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Written Statement -  Update on Provider Failure and Oversight of the Social Care Market

Gwenda Thomas, Deputy Minister for Social Services

Assembly Members will be aware of the issues raised last year as a result of the collapse of the then residential care home provider Southern Cross Healthcare. Having now reflected on those events I wish to update Members on my planned actions to address social care provider failure and to enhance the oversight of the social care market in Wales.

One of the clear messages from the collapse of Southern Cross was the imperative to ensure those residents affected were found alternative care to meet their every day needs. As provider failure often occurs with little notice this has to be done as quickly as possible. This reinforces the need for statutory bodies to take ownership for arranging alternative care and hence for it to be clear who this should be and what their responsibilities are in undertaking this.
      
Following discussions between the UK Government and the Devolved Governments, Members will be aware that the recently introduced Care Bill into Parliament includes provisions which place new duties on local authorities in England in the event of social care provider failure. In instances where a care home provider fails a local authority will have a duty to provide for the immediate care needs of all those in a care home affected within its area. This would include instances where other local authorities had placed them there cross-county, or local authorities from Wales had placed them there cross-border. It would also apply if a person had arranged their care themselves (ie a self funder), albeit this duty would only apply if the self funder was content for the local authority to arrange their immediate care. These provisions also place a duty on a local authority in Wales to do the same for any English residents who had been placed cross-border into a care home in its area which fails. At an appropriate point responsibility for the commissioning of a person’s care long term would revert back to their original commissioning authority to provide permanent arrangements to meet their care needs.

To ensure local authorities who arrange immediate care do not incur additional costs the Care Bill provides for an English, or a Welsh, local authority to recover the costs of providing accommodation and care from the original commissioning local authority in instances where a cross-border placement had taken place. Where the local authority has incurred costs in meeting needs which were being met otherwise than by the provision of accommodation and care, the local authority is able to recover those costs from the adult themselves.

I view these new duties as a key component in safeguarding vulnerable service users affected by social care provider failure. I did, therefore, table on 23 May a Legislative Consent Motion in the National Assembly in support of these duties in the Care Bill impacting upon Wales. This signals my commitment to seeing all those in residential care in Wales affected by social care provider failure equally protected in this way to ensure their immediate care needs are met in those unfortunate circumstances.

It is, therefore, my intention to bring forward amendments to our Social Services and Well-being (Wales) Bill to complement the provisions in the Care Bill. These would place a similar duty on local authorities in Wales to cater for the immediate care needs of all those in a care home in their area which fails, including those placed there cross-county by other Welsh authorities and self funders (where they are content for the local authority to do this). It would also allow authorities who arrange immediate care to recover the cost of arranging this from the original commissioning local authority, or in the case of a self funder who had agreed for the local authority to do this, from the self funder themselves. We are also in negotiation with the Scottish and Northern Irish Devolved Governments to ensure that reciprocal arrangements with those countries can be agreed. This is with the intention that between such arrangements, the provisions in the Care Bill and the amendments to our Bill, all those in a care home in the UK affected by provider failure would be protected by having the immediate care needs met until longer term arrangements for their care can be put in place.

These arrangements would enhance the protections afforded to care home residents where concerns are raised over providers, or where homes are closing. Statutory guidance on that, “Escalating Concerns With, and Closures of, Care Homes for Adults”, was issued in 2009 to local authorities. It provides clarity to them and to other involved statutory bodies of their responsibilities and functions when handling serious concerns, and accumulating issues relating to, the operation of and/or quality of care in a care home. Escalating Concerns has been applied effectively since its introduction. However to ensure it remains fit for purpose, has strengthened safeguarding and protection provisions and is effective in handling situations such as provider failure, I have established a Task Group to review the Guidance. This is being chaired by the Older People’s Commissioner and I have asked the Group to produce supplementary guidance on care home closures in support of Escalating Concerns. It has now agreed its terms of reference and work programme and plans to report later this year.  

One of the other key messages from the collapse of Southern Cross was the need to not only ensure that those operating in the sector are fit to do so, but also of ensuring that where providers run into difficulties they have robust plans to deal with this. It is, therefore, just as important for regulators of social care providers to be clearly sighted on providers’ ability to provide sustained quality care, as it is to respond quickly and effectively to the immediate consequences of provider failure. There is a need to review and enhance our regulation of the sector.

We are already committed to issuing a White Paper on the future of regulation and inspection of social care in Wales and to subsequently bringing forward legislation should this be required to deliver our goals. This presents us with the golden opportunity we require to address this oversight of the social care market and to consider what enhancement of our current arrangements for regulation and inspection of providers would be necessary. The White Paper will set out the options for strengthening the regulation of care services and settings, particularly the financial regulation of providers, and how we plan to take this agenda forward. It will consider the future model regulation should take and the enforcement powers that should be available to Welsh Ministers.  Provisions around the registration of large, corporate providers and mechanisms for handling instances of provider failure, including financial failure, will form part of these considerations. Engagement with key stakeholders on the formulation of our White Paper is currently in progress and it is my intention to publish this in September   I will make further information available on this in due course.

Through these range of actions I plan to learn the lessons of Southern Cross by not only improving the way in which local authorities and others deal with the immediate after effects of social care provider failure, but of also putting in place an enhanced process of regulation for the future to ensure that only those who can provide sustained quality services are allowed to operate in the sector in the first place.