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The devil - is of course - in the detail…

19 November 2018

There will have been plenty of people across the UK getting to grips with the detail this weekend – poring over 585 pages of Brexit negotiated minutiae – and for those of you who still have to catch up with the agreement then please do check it out here

However, for those of us in social care – there was another set of detail to get to grips with – equally focussed on detail and the subject of hard fought negotiation. On Friday, the Competition and Market Authority published their long waited for guidance on how care homes must act in order to comply with consumer legislation. A mere 149 pages, however, still plenty for care homes to take on board, and likely to have significant impacts in some areas of individual organisations businesses. 

It is important to take a brief pause – and remember some of the origin of this investigation, which started back in early 2017. At that point, there was significant concerns being raised by Citizens Advice and others about what were deemed ‘unfair’ practices within the older people’s residential care sector. The investigation took off on a detailed examination of contracts, availability of core information including fees, and a variety of deep dive activities resulting in early release guidance including that relating to the charging of fees after someone has died. 

Fast forward to November 2018 – and what we have is a series of documents to provide guidance to care homes, residents and relatives. 

The core themes of the guidance follow the pattern of the draft guidance released in June 2018 and are broadly split into the following areas:

Upfront information – what information you should provide to prospective residents and their representatives, and when and how you should do so. 
Treating residents fairly – what you should do to ensure that your contract terms and the way you treat residents and their representatives are fair under consumer law. 
Quality of service – how to comply with your obligation to perform your services to residents with reasonable care and skill. 
Complaints handling – what you should do to ensure that your complaints handling procedure is easy to find, easy to use and fair.

Having shared this with members, an immediate question back related to the time frame for compliance. It appears to me that implicit within the guidance is the assumption that immediate compliance is a given, in that this guidance relates to providers meeting of current consumer law. The CMA state the immediate actions that they expect providers to take within the main guidance, and these are as follows:

(a) Immediately read this advice
(b) Carefully consider whether you need to make changes to your contracts and business practices to make sure you are complying with the law (which may involve reviewing whether all your charges are fair)
(c) To support your compliance with the law, consider a wider review of your internal procedures and processes. For example, to make sure that important information is clearly, accurately and prominently provided to prospective residents and kept up-to-date (including on your websites, in written materials such as information packs and user guides and in response to telephone enquiries), and that fair complaints handling procedures are being followed
(d) Make sure that all customer-facing staff understand these requirements and comply with them, since you will be responsible for their actions.

It is very important however, that providers work together to ensure that compliance is effective – both from a consumer and a cost perspective. The Care Provider Alliance, led by Sharon from NCF and colleagues from Care England and RNHA, will be producing a range of draft clauses for contracts and more guidance to ensure that there is not significant duplication across the country. In addition, if more information is required, do let us know centrally, so that we can, where possible, coordinate in order to prevent mass expenditure of effort and money. 

It is valuable to see that there has been some movement between the draft and the final guidance which reflects detailed discussions at national level – including guidance around altering fees due to changes in care needs, publication of staffing information etc…. However, there remains to me a real challenge about the circumstances of individuals accessing care, which the guidance neither acknowledges or seeks to address. The pre consumer relationship, which suggests a detailed investigation on the part of the consumer, and time frames for sharing and accessing information and advice does not reflect what we understand about how people come to ‘consume’ care. There seems no acknowledgement of the ‘distressed purchase’ or indeed the accessing of care from hospital, with a vision of a more measured approach to accessing care. The realities do not of course preclude care homes from compliance with the law, but they do mean that the customer journey is likely to be significantly abridged, and therefore how and in what format people will want to access information may be very different to that laid out in examples. 

After much lobbying by the provider sector, including detailed feedback from members of the National Care Forum, it is pleasing to see in their open letter to the Care Sector the CMA state clearly that;

“Our advice is also relevant to local authorities and other public funding bodies that place residents in care homes. We are letting them know that they should take into account the general principles of fairness set out in the CMA’s advice, when contracting with care homes on behalf of residents and when dealing with residents directly.”

This could provide a valuable tool at the table of local authority negotiations. However, in the face of the current focus of the guidance, it is very difficult to see where the further steer for authorities comes – and it will be important to push the CMA to focus on authority contracting and information and advice when they conduct a compliance review in November 2019. 

The irony of this guidance being published at the same time as the news is full of a large scale home care provider alleged to be “exploring the sale or transition of services to alternative providers” cannot go without comment. The individual consumers experience or ability to exercise choice and control seems to me to be completely lost within this process of ‘market management’. If the CMA is going to actively contribute to challenging the perpetuation of a two tier consumer experience, then it must seek to ensure that the contractual obligations of local authorities do as much to protect the individual rights of people received publicly funded services as it is seeking to do for those who fund their own care. 

There is of course much more detail within the guidance, and it comes at a time when providers are grappling with a whole range of new compliance requirements including those of GDPR, new (ish) KLoEs, NHS contracting requirements and now CMA guidance. NCF are committed to working with our partners and our members to ensure that wherever possible, resources and responses to new directives are open source and publicly available. The golden thread of these changes is to make care safer, more robust, more effective and protecting citizens’ rights. Although I warrant you, it is sometimes difficult to rise up and see that when we get stuck in the devil of the detail…

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