The Government’s proposed post-Brexit immigration bill is currently going through its stages in the House of Commons, having passed its first hurdle with support of a majority of MPs. The bill repeals EU freedom of movement and introduces a new framework for who can come to live and work in the UK. It is not clear what date the legislation will return for more scrutiny, but if passed, the proposed “points-based” immigration system will see low-paid workers being refused visas from 1 January 2021.
Given that most people employed in the adult social care sector providing daily help to older and disabled adults in care homes and the community are low-paid workers and that foreign nationals currently make up a sixth of the 840,000 care workers in England, it is clearly obvious that the proposed legislation is going to have a highly damaging impact on the care sector.
Points based system
The proposed bill will place extreme strain on a sector that is already in a precarious position. This has not gone unnoticed. The sector has responded with force, by appealing to the Prime Minister for the proposed new immigration system to provide a migratory route for social care staff.
The appeal is in the form of a letter from the Cavendish Coalition, a group of 37 health and social care organisations, including employers and trade union representatives as well as the NHS Confederation. The group is committed to helping to design and deliver policies that have a positive impact on the UK’s health and social care system following its departure from the European Union.
The Cavendish Coalition has warned that the current proposals would not allow enough overseas workers to be recruited to the sector that has a huge reliance on international workforce. This is because, under the new “points based system”, points will be awarded for being able to speak English to a certain standard, meeting the minimum skill level, having a job offer from an approved employer, being on a list of shortage occupations and meeting a salary threshold. However, care workers are excluded from the points based system in a number of ways. They do not meet the required minimum skill level of Regulated Qualifications Framework Level 3 which is equivalent to A-level. With average earnings for social care roles being between £16,400 and £18,400, care workers will not pass the proposed minimum salary threshold of £25,600. Furthermore, care work is not classed as a shortage occupation, even though one in 11 posts is currently unfilled.
The letter emphasises that “… international care workers make a phenomenal and essential contribution to our health and care sector, and without them here, patient care would be unsafe. In social care, without them we will see reductions in beds, care homes will close and people will be starved of the help they need and deserve in their own homes, which is critical to them living well.” Despite the letter dated 8 July, on 13 July, the Government unveiled its fast-track Health and Care Visa which excludes care workers.
Solution
The Migration Advisory Committee (MAC), an independent public body that advises the Government on migration issues, asserts that immigration is not the answer to the challenges in the social care sector. Professor Brian Bell, the head of MAC has said “if the system was properly funded, wages could rise in that sector. That would [lead to] more attractive jobs for people to take up and potentially you wouldn’t need immigration to be helping out in the social care sector.”
Professor Bell’s comments may seem at odds with the Cavendish Coalition’s standpoint, but they are not. MAC is reflecting on the need for a long-term plan and increased investment in the social care sector, something which the sector has needed for the last 15 – 20 years. Whereas, in its letter, the Cavendish Coalition is more focussed on the short-term calling on the Government to recognise the “short-term collateral if services cannot be properly staffed.”
The social care sector needs certainty and investment both in the short and long term. There needs to be a plan to address the lack of domestic recruitment and the reliance on overseas workers. Moreover, the sector now needs to plan for and quickly react to the likely shortfall in staff following the pandemic with social care workers identified as twice as likely to die from COVID-19 and a recent survey finding that one in five are preparing to leave the sector.
The pandemic has highlighted that key, essential and skilled workers are not necessarily paid high salaries. It is vital that this message is reflected in the proposed bill with a “transitional solution” for social care “to navigate the gap between the introduction of the new immigration system and a longer term plan and funding settlement for social care in England.”
Succinctly put, the sector shares “a profound concern that the resulting Immigration Bill and proposals are swiftly heading towards an alarming destination with no obvious solution for the care sector.”
Regulatory repercussions
For care home Providers, shortfalls in staff can have regulatory repercussions. Providers are required to comply with Regulation 18 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and deploy, ‘Sufficient numbers of suitably qualified, competent, skilled and experienced persons.’ The intention of Regulation 18 is to ensure that Providers deploy enough qualified, competent and experienced staff to enable them to meet all the other regulatory requirements. If care home Providers are unable to comply with Regulation 18, although CQC cannot prosecute for breach of Regulation 18, it can take other regulatory action by using its civil powers to impose conditions, suspend or even cancel a registration. Therefore, in light of this bill coupled with the ongoing pandemic, Providers will also need to have a short and long term plan to ensure a sustainable and systematic approach to staffing levels and deployment.
Regulation 18 is an ongoing requirement and one in which the CQC has always taken a keen interest in. COVID-19 has increased the pressure on the entire health and social care sector workforce therefore it is even more imperative that Providers are compliant otherwise, they could face enforcement action which could have serious implications for their business.
If Providers face difficulties with CQC, seeking legal advice early on can help to prevent serious enforcement action further down the line.
