Providers who fail to provide monthly data to the North England Care System Support Unit in line with the requirements of section 277A of the Health and Social Care Act 2012 (“HSCA”) may be subject to financial penalties.
Purpose of the Capacity Tracker
Prior to the Capacity Tracker’s (“CT”) launching in 2019, the Department of Health and Social Care (“DHSC”) did not have any type of central, comprehensive source of data from providers to monitor things such as capacity, workforce, and numbers of individuals receiving care. With the onset of the COVID-19 pandemic, this gap in information became prevalent and highlighted the importance of having robust data flows to hand so that crises could be effectively managed and emerging risks could be identified and mitigated before irreversible damage occurred. Thus, the CT became a crucial tool for use by regulators and governmental bodies, especially with the onset of remote working.
The Government duly set out a strategy to transform data gathering and analysis in Adult Social Care (“ASC”) so that the best care could be provided. This culminated in what is known as the CT, which is managed by the North England Care System Support unit.
In April 2022, The Health and Care Act 2022 (“HCA”) received royal assent. Importantly, this legislation gave the Secretary of State for Health and Social Care the power to require all ASC providers to provide information relating to themselves, their activities in connection with the provision of care, or to persons whom they have provided care to. This power was granted via inserting section 277A into the HSCA. The power took effect on 31 July 2022, on which date the Government mandated that all providers must complete the CT each month until further notice.
Provider’s should take note, if they have not already, that this is still in force despite the pandemic being largely over. This applies to all ASC providers, not just care homes and domiciliary care providers.
How to Comply
According to the statutory guidance in relation to the Government’s mandate, the mandatory information which care home providers must submit is as follows:
- Care home bed vacancies, including maximum capacity, occupied beds and vacancies which are reserved, available for admissions and not available for admissions;
- Workforce resourcing data, including total headcounts of registered nurses, care staff, non-care staff and agency staff, hours of paid work including overtime, and absences;
- COVID-19 vaccination data for both staff and service users;
- Flu vaccination data for both staff and service users; and
- Visiting arrangements.
Providers will have a seven-day reporting window to submit this information, which will commence on the eighth day of each month and close on the 14th day of each month. Where the 14th day falls on a weekend or bank holiday, the reporting window will close on the next working day.
The information will need to be reported via the CT website and must be accurate to within a week of submission. Even where there are no updates in a given month, providers are still expected to review the data and ensure it is accurate.
Consequences for Non-Compliance
Further to these powers, section 100 of the HCA, supplemented by section 2 of the Adult Social Care Information (Enforcement) Regulations 2022 (“ASC Information Regulations”), gives the Secretary of State for Health and Social Care the power to impose financial penalty on those private providers who refuse to provide the information and/or provide false or misleading information.
According to DHSC, the level of fines will mirror the CQC registration fees and providers will have the opportunity to appeal a financial penalty notice to the First-Tier Tribunal. Fines will range anywhere between £313 and £15,710 depending on the size of the service (i.e. the larger the service, the higher the fee).
The DHSC intends for financial penalties to be a last resort and only impose these where a provider is persistently in breach of data obligations.
Section 2 of the ASC Information Regulations also provides for a reasonable excuse defence. Whilst there is no exhaustive list of reasonable excuses, the DHSC has provided some examples, which gives some clarity on what could amount to a reasonable excuse depending on the context, citing emergency situations (i.e. COVID-19 outbreak, computer failures such as cyber-attacks which last for long periods of time, etc). Essentially, for something to be a reasonable excuse it must be serious and substantial.
Conclusion
As such, providers will want to ensure they are submitting all of this information on time and in line with the most up to date guidance.
While this may seem like yet another burden on an already overstretched sector, there are some benefits that come with providing this information. According to Government Guidance, the availability of robust data from ASC providers is imperative to:
- Supporting efficient commissioning;
- Managing risks;
- Assisting with evolving situations (i.e. COVID-19); and
- Helping facilitate care effectively and efficiently.
The provision of this data helped to facilitate provision of COVID-19 resources, including vaccinations and PPE by flagging shortages. This data also assisted some providers receive targeted support from regional teams and played a role in determining the injection of funding to assist with workforce problems that the sector has been facing.
Having access to this data on a central database will allow the DHSC to allocate resources effectively. This will be especially useful for providers in desperate need of support, which is why consistent and accurate submission of data is crucial.
If you believe that you have not been compliant or just want further clarification on your obligations in respect of the capacity tracker or any other regulatory requirement, Ridouts’ team of specialist solicitors is here to help. Please get in touch at 0207 317 0340 or info@ridout-law.com.
