News analysis of care homes crisis and landmark case to affect care orders

In Focus news analysis pieces from Community Care magazine:

(It may be advisable to print this page because it is long).

(see below for news analysis on a landmark Court of Appeal decision which
could radically influence the role of courts in care orders)

Care home fees crisis reaches a climax

The campaign by the independent care home sector to get local authorities
to increase the fees they pay has reached crisis point, with some homes
threatening residents with eviction. Jonathan Pearce reports

A frog thrown into boiling water will immediately jump out, they say. But if
one is placed in cold water, which is then brought to the boil, the frog will
do nothing to save itself.

For the pan of boiling water read the independent care home sector, and for
the frog, the care home owners. The market in the sector is almost at boiling
point and, although many home-owners have already found the temperature
unbearable, many more have yet to jump out of the pan. However, there is a
twist in the story – this time the frog has got a gun and taken a hostage.

Across the UK, private and voluntary care homes are rebelling against local
authority fee levels which they claim are forcing them out of business. The
hostages are the council-sponsored elderly residents in long-term care who are
now threatened with eviction.

In a move mirrored in other areas, Evedale Care Home in Coventry has issued
the council with an ultimatum: increase the fees or 38 residents will be
evicted on 15 July.

"Holding a gun to the head of older people is not in anyone’s
interests," says a council spokesperson. Maybe not, but with similar
actions taking place in Devon, Birmingham and Scotland it speaks volumes about
the state of the sector.

Although not all the care homes are taking this line, some councils are
being forced to make contingency plans to deal with the threat of evicted
residents, while hoping that negotiations will prevent care homes taking such
desperate measures.

Despite claims of distorted truths and militant activity, there are some simple
facts underlying the crisis. First, the sector is in meltdown, having grown
successfully and profitably out of a Thatcherite boom in the late 1980s and
early 1990s. For decades the closure of long-stay institutions and the
elimination of geriatric wards kept the market buoyant. Now it is struggling.

Figures from leading sector analyst Laing and Buisson suggest that more than
1,500 care homes have closed over the past two years, representing a loss of
approximately 16,000 places each year. The figures are offset by some new home
registrations, for instance 145 new homes opened last year offering about 5,000
places.

The reasons behind the closures are varied, depending on individual
situations and local economies. Devon is a case in point. About 50 nursing
home-owners have given Devon Council seven days’ notice before terminating the
contracts of council-sponsored residents.

Devon’s director of social services David Johnstone is pragmatic about the
crisis. "The public sector can’t bail out bad economic decisions [by
home-owners]," he says.

He sympathises with the plight of the care homes, but believes such threats
undermine the progressive work going on elsewhere in the county to develop new
services.

Some homes will close because they are not economically viable, he claims,
or have not invested properly. The ones that survive are the ones that
recognise the way the market is moving. So that means a wider mix of services –
such as outreach services, day-care provision, more investment in caring for
the elderly mentally ill – and a shift away from traditional full-time
residential and nursing care.

Each part of the country has a different story to tell, but they all operate
against a background of government policy which has put the sector through a
period of transition.

National care home standards, which come into force next year, mean owners
have to upgrade their properties to comply. Improvements to employees’ rights
in recent years, such as the national minimum wage and the working time
directive, have also increased staff costs.

In addition, the government wants to promote the independence of older and
vulnerable people, giving them more choice in how they are cared for and where,
leading to an increase in sheltered housing, domiciliary care and direct payments
to clients. On top of this, last year’s NHS Plan developed the concept of
intermediate care, with the aim of reducing unnecessary hospital admissions,
limiting stays in care homes and getting people back home. However, all this is
happening without any significant increase in the funding of long-term care.

"We can no longer deliver quality of care at these ridiculous
prices," says Barry Giddins, chair of the National Care Coalition – an
umbrella organisation of private care associations and home-owners. "We
have tried for two or three years to talk to social services, but they haven’t
listened."

He sends out a stark message to local authorities: "If you don’t work
with us soon, then you won’t have to, because we won’t be here." The NCC
is in the vanguard of the campaign against local authority fee levels –
particularly the fact that many councils pay far higher fees to their own
homes.

There are several responses to the independent sector’s cry of
"unfair". The first says the two rates cannot be directly compared.
The local authority rate is a "unit cost", while the independent
sector rate is a "price".

According to accounting formulae, such unit costs must take into account a
relevant proportion of all the local authorities’ overheads and salaries, even
though some of these might not be directly related to the council care homes in
question, thus inflating the unit cost.

The second argues that local authority staff are better paid – an historical
circumstance borne out of trade union organisation in public sector services.

A third suggests that councils’ own homes only provide about 15 to 20 per
cent of the total care provided, and that this is driven by the fact they care
for the more vulnerable clients with high support needs that the independent
sector is not interested in. Such care inevitably costs more.

Home-owners refuse to buy these arguments, claiming local authorities are
simply running a care market monopoly. Not so, claim the directors of social
services. They are simply trying to manage the market.

Social services departments spend a massive amount of money purchasing care
– often a half or two-thirds of their annual budgets. The stark choice lies in
paying less for more people or an overcrowded NHS picks up the overspill.

"At the root there is the argument that government has not got enough
money to purchase the care it needs," says Middlesbrough director of
social services Glenys Jones. She attributes many of the problems in the care
home sector to "wobbles in the market" caused by public policy shifts
– which are right in principle, but lacking in money – and economic changes,
such as rising property prices and increasing employment.

High property prices allow home-owners to sell up while the going is good,
while high employment makes it hard to recruit staff. "If people have a
choice, then they would rather not wipe bums," she says.

Interestingly, local authorities in England and Wales have looked at running
care homes and have independently decided they want out – mainly because they
cannot afford to meet the new standards. "It’s primarily about local
authorities not having the capital [to invest]," says Jones.

Scotland has a similar problem, but has approached it differently. Scottish
Care – representing 800 of the 1,100 private care and residential homes in the
country – recently met with the Scottish executive to discuss funding problems
and fee levels.

Estimates from Scottish Care and the Association of Directors of Social Work
put the country’s funding shortfall at between £25 million and £50 million, if
care standards are to be maintained.

There has been some talk of evicting council-sponsored residents from homes,
but this has not emerged as a major threat just yet. In Scotland, the issue is
seen as one for central government, with the Scottish executive overseeing a
short-term review of fees, which will then report to the executive’s Care
Development Group.

This contrasts with the Westminster approach which puts local authorities in
the firing line, while simultaneously developing a concordat with the private
sector on long-term care.

It is unclear exactly what is on the table at the moment, but the concordat
aims to stabilise the industry by improving commissioning arrangements between
local authorities and care home-owners.

In Scotland, public services are seriously defended and there is little talk
of anything like public-private partnerships, private finance initiatives or
the involvement of the newly created care trusts.

It all boils down to definitions and funding of free nursing and personal
care and how much will transferred to local authorities in preserved rights
benefit payments from the Department of Social Security for pre-April 1993
residents. All these are unanswered questions both north and south of the
border – with the exception of free personal care in the south.

Whatever the mechanics of resolving the sector’s problems, two fundamental
facts will not go away: the population is ageing rapidly and long-term care is
seriously underfunded.

Local authorities may not be perfect purchasers of care, but neither is the
independent sector a perfect provider. Both are hampered by a short-term view
on how their finances are run. The care homes need investment, while local or
central government needs to invest in the care home sector to ensure the
elderly and disabled are properly cared for.

If councils could raise capital, then the story might be different. There
may be potential in care trusts for the development of a different model of
public sector provision.

As Middlesbrough’s Jones says: "It’s about managing this transition in
a way which is least painful for everyone." Including the frogs.

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Judges take a firmer grip of care plans

More confusion, work and delays in implementing care plans may result
from a Court of Appeal decision to give family courts greater powers, reports
Alex Dobson.

Social workers dealing with children and families often suspect the legal
framework within which they operate is far from perfect. But a landmark
decision in the Court of Appeal could mean more delay and confusion for
professionals and families.

The judgement, concerning Torbay and Bedfordshire councils, is the first to
connect the "right to a family life", enshrined within the Human
Rights Act 1998, to the plans drawn up by local authorities for children at
risk.

The Court of Appeal’s decision, which some have hailed as a rewriting of the
Children Act 1989, may yet be subject to a challenge in the House of Lords. But
in practice, it could mean councils must implement care plans made when a care
order is obtained or face the prospect of being taken to court to explain why
things have gone wrong.

Social workers will, in future, need to alert the court if planned
developments fail to materialise, such as when a planned family reunion or a
scheduled adoption does not go ahead.

The upshot is that judges will in future have much more freedom to
intercede, to demand more information, and in some cases to refuse to make a
care order at all.

While the number of cases directly affected is likely to be small – some
observers suggest as few as 200 per year – there are likely to be a number of
knock-on effects.

Social workers’ time, already in short supply, could be stretched to
breaking point by the demands of a number of complex, lengthy court cases. And
courts, for their part, could choose to err on the side of caution, resulting
in an increased use of interim care orders.

Jane Held is vice-chairperson of children and family services for the
Association of Directors of Social Services, and director of social services in
Camden. She says: "There could be problems because there are already long
delays in some parts of the country in the court process. The decision has
echoes of the old wardship jurisdiction of the courts which is something that
we moved away from when the Children Act was passed."

She says it is crucial to keep the child’s best interests as the focus and
to avoid the sorts of delays that can impact negatively on a child’s life.
"We know that it is essential that we work quickly. It looks like the
effect of the decisions may be to slow down the system even more.

"One of the impacts could be to take frontline social workers away from
the work they are doing with vulnerable children and their families."

According to human rights lawyer Bernadette Livesey, a key issue will be
deciding what amounts to a "fundamental failure" of the care package.
She warns that challenges in future could come from many sources.

"There are going to be disputes over what is considered to be
important," she explains. "Aggrieved parents may feel that one aspect
of the care plan is vital, or guardians ad litem may feel that there are
aspects that are essential to its success. The local authority may take a
completely different view, and the child may take yet another view. All of
these people now have an expectation that they may be able to go back and have
the position reviewed," she says.

As Livesey points out, this is at odds with the messages from the Lord
Chancellor’s department which has warned that care proceedings are taking too
long, and recommends that decisions concerning children should be made as
quickly as possible.

But others welcome the move. Robert Tapsfield of the Family Rights Group
says that, until now, parents have been unable to challenge changes to the care
plan. To date, their only option has been to apply for a revocation of the
plan.

"They have no rights if the care plan is changed by the council, or
where there is a failure to carry out all or part of the plan," he adds.
"We welcome any move that allows parents to question how the lives of
their own children are affected by the decisions that are made."

Tapsfield argues that, while these decisions seem to be eroding local
authorities’ unfettered discretion under the Children Act, it is absolutely
essential that parents are able to challenge and ask for a hearing where their
views can be heard.

He says that prior to the judgement, where care plans have not been applied
in full because of budget constraints or staffing shortages, parents had been
"denied fundamental rights".

Lawyers who brought the cases in the Court of Appeal say that the decisions
will concentrate the minds of some local authorities who until now have been
able to drag their feet with impunity.

They suggest, too, that judges are not rewriting the Children Act, but
interpreting the provisions so that they are compatible with the Human Rights
Act 1998 and the UN Convention on the Rights of the Child.

The changes triggered by the test cases may not be actually spelt out within
the Children Act 1989, but neither are they prohibited, the lawyers argue,
welcoming some degree of return to the old wardship jurisdiction of the courts.

The judgement also means, they add, that failings that have become apparent
since the arrival of the Children Act can be remedied.

The ultimate test of the court cases is whether they will result in added
benefits for children and families, and on that the jury, if not the judges,
are still out.