Care home operators should not be afraid to challenge the CQC if they feel they have been unfairly treated. They must also be aware of the latest employment law and should consider taking legal advice when it comes to managing and setting fees.
Partner in the health and social care team at Hempsons, Philippa Doyle, said the CQC was becoming harsher in its approach to inspections.
“One of the key questions that people keep saying to me when they’re upset because they feel their inspection has gone really badly is ‘who regulates the regulator?’ Who regulates the CQC?” she says.
“All I can ever say to people is that it’s you. You are the ones that if you feel that the inspection team has come into your care home and appeared biased or unprofessional, or left a number of members of staff in tears, you need to put in a complaint.”
Meanwhile Sybille Steiner, partner and employment lawyer at Irwin Mitchell, says care homes need to keep on top of changes in employment law. This includes employment contracts and Section 1 statements which will change in April.
“As the law currently stands, only employees are entitled to receive a written statement that has to contain certain basic information about terms and conditions of employment. Such a statement has to be provided within two months of the employees starting work,” she said. “From April 6 the rules do not just apply to all employees, but also apply to workers and that is a significant change.”
Steiner also said care homes will be watching the Supreme Court closely later this month when it considers the sleep-in payments and national minimum wage regulations argument. The Court of Appeal was thought to have resolved the issue in 2018 but Unison was given leave to appeal to the Supreme Court.
“Care homes are clearly on very tight budgets and they welcomed the clarity that was provided by the Court of Appeal. Should the Supreme Court reverse this decision many will be exposed to claims that they have underpaid staff. Maybe more significantly HMRC could impose huge fines on employers of up to £20,000 for each underpaid worker. That can potentially be a huge amount of money.”
The panel also discussed the setting of fees and the pressure on local authorities and care homes to provide adequate care.
Mei-Ling Huang, partner in the social care team at Royds Withy King, said this is the time of year when local authorities set the fee rates for elderly care and announce whether they are going to give increases in fees.
“We know it’s very difficult for them to meet their budgets because they simply haven’t got enough money,” she says. “Commissioners will continue to try to whittle down the fee rates at the front end. We’ve been seeing that since about 2008/2009.”
She added: “I also think commissioners will continue to try to impose more obligations in terms of what providers are required to deliver under their contracts. There is a lot of pressure on providers to do more, for example around the new Liberty Protection Safeguards due to come into force in October.”
To hear the full panel discussion please listen to our February Legal Advice Special podcast here.