Feature

posted 23 Mar 2001 in Volume 6 Issue 3

Closure of Care Homes - Will choice be an option in the future?

The views expressed in this article represent the personal opinion of the author.

Recent publicity confirms evidence already in existence that for many clients the choice of residential or nursing home accommodation may well be a non- existent option or at the very least choice will be severely restricted.

The implementation of the Care Standards Act 2000 is in general a welcome introduction to the Statute Book in that for the first time national standards are to be introduced instead of the ad hoc arrangements operating at present. This should eliminate some of the huge variations in the quality of care supplied and should produce more consistent standards throughout England and Wales. Furthermore local authority homes will, for the first time, be subject to the same inspection regime.

In addition the inspection authorities will be independent of both Social Services and Health Authorities so that there will be further uniformity in approach instead of the enormous variations which exist at present. The changes will be phased in after 2002.

The changes to be introduced will have considerable impact upon service provision that is already diminishing in availability. The regional Care Standards Commissions are already set up and staff and independent Boards to manage them were brought in last year. Details of the Commission and the areas are available on www.doh.gov.uk/ncsc.

In addition, assistance on choice and issues in relation to care homes can be found at www.doh.gov.uk/carehome/carehome.htm

Why is service provision declining?

As we have reported in previous issues of ECA, the number of places available for residential and nursing care is already falling steadily. Since the heyday of the 1980s when anyone could elect to go into residential or nursing care and could be funded by state benefits the position has changed radically. The National Health Service and Community Care Act 1990 had considerable impact by making the local authorities the gatekeepers of the funds. Since then the placement and funding of places has, in most cases, been subject to the assessment procedures under s47 of the NHSCCA for residents/patients supported by the local/health authority and the state. This assessment procedure is also rightly recommended as good sense for self-funding clients.

For all but the most affluent who are able to fund their own care indefinitely or who have made provision via long term care insurance for whom there will be no problem and where criteria are not an issue the difficulty may be in finding a vacancy in the home of their choice. Even the affluent self -funder may have difficulty as the number of places continues to decline.

For others who are not so fortunate or who may only be self funding for a limited time the problems are more complex. Residents failing to meet the relevant criteria will not qualify to receive state assistance and even those who are able to self-fund are wise to be assessed for eligibility to cover the contingency that funds might run out at some point. Nevertheless the numbers of residents faced with selling their home to meet care home costs has remained remarkably consistent at 6% or 40,000. Two other factors have proved, in the longer term, to be of greater significance, namely the change in philosophy of social service’s departments (SSD’s) in keeping people in their own homes with support rather than immediately resorting to long term residential or nursing care and also the rigid fee structure which SSD’s have implemented in relation to such placements.

The consequence has been all too clear – empty beds and financial non-viability for many of the smaller providers has meant that they have gradually been forced to face closure. The effect for clients is logically fewer places to choose from and to some extent therefore the negation of the Choice of Accommodation Directions. Moreover in some areas where beds are already at a premium this will have the effect of intensifying the problem. There are already significant difficulties in some areas in finding specialist beds for high dependency residents and for those with dementia and other mental health problems. The future as we face an increase in the numbers who may need long term care is therefore bleak .The pressure on providers is increasing at a time when available resources are limited particularly as SSD’s struggle with budgetary constraints.

In the circumstances that have evolved, the likelihood of discriminatory treatment of privately funded clients increases. It is quite possible that clients may face far higher charges for the same service than their publicly funded fellow residents. Not surprisingly there is some resentment from residents where this two tier system is evolving. This may have knock-on effects for families who see their “inheritance“ under threat from higher fees for privately funded placements. For practitioners these developments highlight a number of issues in the advice which they give on long term care.

For those who run out of funds and who are already in residence there may be little or no alternative but to move to a less expensive home if their current place is outside the existing fee structure of the SSD unless they can find a means of topping up their fees to stay where they are. Many SSD’s are flagging this up and they have already had this policy imposed on them by their social services committee however uncomfortable they are with this policy. The SSD’s are accountable to their members and the district auditor and the audit commission.

Topping up by a third party to ensure continued residence in the home may not always be possible as there may be no family to assist or they may be unable to do so and there may be no charitable or other resources available

Eviction of frail elderly people may be distasteful but there may be no alternative. Equally finding another bed for someone who is frailer and who may also have significantly greater needs is likely to be difficult. Existing placements already indicate that many of those entering care are already much frailer than those doing so some 5-10 years ago. Equally specialist beds and in particular those for the elderly mentally infirm are already at a premium. Placement may be difficult because of the scarcity of such beds

For frailer clients there is an additional issue - they might feel they should be in nursing care but under the banding system may find themselves placed in a high dependency residential bed instead. This increases the level of costs for the home-owner who needs to supply the services to the resident in order to comply with registration requirements. However, where the client is now to be funded by the SSD such increased costswill, in general, exceed the LA limit. It may also mean the client remaining in a home which is not necessarily ideal for them and which may not really be geared up for this type of resident. Reviews and reassessments are frequently taking significantly longer to be undertaken - in some cases up to six months and this not only raises legal problems for the SSD but also for the home owner. This issue is a problem for LA’s and gives rise to a substantial number of complaints to the Local Government Ombudsman.

What else can happen?

Many homeowners are flagging up significant financial problems with the rise in the minimum wage and the knock on effect this will have on their financial situation in the future. In addition, changes to the tax structure for working mothers may also cause problems and increased administrative work, which will further stretch resources. The requirements of the European Working Time Directive also contribute to the rising costs for running care homes.

Requirements to employ more highly qualified staff also loom as well as the need to offer further training to staff to raise the overall levels of care. Staffing issues are already a well established issue in the closure of homes under the existing regulatory procedures.

Practitioners may need to be alert to the long-term viability of the home - this can be raised by enquiry and also by looking at inspection reports.

Changes in ownership are recognised as a major cause of concern to residents as the whole ambience of the home and hence their lifestyle can change.

Closure for financial reasons can be distressing for residents particularly where the home remains open after the Receivers have been called in. It can make the future look very unsettled for residents and that in turn can accelerate the exodus, increase problems over viability ad infinitum.

One impact of the Care Standards Act 2000 which is raised in the regulatory framework set out in the new National Standards - Care homes for older people - National Minimum Standards is that many establishments both in the private and public sectors will be unable to meet the new stipulations on room size and general facilities. Residents may therefore face closure of the home thus putting further pressure on an already contracting system not only for new residents but also to rehome those displaced on closure. It is already an issue when homes are closed under existing regulatory procedures exercised under the Registered Homes Act 1984 and urgent placements have to be found. If a home for 30 residents closes for any reason and especially if it is a case of urgent closure under the Registered Homes Act then the distress for residents is considerable and finding a new placement may be problematical.

Closure of care homes by local authorities and health authorities in relation to their own provision has already been before the Courts in relation to lack of consultation- see R v NE Devon Health Authority ex parte Coughlan 2CCLR 285 CA 1999; R v Wandsworth LBC ex parte Beckwith1 All E R 129 1996.

These established cases all highlight that local authorities and health authorities are under a duty to consult on the closure of their premises but this does not apply to private homes.

The effect of the new minimum standards will therefore have considerable effect and will reduce service provision further Luke Clements in Community Care and the Law 2^nd edition identifies a 25% reduction in beds for the period 1990-95 and a 30% reduction in NHS continuing care beds between 1983 and 1993.

What will become therefore of the duty imposed on LA’s under ss 21 and 26 of the National Assistance Act 1948?

What too of the impact of the Human Rights Act 1998 and the European Convention of Human Rights? Article 2 requires each state to protect the right to life and that requires appropriate steps to be taken – What of relocation then? Successfully argued in the Coughlan case was the right under Article 8 of the 1998 Act to enjoy the privacy of her home. Closure amounted to interference to that right. All in all there is potential for considerable challenge in future as homes close or are closed. And violations of the Act come to the fore.

The new standards in themselves whilst broadly welcomed have potential for concern as they impact in phased stages. The National Care Standards Commission will determine whether such care homes provide for and meet the needs of residents as well as securing their welfare and social inclusion.

Practitioners can expect to be much more involved in the assessment process and in viewing and negotiating contracts for their clients See New.Standards 3 and 4.

Meeting the needs of residents is already a key issue within the regulatory framework. Homes are now advised not to take residents for whose relevant category they are not registered, they should not, and this is made clear in the new standards, take residents whose needs they cannot meet. For those being discharged from hospital this can have a detrimental effect in that they are unable to be placed for want of a suitable placement. The longer-term effect for the health authority is for bed blocking to occur which will affect the public at large.

Many problems over care home contracts and the management of residents’ financial affairs could be avoided by early input from practitioners. This is an opportunity to develop work when advising older clients. Flagging up these issues is not only providing a service but adding value for the client and their family.

The new standards will require homes to have statements about what is to be provided and what is chargeable. This should happen now but frequently does not. Moving into residential or nursing care is a major step and so should automatically bring with it the need to consult professional advisers to make sure the package is right. Negotiation may be with social services, the health authority, the homeowner – it should always, where possible, be with financial advice. Professional fees at this stage may represent a substantial saving in the longer term in terms of fees for care, accessing relevant state benefits and avoiding contractual problems at a later stage e.g.- what is the situation over fees payable on death or departure from the home? What services are provided for the fees? These are just two issues to consider.

There is often more than one way to solve a problem and secure a placement or package of care so discussion and dissemination of information is extremely important.

Closure of care homes under the regulatory procedure is distressing for proprietors, residents and their families alike. This is particularly the case for emergency procedures, implemented for serious breaches of the Registered Homes Act 1984. The circumstances are often very serious for both the owners and residents alike. Instant closure is not a lightly taken step for any regulator and often occurs after long and thorough investigation. Careful checks of inspection reports can and should highlight potential problems. They are not however watertight as circumstances within homes can and do change.

Where circumstances do not require immediate closure nevertheless protracted investigation and ultimately prosecution is also distressing and raises the similar problem of finding somewhere new. This will not be easy as pressure on places grows through the demographic changes which are occurring.

So what happens next?

Clearly the effect of the new standards has yet to be felt, however there is no doubt that major problems are looming as providers in all sectors face change. Moreover the present position over funding remains uncertain in light of the variations in provision north and south of the border. The implementation of the Royal Commission on Long Term Care remains uncertain. Employment and tax legislation complicate the situation. Specialist care is becoming scarcer. Health care waiting lists are growing. Social Services struggle with underfunding. Age discrimination in relation to services in some regions is apparent. Is there hope for the future? Hopefully the answer is yes as higher standards do begin to bite and produce a better level of care. Also as greater awareness makes for forward thinking and addressing the issues at an early stage as well as taking proper advice.

Useful websites -

Help the Aged: www.helptheaged.org.uk
Age Concern: www.ace.org.uk
Alzheimer’s Society: www.alzheimers.org.uk
DoH: www.doh.gov.uk
SFE: www.solicitorsfortheelderly.com
NHFA: www.nhfa.co.uk

Anne Edis Solicitor and Freelance Consultant EdisAnne@Aol.com
Tel/Fax 01733 267 388