The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.
The Care Sector is important to Stone King, from working with clients who provide forms of care to advising their suppliers and other businesses connected to the sector.
We advise a wide range of clients including residential and nursing homes, domiciliary / supported living services, CP practices, dental and physiotherapy practices.
This year, the impact of the COVID-19 virus has been devastating for care homes, with outbreaks, understaffing, PPE shortages, negative press coverage and cost-cutting measures all affecting their function and operation. We have advised organisations on all aspects of COVID-19’s impact and can help by shouldering some of the weight when it comes to this unprecedented issue.
Stone King has particular expertise in assisting with:
- care homes and carers’ support organisations and others directly or indirectly involved in health and social care provision; including Residential and Nursing Homes, Domiciliary / Supported Living Services, CP Practices, Dentists, Physiotherapy
- all employment issues including those that are COVID-19 related
- CQC inspections, Investigations and enforcement
- residential accommodation, such as almshouses and sheltered housing providers;
- governance - the care sector, including commissioning bodies and regulators such as the Care Quality Commission are increasingly focused on the governance of care and health-service providers. Effective governance structures demand the right personnel, clear-sighted planning and robust lines of control and reporting; all of which ultimately translate board strategies into delivered outcomes
- Information law including a Data Protection Officer / Caldicott Guardian Support Service covering issues such as GDPR, marketing, data sharing, DPIAs, international transfers, data sharing, M&A transactions / joint ventures and requests for information. We offer a full data breach service, carry out data protection audits, draft privacy notices and policies and provide data protection staff training (including training for providers of NHS services in England who are required to give information governance assurances to the NHS each year via their online self-assessment: the Data Security and Protection Toolkit (previously called the ‘IG toolkit’.)
- acquisitions, sales and mergers of businesses in the care sector
- protecting brands and reputations
- drafting and updating residents’ terms and conditions and commercial contracts with suppliers
- immigration law
How can Stone King’s employment team help your care home?
UK employment law can be complex and getting it wrong can have severe economic and other consequences. Some employment situations can appear intractable and require a risk-based analysis.
Many pitfalls can be avoided if early advice is taken.
The Employment Team at Stone King comprises lawyers and HR consultants very familiar with operating in such an environment. We have particular experience in dealing with the issues that frequently arise in care homes, whether operated commercially or on a charitable basis.
Management of staff
Our team can support care homes with the management of staff, including volunteers. We regularly advise on the management of grievance and disciplinary processes providing practical advice so care homes can ensure correct handling, recruitment checks and employee exits. Our team of experienced HR professionals provide on-site HR services, in-depth review of contracts and policies as well as bespoke training.
Equality and dignity at work
We urge employers to have an equality and diversity policy in place outlining the clear process your care homes have in place to avoid discrimination. Stone King can advise on the requirements these policies should contain, as well as on the implementation of the policy in practice, to avoid potential discrimination claims.
We also advise management in relation to breaches of the rights to dignity of service users.
Mergers and Acquisitions
Care homes involved in a merger or acquisition must consider the impact of this on their staff. Our team are very experienced in all aspects of the complex Transfer of Undertakings (Protection of Employment) regulations (TUPE) which apply to staff moving from one organisation to another, and where there are changes in trustees. We can assist in determining if TUPE applies, the requirements to consult employees and the employment rights staff have during this process.
We appreciate that receiving a complaint from a member of staff that could amount to whistleblowing can be stressful to employers as they navigate the numerous requirements under legislation. This is especially the case in care homes in which a complaint could relate to the treatment of residents or the care procedures in place. Our team have assisted employers with a range of whistleblowing complaints and can provide full support during this process to ensure the whistleblower and other individuals within the organisation are protected.
We have a team of lawyers specialising in dealing with breaches of regulatory frameworks and professional standards including the CQC. Our employment lawyers work alongside regulatory lawyers to ensure that the professional significance of employees’ actions is properly reflected in management processes including disciplinary procedures.
In the Employment Team we have specialists in the Business and Charity sectors and each can bring their particular focus to issues faced by commercially run and charitable establishments.
This year the impact of the COVID-19 virus has been devastating for care homes, with outbreaks, understaffing and cost-cutting measures all affecting performance and operations. We have advised organisations on all aspects of COVID-19’s effects on employment law, from handling employee concerns and can help care homes by shouldering some of the weight when it comes to this unprecedented area.
- Care Quality Commission Inspection and Enforcement
Facing inspection, investigation or enforcement? We can help. As specialists and experts in cases of CQC or Care Inspectorate Wales enforcement, we are on your side. It’s about being committed to doing the right thing, responsible in your business and committed to those who use your service. We work hand in hand with care providers all over the country to keep improving the services they offer.
CQC enforcement arrives at the toughest of times, often detached from the practical realities of delivering services on the ground with the multitude of real-life challenges being presented. We don’t live in an ideal world, but we do care for the health, safety and welfare of the people who use these services. Together, we can find a way through it.
The principle aims of the CQC is to protect people who use regulated services from harm or the risk of harm. Their focus is on improving standards. They have several enforcement options, and ensuring they are acting proportionately is always important.
The CQC should always, as a principle, be on the side of those who use regulated services, so the story of your clients, your service users should always be important. Services must always be safe, but they must also be compassionate, effective and of high quality. Enforcement is considered a core purpose of the CQC, so action is common, but it must be proportionate, consistent and transparent.
The CQC use two basic criteria for determining the level of enforcement – firstly, the seriousness of concerns and, secondly, evidence of multiple or persistent breaches.
The Available Enforcement Actions
Requirement Notices – Used when service users are not in an immediate risk of harm. You will have to produce a report demonstrating how you will comply with your legal obligations. We can help with that report, making sure you know what your legal obligations are and supporting you with producing evidence that you will comply. Work here is also about making sure enforcement doesn’t go any further.
Warning Notices – These are often used to deal with a continuing breach of a legal requirement. There will be a timescale imposed for compliance, and reflect an increase in the seriousness of concerns being raised. This provides a good opportunity to address concerns, and the timescales for change must be realistic and achievable.
Special Measures – Used by the CQC to manage providers who are failing to comply with legal requirements. It is designed to stop the provision of inadequate care. A positive response is always important because a failure to respond will usually result in the imposition of conditions or cancellation of registration. Having time to make the necessary changes is usually key.
Suspension of Registration – A rarely used power but designed to allow a provider the opportunity to work towards compliance.
Cancellation of Registration – Usually exercised following efforts to get a supplier to meet the required standards. In serious cases it can be used without having followed other enforcement options first. This is an extremely serious step and will require significant action.
Urgent Procedures – The CQC can use all of their powers on an urgent basis. This process has immediate effect. A provider can appeal but this does not stop the procedure taking place in the interim.
Non-compliance with an order or condition is a criminal offence and the CQC can consider the use of cautions, fixed penalty notice or prosecution if they deem it necessary.
What can be done?
Help is available - many providers will experience some level of CQC enforcement and turn it around, and emerge better, stronger and more effective. With the right support, there are solutions.
Representations – you have a right to make representations on Notices and it is very likely that you will want to do so. Making careful, detailed, realistic representations is a key response to CQC enforcement.
Appeals – appeals are made to the first-tier tribunal (care standards). This is a process where often everything will be on the line, so achieving a successful outcome will be extremely important. Expert preparation and representation will be a minimum requirement, but the key to success is in understanding the issues and being proactive. Working towards change, considering further inspections, implementing action plans, using time to achieve the necessary progress is all part of the appeals process. There will also be the appeal paperwork and hearing to manage.
We have a dedicated team to handle urgent and crises issues, and we can respond immediately to support you exactly when you need it most. If this is happening right now for you, we can help. You can be assured of a same day response. With decades of experience of dealing with regulatory emergencies, our clarity, focus and leadership can bring your crises or emergency under control. Call or email anytime, and we will be there for you.
If your organisation faces a serious safeguarding concern, then we can help. Protecting the health, safety and welfare of those using your service will be your priority, and when safeguarding concerns are raised you will want to do the right thing. Support is available.
Allegations of Criminal Offences – when a member of staff or person associated with your organisation is accused of a criminal offence, the ramifications can ripple far and wide. There will likely be a police investigation and possibly a court case to deal with. Members of your team might be a victim or witness. Questions may arise about who knew what and when. Reputations can be lost, but can also be won. There may be related civil claims. Our expert team includes those with decades of experience in the criminal law arena and know what it takes to solve these problems, including working in the most sensitive cases.
For support and advice in this area contact Matthew Graham
- Residential accommodation, such as almshouses and sheltered housing providers
Many of our clients in the care sector are charities including almshouses and sheltered housing providers. We have particular expertise in assisting:care-homes and carers’ support organisations and others directly or indirectly involved in supporting health and social care provision with governance issues and compliance with charity law as referred to below.
For support and advice in this area contact Tom Murdoch
The care sector, including commissioning bodies and regulators - the Care Quality Commission and others is increasingly focused on the governance of care and health service providers. Effective governance structures demand the right personnel, clear-sighted planning and robust lines of control and reporting, all of which ultimately translate board strategies into delivered outcomes.
Stone King’s is independently ranked [insert Chambers and Legal 500 footnotes] for top-tier legal services for charities, social enterprises and not-for-profits which underlines our expertise in advising on effective governance for not-for-profits and profit-making entities alike.
We provide specialist, expert services which are tailored to your needs: such as strategic reviews, structural reorganisations, including mergers and acquisitions, addressing concerns raised by funders, commissioners and regulatory inspections and inquiries.
For example, we have recently:
- Advised a large care provider (18 care homes plus sheltered accommodation) merge with a general-purpose not-for-profit entity with a focus on the elderly, including advising on a combined governance structure;
- Assisted with the acquisition and restructuring of a for-profit carers’ support company by a not-for-profit parent company;
- Advised on governance concerns raised about a residential home by the CQC and formulated an appropriate response and action plan;
- Advised on the sale of a loss-making service-provider subsidiary; and
- Assisted with the re-structuring of the CEO/?board relationship in a major national cancer charity within a comprehensive governance review.
For support and advice in this area contact Tom Murdoch
- Corporate & Commercial
We provide our care clients with a broad range of corporate and commercial law advice. Our corporate & commercial team has broad experience advising care and healthcare businesses on acquisitions, sales and mergers. We also advise on capital raisings, social investments and bank finance. We help on corporate governance issues and general advice on company and partnership law. On the commercial side we can draft, review or update the business’ key terms and conditions with residents or patients, advise on the terms of contracts with suppliers and stakeholders and help to protect the business’ intellectual property rights.
- Immigration Law
The UK immigration rules can be difficult to navigate. This can cause challenges when time and resources are limited, often adding excessive pressure to care homes across the nation. Our cross-sector expertise enables us to shoulder some of the weight. We offer pragmatic, timely solutions to issues faced by both businesses and charities alike on all aspects of immigration law to help care homes focus on providing the best standard of care to their residents.
Having previously held the role of Head of Immigration at the Royal College of Nursing, the immigration team’s lead Partner Julie Moktadir understands the operational and strategic issues that are often faced by those in the care sector. As well as providing practical immigration advice to the Nurses, Nursing support workers and carers, her past experience as the Chief Executive Officer of a large national charity has further contributed to her unique perspective and specialist approach when assisting some of the UK’s most vulnerable. Julie was heavily involved in shaping the immigration rules to ensure all nursing positions were included in the Shortage occupation list, and understands first-hand the challenges organisations face in recruitment and job retention.
The team work within the both the business and charity sector on a variety of issues including recruitment, sponsorship, compliance, residency applications and training.
Our team can offer solutions to workforce planning issues and advice on all aspects of recruitment from within and outside the EEA. Further we advise on identity documents and Right to Work checks, including issues faced in relation to volunteers.
We appreciate that ensuring compliance can be a challenging task. We are able to support you in managing your sponsorship licence, both directly and indirectly. We can offer support via telephone, email and video conference or we are able to take a more immersive role and act as a Level 1 User on your care home’s licence on your behalf. Further details of this service can be found here.
The way organisations employ overseas nationals is changing. From 1 January 2020 EU nationals will require a visa and possibly sponsorship to travel to and work in the UK. We advise on the implications on Brexit and on the new immigration rules, including the new Points Based System.
- EU Settlement Scheme
We assist with applications to the EU Settlement Scheme (EUSS) for EU nationals wishing to reside in the UK after 31 December 2020.
A long standing client engaged the team to assist with obtaining status under the EUSS for an elderly resident in one of their UK care homes.
We conduct audits for organisations who sponsor workers from overseas. By reviewing all current immigration processes and procedures, meeting with key personnel to advise on their duties, and providing follow up support, we ensure your care home is ready for any UKVI compliance visits.
A recent audit of a national care organisation included in-person attendance by Julie to three large care homes across the country in order to support the care providers and their EEA national residents. Julie conducted a full compliance audit and a meeting with their HR department was arranged to assist the EEA nationals in understanding their rights in light of Brexit.
We are able to provide a range of bespoke training, examples of which include:
- Recruitment from overseas
- Implications of Brexit
- Responsibilities of a sponsorship licence holder