Home care providers, who have had fees slashed, warned “only to take court action as last resort”

Cash-strapped local authorities all over the country have been slashing their fees to home care providers and some are considering going down the same road as care home providers and challenging them in court.

However, Colin Angel, policy director for United Kingdom Homecare Association (UKHCA) which represents home care providers, warns providers to only “consider using the courts as a very last resort” and says: “You will need around £180,000 in your pocket and the courts will look at council processes not fees.”

Mr Angel says: “We want providers to engage with their local councils and be proactive in alerting the council to costs and potential risks to quality and safety.”

However he is urging home care providers not to accept the low fees offered by local authorities. “The pressure from cash-strapped councils to slash prices is becoming overwhelming, but I want to make a plea to all home care providers. Please don’t submit or agree unrealistic prices just so you can retain council work. It is a short-term strategy that is not sustainable.”

“Unfortunately” Trevor Brocklebank, chief executive of Home Instead Senior Care, says “there will always be companies who accept the rate cuts and therefore will be forced into providing inadequate care by cutting corners. I think the size of the contract clouds their vision and they persuade themselves that the volume of work means it’s worth taking on the contract – but it doesn’t work like that.

“If companies take on work at unsustainable rates it’s a downward spiral and will often lead to them going out of business. That doesn’t help anyone. As a sector we need to find different and more innovative ways to improve the service provided.” Mr Brocklebank also believes that taking local authorities to court is inadvisable. “It would take a long time and be extremely expensive. Only the largest providers would be able to do this and the needs of the sector would be better served by them spending their time on reinventing their business,” he says.

Mr Angel would like to see “home care providers who have not done so thinking urgently about developing their private care business, to avoid relying too heavily on local authority fees, which are unlikely to improve in coming years”.

He adds: “Outsourced home care is half the price of local authority in-house services yet we are seeing a strong downward pressure on the price local authorities will pay for care, which may have a direct impact on the workforce, and the experience of people who use services. Providers are worried by shorter visits – we’re seeing more than three-quarters of calls in England being commissioned at less than 30 minutes. Costs are being pushed as low as they can go, and many home care providers would say they are being pushed too far. Ultimately it’s a political question what value society, national and local government place on the care of vulnerable and disabled people,” he adds.

A number of care home providers have actually taken the decision to challenge low fees and although they have had victories, it has been a lengthy and expensive process.

There have been judicial reviews in Pembrokeshire, Sefton and Leicestershire with the High Court ruling in favour of the care home providers.

However Neath Port Talbot County Borough Council in Wales managed to successfully defend a High Court challenge to the rates it set for care home providers for 2011/12.

While Devon care homes are still battling with Devon County Council after going to the High Court over the issue. The High Court ruled that the county council failed to discharge the public sector equality duty when setting fees payable to care home providers. The Equality and Human Rights Commission welcomed the decision but the county council is now appealing against the ruling. Devon County Council has announced it is taking a stand “on behalf of all local authorities”.

Ros Altmann, director-general of Saga, the largest home care provider in the UK called the cases and judgments “individual victories” and says “they are also precedents for other claims and challenges.”

She is concerned that with the Government still failing to act on social care funding that we will see more of these “costly and time-consuming claims and challenges”.

She adds: “The local authorities have been forced into this position because of cutbacks and austerity measures – they are in a very difficult position; but the victims are the people who are least able to fend for themselves.”

The UKCHA is doing its utmost to campaign on this issue and last November warned councils that while judicial reviews against commissioners have so far been mounted by care home providers, authorities must also consider the implications of their commissioning decisions for domiciliary care providers.

It has also developed a new ‘costing’ model so providers can demonstrate their costs to the local councils. It is hoped that the ‘costing’ model, which can be found on the UKHCA website, will improve the dialogue between home care providers and commissioners.

In the UKHCA National Commissioning Survey held last year, nearly three-quarters (74 per cent) of providers said that, over the last twelve months, the councils they traded with had become more interested in securing a low price over the quality of service delivered.

Thirty-four per cent of providers reported concerns that their councils required them to undertake personal care in such short visit times that the dignity of service users was at risk, including six per cent who were concerned that safety could also be compromised.

“Our findings suggest that nine in every 10 providers received a real-terms decrease in the fees paid by their council for their existing business during the financial year 2011-12, effectively creating a saving for councils at the expense of people receiving home care. Over three-quarters (77 per cent) of providers received no price increase. And 15 per cent reported actual price decreases,” reveals Mr Angel of the UKHCA.

The Equality and Human Rights Commission is currently carrying out a review of how local authorities commission their home care services following an inquiry into the provision of care to older and disabled people in their own homes.

It is producing guidance on commissioning home care in accordance with human rights principles for local authorities in the Spring. Home Instead’s Mr Brocklebank has called the EHRC commission review “good news” as it is helping to outline the way forward, not only for commissioners of care but also to the service user.

He says: “Many people currently simply have to accept the care they get and a number of local authorities are creating barriers or misinform service users about direct payments and other personalised options. For example, companies such as mine don’t enter in to block contracts and some authorities then will not include us on their list of care options providers – despite the fact that we have CQC approval and provide a multi award-winning service.

“The EHRC review will lead to a better understanding by the end user of what they are entitled to, what the options are, then they can demand more. It will probably also help to educate those responsible for commissioning care. Overall the review is good news but it is not an overnight solution or a quick fix. If commissioners have their responsibility outlined in clear terms through this guidance, good quality care should become the priority – not just choosing care by the lowest bidder.”