Are demands on providers putting people’s rights at risk?

Are demands on providers putting people’s rights at risk?

Will providers stand up for the rights of people with learning disabilities or will we see them eroded as they struggle to survive austerity? asks Rosemary Trustam



In the wake of huge cuts in government funding (46 per cent by 2018), one North West local authority has developed a learning disability framework with criteria which providers must meet or their business will be transferred to the few top scorers. It’s designed to reduce the number of providers to save contract monitoring time. It makes significantly increased demands on providers, irrespective of size and service user needs, and requires them to work towards the living wage within a given period. No account is taken of agencies’ increased costs from the new pension requirements or the new ruling defining sleep-overs as working time making them subject to the minimum wage and annual leave entitlement. Providers must manage all this within an hourly rate reduced from £13.38 to £13 per hour*.


Apart from the costs of their model not allowing for these additional employer costs or adequate management and administrative support, a group of providers has discovered some fundamental mistakes. In law, the fact that the authority may not have sufficient funds cannot be accepted as a defence to passing on the cuts to providers. The consequences and impact on people with learning disabilities would be to deny them the service or quality of life they should expect and, indeed, are legally entitled to, as well as denying their voices in their provider of choice.


Some providers appear to be proceeding as if the requirements can be met for a lower cost. However, unless the services needed are very basic, it would be impossible to meet the range of need and would result in a poor quality service including even trimming people’s contracted service.


With reductions in the authority’s ability to adequately monitor their services and the lack of social work input, the danger is they would not become aware of deficits in service delivery until some tragedy or appalling abuse is exposed. Sadly, it is also likely that the weakened voice of people with learning disabilities would go unheard. With advocacy and self advocacy services commissioned by authorities, which close their ears to anything likely to increase costs, and agencies worried about winning re-tenders if they challenge too hard, whose voices will be heard?


If standards are to be maintained and improved providers must stand firm as the bastions of good practice and confront impossible demands and pricing. Worries about the loss of business can tempt providers to go in at the price. This can only lead to catastrophe. If good providers of integrity are lost and only the ‘shapers to fit’ are left, the market will become fragile and the local authority over-dependent on the few who can survive.


Charities are not supposed to prop up statutory services from their funds and would not last for long, while private providers who have to ensure profits for their investors will not continue.


David Brindle, writing in the Guardian on 10 March (Who will foot the bill to raise pay for care workers?), reports a leading homecare provider saying it will have no compunction about walking away from unprofitable contracts. Local authorities should take more notice of those in whose hands they are putting some of our most vulnerable citizens and look closely at their business motivation. Can it be a coincidence that hedge-fund driven Care UK has sold on its learning disability services to Lifeways, another Canadian hedge fund-owned business? Will we see more of this as large investors take what they can from specialist care services and then sell them? Lcal authorities should take note of the recent news that Allied Health Care, the biggest provider in the market, was up for sale and that the Saga group has since recorded a loss of £220m on its ‘discontinued’ Allied Healthcare business, largely through writing down its balance-sheet value to nil.


David Brindle suggests that the fundamental problem is the level of fees paid by local councils for people eligible for state funding. He noted that, according to the UK Homecare Association (UKHCA) which represents providers, only one in seven councils is paying at least the hourly rate of £15.74 the association reckons is necessary to cover costs and make a profit of 47p an hour.


Providers might take some heart from those who refused to take such unreasonable cuts lying down. In July last year, we saw the High Court judgment in favour of the Abbeyfield Society whose Newcastle branch took Newcastle City Council to court for not paying a fair rate for the care provided to older people at two of their care homes in the city. In this judgment the Court unusually was prepared to fix reasonable rates for care rather than tell a local authority to do so.


In December 2014, an association of independent care home operators took Torbay to judicial review over the price set by the Authority as the price they were prepared to pay for care (Torbay Quality Care Forum Ltd, R (On the Application Of) v Torbay Council [2014] EWHC 4321 admin) on the basis that their mathematical model was flawed and that taking account of top-up fees was done unlawfully and against government guidance. In the final judgment the judge said: “The normal setting of fees is a matter involving economic and financial assessment and a degree of expertise in how the sector operate”. Accordingly, he found the contention that the fee was worked out using a flawed model was correct and that “if the local authority chooses to adopt a mathematical model then some scrutiny of this is available on general law principles”. He saw their decision to use this model as falling within the scope of judicial review as a decision that “no reasonable decision-taker properly directing themselves on the facts could take”. He also found there was no good reason given to depart from the government guidance. During the judgment the judge took account of a number of other cases which may have a bearing on similar issues.


Another concern, as authorities begin to squeeze still further the price for care, is about getting sufficient calibre of support staff and professional management. Recruitment is growing more difficult across the country and where authorities want the living wage paid but don’t have the resources to meet the costs, it is likely that fewer well-motivated people will choose learning disability social care as a career. There will be fewer opportunities for progress as agencies reduce the number of senior posts. Support work demands a wide range of skills.


When we are striving to re-develop highly skilled services in the community and prevent people with complex needs being palmed off in expensive and mainly ineffective assessment and treatment centres, we need better discrimination by local authority commissioning. Providers must recognise that all the support services needed cannot be purchased for the same price and resist reducing their skills base.


Local authority cuts have bitten so deep already, particularly in those hardest hit, that they will soon be unable to meet their statutory duties. In this context, we must not allow our learning disability services to be pushed back into the dark ages by false economies. We see an increasing clustering of large numbers of people with learning disabilities into blocks of flats, sometimes with other vulnerable groups. As we hear of one development of 80 flats in the North West, we should fear the development of new institutions in the community in the drive to reduce costs. Large-scale developments separate and isolate people from their communities and keep the community out. Providers who really care about the quality of services for people with learning disabilities, must resist the erosion of standards and ‘new models’ which just replicate ‘old wisdoms’.


One of the North West’s long-stay hospitals started life as a ‘reformatory for inebriate women’ and ended up at its height as a hospital for over 2,000 people with learning disabilities. Providers take heed. Individuals in flats or sharing ordinary housing being moved into blocks of flats could be the start of the ‘warehousing’ of people seen in the 1900s.


That’s why we must give service users and their carers a strong voice as this is the best way to monitor services effectively.


* As we go to press we learn that the NW Local Authority has withdrawn their framework tender in the face of the challenge by a group of providers under the Care Act requirements. Providers can stand firm!