Our client has a range of care businesses, including the delivery of private care at home and an introductory home care agency.
They decided to review existing arrangements and in particular, re-assess whether it might be required to register with the CQC. Our client also took the opportunity to get its self-employed model and live-in carers contract reviewed.
Organisations which manage, deliver or provide personal care services to an individual must register with the Care Quality Commission (“CQC”) and comply with the Fundamental Standards of regulation. Registration is not required if the organisation introduces or provides carers to:
- Another organisation, who is then responsible for direct provision of the care; or
- To an individual customer, who will then take responsibility for the provision of their care under a personal budget or private arrangement.
It can be difficult to tread this fine line between ‘only’ introducing care workers to customers and tipping over into becoming responsible for the end delivery of care and the carers delivering it.
How did we support our client?
Our role included:
- Reviewing its employment practices and documentation and analysing and updating its customer literature.
- Reviewing existing operations, as documented through the agencies’ customer engagement literature, their care worker engagement documents and how it presented itself within its marketing materials.
- Advising on how the two introductory agencies would be viewed by the CQC for the purposes of registration and where elements of the business could be clarified in order to avoid the risk that the agencies presented themselves as delivering care, rather than making introductions.
- Advising in relation to how the relationships with the care workers would be likely to be viewed by an employment tribunal and/or HMRC.
- We presented our findings along with an exploration of the advantages/disadvantages of regulation, recommendations in respect of the regulatory approach to be taken and our view on the care workers’ employment status and legal compliance (including the application of IR35 rules).
- Advising in relation to the live-in carers contract and how the pay structure ought to operate.
During the review, we were able to explore some of the business practices and where these may need to be revised for both the benefit of our client’s customers, and the business itself. We explored different ways of working and presented a range of options, taking into account the balanced portfolio of businesses it wished to retain within the group (both regulated care and non-regulated introductory agencies).
We updated the direct home care contracts and marketing materials, plus those in relation to the introductory agencies so that they (as appropriate):
- Reflected the desired regulatory structure/ business model.
- Minimised key risks for the introductory agencies and the employment status of the introductory care workers.
- Complied with the Consumer Rights Act 2015 and recent consumer guidance for the care sector.
- Complied with GDPR.
- Took account of legal obligations, for example, in respect of national minimum wage regulations and holiday pay.
Rather than just make amendments to the written documents, we were able to have a full and frank discussion about how the businesses worked, the economic as well as regulatory pressures they faced and how our client could balance these competing pressures in a way which reflected the ethos of the business and enabled the businesses to be sustainable.
For more information
Contact Anna Dabek.
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