Section 38 of The Care Act (2014) imposes a temporary duty on local authorities in the event that a regulated provider becomes unable to provide a regulated activity to an individual due to a business failure. This duty applies regardless of whether the individuals care is funded by the local authority or not. This temporary duty is invoked where the following criteria are met:
- The provider must be a registered care provider
- The provider must be unable to carry out the particular activity. Where the provider is able to continue the activity despite business failure the duty will not be triggered.
- The activity that the provider is unable to carry out must be a regulated activity.
- The inability to carry out the activity must be due to the provider’s business failure.
The Act states that a local authority must ‘for so long as it considers necessary’ meet the needs for care and support which were being met immediately before the business failure occurred. The local authority is not required to continue the services that were previously provided and has discretion as to how it will meet those needs, though this should be agreed with the individual where possible.
The policy ensures that the care and support needs of service users continue to be met in the event of an unplanned business failure. This policy is for regulated businesses providing regulated care activities such as:
- Homecare provided by domiciliary care agencies;
- Residential care homes;
- Nursing care homes
This policy details our response to an imminent provider failure, and should be used to support our business failure checklist.
The duty applies as soon as a local authority becomes aware of a business failure, and applies to both adults in need and their carers.
Our temporary duty will not be triggered in the event of a planned provider closure, when we would expect to receive sufficient notice of at least six months advising of a planned closure. Providers should alert us via the following ASC Contracts and Quality Monitoring email: email@example.com
In discharging this duty, local authorities are not required to carry out a needs or financial assessment or make a determination of eligibility. Local authorities have the power to charge for the cost (except for the provision of information or advice) in meeting the person’s care and support needs. Where the person is ordinarily resident in another local authority’s area, the local authority discharging its temporary duty may recover its costs from the former. However, the duty does not extend to people in receipt of NHS funded Continuing Healthcare – the duty in these cases remains with the NHS – as the local authority does not have the power to meet needs which are required to be met by the NHS.
Our existing quality assurance and contract monitoring activity will help us to identify early warning of potential failure. We will aim to support providers, using our Quality Policy and guidance from the Care Provider Commissioning and Quality Board, to help them improve, and where this is not possible to have a planned exit strategy.
Where there is a planned strategy, good practice will require that the processes of this policy continue to be followed, but it should be recognised that the duties on the Council are only for those people it currently supports. The Council recognises its safeguarding duties for vulnerable people.
Regulated care providers registered in Somerset are responsible for informing the Local Authority in the event of a planned or unplanned closure.
In the event of a planned closure, the provider must give the Local Authority a minimum of 6-months’ notice before the planned closure date.
All regulated care providers are required to maintain business continuity plans that should be regularly reviewed.
The aim of this policy is to ensure the care and support needs of all service users can continue to be met in the event of an immediate business failure by a regulated care provider in Somerset. It details what to do and who is responsible to make sure people are safely transferred to replacement and appropriate services.
The types of failure covered in the plan include imminent closure or cessation of a services; cancellation of registration through a Care Quality Commission (CQC) enforcement action; immediate closure caused by fire or flood for example.
- To outline the trigger criteria to activate the response plan;
- To establish appropriate response teams following the notification of a business failure;
- To set out the roles and responsibilities of those detailed in the plan;
- To describe communications in terms of notification and on-going working;
- To set out the contingency measures that will guide the incident response;
- To provide a key contact list that can be referred to in the event of an incident occurring
2. Policy activation
The following individuals have responsibility for activating this policy:
- Director of Adults Services
- Deputy Director – Operations / Deputy Director – Commissioning
- Strategic Manager – Quality and Performance
- Service Manager – Quality Assurance
A Quality Assurance Team lead will be identified to ensure this policy is followed and the following undertaken:
- Convene a provider failure response meeting following a business failure notification being received
- Devise an action plan and allocate tasks / duties
- Set clear timescales for activity
- Seek legal advice as / where required
- Keep Directors and senior managers fully briefed
- Ensure all meetings and decisions are recorded for audit and assurance purposes.
A dedicated team of operational staff and a lead manager will be identified, including input from the NHS and Business Support as necessary to be responsible for:
- All care and support decision making
- Ensuring all identified care and support needs are appropriately met
- Communicating with individual service users and families
- Ensuring advocacy support is available
- Implementing the business failure checklist.
- Once a business failure notification has been received, the Quality Assurance team lead will call a business failure planning meeting promptly after the council is made aware of the business failure. All nominated officers will attend the planning meeting as a priority. This may include representatives of the Care Provider Commissioning and Quality Board.
- The regulated care provider will be asked to supply the Council with a copy of an up-to-date service user resident’s grid (see appendix 1) within 24 hours.
- The Quality Assurance lead will ensure that all funding authorities are promptly identified and informed of the provider business failure.
We recognises that a range of contingency responses maybe needed – this may include the following:
- The Response Team will actively engage other funding authorities to effectively co-ordinate and support the closure process.
- If market capacity is available, the Response Team may opt to re-provide services either in full or in part through existing contractual provision and assist self-funding service users in procuring alternate services from available provision.
- Liaison with the Local Authority’s Sourcing Care Service to identify and prioritise existing vacancies and capacity in the county.
- Accessible care provider lists will be available for the Incident planning meeting (to be compiled by the Sourcing Care Service and Procurement Teams)
- Where there is limited or no market capacity available, the Local Authority will aim to prevent the provider from closing by providing short-term business or financial support to ensure that the service closes in a planned and managed way, for example, by asking another provider to provide short-term business support.
- We will ensure that the individual’s needs that were being met before the business failure will continue to be met, though this may not be by the in the same way.
- Wherever possible Care Home resident friendships and/or relationships will be taken into account when sourcing alternative accommodation.
- We recognise that it is important to be clear as to the reasons for the business failure. Consequently, good communication will be essential, particularly for services users and their families / advocates who will require reassurance and information on any proposed business continuity plans. Equally, staff teams may be crucial in ensuring continuity of care is maintained and will equally need to be kept informed throughout the process. We will liaise and meet with service users / relatives / the CQC / and others as appropriate
3. Business Closure/Failure Checklist
- What is the timeframe? When is the closure date?
- How many people are impacted (service users and carers)?
- Who are the key stakeholders to involve?
The nominated Quality Assurance Team lead, in liaison with the Locality Operations Manager, will:
- schedule regular multi-agency meetings of the involved organisations and key stakeholders to agree roles, responsibiltiies and key actions, as well as timescales and communications across the closure period.
- establish any time commitments or planed absences, and identify the need for any delegation with the Locality Operations Manager.
- Consider using business support staff to help coordinate all written communication; they will be the information officers and must ensure effective version control is used for all communication.
- identify and utilise a core group of practitioners to work with the residents/service users and their families.
- Ask the provider to provide details of all their residents/service users, including next of kin and funding arrangements. If a Care Home, information should also be provided on any individuals attending day care, in receipt of meals supplied by the Home, or with short breaks planned.
- Ask the Sourcing Care Service to identify alternative available capacity or provision in the county.
- Establish a clear message for all involved stakeholders about why the action is being taken
- Consider the effect and impact on all care provider staff time and activity (including management, carers, domestics, catering) to maintain safe levels of operation through the process.
- Consider the need to commission additional or interim provision to support with care delivery.
- Risk assess utilities to ensure they remain fully available until planned closure.
Service users / residents
- Consider need to bring in another provider.
- Establish a resident/service user grid to include relevant funding authorities (both LA and NHS). Establish on the grid a risk assessment for each individual. Update the grid and risks on a regular basis and make available to key stakeholders.
- For domiciliary care, ensure all clients (LA/CHC/Private/Direct Payments) are captured on the grid, so no one is missed or inadvertantly put at risk. Ensure there is a double checking process in place.
- For Care Homes, consider placing a poster in the Reception area with brief details of what is happening, along with names/phone numbers of key contacts for residents / families to use should they wish.
- Ensure customers understand what is happening and why; consider who is best placed to tell them and how, having regard to capacity.
- Consider and engage advocacy support as required.
- Establish whether Best Interests decisions are required for any one. Consider whether an IMCA needs to be involved.
- Take into account any DoLS and ensure arrangements are put in place for the receiving provider. Take advice from the MCA and DoLS team as required.
- Review care needs and prepare up to date assessments. Consider the involvement of others as required (eg. District Nurses, CPNs, OTs).
- Identify and agree responsibility for meeting equipment needs, ensuring anything they need is in place with the receiving provider.
- Request the provider to supply an inventory of outstanding equipment and arrange for collection by Millbrook.
- Identify new placements/provision, taking into account bed availability, staffing, and service user/resident/family wishes alongside the context and urgency. Consider existing friendships / relationships between residents.
- Agree the minimum level of documentation required with the identified receiving provider.
- Ensure medicines are up to date and in sufficient quantity to support transfer. Ensure arrangements are in place for any controlled drugs and share with receiving provider.
- Ensure arrangements are in place for identification of individual property and packing. Agree how personal belongings will be transferred.
- Assess transport needs (for example, ambulance and stretcher needed, taxi with wheelchair access). Agree transport arrangements between stakeholders.
- Ensure any remaining residents or clients continue to be supported until they move or their provision changes. Ensure no resident becomes socially isolated. Ensure no resident remains alone on their own within the home (the last two should both leave on the same day).
- Arrange for a follow up review as soon as possible after transfer with operational social care colleagues.
- Agree with stakeholders any further standard review follow up.
- Relatives: Tell them what is happening (including advocacy support). Arrange a face to face relatives meeting to include provider, SCC, CQC and any other key stakeholders as appropriate (eg NHS colleagues)
- Press: Inform the LA Communications Team of developments and plans, and consider similar for CHC/NHS and or/provider. Prepare a statement and agree with the comms team how any media enquiries will be responded to.
- CQC: Establish clear lines of communication and engagement with the regulator. Consider the need for the involvement of an inspector as required.
- Health: Liaise with NHS colleagues (eg CHC) including senior managers as required. Complete joint assessments with District Nurses; ensure Primary Care/GPs are alerted to the planned closure. Consider transfer of notes to new GPs.
- Local Authority/Service comms: Alert the Commissioning and Quality Board of developments and advise the ASC Senior Management Team (particularly where there are issues of high risk or affecting organisational reputation). Consider what the Emergency Duty Team need to know. Alert Somerset Direct (Call Centre) and consider need for a ‘script’ to support any enquiries they may receive. Ensure involved ASC staff are routinely updated.
- Elected Members / Politicians: Alert the Cabinet Member for Adult Social Care as well as any local councillors or MPs for the area of Somerset affected; complete an Elected Member briefing.
- Receiving providers
- Utility companies
- Placing authorities: Ensure timely engagement with placing authorities (including CHC/FNC) re plans and timescales. Ensure reviews are undertaken of their funded individuals.
- Finance: Establish funding authorities as part of resident/service user grid (both LA/NHS FNC/CHC). Ensure communication re assessments and transfer arrangements/new destinations to support finance team oversight.
- Other relevant individuals: Consider who else has links to the home or service: what information or support may they need (eg volunteers, micro providers, village or community agents)
- Interim management arrangements: Confirm staffing cover required, as well as costs and invoicing arrangements. Consider need for any interim provider to re-assess customer needs and put in place daily care plans.
Provider failure in another local authority area
In the event of the Local Authority being notified by another LA of a regulated provider business failure in their area, and where we have individuals placed out of area, identify and allocate operational team support to help Council-funded individuals to move to suitable alternative provision as part of the closure process. Please also refer to: Advice note – commissioning out of area care and support services (local.gov.uk) for good practice in out of area commissioning arrangements.
Additional considerations during COVID-19 pandemic
It is important you understand the COVID-19 outbreak status of the regulated provider setting, including current health status of all residents and/or service users as part of resident grid activty. Determine provider staffing situation / absence linked to COVID. Determine PPE requirements to ensure adequate infection, prevention and control as part of any coordinated response activity. Liaise with Public Health and IPC team/s as required as part of process.
4. Policy review
This policy and process was reviewed for accuracy in May 2022.
It will be reviewed on at least an annual basis via the LA Quality Assurance Team or as/when any legislative or relevant changes impact on provision and response.