Times are tough for care providers, not just in terms of the funding deficit in social care but also because of the inadequate way in which many local authorities exercise their safeguarding and contract monitoring functions. At Ridouts, we come across many local authorities abusing their position of authority in the market to the detriment of care providers. Influenced by such scandals as Winterbourne View, there is a low trust of care providers which is exacerbated by a perception that everything is high risk. The consequence is that many care providers are being targeted unnecessarily and unreasonably by local authorities.
The way in which adult safeguarding is operated by local authorities is variable to say the least. It is clearly an important public function which when exercised properly can provide protection for the vulnerable. However, we come across many instances where it is invoked inappropriately and exercised poorly. It should be aimed at addressing situations where identified individuals are at risk of significant harm. Instead it has become a “catch all” jurisdiction with local authorities operating as quasi-regulators. The genuine statutory regulator of the sector – the Care Quality Commission – is often conspicuous by its absence at safeguarding meetings.
There is a desperate need for local authorities to adequately resource their safeguarding teams and to train their staff in effective investigation techniques. Many local authorities have cut back on their safeguarding personnel such that investigations drift on without a clear plan in place. A basic failure is not following the local safeguarding policy and procedure. Investigations can drag on for months with little or no clarity as to what the issues are. Over time, additional issues can be added to an investigation to the point that it becomes unwieldy and never ending. Often local authorities refuse to disclose the allegations to the provider. At such times, legal support can be invaluable in forcing a local authority to disclose the allegations of abuse.
When a safeguarding investigation leads to an embargo on new placements and/or suspensions of staff, it can dramatically affect the commercial viability of a care business. At Ridouts, frequently we have to exert pressure on behalf of clients to move the safeguarding process forward with the aim of getting any embargo lifted as soon as possible.
A worrying development is the increasing inclination of local authorities to remove service users from care services without proper assessments being carried out beforehand. Safeguarding officers and contracts officers wield considerable power and often act as though they have an unchallengeable right to remove service users from a particular service. Sadly, personality issues come into play all too often, with local authority officers taking a dislike to particular providers and targeting them vindictively.
There is also the trend of local authorities putting pressure on providers to reduce fees with the threat that service users will be moved out. Sometimes, local authorities will follow a policy line in trying to remove service users from residential services to supported living services.
It is important that providers stand up for themselves when confronted with local authorities behaving badly. Expert legal advice should be sought in a timely fashion. The important thing is to develop a strategy at an early stage to deal with the situation in order to try to prevent it from escalating into a crisis. The focus should be preserving the service against the threat of unjust local authority intervention. It will be important to consider legal representation for service users. For incapacitated adults consideration will need to be given to possible applications to the Court of Protection where there is a dispute about moving them from a particular service. There may also be remedies against a local authority that has acted unlawfully, for example in contract or through public law challenges.
At Ridouts we have considerable experience of acting for providers faced with local authority investigations and intervention.