatigue syndrome. Despite some improvement, and two occupational health reports stating he was fit to return to work, relapses in symptoms hindered this, leading to his eventual dismissal in August 2021. The Tribunal concluded that Mr Burke was disabled within the meaning of the Equality Act 2010 during the relevant period due to his physical impairment from post-viral fatigue syndrome caused by COVID-19.

The cases serve as a reminder to social care providers to be cognisant of the definition of disability under the Equality Act 2010, when dealing with employees who have COVID-19 and in particular those who have symptoms following COVID-19.

Masks and PPE requirements: navigating controversy

Mask wearing requirements, particularly for businesses working in the social care setting, can be contentious. Recent cases have examined whether and under what circumstances mask-wearing requirements should supersede the autonomy of individual employees. Two specific cases illustrate the legal nuances and underscore the importance of carefully assessing non-mask wearing decisions.

In Convery v Bristol Street Fourth Investments Ltd, the Tribunal acknowledged the claimant’s aversion to wearing face masks due to anxiety stemming from a past trauma, meaning that mandated mask-wearing would cause severe distress and panic attacks. Her anxiety was recognised by the Tribunal as a disability, and consequently her dismissal for refusing to comply with the mask mandate was deemed unfair treatment due to her disability.

On the other hand, in Kubilius v Kent Foods Ltd, the claimant, a delivery driver, refused to wear a mask inside his van when visiting a client site, arguing that it was not a legal requirement. Despite specific requests from the client company, the claimant declined to wear a mask inside his own vehicle. The employer dismissed the claimant following disciplinary proceedings, which the Tribunal found fair given the requirement to maintain good client relationships and ensure a safe working environment. The Tribunal found that dismissal fair in the circumstances.

While employers may enforce mask-wearing requirements, they must carefully weigh these mandates against potential disabilities that may affect an employee’s ability to comply. Businesses operating in high-risk areas, like social care settings, should seek legal advice when faced with such complexities.

Good practice: the fine line between grievance and protected disclosure

At Hempsons we deal with many different types of cases on a day-to-day basis, which gives us a unique insight into trends and conversely risk areas. One recent Employment Tribunal claim Hempsons advised on underscored the significance of considering the risk of whistleblowing claims while dealing with employee issues.

The case centred around an employee raising concerns through email complaints, initially treated as part of a grievance procedure. However, upon reflection in the Tribunal, these emails were also deemed to include protected disclosures for whistleblowing protection. The case serves as a reminder for employers to consider the difference between a grievance and a protected disclosure. It is important to remember that the same complaint could activate both the grievance and whistleblowing policies.

A grievance will tend to be a matter of personal interest and does not impact on the wider public, for example a concern regarding inappropriate behaviour or conduct, harassment, or individual pay grade.

Under the Employment Rights Act 1996, a “protected disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the types of wrongdoing or failure:

  • criminal activity (or likelihood of criminal activity)
  • failure to comply with legal obligations
  • an actual or potential miscarriage of justice
  • a situation endangering someone’s health or safety
  • harm or potential harm to the environment
  • a cover up in relation to any of the above points

There must be reasonable belief in the truth and public interest of the disclosure. Crucially, protected disclosures do not need to identify that they are protected disclosures, nor do they need to follow a specific format.

In practice, there may be a significant overlap between the content of a grievance and the content of a whistleblowing disclosure. For example, in the case Hempsons recently advised on, the complaints consisted of:

Complaint 1: A complaint that staff did not have the required PPE on hand on shift. The claimant referred to the risk of catching COVID-19 and the lack of equipment that had been shown in a training video about the use of PPE.

Complaint 2: A further complaint that PPE had not been available in a situation where the claimant felt it should have been made available. The risk of catching COVID-19 and putting family members at risk was raised and that the lack of PPE affected the Respondent’s ability to keep staff safe.

As you can see, these examples were complaints presented to the employer on the basis that the claimant personally had not had PPE made available to them. However, when viewed in the context of the legal requirements set out above, it can be seen that these complaints could in fact qualify as protected disclosures, as well as containing elements of grievance.

There are often significant differences in the provisions of grievance vs whistleblowing policies, for example grievance policies are likely to offer more support to the employee, and there are ACAS provisions that employers are required to follow. It is important to assess at the outset whether either, or both, policies are activated by a complaint.

If you do receive a genuine protected disclosure, time is of the essence in investigating and containing that issue. You will need to ensure that you are complying with your own whistleblowing policy at all times. The vital element of whistleblowing protection to keep in mind from an employment law point of view is the protection from detriment. There is no legal definition of ‘detriment’ and it does not matter whether the employee is consciously or unconsciously subjected to detriment. As a result, the legal framework often becomes very complex and nuanced.

Should you receive a communication and be unclear on whether it is a grievance or a potential protected disclosure, seeking legal advice early can help ensure that the communication is dealt with properly, thereby minimising the risk of future issues arising.

Rachel Levine

Solicitor
r.levine@hempsons.co.uk

Immigration guidance update

During July and August 2023 there have been some significant changes to the Government’s immigration guidance which impacts both employers and their employees within the social care sector.

Limitation to additional hours

The Health and Care Worker visa is a type of Skilled Worker visa, aimed at qualified doctors, nurses, allied health and adult social care professionals. It offers a fast-tracked and more affordable route to a visa option for the health and care sector. The visa’s criteria includes: proof of the relevant qualifications; proof of a job offer in one of the eligible health or care professions; meeting the salary threshold; working a set amount of hours; and having a valid certificate of sponsorship from the employer.

Until February 2023, workers with this type of visa were restricted to a maximum of 20 hours of work in addition to their main occupation. Under Government guidance what is considered as additional work under this type of visa, must either be:

  • in a different occupation code from the first job
  • in the same occupation code as the first job but at a different level

For example, a nurse who is a Skilled Worker visa holder can work either as an agency nurse, or as a carer in the same care home where she works as a nurse.

In February 2023 a temporary change was announced so that there was no restriction in the number of hours of supplementary work a visa holder could undertake. This was introduced to try and assist with the shortage of workers in the health and care sectors, and consequently workers under this visa could take on unlimited hours of additional work within the relevant sectors, without worrying about breaching their visa conditions.

On 27 August 2023, this temporary change was brought to an end. The position now is that Health and Care visa holders will need to update their visa if they want to undertake more than 20 hours additional work outside of their main role. To update their visa, they will need to obtain a new certificate of sponsorship from their second employer and include a letter with their application explaining their intention to change their current permission to stay. A fee will also need to be paid.

The change in the rules means that employers need to carefully scrutinise and monitor the working hours of workers who have this visa. It is vital that this change is properly communicated to all affected employees, so that they are aware of the change in guidance. If employees are subsequently going over their 20 hour additional work cap, they will need to stop or update their visa.

Failure to report a skilled worker’s change in circumstances or allowing staff to work in breach of their visa can result in the following:

  • downgrading of the employer’s sponsorship licence to a B rating – the organisation will no longer be able to sponsor new migrants and they will be issued with an ‘action plan’ to take corrective steps
  • suspension of the licence or revocation – meaning an organisation can no longer employ migrant workers
  • being issued with a fine of a maximum of £20,000 per illegal worker

Immigration fees

In July 2023 the Government also announced an increase in the fee for work visas. In general, they will go up by 15%. There are also increases in the cost of applications for: study visas, Certificates of Sponsorship, settlement, citizenship, wider entry clearance and leave to remain visas, and priority visas. Most of these are to increase in cost by at least 20%.

Health and social care is classed as a shortage occupation and a Certificate of Sponsorship for a shortage occupation has limited fee increases. Therefore, Health and Care visa holders will experience a 15% fee increase.

How this will impact employers:

  • the increased cost of a Skilled Worker visa makes it more of an entry route for those with the financial resources to apply, rather than for those with the highest skillset
  • a likely increase in cancellations or deferrals by migrant workers due to the cost increase
  • a likely higher demand for immigration fee clawback agreements and requests for financial assistance from existing employees who pay their own immigration fees
  • increased business continuity and the need to monitor right to work compliance issues for existing employees who, due to the cost increase, fail to extend their immigration permissions

In light of the changes and increases in fees, it is important that this is communicated to affected staff members to ensure compliance and help them prepare financially for the additional cost.

It is recommended that employers review existing policies that cover immigration rules compliance, clawback agreements and financial assistance. It is important to ensure that there is a consistent approach with any issues relating to this fee increase. Going forward it would be sensible to factor in the higher costs when it comes to recruitment budgets and that employers are still attracting the appropriate standard of talent despite the visa fee cost increase.

The Government has also announced an increase in the rates of the Immigration Health Surcharge, although it is subject to final confirmation and the passage of the necessary legislation. However, it is currently the Government’s intention that Health and Care Worker visa holders remain exempt from the surcharge increase.

Henrietta Donnelly

Solicitor
h.donnelly@hempsons.co.uk

Premises: mitigating liability for repairs and dilapidations

Premises can be the biggest liability both in terms of capital expenditure and inherent liabilities. This article looks at ways in which you can limit your exposure to expensive repairs and dilapidations and avoid any unwanted surprises – regardless of whether you intend to own freehold or leasehold.

What are dilapidations?

Dilapidations is a term generally used to describe the elements of disrepair to property. In more specific terms when looking at leasehold property, this term goes further to look at any breaches of the tenant covenants in the lease insofar as the condition of the property is concerned. This may include:

  • Obligation to first put the property into repair – to the extent it isn’t at the date of the lease. The standard of repair in a lease is often ‘to put the property in good and substantial repair’. This is a high standard and can be expensive – particularly if you are liable to repair the structure.
  • Obligation to reinstate any works carried out by the tenant during the term of the lease. Note, if you are taking an assignment of an existing lease, this could include any works carried out by any previous tenant and could be expensive if looking at reinstating lifts, stairways and mezzanine floors, for example.
  • Obligation to lay new flooring at the end of the lease. This is a common requirement in modern commercial leases and can be an unnecessary expense.
  • Obligation to comply with statutory requirements. This could include works required to the property to comply with legislation (for example relating o accessibility or sustainability) or could relate to regulatory obligations including holding a fire risk assessment, asbestos report and management plan and dealing with any remedial actions in those reports.

How to limit your exposure

This will depend on whether the property you are acquiring is freehold or leasehold.

Freehold property

If your property is freehold, a structural survey will assist in determining whether there are any items of disrepair which need addressing or looking into further. You may agree any one or a combination of the following with the seller:

  1. The seller to carry out any remedial and/or reinstatement works prior to you acquiring the property.
  2. The seller agreeing to carry out the remedial works to your satisfaction during an agreed period post completion. This would avoid any delays in completing the transaction, but we would advise holding back a proportion of any sale proceeds (referred to as a ‘retention’) until those works have been completed and you are satisfied with them.
  3. You agree with the seller to reduce the purchase price to reflect the cost of any potential repairs/reinstatement works and/or any reduction in the valuation of the property as a result.

Leasehold property

If the property is leasehold, you will first need to understand and obtain advice upon the standard of repair you are being asked to undertake or inherit from the seller and/or landlord. This could be:

  • FRI – Full Repairing and Insuring lease. This requires you as tenant under the lease, to be responsible for repair of the whole of the property (whether a direct obligation in the lease or via a service charge).
  • IRI – Internal Repair and Insuring lease. This requires you to be responsible for the internal non-structural repair of the property only. Because of the limited repair obligation, be mindful that this type of lease may result in a higher rent.

You can limit your exposure by considering any one or a combination of the following:

  • Requesting concessions in the lease which limits your repair obligation. This could include:a) a schedule of condition from the landlord. This would mean that you would only be liable to hand the property back to the landlord in ‘no worse condition’ than the property was in at the start of the lease.b) you could also carve out any ‘big ticket’ items such as the roof – particularly if it is not in good condition to start with.c) you could request a cap on any service charge.d) with a newly built property, you could request a carve out of inherent liabilities under the lease and/or obtain warranties from the relevant contractors.

This may be a viable option if you are taking a new lease. However, where an existing lease is being assigned, this would require a re-negotiation of the lease with the landlord – who is unlikely to agree to water down the standard of repair it currently has the benefit of – unless they are getting something back in return, for example, a longer lease term or an existing break is being waived.

  • Obtain a schedule of dilapidations from a local surveyor. You will need to provide the surveyor with a copy of the lease, together with any ancillary documents such as licence for alterations. The surveyor will determine the existing dilapidations liability under the lease – taking into consideration the standard of repair required by the lease, any reinstatement obligations and any breaches of the tenant covenants in the lease. You then have the same options as with freehold property in terms of negotiating a solution with the seller (see points 1-3 above). Bear in mind that a schedule of dilapidations is not conclusive but an aid for negotiations with the seller.
  • Agree with the landlord to waive any obligations to reinstate works carried out either by you as part of any fit out works when taking a new lease, or by any previous tenant when taking an assignment of an existing lease. Reinstatement obligations are often overlooked and can prove an unwanted surprise at the end of the lease if not addressed sooner.

It is worth bearing in mind that if you are entering into a new lease, or if an existing lease is being assigned, the landlord will be entitled to carry out a schedule of dilapidations at the end of the lease. This is referred to as a ‘terminal schedule of dilapidations’. You will generally be responsible for the cost of preparing that schedule and for any items in it. The above considerations help to limit the cost of those terminal dilapidations and we would also suggest taking advice from a property lawyer and/or surveyor experienced in advising on dilapidations liability to advise upon and negotiate its contents.

Irrespective of how the property is held or the standard of repair required, the starting point is to instruct your professional advisers to review the property position at an early stage so you can look to address and consider the best way forward.

Lisa Davison

Partner
l.davison@hempsons.co.uk

How current instability may impact the sale and purchase of care homes

Having just bounced back from the challenges brought about by COVID-19, care home operators now have the challenges of an unstable economy to deal with. With the cost of living rising, energy bills rocketing and bank borrowing becoming more expensive, where does that leave the market of selling and buying care homes?

Care homes have generally proven to be robust assets that have performed well during economic downturns. An aging population, coupled with strong supply and demand should mean that there will continue to be a demand for people wanting to acquire care homes, even during these challenging times. Nevertheless, the current uncertainty is bound to unsettle both sellers and buyers and create challenges in the selling and buying process.

Things to look out for as a buyer

Most people looking to acquire a care home or to add to their existing portfolio of homes are likely to be seeking bank financing for their acquisition. As we are all aware from the headlines, the cost of bank borrowing is going up. Therefore, as a buyer, it is important to shop around and check the terms of the loan agreement with your lender, paying particular attention to interest payments (and whether they are fixed or variable), the term of the loan and early repayment charges.

With the rising burden of energy prices, it will be important to check what contractual arrangements the home you are purchasing has with utility providers. This will be an important aspect of your legal due diligence. In fact, now more than ever, it will be critical to sense check the home’s supply chain generally to ensure that, as a business, it is getting value for money. If, once you have taken over, you want to change suppliers for various things, you will need to understand whether that will be possible or whether you are tied into certain contracts for a particular length of time.

Things to look out for as a seller

As buyers will be approaching the market more cautiously, as a seller, you need to consider how that may impact your sale. For example, buyers are likely to negotiate harder on sale prices. In addition, they may take a more risk averse approach to the transaction and rather than pay the full amount for the home upfront on day one, they may try to negotiate an “earn-out”. This would mean that, whilst a large proportion of the overall amount is paid on day one, a part of it will be held back and will only be paid if the home maintains or increases its revenue after the sale.

From a buyer’s perspective, this is a sensible way to mitigate the risk of the business performing poorly once the buyer has taken over. If, as a seller, you are willing to agree to such a structure, it will be important to ensure that the “earn-out” provisions are clear in the sale and purchase contract and that you have necessary clauses protecting you.

Faisal Dhalla

Partner
f.dhalla@hempsons.co.uk

Social care advice line

Hempsons is experienced in advising on all elements of law and regulation that impact on the social care sector.

Our expertise:

  • charity law
  • commercial property
  • community care law
  • contracts
  • corporate law
  • CQC regulatory
  • data protection and security
  • disputes and litigation

 

  • employment law
  • fundraising
  • health and safety
  • inquests and coroners
  • judicial review
  • mental health law
  • safeguarding
  • tendering

Hempsons’ social care advice line is open between 9am and 5pm, Monday to Friday.

Our team of experts offer providers 30 minutes’ free legal advice*.

Call 01423 724056 quoting ‘social care advice line’ or email socialcare@hempsons.co.uk

*non-partner organisations are eligible for 20 minutes free advice

The Hempsons team

Health and social care advisory
(including mental health and inquests)

Philippa Doyle

Partner and head of social care
p.doyle@hempsons.co.uk

Helen Claridge

Partner
h.claridge@hempsons.co.uk

Liz Stokes

Partner
e.stokes@hempsons.co.uk

Stephen Evans

Partner
s.evans@hempsons.co.uk

Rachael Hawkin

Associate
r.hawkin@hempsons.co.uk

Jolena Bullivant-Clark

Associate
j.bullivant-clark@hempsons.co.uk

Rosie Hamson

Solicitor
r.hamson@hempsons.co.uk

Employment

Martin Cheyne

Partner
m.cheyne@hempsons.co.uk

Julia Gray

Associate
j.gray@hempsons.co.uk

Henrietta Donnelly

Solicitor
h.donnelly@hempsons.co.uk

Corporate Commercial

Faisal Dhalla

Partner
f.dhalla@hempsons.co.uk

Michael Rourke

Partner
m.rourke@hempsons.co.uk

Sam Stone

Associate
s.stone@hempsons.co.uk

Charities and social enterprise

Ian Hempseed

Head of charities and social enterprise
i.hempseed@hempsons.co.uk