Healthcare Business: Do local authorities have the authority? – How they are confusing their role

At Ridouts we are seeing an increased number of local authorities getting close to and acting beyond their legal powers. Local Authorities have very limited powers yet in many instances are trying to either regulate or micro-manage a care home business.  This should be resisted.

Local authorities have two distinct roles, although these can often get confused and intertwined:

  • To commission services and monitor any contract in place, in relation to those services commissioned (i.e. for those service users whom the Council funds); and
  • An overarching responsibility for safeguarding the welfare of vulnerable adults within its area.

Commissioning services and contract monitoring

The starting point for considering what the local authority can and cannot do when monitoring the services they have commissioned is to look at the contract itself.   Most contracts allow a local authority to enter the home at a “reasonable” time.  They cannot, unlike CQC, turn up at any time of the day or night.  They can review paperwork relating to the service users they commission services for and speak with those service users, but only if the service user chooses to.  Authorities have no right to demand to talk to a service user if the service user does not wish to talk to them.

At Ridouts – with many years experience as care home soicitors – we have recently seen an authority conduct a contract monitoring visit and detail matters regarding privately funded individuals and used this as evidence of a breach of contract.  This cannot be right.  Any alleged failings by the Home in relation to a private funded service user cannot be used to evidence a breach of contract given that the Council has no contract in relation to that service user.  At best this would be a safeguarding issue and a strategy meeting should be commenced.

Where a Home is deemed to be failing to meet its obligations under the contract, local authorities will often try and place its own staff into a Home.  Again, this should be resisted.  They have no power to do this (unless they have a specific term in their contract which is highly unlikely).  Often, offering to put staff in on the pretence of helping the Home is merely an evidence gathering exercise to help build a case against the Home for breach of contract.  Additional staff not under the Home’s management and direction would be an unwelcome distraction and important issues such as CRB checks, insurance cover and who is responsible for paying them create further difficulties.

Ridouts has also seen an authority request a provider to consider “voluntary closure”.  This of course saves the local authority time and the expense of going down the legal route of doing things properly where they can come up against obstacles – such as service users exercising their choice to stay at the Home.  The authority have no powers to demand this and once a Home is closed, it is that much more difficult to start again, rather than trying to get things right whilst there are service users still in the Home if there are shortcomings.

Regulatory concerns should be dealt with by the statutory body responsible for such matters, namely the Care Quality Commission.

Homes should resist local authority intervention which means provider’s lose control of their own business and local authorities who overstep the mark, should be challenged.  Often, they back down when it is pointed out to them that they do not have authority to do what they seek to do.

Safeguarding

As a host authority, an authority has an overarching duty to ensure vulnerable adults in their area are safeguarded and protected from abuse, regardless of their funding stream, be it another local authority or the service user is privately funded.  If authorities do have a genuine adult protection issue then they should convene a strategy meeting as their local adult protection policy requires.  However, local authorities often fail to follow their own designated policies and procedures in this respect.

Authorities should, but often don’t, think about obtaining the consent of privately funded service users to look at their paperwork where there are safeguarding concerns in a Home.  This is a somewhat murky area but local authorities should be reminded of data protection issues and the Home should ask the authority if they have obtained the consent of those privately funded service users before they look at their paperwork.  If the authority believes they are covered by an exemption under the Data Protection Act 1988 then they should state the basis for this.

Numerous articles could be written on the topic of safeguarding itself but an authority should be clear about the concerns they have.  Is it a safeguarding matter only, is it a safeguarding matter which is indicative of a breach of contract, or is it a breach of contract?

Conclusion

Local authorities continue to confuse their role.  Of course consideration should be given to how dependent your business is on the commissioning of any given local authority but where an authority is acting beyond their powers then this should be challenged robustly.  Although they can work with CQC their role is distinct from that of the Commission.  Do not allow your business to be pushed and pulled in different directions by different authorities who do not have the authority to act in the way they would like.

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