As click-bait goes, this may not be the most compelling question, but it’s hardly surprising that you clicked on the link. Arrears in fees affects cash flow and the debt needs to be funded, either through bank debt, or by reducing profit available for distribution.  Providers may accordingly wish to have clauses in their contracts that allow them to claim interest on arrears both to incentivise prompt payment and to ensure that should they not do so, the defaulting party bears the cost of late payment.

Naturally, the CMA has a view.  Or views as it turns out.  The draft guidance on care home contracts  (page 62) opined that a term was likely to be unfair if it required

‘residents to pay interest on outstanding fees at a rate excessively above your clearing bank’s base rate since it makes the resident pay much more than the cost of making up their default (emphasis added).’ 

That makes sense.  It ensures that a resident can be required to pay for the cost of their default but prohibits punitive costs above that.

However, the final version of the guidance (page 84) states that a term is likely to be unfair if it

“require residents to pay interest on outstanding fees at a rate above your clearing bank’s base rate, since it makes the resident pay much more than the cost of making up their default.”

The word ‘excessively’ disappeared.

This does not make sense.  It is simply not correct that a resident will necessarily ‘pay much more than the costs of making up the default’ if they are charged more than a clearing bank’s base rate.  On the contrary, it is likely that they will be paying less than the cost of the debt if they are only charged the base rate because the true cost of debt will never be as low as the base rate.

I asked the CMA whether this was an error in the final draft.  They replied as follows:

“To confirm, the word ‘excessively’ was intentionally removed from the CMA’s final advice before publication. The overall aim of the CMA’s advice is to help care home providers understand and comply with their obligations under consumer law (see paragraph 2.1 of the final advice). The CMA takes the view that advice to businesses should be as clear and certain as possible, so that businesses can be confident of complying with their legal obligations when they follow the advice. The word ‘excessively’ was removed because it was considered too vague in this context, and therefore unhelpful to care home providers when drafting their contract terms. Such vague and uncertain wording is open to misinterpretation and abuse and therefore increases the likelihood of a care home provider’s term (or practice) being found to be unfair by court (and therefore unenforceable).”

The CMA could have dealt with the uncertainty of the word ‘excessively’ in a far more commercially sensible way.  It could, and should, have said that a term was likely to be unfair if any interest charged was above the true cost of the debt to the provider.

Requiring providers to bear the cost of fee arrears would only lead to higher fees across the board, meaning that those who pay fees promptly are penalised by those who do not.  That is not fair.  It also does not encourage prompt payment.  Despite the CMA’s amended version, I think it highly unlikely that a term would be regarded as unfair if it did not more than pass the cost of debt to the person responsible for it.

This small example shows how much care and attention is needed to draft care home contracts that are both compliant with consumer law but are also commercially sensible.

Please contact me if you need help with your contracts or any other regulatory matters:

 

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: [email protected]

https://www.healthcarecounsel.co.uk/

Last updated: 14 June 2020

Since publishing ‘Registering the Right Support’, CQC has been much more restrictive in accepting applications increasing the number of service users in locations for people with learning disabilities and/or autism.  This post draws from appeals heard by the Tribunal against decisions by CQC to refuse such applications.

The table set out below summarises the appeals.

Date of decision / Case	Application	Appeal outcome	Reasons
20 April 2020   Bleak House Limited v CQC	Increase number of service users from 19 to 24	Appeal dismissed	1.      ­­­National policy and guidance apply to all LD services, not just those for people with autism and/or challenging behaviour. 2.      Smaller services are more likely to be produce better outcomes for adults with LD. 3.      Choices were based on or influenced by group preference. 4.      The large prominent premises diminished the benefits that accrued to those who live in the community. 5.      Lack of objective evidence to show that the larger setting was capable of delivering better practice than smaller settings. 6.      The proposal did not amount to a genuinely innovative model of care. 7.      Very limited evidence of support from the LA, and no LA witness was put forward to answer questions at the hearing. 8.      Not clear who would be taking up the additional places. 9.      There would need to be compelling reasons backed by LA commissioners showing a critical local need to justify an increase in service users. 10.   No formal impact assessment had been carried out by Directors or Manager. 11.   Inadequate consultation with residents and those acting on their behalf.   See here for further comment on this c ase.
27 August 2019   Action for Care v CQC	Vary conditions – increase maximum number of residents from 6 to 8.	Appeal dismissed.	1.      Appellant failed to consult with service users, their families and representatives about whether there should be new service users. 2.      The impact on the current service users was not considered adequately or at all. 3.      There was no evidence of plans to mitigate the risk of increasing the numbers of residents at the location. 4.      Residential accommodation for those with autism should be in small, local community-based units of not more than six people and with well supported single accommodation. 5.      The location would not meet the present and future needs of a proposed service user as his mobility was deteriorating and this was not catered for in the design.  It was too small for people with proxemic issues (people who need space) and wheelchair users. 6.      The bungalow was too small for able bodied persons and was much too small for those with mobility issues. 7.      There were no kitchen or laundry facilities, and no space for them. 8.      Accommodation should be as close to a normal home as possible which was not the case in respect of the proposed accommodation. 9.      There was no evidence of attempts to meet the proposed service user’s needs in other accommodation.  There was therefore inadequate evidence that there was a local need for this type of accommodation.
23 July 2019     Lifeways Community Care v CQC	Add a location – 9 service users (original application was for 10) in a series of adjoining single storey buildings.	Appeal dismissed.	1.      National policy and guidance is to be followed except in exceptional or compelling circumstances. 2.      National Learning Disability Director and Senior Responsible Officer for the Transforming Care Programme said that site was ‘not close to…. what is an appropriate setting’ and had ‘many of the characteristics of the campus and congregate sites that are …. inappropriate’.  The home looked institutional because of its size and how it stood out from its surroundings. 3.      Focus should be on more independent living arrangements, not large residential provisions. 4.      The evidence of CQC’s National Professional Advisor for Learning Disabilities was not biased and was highly persuasive.  Her evidence was that the application did not meet national guidance because, among other things ‘it is not small-scale, is not domestic in style and is clearly different to the houses in the local area.  It has the appearance of a care facility, not of typical housing….It was a cluster model of service which has some features of a campus’. 5.      Another persuasive expert said the proposed home was very different to housing around it.  It had an institutional feel and created a sense of otherness.  It was placed in the community, but apart from it. 6.      The appellant’s own witness accepted that the proposal was not in accordance with national policy and guidance. 7.      Large spaces, communal garden and parking spaces increased the sense of and institutional campus style setting. 8.      The CCG had not been consulted and would have preferred small settings consistent with Registering the Right Support. 9.      The Tribunal visited and found the home had an institutional look and campus style which stood apart from the surrounding neighbourhood.  It was large and had many shared facilities. 10.   Service user groups had not been clearly identified by the appellant.
18 October 2018   Centurion Health Care Limited v CQC	Add a location – adding a further separate unit of 8 residents on a site with an existing unit of 6 residents.	Appeal allowed.	1.      The new unit was independent of the first and the site was not a campus style (as this was not a group or cluster of homes with shared facilities). 2.      CQC failed to exercise its discretion appropriately because it did not analyse the nature of the service users who would be placed at the location.  The decision had a whiff of policy about it.  CQC failed to consider whether conditions could have addressed any of its concerns.  They applied a ‘one size fits all’ approach contrary to its own guidance. 3.      Service users, like other people, should be able to choose whether or not to live in a town, city or village.  Service users with particular disorders may benefit from the peace of a rural setting. 4.      CQC wrongly equated geographical location with lack of engagement with the community. 5.      The commissioner’s market statement recognised the need for more ASD accommodation, including in rural locations, to avoid out of area placements.  There was accordingly a need for the location.
8 August 2018   Care Management Group Ltd  v CQC	Adding further 3 places increasing the maximum number to 10 in total.	Appeal dismissed.	1.      No evidence of consultation with service users, their families or commissioners. 2.      ‘Registering the Right Support’ is statutory guidance, and even if were not, it is a material consideration. 3.      The setting was of a campus type.  It was distinctly congregate and institutional and precluded a feeling of a small-scale domestic setting and person-centred care. 4.      Recreational features and facilities involved timetables and are not used by the community at large.  Life was regimented and far removed from small scale settings within a community. 5.      Access to the community was limited, affecting the options, choices, dignity and independence others take for granted. 6.      Few people came onto the site, apart from courting couples (which provided an indication of how secluded and private it was). 7.      Distance from the community would have affected the amount of time that could be spent in the community. 8.      Lack of shared staff is not determinative of whether a setting is a ‘campus’ but in any event there were some shared staff. 9.      Service users were isolated from others; both within the setting and within the wider community. 10.   There was no real choice as to who residents would live with. 11.   “Quality of life improves with inclusion and when rights are fully respected.  [CQC’s National Professional Advisor for Learning Disabilities] does not recognise a separate group of people…. who cannot live in the community….. Experience shows that challenging behaviour is often reduced in the community”. 12.   It was not the Tribunal’s task to say whether guidance was right or wrong; it was to apply it in the context of the evidence, subject to proportionality. 13.   When registering services, CQC has a role in promoting the outcomes set out in national policy.  It is entirely appropriate for CQC to base regulatory decisions on ‘best practice’.
26 June 2017   Oakview Estates Ltd v CQC	Add a location – a residential unit of 6 beds, 18-65, on a site with an existing hospital already containing 23 beds over 3 buildings.	Appeal dismissed.	1.      Inadequate access to the community hindering ability to improve independence. 2.      Premises were clinical and not personalised.  There was no plan as to how residents would be able to regain access if they left the bungalow. 3.      Accommodation would need to be adapted to the least able person, impacting adversely on the others. 4.      No discharge plans or evidence that placement and discharge plans would be regularly reviewed (despite this being raised in the notice of proposal). 5.      Training plan had not been drafted. 6.      The same staff were to be used in the hospital and the care home despite different cultures between the two locations, in particular the hospital being more clinical. 7.      The culture is unlikely to change from a hospital setting.

 

Based on the decisions, providers can maximise their prospects of success by taking the following actions:

Before build

• Read relevant guidance (set out at the end of the post) and design your services to comply with it.
• Consider whether the service can be provided as supported living rather than residential care. There is often a fine line, and grey areas, between the two.  Seek legal advice on whether your new service can be configured as supported living.  If it is at all possible to avoid registration as a residential home, that is likely to be the best option in most cases.  There may be options you have not considered, such as leasing your property to a housing association that in turn leases it to service users.
• Design accommodation so that it is as close to normal housing as possible, rather than institutional.  It may be useful to think of, and refer to, the accommodation as ‘homes’ rather than ‘units’.  Homes should have their own facilities (kitchens, laundry, lounges) and not be dependent on other buildings.
• Avoid homes with more than 6 residents.
• Consult meaningfully with service users and their representatives about your designs, your proposal to increase service user numbers, and the characteristics of who would live there. Respond to their views.
• Draft assessments as to how additional residents may affect current residents, and draft plans to mitigate any adverse effects.
• Obtain concrete evidence in writing from local commissioners about the need for the provision. Check local commissioning strategies and fit in with them.
• Embed access to local community places and resources (including health and social care) in your plans. How will service users have similar access to those without learning disabilities and/or autism?  How will they, on a daily basis, do things outside their homes if they wish?
• Embed options, choices, dignity and independence into your plans. Ensure there are a wide range of options available outside the grounds for people to choose from.  What educational, training, employment and leisure opportunities are there outside the grounds?
• Plan the provision so that there are no shared staff and facilities between homes on the same site. As with accommodation for most people, leisure facilities should be accessed outside of homes rather than on the grounds.
• Draft a comprehensive training plan to show how staff recruited would meet the needs of intended residents.
• Ideally, any new home should be completely separate from others on the same site. If CQC accepts that it is appropriate for the application to be for a new location, rather than to increase the numbers in any current location, that will assist in showing that the home is not of a campus or congregate style. It may be appropriate to divide plots of land to reduce the feeling that the new location is on the same site as an existing service.
• Try to engage with CQC about your plans (though be prepared that CQC may decline to do so until you have submitted an application).
• Design the homes so that they are suitable for residents to live there in the long-term. Satisfy as much as possible of the ‘Real Tenancy’ test (see guidance documents below).
• If the home is not appropriate for residents in the long-term you will need to make a strong case that the residents cannot be housed in more independent living and that discharge planning is embedded into your plans.
• Consider putting your plans to a relevant expert in learning disabilities and/or autism, and a healthcare lawyer. Ironing out issues at this stage could improve your chances and reduce wasted costs down the line.

 

Before applying

• Ensure that the application deals with all the matters above in detail and provide evidence in support. Satisfying CQC at this stage is the quickest and lowest cost option, so it merits investment of time.
• Again, seeking expert and legal advice before submitting your application may improve your prospects of success.

 

Notice of Proposal stage

• If CQC proposes to refuse the application, you have 28 days to submit representations.
• Read the notice carefully and ensure that you respond to each and every point. One of the appeals listed below was unsuccessful, in part, because the provider did not address discharge planning, which was raised in the notice of proposal.
• Be realistic that CQC is more likely to accept your representations if you reassure CQC about the issues it raised, rather than disputing them.
• However, if you think CQC’s judgment is wrong on a particular issue, explain why and provide strong evidence to support that view.

Appeals

• Think carefully about who can give weighty evidence in support of your case. If a highly regarded, independent expert in learning disabilities and/or autism regards your proposal favourably, that could carry some weight.
• Consider calling commissioners who are supportive if they can clearly express how your service will benefit residents. Preferably, the evidence will support the proposition that your service is a good long-term option for some residents and will afford them a high quality of life with extensive choices in the community.  Otherwise, the evidence should explain why some residents are not yet ready for independent living (with examples of some failed placements before) and how your service will assist in that pathway.  Probe their views carefully before taking this course.  In one of the appeals below, a commissioner conceded the provider’s service did not conform with guidance.
• Surprisingly, the evidence of families was not that important to the Tribunal in any of the cases.

 

GUIDANCE

 ‘Building the Right Support’, October 2015

‘Registering the Right Support’, CQC, June 2017.

‘Transforming Care: A national response to Winterbourne View Hospital’ (2012).

‘Learning disabilities and behaviour that challenges: service design and delivery’, NICE (March 2018)

‘Living in the Community.  Housing Design for Adults with Autism’, Andrew Brand, Kingswood Trust.­­­­

‘Creating Autism Friendly Spaces’, Simon Humphreys, National Autistic Society.

‘Supporting people with a learning disability and/or autism who display behaviour that challenges, including those with a mental health condition’, LGA, ADASS, NHS England, October 2015.

‘Planning Your House’, Challenging Behaviour Foundation.

‘The Real Tenancy Test – tenancy rights in supported accommodation’, National Development Team for Inclusion, revised November 2015

 

If you would like to discuss an existing application to CQC, or are considering applying, please do not hesitate to call me:

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: [email protected]

https://www.healthcarecounsel.co.uk/

 

 

 

 

 

Inquests in a nutshell

An inquest is a fact-finding investigation into a death when the coroner has reason to suspect:

1. the death was violent or unnatural;
2. the cause of death is unknown; and/or
3. the death was in state custody (this no longer includes DoLS but includes detention in hospital or prison).

The coroner is usually required to determine how the person came by their death.  However, in cases where the state arguably breached its obligation to protect the life of the deceased, the coroner is required to determine the wider circumstances (these are called Article 2 cases).   In practice, though, the coroner has a wide discretion as to the scope of an inquest in all cases.

Almost all cases are heard by a coroner sitting alone though some cases – such as those involving unnatural deaths in custody, deaths involving police contact or cases that are required to be reported to the HSE – are heard with a jury.

In all cases, where a coroner considers that preventative action should be taken to avoid future deaths in similar circumstances, the coroner must report to people s/he believes can take that action.  The reports are known as ‘regulation 28 reports’ or ‘prevent future death’ or ‘PFD’ reports.

 

Advice on draft statements

It is sensible to seek advice before sending any statements to a coroner.  Experienced advisors will anticipate the key issues and check the statements address them.   They will also routinely contact coroner’s officers to seek a steer from the coroner.

Generally, coroners will not issue regulation 28 reports if they are satisfied that sufficient remedial action has already been taken by the provider.  It follows that provides should always consider including remedial action in evidence provided to the coroner.  However, in some cases, particularly when there are open regulatory investigations, care must be taken not to make damaging admissions.

If statements are sufficiently detailed about the key issues and remedial action, that will reduce the chance that the witnesses will be called to give live evidence, and so reduce the risks and costs to the provider.

 

When to seek representation for the hearing

Representation is certainly not indicated for every inquest.  Where the provider is clearly not at fault, and no one has any concerns with the provider, representation is unlikely to be required.  Each case will turn on its own facts but the following are risk factors that suggest that legal representation should be considered:

1. The provider is given ‘interested person’ (or ‘IP’) status by the coroner. That suggests the coroner considers that the death may be due to an act or omission of the provider, or the coroner thinks the provider has sufficient interest in the case to be granted IP status, for example because others are critical of the provider.
2. The family have expressed concern about the care.
3. The family or other IPs are legally represented.
4. Press interest.
5. There is an outstanding investigation by the HSE, Local Authority and/or CQC.
6. The coroner has raised concerns about the provider previously.
7. Conflicts of evidence.
8. Internal and/or external investigations found shortfalls in the care provided.
9. Jury cases.

If in doubt, please contact me for an informal discussion.

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: [email protected]

 

For more information on inquests, see our inquests page here.

CQC’s new Facutal Accuracy Forms and Guidance

CQC’s new factual accuracy forms and guidance have been published and are available ­­­here:

https://www.cqc.org.uk/guidance-providers/how-we-inspect-regulate/factual-accuracy-check

CQC’s guidance states that the purpose of the factual accuracy process is to allow providers to tell CQC

• where information is factually incorrect; and
• where its evidence in the report may be incomplete.

The guidance states that CQC will not consider submissions about ratings ‘solely because you disagree with it’ (emphasis added).  It seems likely that CQC will only consider submissions based on factual errors but that remains to be seen.  I would continue to raise points about the appropriateness of ratings based on the ratings characteristics at the factual accuracy stage, both because rating reviews are rarely successful and because it gives providers two bites at the cherry at getting an improvement.  Arguably, CQC shoudl consider all relevant information when making decisions, which ought to include representations from providers.

CQC states that the process should not be used to challenge how an inspection was carried out.  That reflects current practice, but is somewhat artificial becuase the way an inspection was carried out and the reliability of the findings are inextricably linked.

CQC’s forms must be used (unless CQC gives permission to use another method in advance) though the forms are readily available on its website, so advisors can contribute as before.

Sensibly, the proposal for a word limit has effectively been scrapped.   Although there is a 975 character word limit per cell, CQC states “If you can’t make your point using one row, you can continue in the one below.”

As regards evidence, the form states

“for each point, you must specify exactly where we can find the information that supports your correction (you cannot hyperlink or embed it into this form)”. ­­

I would continue to forward supporting evidence with the form so that CQC can consider it when deciding whether or not to accept the correction. Note that CQC’s new guidance states:

“If you provide a document to support points, you must specify the page and paragraph number and highlight the relevant part of the document that relates to the point you are making. If this is not clear, the inspector will need to ask you for it and if you do not provide it, we may not consider this document further.”

A new development is that if CQC considers that providers have not submitted evidence to support a point, they will ask for it. That is welcome, though it is regrettable that the new guidance still fails to comply with the High Court judgment in the SSP case, which stated that if a provider had concerns with CQC’s reply to its factual accuracy response, the provider should have the opportunity of a review by someone within CQC who was not involved with the inspection.

In terms of timescales, the new guidance is clear that CQC will be stricter on enforcing a 10 working day time limit which will start to run from when the draft report is emailed to the provider.  Providers should ensure that the email address CQC holds for regulatory purposes is current and monitored regularly, particularly after inspections.

Finally, CQC has a separate form with additional sections for draft reports that are served with appendices and tables.  I have asked CQC for information as to when these will be used and will update this blog when I hear back.

Please get in touch if I can be of any assistance with factual accuracy submissions, CQC enforcement or other legal matters affecting your helathcare business.

Jonathan Landau, Barrister
5 Chancery Lane
London, WC2A 1LG
DX: 182
Telephone: 0207 406 7532
Mobile: 07980 897 429

Email: [email protected]

https://www.healthcarecounsel.co.uk/