Ridouts has seen an emergence of Local Authorities (“LAs”) attempting to place service users with complex needs into residential care homes (with a lower fee rate) from more expensive mental health facilities. This is causing a strain on the commercial relationship between health and social care providers and the LA. This article will examine why this is occurring at an increasing rate in recent years, and how providers can manage this with some practical tips.
The report entitled: ‘The Kings Fund – Ideas That Change Health and Care – Social Care 360’ (“The Report”) published in March 2023, explores some emerging themes in the health and social care sector. The Report states:
“Government funding for local authorities fell by 55% between 2010/11 and 2019/20, resulting in a 29% real-terms reduction in spending power. According to the NHS Confederation, the number of over-65s in England increased by more than 400,000 in the last five years, and the older people get, the more likely they are to need care. Councils with responsibility for providing these services – a legal obligation for many – have seen prices rocket as a result, with the NAO saying local authorities were using 80% of their spending power on care in 2019-20, compared with 52% in 2010.”
In essence, the Government has gradually reduced LA funding, but with more demand for care due to the population of over 65s in England increasing, this increased demand has led to an LA spending more of their budget on care. However, budgets have not been adjusted to reflect this, contributing to several LAs issuing section-114 notices. A section-114 notice is a signal from an LA indicating that the council’s financial forecast income is insufficient to meet its forecast expenditure for the next year. In recent years, Northamptonshire, Slough, Croydon, Thurrock, Woking, Nottingham and Birmingham have all issued section-114 notices. As a result of these financial pressures, this leaves LAs in a difficult position, seeking less expensive alternative care placements, at the expense of residential care providers who may be pressured into taking unsuitable service users, unable to meet their needs. It is crucial for care providers, with the emergence of this trend, to ensure robust pre-admission protocols are implemented.
To protect themselves, providers should ensure they complete the following:
- Providers should familiarise themselves with their contractual relationship with the LA and Clinical Commissioning Group (“CCG”). For providers who take on non-private service users, applications are made to the home based on the contract between the LA or CCG. This could be individuals needing care or continuing care following discharge from hospitals. In the event of referrals by these means, the registered manager or care home manager will play a crucial role.
- When discussing with the LA or CCG, it is crucial to request information from the potential service user’s care and support plan. This is ultimately to decide whether your service has the capacity to meet the individual’s needs. If the potential service user prefers not to have their needs assessed by the local authority, the provider must ensure they employ a qualified person to carry out their own needs assessment equivalent to that provided by the local authority. This is important and should not be overlooked, even if the urgency of the potential admission is emphasised by the local authority or service user’s family. It should never be expediated or rushed.
- It is wise to have the prospective service user and family members visit the service, or have a trial visit period. Pre-admission visits are invaluable for assessing suitability and should be encouraged where possible.
- Providers should ensure there are comprehensive risk assessments tailored to the service user’s needs. This not only helps you as a provider, but it crucially helps everyone involved make an informed decision. This also helps to protect you as a provider and demonstrate compliance with the Health and Social Care Act 2008 (Regulated Activities) 2014 Regulation 9, by providing person-centered care. Risk assessments and care plans should be tailored to each individual service user, which will also assist you in assessing whether this service user is suitable for your home.
- Lastly, check that any agreed move is obtained with the consent of the person, or if they cannot give informed consent, ensure any decision taken meets the requirements of the Mental Capacity Act 2005.
Providers should try to reduce or discourage the LA or CCG from relying on emergency admissions. While this may not always be practical or possible, communicating this can help reduce the frequency of such occurrences. In instances where emergency admissions are still necessary, providers should apply the procedures outlined above and ensure they still gather all the necessary information.
Ultimately, providers should remember that whilst balancing your commercial interests with the LA or CCG is important, there is much more at stake. Accepting a service user who is not suitable for your care home can have serious ramifications. At Ridouts we have seen instances where service users who were not a compatible fit for a residential care home subsequently caused significant damage to the home, distressed other service users, and in the worst-case scenario, jeopardised the overall stability and safety of the home. The Care Quality Commission (“CQC”) will not exempt you from any breach of the Health and Social Care Act 2008 (Regulated Activities) 2014 Regulation 12 Safe care and treatment. Justifications such as accommodating the LA by doing them a favour and accepting an emergency admission for a service user who is incurring significant costs for them will not be accepted by the CQC. Providers should feel empowered to say no to the LA, and the decision of whether you can meet a potential service user needs ultimately lies with you. If you need to decline a local authority request, it is important to explain the reasons. This may be because the person’s clinical care needs are too complex for the home to safely manage, or the person’s behaviours are not manageable within the Home’s environment.
At Ridouts, we believe that clear communication at the admission stage can prevent a much more painful breakdown of a placement later. It is best to be pragmatic and decline unsuitable placements rather than react to challenges arising from a service user whose needs cannot be met.
Therefore, it is vital that as a provider you feel empowered to say no to your local authority if a potential service user needs cannot be met at your residential care home. If you also need assistance with managing service user placements, either pre-admission or post-admission while maintaining your relationship with the local authority, Ridouts can help you navigate this. We encourage you to balance your commercial interests as a provider with carefully protecting your relationship with the local authority. Do not hesitate to contact our experienced team of solicitors on 0207 317 0340 who can discuss your situation and offer practical-based solutions tailored to your needs.
