Care in the Community Safe or Not? - Elderly Client Adviser

Feature

posted 13 Feb 2000 in Volume 5 Issue 3

Care in the Community

Safe or Not?

It is now social services policy to keep people in their homes for as long as possible under the care in the community regime that was brought in by the NHS and Community Care Act 1990, and in Surrey the NHS have set up a home support system so that elderly people do not have to go into hospital unless absolutely necessary. Instead a team of professionals and carers helps to rehabilitate the person, and this may or may not include long-term care at home.

Consequently there is now a proliferation of care agencies in the Surrey area.

I have been notified by a colleague of a case where a care agency has provided him with a contract for the care of one of his clients for whom he holds a power of attorney. There is no family to consult so he is solely responsible for the financial affairs of his client, an elderly lady in her 90s.

He found that the contract was one in which the agency agreed to provide carers at a commission - but those carers were deemed to be self employed. The wording is set out in full below:

'The Employment Business is responsible for the payment of all remuneration due to the care Assistant and for the deduction of National Insurance contributions and PAYE as required by law.

' The Care Assistant is neither the Client' s employee nor that of the employment business but is engaged by the Employment Business as a self-employed person to provide services to the Client' .

How would this impact on his client if the carer inflicted a personal injury? Imagine scalding the client in a too-hot bath. Or stole valuable items?

The agency confirmed that they were insured for one million pounds but did not know whether their 'self-employed' carers carried insurance. It would seem highly unlikely that such carers would, bearing in mind the low rates paid to them. The agency had not addressed the point about negligence on the part of the carer.

If a claim arose, who could be sued? It might be possible to show that, despite the contract, the carers were employed by the agency; they were paid under the PAYE system, were not given choice of place of work (although some flexibility in the timing of what they did was negotiated) and the contract mentioned holiday pay. The agency organised the time the carers spent, and monitored the work done. Under Revenue law the carers would be deemed to be employed so a claim against their 'employers' , the agency, might be upheld, but this could involve the Solicitor in lengthy negotiations or initial court action to establish who was liable before issuing proceedings - for a client who was living on borrowed time.

On the other hand could the attorney-solicitor take a further view and ask the agency if the contract could be changed because of the vulnerability of the elderly client?

For example nursing home agreements can quite often be changed be negotiation, especially the invidious clause about giving one month's notice 'in the event of leaving either through illness or death' (as I have seen in several contracts). Most homes will change this notice period especially 'on death' when it is pointed out to them that most people cannot foretell their own demise.

Could a complaint be made to the Social Services? If they are recommending care packages, should they aware of the possibility of claims against uninsured workers?

It is suggested that the contract with the agency be changed if at all possible to say that the solicitor-attorney would only agree to the agency itself being fully responsible for the claims against themselves or their employees, and suggest that such care staff be deemed to be employed by them.

There is another point about this: If the agency is to be sued - is one million pounds enough?

My colleague has taken a pragmatic view about his client - she is after all in her 90s and if something did happen where he might find himself having to sue, he would go for the agency which had signed the agreement with him. It might then try to join the carer as a defendant. If this were successful, one would have to ask: how many care agencies would keep their 'self employed' staff if it became known that they could be sued?

The contractual condition below is even more invidious:

'The Employment Business strongly advises that, before the Assignment begins, the Client ensures that she/he holds household insurance which includes public liability cover. The reason for this is that the Client will be liable for loss to the Care Assistant and/or the Employment Business arising under the Occupiers Liability Act 1957 (as amended).'

Is this another form of abuse for elderly persons that we as lawyers should be campaigning against? Such contracts would seem to be heavily weighted against the older person - at a time when they may be at their most vulnerable.

In the proposed Care Standards Bill which is being proposed domiciliary care services are deliberately excluded. Registration is imposed by local social services department only if thought appropriate.

Another point which is obvious from this article is that we as advisers to the elderly do not just need trust, probate and wills experience with a slice of land law and conveyancing: we should be considering employment law, contract law, personal injury law, and revenue law.

Jennifer Margrave

Editors Note:

Since January this year agencies providing home care services have been required to employ their care workers and to charge VAT on employers' and employees' costs.

Care providers have expressed concern about the increase in costs, but the Government has dismissed as exaggerated their claims that there could be a 60% rise. It is anticipated that some "cowboy operators" will flout the new regulations .