Post on 15-Jan-2016
Keith M Lewin
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Keith M Lewin
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Partner and co-founder Brunswicks LLP
Specialising in representing social care providers
Whole time for 11 years, part time for 30 yrs
Advisor to Action on Elder Abuse 2005-7
Trustee Action on Elder Abuse 2007 to date
Editor Brunswicks’ Healthcare Review 2005 to date
Brunswicks LLP 56 Hamilton Square, Birkenhead, CH41 5AS keith.lewin@brunswicks.eu 08455 190 695 07779 128 599 07855 855 588 – 24 hours, 365 days
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keith.lewin@brunswicks.eu
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Background – care home owner, manger, former care worker, social worker, etc. ?
Experience – all Learning Disability providers ?
Your service – care homes, domiciliary, etc.
What do you want from this presentation ?
Availability of these slides ? Future contact...
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Introduction
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Needs Assessment
Financial Assessment (already done…)
Criteria for assistance
Council must arrange care, if no one else
Does SU have ‘capacity’ to make decisions ?
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Council should give SU copy of:
◦ Needs Assessment
◦ Care Plan – setting outcomes identified by Needs Assessment
◦ Named person responsible for implementation
◦ Review date
◦ Agree ? Sign & date
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Councils promoting:
◦Direct payments◦Independent living◦Choice ???
◦Reduced use of care homes…
◦Have referrals to your service fallen ?
◦Is it time to remodel your service ?
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S 11 Disabled Persons (Services, Consultation and Representation) Act 1986
DH 14th Report to Parliament - forgot for 7 yrs
Vision –◦ Empower people to live independently◦ Offer safe/effective care when & where needed◦ Empower choices◦ Tackling inequality
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Choice of accommodation directions (1992) W.e.f. 09.11.2009 direct pmnts to people who
lack capacity
New… Learning disability: transfer of funding and
commissioning of social care for adult with LD from NHS to local government – consultation◦Closed 06.10.2010
Spending Review today!
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What does resident really want?
Choice of accommodation directions (1992)
Family ?
MPs, Councillors ?
Costs… you’re too expensive! Are you, really ?
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Is the SU capacitated ?
If not, any removal without applying MCA 2005 is unlawful
Role of IMCA
Role of Court of Protection – G v E & others
Kidnapping !
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GJ v The Foundation Trust , The PCT & The Sec of State for Health, 2009
Ct of Protection has power to grant Order to authorise removal of incapacitated adult from domestic premises to be taken to care home or elsewhere if in best interests.
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G v E & A Local Authority & F - March 2010
Facts – young man lived with carer, called her ‘mum’. LD + very challenging behaviour.
LA concerned carer might be physically violent towards him.
Pleaded at school not to be shut in wardrobe. Safeguarding investigation – inconclusive Nevertheless LA ‘kidnapped’ and placed him in
supported housing!
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10 issues in case from question of capacity to did LA have to prepare for E to return home!
Key Learning Disability issues:
◦Supported housing may result in deprivation of liberty
◦ Ct of Protection should be asked for order before removal from ‘family home’
◦Engage with carers to guard against Article 8 infringm
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Key issues continued:
◦Maintain contact with ‘family’
◦ ‘Family’ may well include unrelated carers with whom strong emotional bond
◦Some supported housing projects should be registered as care homes
◦Hearsay of ‘incompetent’ witnesses are admissible in Ct of Protection
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Fee
Negotiators?
If a council asked for financial info… would you provide it?
If a business said they were appointed by the council..?
If a competitor asked for detailed financial info, what then?
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Philosophical view…Should council be interested:
◦in the cost of toilet rolls◦Services and supplies◦Consumables
Argument – ‘seeking value for money’ - ‘protecting public funds’
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Philosophical view…
Private providers of all kinds – charitable, not-for-profit and for profit organisations from owner/managed businesses to the large national providers do it cheaper than councils
Older care costs - £200/£300 a week more!
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If the sector provides it cheaper why put you through such a process ?
Commissioner could simply compare prices
This is not yet a nationalised industry, but getting close… you take the risks with your capital
Alternative view-point… ‘open book’
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Typically seek to ‘persuade’ provider to complete an Excel spreadsheet
Review and salami-slice expenditure
Assert 4-6% return on profit is appropriate
Laing & Buisson – 12 to 14% older services
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Request, persuade…
Untruthful
Brow-beat/bully
threaten
Slash fees
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First principles – what’s in the contract ?
Status of business/person making approach
Data Protection Act
‘Erect’ proper hurdles/barriers
What if threatened ?
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Appointed lawyers and merchant bankers to renegotiate its loans
Wrote to 150 LAs asking to discuss fees… strategic partnerships…
Quality comes at a cost
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In June 2010 - £200/£300 a day for individual
% of saving
Ask for their detailed contractual info…
They don’t like it up ‘em!
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Get help early, when is early ?
How should I respond ?
Can I ‘go it alone’ ?
I cant afford the advice of a lawyer !
Is it ever too late ?
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Local Authorities simply seeking to cut payments
PCTs seeking to cut payments
Purchasing cartels
How to approach…
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Regulation 13 – Care Quality Commission (Registration) Regulations 2009
...the service provider must take all reasonable steps to carry on the regulated activity in such a manner as to ensure the financial viability of the carrying on of that activity for the purposes of—(a) achieving the aims and objectives set out in the statement of purpose; and(b) meeting the registration requirements prescribed pursuant to section 20 of the Act...
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If you can keep your head when
all about you are losing theirs …
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11.06.2008(c) Brunswicks LLP 2008 36
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Brunswicks LLP www.brunswicks.eu
56 Hamilton Square, Birkenhead, CH41 5AS
keith.lewin@brunswicks.eu
08455 190 695 07779 128 599
07855 855 588 – 24 hours, 365 days
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