Care Agenda: Respond to the Department of Health’s Consultation to Avoid Further Regulation

Topics covered: Ridouts professional advice

On 15 August 2012, the Department of Health issued a consultation exercise on various licensing proposals.  Monitor is currently the regulator of Foundation Trusts, overseeing them and considering applications by Trusts to achieve Foundation status.  When the relevant provisions of the Health and Social Care Act 2008 come into force, however, its role will be extended dramatically.  Its remit will extend to most NHS funded services and will include regulating pricing and enabling integrated care as well safeguarding choice and competition.  Unless exempted, all bodies providing NHS services will be required to hold a license issued by it.  The consultation includes questions about whether social care providers which provide NHS services (for example, through continuing healthcare) should be exempt from the licensing requirements.  We are regularly approached by providers who are already overwhelmed by regulatory bodies which often duplicate each other’s work.  Providers who wish to avoid further regulation should consider responding to the consultation and provide persuasive reasons why social care should be exempt.

In terms of the scope of the consultation, the Department of Health is clear that standard adult social care will be outside the scope of its licensing regime pending the outcome of a future consultation on options for market oversight in social care announced in the recent white paper.  The Department is, however, seeking views about whether providers of adult social care which are also contracted to provide NHS-funded services should be licensed.  It refers to continuing healthcare as an example of this but presumably it would also include aftercare services under the Mental Health Act and homes that provide nursing funded by registered nursing care contributions (RNCC).  The impact of the consultation is therefore potentially very wide.  The Department estimates that the number of social care providers that could be covered by the licensing scheme could be as high as 1,000.  That number could be considerably reduced if a de minimis exemption applied, which is one of the matters the Department is consulting on.

The Department is proposing that providers that have fewer than 50 employees and NHS turnover of less than £10 million would be exempt, reflecting the EU definition of a small business.  It does, however, invite alternative criteria for any de minimis exemption.

Providers may wish to point out that the criteria as currently proposed are too restrictive.  First, as the Department itself points out, most staff activity may be concentrated on care which is not NHS-funded.  That is particularly the case for homes that receive some RNCC funding but no, or little, continuing healthcare funding.

The Department states that providers may nevertheless benefit from licensing as commissioners will consider it a ‘mark of quality’.  It provides no evidence to support that proposition and providers may wish to challenge it.  It must, after all, be doubtful that commissioners would regard a license as a mark of quality if it were mandatory.

One of the issues the Department is consulting on is whether the exemption may be apply if either of the conditions apply (staffing of fewer than 50 or turnover of less than £10 million) rather than both conditions having to apply.  Providers may also wish to point out that even single care homes often have staffing numbers of 50 or over and so if the intention is that small providers should be excluded, the Department should allow exemptions where either condition applies.

Those are just two issues providers may wish to raise but providers should look at the consultation closely and submit any other representations they consider relevant before the consultation closes on 22 October 2012.  Subjecting social care providers to the same bureaucratic regulation as non-profit making large NHS Trusts is the last thing the sector needs at this challenging time.

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