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.

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:

Recording and monitoring of sickness absence

Charities and social enterprises will already have processes in place to record employee sickness absences. Any sickness absence that lasts longer than 21 days is usually counted as long term sick leave. The last day of sickness is the day the employee returns to work rather than the day before. It is worth noting that sickness absence is viewed as continuous and so weekends and bank holidays factor into the calculation of how many days are taken.

It is important that records of sickness absence are up to date and accurate. This information is useful in and of itself, as it can help employers keep track of the variety of absences their employees take, rather than looking at collated stats which can be misleading. It also assists in avoiding errors such as noting pregnancy absence as sickness absence. Further to this, it is easier to see if an underlying medical condition is the cause of a repeated absence, as well as looking at the at the most commonly used reasons for absence to consider ways of trying to help reduce them.

Certification

From the eighth day of sickness absence a medical certificate is required for the absence to be authorised. Until that point only self-certification is required.

Certification can be managed well with efficient processes and communication with staff so they understand the requirement to provide certification on the eighth day of sickness absence. It is important to make clear that weekends, bank holidays and non-working days need to factor into the calculation of when medical certification is needed.

Long-term sickness absence

Long-term sickness can be a complex issue and it is a key area to handle appropriately and sensitively. It can be a high-risk area for Employment Tribunal claims if mismanaged, and it is always best to seek advice from HR when managing a long-term sickness absence.

When an employee has been on sickness absence for longer than 21 days, it is helpful for the relevant manager to liaise with the employee about keeping in touch on a regular basis. It is recommended this is done every fortnight, either via a phone call or by email.

Further to this it is important for there to be a more formal meeting, either online or via telephone, once a month in addition to the regular keeping in touch. This meeting will review the sickness absence and look at how to help enable the employee to return to work. For these meetings it would be useful to refer the employee to an occupational health specialist, in order to get advice and any recommendations on what adjustments could be made, to help facilitate a return to work. The employee may be accompanied to these meetings with either a trade union representative or a colleague and HR should also be involved throughout this process.

While an employee is absent due to sickness it is important to keep them informed of any significant developments within the charity to ensure they feel included and part of the team. This can include promotions and job opportunities as well as any restructures and it is important that the employee knows that they are able to engage with any changes that may affect them.

Return to work meeting

Regardless of the length of a sickness absence, when an employee returns to work it is important to have a return-to-work meeting with them. This meeting can be an informal discussion between an employee and their line manager. This is important as part of your duty of care to the employee in ensuring that they feel ready to return to work and any required adjustments have been noted and actioned. It can also be helpful to see if there are any general ways to help reduce levels of sickness absence by reminding the employee of any relevant wellbeing initiatives that are available and seeing if any personal targets can be implemented.

Absence trigger points

The guidance also explores the issue of absence trigger points for when an employee has taken a large amount of sick days or there is a high number of “random” sick days. Although there are no legal reviews about how these absences are to be reviewed, the guidance recommends using a review points system that looks at the number of absences within a certain period of time and the length of these absences.

If an employer does choose to use this system it needs to be carefully set out in their absence policy so that employees are aware of it. The guidance stresses that review points should not be used automatically to punish employees and that it is important to communicate and work with the employees to try and find a solution and a way forward.

Absence reviews are recommended as a way of looking at the cause of the absences as well as checking in with an employee.

It is important to review carefully each employee’s individual situation when reviewing absences, for example an employee with a disability who requires absences for appointments is likely to reach an absence review point faster than an employee who does not. Being mindful about an employee’s circumstances when reviewing absences and showing flexibility are simple ways of managing absences effectively and sensitively and avoiding allegations of discrimination.

Sickness and absence because of long COVID

A complication of the pandemic has been the emergence of long covid which can cause fluctuating symptoms that last for a long time after the infection. As this is a condition which is still being researched and understood in its management, it is important that employers are aware that the effects of long COVID can come and go and therefore sickness absence can fluctuate.

It vital that employers communicate with the affected employee and engage properly with occupational health to assist with arrangements to help enable support for the employee.

Takeaway

The key theme in this guidance is encouraging employers to use absence information to help manage employee leave effectively and to ensure best practice.

There is also a heavy emphasis on the need for effective communication and flexibility when managing employee sickness absence and to take advice from HR and occupational health when needed. These need to be the primary points of any updated policies and procedures in response to this new guidance.

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.

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