State-backed indemnity for “designated settings”

The Department of Health and Social Care (DHSC) has this month announced that it will urgently introduce a scheme to provide a targeted and time-limited state-backed indemnity to care homes, registered or intending to register as “designated settings”, which are currently unable to obtain sufficient insurance cover.

The DHSC has stated that it is committed to ensuring that people suffering from COVID-19 should receive the best care possible. This, of course, includes supporting people who have been admitted to hospital with COVID-19 but then require full-time social care support on discharge from hospital. The DHSC has worked alongside local authorities and the CQC to begin to register certain adult social care homes as, what it calls, “designated settings”.

The designated settings scheme is designed for patients who are deemed medically fit for discharge from hospital but require ongoing care and support needs in a full-time residential or nursing care setting. A large proportion of these patients will be those who have already been residing in a residential care home setting. The DHSC has stated that it is their priority to ensure that people are transferred to the most appropriate setting available once they are discharged from hospital and so the role of the designated settings scheme is crucial.

The DHSC has recognised that it has been problematic for care providers to obtain sufficient insurance cover to accept COVID-19 positive patients who wish to join the designated settings scheme and so is seeking to ease such pressures through the state-backed indemnity scheme.

The Government recognises the severity of the pressure which the NHS is currently facing nationally and so has decided to take these crucial steps to promote the availability of designated setting provision. This comes just days after NHS England chief executive, Simon Stevens, stated that, as at 17 January 2021, hospitals are under extreme pressure with patients being admitted with coronavirus on average every 30 seconds.

The state-backed indemnity will cover clinical negligence, employer and public liability in circumstances where a care provider is seeking to register as a designated setting and is unable to obtain sufficient commercial insurance. The indemnity will also cover existing providers who have been operating without appropriate protection. The indemnity is time-limited until the end of March 2021 and a review is due to take place mid-February 2021.

Care England’s Chief Executive, Professor Martin Green, along with Executive Director of National Care Forum, Vic Rayner, have expressed their support for the state-backed scheme. It has been widely reported that the issue of appropriate insurance cover for care providers has been a significant concern since the beginning of the pandemic in March 2020.

Further details of this are expected in due course.

Workforce Capacity Fund

In addition to the indemnity, the Government has further stated that it will inject £120 million through a Workface Capacity Fund for local authorities to boost staffing levels. Staffing levels within care homes and for domiciliary care providers across the country have been significantly impacted due to the new coronavirus strain with absence rates rising sharply. For some providers, we understand the crisis point has been reached with the need to consider financial viability alongside safety and care of residents.

The funding will protect and support the sector by increasing workforce capacity.

The funding will assist local authorities to boost staffing levels at the direct request of the sector that is currently, in some areas of the country, in a state of severe flux. The funding can:

• Provide additional care staff where shortages arise;
• Support administrative tasks so experienced and skilled staff can focus on providing care;
• Help existing staff to take on additional hours if they wish with overtime payments or by covering childcare costs.

The indicative local authority grant allocations for the £120 million Workforce Capacity Fund can be found here. The Government have stated that the final grant allocations will be published in due course.

Lateral Flow Device Testing in Adult Social Care

The Government also announced in December 2020, that £149 million will be used to support lateral flow device testing in adult social care. The increase in lateral flow testing will primarily be used for increased staff testing and will facilitate visits from relatives of care home residents, where possible and appropriate. The funds will also help providers with the costs incurred by increased testing such as: setting up safe testing areas; providing staff training and will contribute to staff time spent administering and receiving tests.

Local authorities will be required to pass on 80% of the funding to care homes on a per beds basis, with 20% used at the local authorities’ discretion to support the care sector in delivering additional lateral flow device testing. All the funding will be available later this month, so local authorities can take action quickly to respond to the pandemic.

Increased staff testing is absolutely vital to reducing transmission. Care homes currently have access to three tests per week for staff, with daily testing for seven days where there has been a positive case of COVID-19 to protect staff and residents.

It is reported that care homes will also now have access to additional lateral flow devices to test individuals working in more than one setting before the start of every shift. This is welcome news, although we are still hearing of some care homes receiving insufficient tests.

As ever, it remains to be seen how these further measures from the Government will be effective in practice and how accessible these funds will be for providers. It is of note that local authorities have maintained discretion on 20% of the lateral flow device testing funds assigned to them. This may result in disparity between local authorities nationally on how some of the funds are allocated.

Given the current fast-moving and worsening situation nationally, it will be critical for the Government to allow access to these funds as soon as possible and for them to become available as a matter of urgency. We are aware that providers are facing both commercial and regulatory challenges at the moment, with a significant increase in the use of agency staff across their homes.

We are specialist care home solicitors with extensive experience in advising care homes in relation to a range of regulatory matters and CQC compliance. If you require any assistance in relation to any of the Government measures or your dealings with the local authority and/or CQC, please do not hesitate to contact our care home lawyers at online.enquiries@la-law.com or call 01202 786135 to discuss how we can assist you.