Themes from the end of 2009

Towards the end of 2009 Moore and Smalley gathered a number of people from the care home sector together to discuss matters affecting the sector and issues which were anticipated for 2010. The article below summarises the main issues raised.


The General Election 2010


Social care I think will become centre stage, more so than health care; however, with the vast financial savings which must be made within the NHS, it is difficult to see how that too will not be a major topic on which the political parties will fight. To some extent, the Labour Party may seek to blur matters by making the NHS responsible for not only health care but the planned National Care Service. How can care home providers contribute to the debate? Lord Lipsey recently said: “It is a perpetual myth that people are better cared for in their own home rather than a care home.” That is a view which I have long held and over the festive period of Christmas and New Year there have been articles in the press and media about the large number of older people who had no contact with others on Christmas Day. It is clear that from a political point of view none of the major political parties will want to be seen to be opposing the Bill; however, such legislation ought not to be rushed. We have seen many times that rushed legislation produces poor laws. Care needs to be exercised, especially in view of all of the evidence which was gathered by this Government and which it now ignores!


The Green Paper on the funding of long-term care


Some of the policies haven’t had much publicity but more emphasis will be put on them as we get closer to the general election. One of the points which I consider to be amongst the most important issues, and something which has had little in the way of wide press coverage, is the suggestion that care may be provided free of charge, but other costs will not. For example, the cost of board and lodging would not be paid for by the state as it is at present. The rationale for this concept is that if one was living at home one would have to meet such category of costs in any event. If that idea gains widespread currency, will there be such an approach in the NHS where, as is the case in some other countries, relatives will be expected to provide food, linen etc.?


Funding issues – the balance between state and self-funding


People have been refused certain drug regimes by the NHS in the past few years because the treatments were not considered by National Institute for Clinical Excellence (NICE) to be cost-effective. If people wanted to pay for the one excluded medication themselves (because the NHS wouldn’t fund it) then the individual would have to pay for the whole of the costs of their NHS treatment. This policy has recently been changed with the recognition of the concept of ‘co-payments’. Something which has taken place in the setting of dental treatment for many years. We are likely to see the same sort of changes to the funding of long-term care, particularly, the care of older people. There will be a change in the perception of service users themselves, who in time, will come to see themselves as the ‘purchasers of care’ rather than (as is often the case now) passive receivers of care. Clearly, with such a change in viewpoint will come a change in attitudes generally where the service user becomes the customer who must be satisfied with the level of service received and, if not, can be expected to take their business elsewhere.


Funding issues – insurance route


The ‘insurance route’ is an option suggested by Government as a central core funding provided by a one-off payment. There are wildly different assessments of how much all this will cost via insurance. The Conservatives have said that they have been advised that the cost would be £8,000 per person at the point of retirement (66 years). Apparently, this has been arrived at on the basis that about 20 percent of older people will need care. I suspect that the assessment of the proportion of the population needing care has been grossly underestimated – it usually is! In contrast, the Labour Party reckons that for such a one-off payment an amount of £24,000 will be needed.


Some of the key questions which need attention are:


– How will the Government strike a balance between savers and squanderers?


– Why should people set aside money for later life when the state will pay for you if you need it?


Care Quality Commission


With the previous incarnations of social care regulators there have been transition arrangements whereby registered care providers were transferred to the new regulator. That is to stop under CQC. All health and social care providers, who provide regulated activities, will be required by law to register anew with the CQC.


Approval for registration is dependent on whether the provider meets essential standards of quality and safety. If a provider doesn’t meet the requirements or is classified as a ‘poor’ provider, CQC won’t reregister the service. Sudden death!


This is a way of shutting down poor providers without the need for CQC to undertake cancellation proceedings of any kind; proceedings which are extremely costly and which can be successfully resisted with the correct approach and the right legal advice/representation. If the provider doesn’t currently meet the requirements one must show that one has systems in place which means it is on track to meet the standards within a short timescale. The assessment and star ratings are a mechanised process from ‘poor’ up to ‘excellent’. If CQC registers your service as ‘poor’ you can disagree, challenge and ultimately go through a judicial review, however, this is an expensive and slow process. CQC has been given an array of tools which can be used against providers, for example issuing cautions (similar to the police) and, if accepted the provider is, in effect, accepting that it has broken the law and pleaded guilty. If this is the case then take legal advice as soon as you can. If you are thinking of retiring soon then it may be easier (quicker and cheaper) to accept a caution rather than engaging in a ‘fight’ with CQC in the courts; however, if you are in the care industry for the long-term then you may well need to disagree with them. Care providers can be fined up to £50,000. General advice would be to react swiftly as CQC have been more ‘aggressive’ in the first months of its activity than was the case with its predecessor, CSCI.


Press and media


Press and media have a profound effect on how the care industry is seen – is it right to put people in a home? Media tends to enforce the collective guilt of the public.


Much will need to be done by providers to redress the balance and, frankly, improve the quality of service. Again, as mentioned above, service users and their families will/are beginning to consider themselves as ‘customers’ who will demand higher quality. Smaller care homes are generally regarded as being at greater risk of failure as they are less likely to have the benefits of scale and the financial benefits of bulk purchasing. However, they can be ‘lighter on their feet’ and respond immediately to the need to adapt and change.


The key to survival for all care businesses, whether privately owned and operated, charitable, not-for-profit, or, less commonly these days, publicly-owned and operated and, dare I say it, prosper, will be to know and understand the people you seek to cater for and their families and friends. And then to deliver what they want. Such an approach will require regular surveys of satisfaction and a continuous drive to put quality assurance as a top priority. Those who pursue such a business plan continue to have waiting lists for vacancies. Something which will guarantee success.


This article was written by Keith Lewin, senior partner at specialist law firm Brunswicks LLP. To discuss any aspect of this article or if you have a matter which you wish to discuss with a lawyer Keith can be contacted on 08455 190 695 or by email to