Health and Social Care Law

Over recent months the importance health and social care businesses play in our community has been greatly highlighted by the media and the government. Consequently, COVID19 has given the health and social care sector a platform to voice their concerns and receive recognition for caring for the most vulnerable in our community. 

Attwells Solicitors has acted for businesses within the health and social care sector for many years, offering practical, jargon-free advice in a timely manner.

Lloyd Clarke’s health and social care updates are published on TwitterLinkedIn and on our blog page. These updates offer a legal viewpoint of the latest sector news. If you have not done so already, we would highly recommend you follow us on social media.

All the information on this page relates to health and social care, below are a list of services Attwells provide to protect and allow your business to prosper. 

Acquisitions and Disposals

If you are looking to expend your health and social care business via purchasing or leasing new premises Attwells can help. In addition for business with an investment portfolio we will make sure that you receive a full FRI lease with a clean income stream. 

We have considerable experience of acting for health and social care professionals, whether you are funding your first care home or refinancing or expanding your existing business.

In a competitive market, the speed and diligence of your lawyer is key. With Attwells, your lawyer will be proactive in pushing your matter forward to an efficient and satisfactory conclusion. 

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Employment Law

Employment disputes can be costly, distracting and time consuming. They can interfere with and damage your business and in the event that they do arise you must deal with them quickly and in the most efficient manner available.

From day one, an employee has in excess of 80 legal rights and the ever-changing nature of employment law makes it more and more difficult for employers to stay on the right side of the law.  Our Employment and HR Team can provide you with all the advice that you need to stay compliant and instead focus on your growing your business.

We can advise you on the whole employment cycle from advertising for positions, job descriptions, interviewing, terms and conditions and employment contracts through to promotion, sickness, holiday, disability, maternity, performance management and finally grievance, disciplinary, dismissal, appeal, enforcement of restrictive covenants and the defence of Employment Tribunal proceedings.

We have within our team an ACAS qualified mediator who can help to resolve disputes quickly and cost effectively.

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Funding

In the last few years there have been new entrants into the healthcare sector and Attwells would expect this to continue in the future.

If you are looking at an acquisition or finance in the care sector then it is critical that your Solicitor has an understanding of the regulation and requirements of the Care Quality Commission. Attwells as a firm that specialises in the healthcare sector has this specialist knowledge to ensure that your transaction proceeds quickly with a certainty of fixed fees.  

In addition to commercial finance for care homes Attwells also advises on children’s day nurseries, doctors’ surgeries, dental practices, vets and pharmacies to purchase, new builds and group restructuring.

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GDPR

The GDPR will replace the Data Protection Act (DPA) with effect from 25th May 2018 and will place higher compliance burdens on employers than ever before by providing additional protection for individuals’ data.

The GDPR will impose some important changes on the operation of UK data protection law. If your organisation is already subject to the DPA, it is likely that it will also be subject to the GDPR.

Some of the most important changes include:

  • Increased fines for non-compliance - Under the DPA, organisations can be fined up to £500k. However, the GDPR will allow fines of up to €20m (£18m) or 4% of the organisation’s worldwide turnover. Therefore, more frequent and higher fines are predicted.
  • Strengthening of the ‘right to be forgotten’ - The case for an individual to have their personal data deleted will be stronger, with individuals able to request the deletion/removal of personal data where there is no compelling reason for it to be retained. Under the DPA the right to request deletion is limited to data which causes damage or distress.
  • The banning of pre-ticked opt-in boxes - The prohibition of implied consents for the retention and use of personal data means that individuals must proactively choose to allow their personal data to be retained. Organisations must also ensure that where consent is given, it can be easily withdrawn.
  • Data Protection Officers (DPOs) and Data Impact Assessments (DIAs) - Organisations must, if necessary, appoint a DPO and undertake DIAs, for instance where there is regular monitoring of individuals. The role of a DPO can either be in house or outsourced.
  • Significant changes to Subject Access Requests (SARs) - With effect from 25th May 2018, individuals will no longer need to pay a fee when making a SAR (unless that SAR is ‘manifestly unfounded or excessive’) and employers will now have less time to provide the information requested. Furthermore, employers must also take steps to verify the identity of the person making the SAR.

All of the above changes place additional requirements on employers and we have already fielded a number of calls from clients with concerns about how they can prepare for the GDPR coming into law.

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Mergers & Collaboration

If you are thinking of setting up your new health and social care businesses or enter into a joint ventures Attwells can undertake the legal work required. 

We have acted for a number of social enterprises. Some of our larger care providers are embarking upon an acquisition strategy. We will undertake the legal due diligence of the Target and drafting and negotiating the purchase agreement. On acquisitions, advice is often needed around whether to undertake a share or asset sale, due diligence on the premises, securing the income, review of T&Cs of the Target, TUPE and employee issues and suitable warranty and indemnity protection.

Why is a Shareholders Agreement Important?

A Shareholders Agreement is the form of document that care providers should have in place if they trade with others through a limited company. If the business with others is a partnership then a partnership agreement will be required.

Either form of agreement is an essential pre-requisite to starting a health or care business with others because as well as providing protection if things go wrong it also encourages a dialogue between the owners about matters that they may not otherwise wish to discuss.

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Nursing and Care Homes

This sector is highly regulated. Care home providers who offer residential or nursing homes are required to demonstrate compliance with Government regulations in order to register and operate their care home business.

The Care Quality Commission also known as CQC are the independent regulator of health and adult social care. Their role is to oversee, inspect and regulate services within the care sector to ensure a good quality of care is provided, including health and safety regulation, employment law and data protection (GDPR).

CQC require a minimum standard to be met, this is outlined on their website, however there are five key areas you should consider:

  1. Safety of both the client and care provider
  2. Effectiveness
  3. Leadership
  4. Standard of Care
  5. How responsive your business is to residents’ care needs

To ensure these standards are met CQC will regularly visit and or review your business, awarding your business with one of four ratings

  1. Outstanding
  2. Good
  3. Needs Improvement
  4. Inadequate

Your rating is published in a care home ‘league table’ so prospective clients can review and compare you with other care providers. If your care or nursing home fails to meet these standards, your business may be put into special measures, or struck off.

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Private Client Services

The Private Client Department drafts Wills and offers a home visiting service so that clients who are less mobile can be reassured that their affairs are in order when the time comes. The Private Client department offer an initial no fee appointment to discuss wishes and explore all avenues before deciding on their final instructions to ensure that clients’ Wills reflect their exact wishes. Attwells’ efficient service means that they can work quickly and Attwells aim to return draft Wills to their clients within a week of being instructed.

The Department also deal with Lasting Powers of Attorney. Lasting Powers of Attorney enable a person or people of an individual’s choice to deal with their financial affairs, which can be a great help to those who are less mobile. If put in place whilst an individual has sound capacity, they can also allow a chosen person to make decisions about healthcare and treatment when the individual is no longer able to do so. Putting these LPAs in place can put individuals’’ minds at rest and assure them that their affairs will be handled by someone they trust when they are less able to do so themselves.

We can assist your residents, their families or yourselves in understanding rights and obligations when a Power of Attorney is in place or what to do if there is no Power of Attorney.

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Shareholder Agreements

A shareholders’ agreement is used in tandem with the Articles of Association of the Company to specifically manage the way that shareholders act and govern the processes that are to be followed following certain events occurring. A shareholders agreement is particularly important if something goes wrong with the business or disputes between shareholders arise.

Attwells health and social care providers are often local family run businesses and the thought of formalising the arrangements of the business over and above that of registering as a limited company may not have been considered or may seem too onerous. However, there are important aspects to consider including:

  • How is the company going to be financed?
  • How will the company be managed?
  • What will the dividend or payment to Shareholders policies be?
  • What will happen to the shares of a Shareholder upon death or incapacity?
  • Are there different types of shares within the Company? How will these different types of shares be governed?
  • What is the procedure for transfer of shares? If one shareholder leaves will their shares be offered to the other shareholders first?
  • How will shares be valued upon a sale?
  • What happens if the shareholders cannot agree on a decision?

For a small to medium sized health and social care providers, a shareholders’ agreement may also be used to incentivise employees.  If a provider has a particularly excellent employee that the company wishes to be rewarded by way of granting them shares but does not want them to hold voting rights in the company then this can also be dealt with in the shareholders agreement.

It is important to consider these areas before it is too late and disagreements or potential costly disputes arise between the Shareholders of the company. Too often this upfront work is not dealt with and shareholder issues arise when there is no documentation in place to help.

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Sleep Ins

Care Providers finally had some good news with the long-awaited decision in the Mencap Court of Appeal case confirming that they will no longer be required to pay back an estimated £400m in back pay to care staff who previously undertook sleep-in shifts.

The Court of Appeal ('CA') has ruled conclusively that 'the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working'. As such, sleep-in staff are no longer entitled to be paid the national minimum wage ('NMW'), on average, for every hour spent on sleep-in shifts, even when such hours are spent sleeping.

Last year the Employment Appeal Tribunal ('EAT') ruled that care staff who undertook sleep-ins should be paid the NMW, even if they spent the entirety of those shifts asleep, meaning that providers were ordered to pay carers who had previously undertaken such shifts anytime in the last six years. This was a further crushing blow to a sector already struggling with local authority cuts, an ageing population and the national living wage.

In this case, the CA undertook a thorough examination of previous case law, the reports of the independent Low Pay Commission (which advises the Government on the NMW and recommends the rates that should be paid) and the NMW Regulations 1999 and 2015 ('NMW Regs.'), which set out, along with the NMW Act 1998, the provisions relating to the NMW.

The analysis of the NMW Regs. was of much interest to commentators, as the EAT in the previous Mencap case had held that they were of no assistance to the question of whether a worker was 'working' for NMW purposes and did not solve the problems of that appeal, something which, on reflection, seems rather odd. The CA clearly disagreed with such an approach and used both the NMW Regs. and the Low Pay Commission's recommendations ('LPC recommendations') as a central tenet for their argument that a sleep-in worker is only working when awake.

In reviewing the NMW Regs. in particular, the CA surmised that a worker who is, and is required to be, (a) available for the purposes of working (b) at or near his or her place of work is entitled to have the time in question counted as time work for NMW purposes unless:

  1. he or she is at home (the 'at home exception') ; or
  2. the arrangment is that they will sleep (and be given facilities for doing so), in which case only those hours will count when they are, and are required to be, awake for the purpose of working (the 'sleep-in exception').

On the face of it, the NMW Regs. had made a specific carve-out in respect of sleep-ins.

Now, the sleep in exception only applies in cases where the worker is required to be available for the purpose of working ('available for work' for short) and not in cases where the worker is 'actually working' (as defined by Regs. 3 and 30 of the NMW Regs.). In the previous Mencap case, the EAT had concluded that sleep-in workers were 'actually working' and therefore they avoided having to consider the two exceptions set out above. Given the position here, it was necessary for the CA to ask first into which of those two categories a worker who is sleeping in falls.

The CA held that this was, however, an 'unnecessarily elaborate approach', regarding as self-evident the intention of the NMW Regs. to deal with the position of sleep-in workers - in short, the fact that they were dealt with as part of the 'available for work' provisions means that they were to be regarded as 'available for work' rather than 'actually working'.

The CA held that it would be incorrect, in a context which distinguishes between 'actually working' and being 'available for work' to describe someone as 'working' when they are positively expected to be asleep throughout all or most of their shift. The CA held that such conclusion would have been necessary on the basis of the NMW Regs alone, but that this conclusion was further reinforced by the fact that it gave effect to the LPC recommendations.

Turning to relevant case law, the CA identified that there were a large number of cases pertinent to the issue of sleep-ins and considered the most relevant cases and their findings in the judgment, firstly identifying the start of the problems in the case law with the CA's decision in 2002 in the case of British Nursing Association v Inland Revenue, where it had been held that BNA nurses working a night shift from their homes and required to answer telephone calls, were actually working throughout their shift.

Further case law was analysed, including the cases of Scottsbridge [2003] and Walton [2003] but perhaps the most important decision forming part of the CA's analysis of the relevant case law was that of the EAT in the 2008 case of Burrow Down Support Services v Rossiter. In this case, R worked for BDSS between November 2001 and July 2006. He attended work from 10pm to 8am, two nights a week. His job involved ensuring the security of the work premises (a care home for people with learning difficulties) and monitoring health and safety. Apart from a quarter of an hour for a handover and an hour to help with breakfasts he could sleep, except where his duties required him to be awake, for example if he needed to investigate noises or deal with anything untoward. He was paid £20 per night for being present, with a separate payment made for when he was awake and working. The EAT, relying on the earlier cases of British Nursing Association and Scottsbridge, held that R was entitled to be paid NMW for the whole of his shift.

In the view of the CA in the latest Mencap case, Burrow Down was wrongly decided, with the CA stating that its reasoning was contrary to the clear meaning of the NMW Regs. and reinforced by the LPC recommendations, Burrow Down having been based on the EAT's understanding of the British Nursing Association decision and, more particularly, Scottsbridge (which concerned a Nightwatchman at a construction site). The CA then proceeded to take go through the Scottsbridgedecision and pointed out that the facts of this case could not, as had previously been the case, be easily applied to the care sector, noting subtle but important differences such as the fact that sleep-in workers are given a proper bed in an area set aside for sleeping and do not have significant duties at either the start or end of a shift (beyond mere handover). As a result, the cases could be distinguished.

The CA concluded that there had been a number of decisions of the EAT concerning the NMW rights of workers required to sleep in, mostly but not wholly in the care sector and most of which had followed Burrow Down (for example the leading cases of Whittlestone, Slavikovska and the previous decision in Mencap), on the basis that the workers in question were 'actually working'.

However, since it was now the opinion of the CA that Burrow Down had been wrongly decided, on the premise that it had wrongly decided that sleep-in cases fall into the 'actual working' category, as opposed to the 'available for work' category, this difficult and troublesome case-law can now be put to one side.

Accordingly, the CA were not bound by the aforementioned cases and could properly conclude that sleep-in workers should be characterised (for the purposes of the NMW Regs.) as 'available for work', rather than 'actually working', and therefore could fall within the sleep-in exception. The result is that the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working.

It is regretful however that the CA declined to deal with the well-reasoned argument put forward by Care England (an intervener in the case) that the sleep-in shifts undertaken by Mencap's worker (Tomlinson-Blake) constituted 'unmeasured work', with the one hour's pay she received per night constituting a "daily average agreement". This had been a potential solution put forward to providers by practitioners before the CA's decision, although, with the exception of live-in care (relying on the case of Walton), it remains largely untested.

In conclusion, Mencap's argument that the NMW Regs. were clear in that sleep-in staff were not working whilst asleep won the day and finally removes the uncertainty amongst providers over sleep-in shifts.

However, although this latest decision is to be celebrated by providers and welcomed by local authorities it is NOT the end of the story. Urgent clarity is now needed on enforcement action for back payment by HMRC to ensure that no provider will face further action. The Government must also urgently update its guidance on sleep-ins.

As my clients and those who have attended my recent talks on the sleep-ins crisis and HMRC's Social Care Compliance Scheme ('SCCS') will be aware, I had previously advised providers to await the outcome of the Mencap CA case before deciding to enter into the SCCS.

Those providers who have entered into and paid substantial pay arrears to staff for sleep-ins undertaken in the last six years will now surely be asking: Will they get this money back? How will they get it back? Who will pay it back and when? These are serious questions which need answering sooner rather than later. The emphasis is now on both the Government and HMRC to provides the answers to these burning questions.

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Health & Social Care Consultation and Letter of Advice 

Price: £300.00 plus VAT

What is included in the price:

  • Initial telephone conversation
  • Brief review of documentation in advance of meeting (subject to reasonable number)
  • Meeting at our offices with your chosen adviser
  • Summary of advice at conclusion of meeting setting out the legal position
  • Letter of advice

What is excluded from the price:

  • Meeting at your home or business premises (can be arranged at additional cost)
  • Legal advice outside of the service requested

Disbursements: 

None are anticipated 

How long will it take? 

The meeting itself will last around 1 hour and, subject to your availability, we would aim to hold the meeting with you, within 48 hours of your initial call or earlier if required. Same day appointments can be made. 

What can we cover in the meeting?

We can provide advice to you on all areas, including but not limited to:

  • All aspects of employment law / HR
  • Safeguarding
  • Contractual and fee disputes
  • Dealing with commissioning authorities, including challenging tender awards
  • Sleep-ins
  • Staff retention
  • GDPR and data protection
  • Debt recovery
  • Business disputes 
  • Landlord & Tenant issues
  • Shareholder / Director disputes
  • Shareholder agreements
  • Self-employed contracts including IR35

Why choose Attwells Solicitors?

Attwells has a passion and expertise in working for those within the health and social care sector. This sector impacts upon all of us. Excellent care with dignity and respect is at the heart of a modern civilised society.

We are experienced in advising and assisting providers operating in the health and social care sector and are acutely aware of the distinct issues facing the sector. We have previously acted for care homes, domiciliary care agencies, childcare providers, GP practices and dentists.

Attwells also work closely with local sector stakeholders, partnering with Essex Care Association, Suffolk Association for Independent Care Providers and Age Concern Suffolk, attending care conferences to give talks to their members and running a number of events in conjunction with them, including the recent employment law updates and the Suffolk Care Providers Forum, an annual event that we host each year with Age Concern Suffolk, whom we recently were awarded ‘Platinum Friend’ status by in recognition of our work.

Our Lloyd Clarke has also delivered talks at national events including Health Plus Care at the ExCel London, in June 2018 and regularly writes on issues affecting the sector, including having articles published in both ‘Care Management Matters’ and ‘Caring Times’ magazines. 

When will I pay?

Attwells Solicitors will ask you for money on account in advance so that work can get underway on your matter. In the event that the meeting is cancelled more than 24 hours in advance, a refund can be made to you.

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