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Keith M Lewin

Keith M Lewin. Transfer of residents, fee negotiators and other stuff... . Keith M Lewin. Keith M Lewin. 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

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Keith M Lewin

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  1. Keith M Lewin

  2. Transfer of residents, fee negotiators and other stuff... Keith M Lewin

  3. Keith M Lewin • 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

  4. Keith M Lewin keith.lewin@brunswicks.eu

  5. You? • 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...

  6. Transfer of service users Introduction

  7. Transfer… • Needs Assessment • Financial Assessment (already done…) • Criteria for assistance • Council must arrange care, if no one else • Does SU have ‘capacity’ to make decisions ?

  8. Transfer… • 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

  9. Transfer… • 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 ?

  10. Transfer… • 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

  11. Transfer… • 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!

  12. What if SU doesn’t want to move? • What does resident really want? • Choice of accommodation directions (1992) • Family ? • MPs, Councillors ? • Costs… you’re too expensive! Are you, really ?

  13. What if SU doesn’t want to move? • 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 !

  14. The nuclear option! • 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.

  15. The nuclear option! • 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!

  16. G v E & A Local Authority & F • 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

  17. G v E & A Local Authority & F • 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

  18. Fee Negotiators?

  19. 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?

  20. Fee Negotiators • Philosophical view…Should council be interested: • in the cost of toilet rolls • Services and supplies • Consumables • Argument – ‘seeking value for money’ - ‘protecting public funds’

  21. Fee Negotiators • 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!

  22. Fee Negotiators • 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’

  23. Fee Negotiators • 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

  24. Typical Tactics • Request, persuade… • Untruthful • Brow-beat/bully • threaten • Slash fees

  25. What to do... • First principles – what’s in the contract ? • Status of business/person making approach • Data Protection Act • ‘Erect’ proper hurdles/barriers • What if threatened ?

  26. Southern Cross • Appointed lawyers and merchant bankers to renegotiate its loans • Wrote to 150 LAs asking to discuss fees… strategic partnerships… • Quality comes at a cost

  27. Fee Brokers, what’s in it for them? • In June 2010 - £200/£300 a day for individual • % of saving • Ask for their detailed contractual info… • They don’t like it up ‘em!

  28. Top Tips • 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 ?

  29. Other threats to profitability • Local Authorities simply seeking to cut payments • PCTs seeking to cut payments • Purchasing cartels • How to approach…

  30. New Regulations… • 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...

  31. And remember - Kipling If you can keep your head when all about you are losing theirs …

  32. Get one of these… (c) Brunswicks LLP 2008

  33. Advert... • weekly • topical • circulated by email only • available on our website • archive searchable on our website • hyperlinks to source material • pithy articles and editorials Subscribe on line www.brunswicks.eu Or give me your business card!

  34. Advert... • Podcasts – Inquests & Coroners Courts • Brunswicks Regulatory News • www.brunswicks.eu

  35. Keith M Lewin • 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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