The Staffing Crisis – Regulations must still be met

Since the start of the pandemic the workforce crisis in the adult social care (“ASC”) sector has got progressively worse.  Broadly there are three roots to this problem – Brexit, pay, and the pandemic. It has been a combination of these three factors which has left the ASC sector in dire need of support and reform.

In this article I will explore what the current staffing situation looks like in the ASC sector, what has been done to address the issues so far, what the regulatory requirements are for staffing, and what can be done to mitigate the negative effects of this crisis.

Recruitment & Retention

First and foremost, ASC providers have had problems recruiting and retaining care staff. It appears that the pandemic exacerbated the issues that had been slowly developing.

In the CQC board meeting on 23 February 2022, the executive team published a report on the ASC workforce. The data revealed that staff vacancy rates nearly doubled from April 2021 to Jan 2022, making them 2.5 times larger than those across all other employment sectors, and 75% of providers said they were unable to recruit staff. Further, turnover rates which increased by 10%, also nearly doubled compared to rates across all other sectors, and 65% of providers said staff were leaving the sector to work elsewhere, such as hospitality or retail where there was better pay. The persistent theme is that there are simply not enough people working in ASC because there is not enough money.

This data becomes very problematic when looking at how quickly the population is ageing in the UK. The number of people over 60 in the UK is expected to have doubled from 2015 by the year 2050. Further, bed occupancy in care homes in England increased by 5% between April 2021 and January 2022. The implication is that staffing will not be able to meet the demand for services. This has implications for providers in terms of regulatory requirements (discussed in detail below).

Government Response – Insufficient Funds

For the better part of the last two years ASC providers have been calling out for help from the Government and have received very little in return. When asked, sector stakeholders and providers wanted to see help via better recognition of the sector by government (70.9%), adding all care workers to the skilled workers shortage occupation list (46.2%), and speeding up recruitment processes (41.0%).

To date, all the Government has really done is offer up insufficient funding. In autumn 2021, the Government announced a plan for funding for the ASC sector. In that plan, £5.4 billion was ring-fenced for ASC to mainly help with staffing and recruitment issues. However, to date, this has not been enough nor has it been distributed in such a way to meet the challenges that providers are currently experiencing.

The insufficient funding is exacerbated by rising costs due to a 1.25% increase in NI charges, a 6.6% raise in the National Living Wage, and utilities increasing by exponential levels. It is predicted that as a result, the overall running costs for care homes will increase by 12% in the coming year.

Provider Impact – Regulatory Requirements & Enforcement Action

At Ridouts we have seen the CQC come down extremely hard on providers when it deems they do not having sufficient staffing levels to meet the needs of service users.

Regulatory Requirements

Regulation 18(1) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which governs staffing requirements, states that providers must ensure that “sufficient numbers of suitably qualified, competent, skilled and experienced persons must be deployed.” This is further contextualised by Regulation 18(2), which states that staff must also receive appropriate training, support, supervision and development opportunities, including the option to obtain further qualification where appropriate.

The supplementary guidance from the CQC touches on what providers need to consider in order to meet these requirements. This includes a systematic approach to determine staffing levels based on range of skills, procedures to ensure cover during emergency and routine working schedules, robust induction programmes, timely and periodic supervisions, evidence of training, and effective systems and procedures to ensure that the above are completed. However, the guidance does not specify what these systems need to be, the metrics that need to be used, or specific numbers/ratios. It is up to providers to assure themselves that these requirements are met and to determine the measures they will use. If these are not met, then the CQC will take action.

Enforcement Action

The CQC can take action in various forms.  In inspection reports this is demonstrated by lowered ratings in the Safe and Well-led sections because staff are deemed to not be enough in number nor have the proper training. Where providers are deemed to be in breach of regulation, then the location’s overall rating cannot be higher than Requires Improvement.  This is also the case where two key questions are rated Requires Improvement, meaning that no matter how good the rest of the service may be, the overall rating will not be any better than Requires Improvement. This can create reputational damage for a provider and the services it provides, even when it is not an accurate reflection of the overall service.

Further, Notices of Proposal (“NOP”) and Decision (“NOD”) can follow on from negative ratings because this will flag up issues within the service to the CQC. These can serve a number of purposes; they can impose conditions on a provider, such as reporting requirements, improvement plans, reworking policies, admissions embargos etc. or can  cancel a location or provider’s registration. All can have a negative impact on a location, including reduced occupancy for the homes and even closure of business altogether.

Taking Action – What Providers Can Do

Looking ahead to increased running costs, higher demand, and staffing shortages the question becomes what can Providers do? The CQC found that 65% of providers were using agency staff and 54% were using current staff to fill gaps. However, Ridouts has also seen the CQC criticise providers on the basis that they have not “sufficiently deployed staff to meet service user needs.” The CQC take issue with staff consistency and training.

There is also a tendency for the CQC to take what staff and others say at face value without properly corroborating these comments or accounting for the wider issues that the sector is currently facing. This has led, unfairly, to harsher enforcement action. To avoid criticism, and subsequent enforcement action, it will be important for providers to consider what Regulation 18 says and how this can be reflected in staffing policies and execution.

As before, providers will ultimately decide their policies and metrics. However, the CQC is very picky. This means that providers will need to demonstrate that their systems and processes ensure compliance with regulations. This largely comes down to clear and robust documentation. For example, making sure training records and trackers are up to date, ensuring inductions are always completed by new hires and agency staff, and keeping track of supervisions, etc.

This will also help mitigate the effects of staff shortages because it ensures all staff are aligned with the homes procedures and policies when it comes to delivering care. It will also leave little room for the CQC to criticise, and even if they do, a provider will have evidence to challenge any enforcement action.

Conclusion

Overall there is a severe lack of funding for ASC and this has led to extreme staffing issues. The best way to combat these pressures, aside from getting more funding, is to stay abreast of the law and guidance and ensure that any policy is designed to reflect these. This will assist providers in not only complying with regulatory requirements but also mitigating any issues due to the current staffing shortage crisis.

Should the CQC still decide to pursue enforcement action or unfairly criticise you in an inspection report regarding any area of your service, Ridouts team of specialist solicitors can offer advice and support. If you require assistance or advice in relation to any issues with CQC, including inspections and ratings, please contact Ridouts Professional Services Ltd using the email address info@ridout-law.com or by calling 0207 317 034.

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