Adult Social Care in 2022: immigration review and tackling recruitment shortages

The adult social care sector in England is facing significant challenges in recruiting and retaining staff, matters which could be affected by post-EU exit policies that seek to reduce net migration. The Migration Advisory Committee (MAC) recently reviewed these important issues and last month published a comprehensive report to government which runs to over 150 pages.

The key findings from the MAC – an independent, non-departmental public body that advises the government on migration issues – can be summarised as follows. The full report can be viewed here.

Conclusions

  • The adult social care sector in England faces a gap of 200,000 care workers by the end of this Parliament because of restrictions on immigration and a failure to attract UK workers to roles in the sector. Longer term, it is estimated there could be a shortfall of 1 million workers in the next 20 years.
  • Immigration policy cannot solve the crisis in the social care workforce, although it could mitigate some of the problems created by the shortage of care workers. The ending of freedom of movement of people (as a consequence of the UK’s exit from the EU) closed off a source of workers at a critical time for recruitment and retention.

Recommendations

  • Adopt a common framework for collecting data about the care workforce as a whole, because there is a “serious evidence gap about the labour market for directly-employed care workers, despite the role of public funds in employment many of them.”
  • Invest in training and career development to make social care more attractive for UK born workers.
  • Introduce a fully funded-minimum rate of pay for care workers that is greater than the National Living Wage. A minimum starting point should be £10.50 per hour “to be implemented immediately”. [The chair of the MAC, Professor Brian Bell, said that although this has already been implemented in Scotland it “however, will not be enough to address the issues and we urge the Government to go significantly further as quickly as possible.”]
  • Pay social care workers for hours at work even if their time is spent travelling or sleeping. The MAC considers that as long as these hours are not being adequately compensated, workers are being underpaid for their time spent at work and it recommends that where care is being provided through public funds, those funds should increase to reflect the additional costs involved.
  • Introduce more highly skilled roles to the Shortage Occupation List making it easier for employers to recruit from overseas.
  • Allow low skilled migrant workers enter the social workforce by revisiting the currently-suspended Tier 3 visa route (Tier 3 was designed for low-skilled workers filling specific temporary labour shortages via a temporary work visa).
  • Consider setting up umbrella body – possibly on a ‘pilot’ basis – to sponsor care workers from overseas. People who can demonstrate that their level of need requires live-in care would be able to recruit directly recruit from the umbrella body (this approach is modelled on SAWS, the Seasonal Agricultural Workers Scheme).

Commenting on the publication of the report, Dr Rhidian Hughes, Chief Executive of the Voluntary Organisations Disability Group (VODG), said:

“The Migration Advisory Committee’s report offers a further wake-up call for Government. The Voluntary Organisations Disability Group backs the Committee’s recommendation to fully fund a rate of social care pay above the National Living Wage. A fully funded £10.50 per hour social care rate would be a good start, but we know the true value of care work is much more. We need to be ambitious in rewarding talent for much-needed social care.”

What might it mean for civil claims?

The unprecedented recruitment challenges faced by the adult social care sector and highlighted in the MAC’s report might have some influence on civil courts assessing personal injuries claims which feature care needs. The recommendations in the report could play into arguments that privately funded care regimes are more appropriate than public sector provision.

The stand-out recommendation that carers be paid for travelling to work and for ‘sleeping in time’ could, if implemented, have a significant effect. It could risk re-opening the issues determined by the Supreme Court in Mencap v Tomlinson-Blake [UKSC 2018/0160] which held (a) that working time for the purposes of the National Minimum Wage did not include ‘sleep in time’ and (b) that carers should be paid only for time that they are awake and working.

A further concern is that if the costs of statutory funded care regimes increase as a result of some or all of the MAC’s recommendations being taken forward, that could have a ‘knock on’ effect on the cost of private care regimes. Should insurers detect significant increases in these heads of claim it will become ever more important to scrutinise the detail of proposed care regimes and, where necessary, to take a robust line on unreasonable costings.

The key question: will these recommendations be implemented?

The report was published towards the end of April, meaning there has been neither sufficient time for a formal response from government nor for any of the proposals to find their way into the new legislative programme outlined in the Queen’s Speech earlier this week.

The MAC’s recommendations, if implemented, face in to two sensitive topics for the current government: increasing public spending and opening up immigration. Those issues could very easily combine as a strong political headwind against implementation.

That said, the recommendations may well be seized on by other stakeholders in the sector as an additional element in ongoing campaigns about greater funding of public sector care. In the short term at least, the proposals from the Committee are probably not going anywhere. The first clues to the government’s reaction to them will have to await publication of the immigration Minister’s reply to the report and to Professor Bell’s covering letter of 27 April.

Written by Steve Lynch, Partner and Alistair Kinley, Director of Policy & Government Affairs issued on behalf of the Care, Statutory Funding and Rehabilitation SMG

The importance of data security

The Canadian Primate (the equivalent of the Archbishops of Canterbury and York) of the Anglican Communion has offered a ‘ sincere and unconditional apology’ to survivors of sexual violence.

In February 2021 three survivors of abuse told The Anglican Journal (a paper owned by the Anglican Church of Canada – ACC) how four of the Church’s institutions (three dioceses and a school) had mishandled allegations made. The  information was given under assurances of confidentiality that the institutions concerned would not be named without explicit permission.

Whilst the editor was on leave of absence the journalist writing the story provided the ACC, under duress, with a draft article together with a list of the four institutions involved, but only after he himself had obtained assurances from the ACC that the draft article would not be circulated to the institutions concerned. It was circulated by the ACC. The survivors had not seen it or approved it beforehand. The information disclosed would have enabled the institutions concerned to identify the survivors. On discovery in May 2021, the survivors made multiple requests to the ACC for all recipients to delete copies and name anyone they had shared them with. Whilst most complied with the request two are understood to have refused. The editor and journalist resigned from post in June but the ACC did not announce their resignations until September 2021. The survivors have been seeking accountability ever since.

The apology was only made towards the end of March 2022, despite the survivors having support of 228 members who said “We expect church officials to keep confidences sacred and protect the Church from abusers. . .“We … share the survivors’ shock that the ACC broke … promises, abandoned their duties … and failed to care for the survivors’ privacy. We share their outrage … And we share their grief that their willingness to place their faith, hope, and trust in the Church was again betrayed.”

Two doctoral students at the Toronto School of Theology, said “To the best of our knowledge, no ACC church official has taken responsibility for the breach or experienced any consequences for choosing to circulate the draft. Right now, we cannot see how any survivors of sexual violence or other ecclesial abuses can trust an organisation that treats disclosures so cavalierly.”

Profound cultural change is needed, “starting with a clear repudiation of cronyism and corruption”.

Whilst the ACC carried out an investigation the report has not been disclosed to the survivors. The Theology students asked the ACC to release the unredacted findings of the investigation to a representative chosen by the survivors; require the resignation of the official who circulated the draft; and to “submit an apology for publication in the Anglican Journal that summarises the investigation report, confesses wrongdoing, and presents a plan of action that is a worthy beginning of repentance.”

The apology given appears to fall short of that expectation and does not appear to provide full accountability Dr Nicholls (the Canadian Primate) stating “At the outset, I must acknowledge that this has been a painful incident for all involved, but especially so from the sense of betrayal felt by their sources for the article and for the journalist and editor who felt it necessary to resign. Although we may, and must learn much from this incident, it cannot erase the harm done. We are committed to ensuring that it does not happen again and ensuring the integrity of our journalistic practices now and in the future. It was never intended that the article not be published.”

The Council of the General Synod said in a reply finalised on 15 March: “Our hearts break at the harm done to the individuals involved in this matter, and the likelihood that actions by the Church have reopened old wounds. Our hearts break at the suffering undergone by so many victims of sexual misconduct within the Church, both past and present. . . We are truly sorry for these things.”

The importance of confidentiality and ensuring no data breaches when dealing with such sensitive matters cannot be overstated and organisations would be prudent to ensure they have in place appropriate policies for the handling of sensitive data of this nature.


Written by Jagdeep Hayre at BLM (jagdeep.hayre@blmlaw.com)

IICSA press release: Inquiry publishes 1,100 child sexual abuse accounts to amplify survivors’ voices

The Independent Inquiry into Child Sexual Abuse has released its final publication of Experiences Shared, an online anthology highlighting the accounts of more than 1,100 victims and survivors who came forward to the Inquiry’s Truth Project.  Survivors spoke of sexual abuse across multiple settings, the difficulties they’ve faced in speaking out and the devastating impacts of abuse on their lives. They emphasised the importance of a more open conversation on sexual abuse within society to spark cultural change.

Inquiry publishes 1,100 child sexual abuse accounts to amplify survivors’ voices

The Inquiry has released an online anthology highlighting the accounts of more than 1,100 victims and survivors who came forward to the Inquiry’s Truth Project. The first of its kind in the UK, the collection has along with the thousands of other experiences shared with the Truth Project helped inform primary research regarding child sexual abuse as well as recommendations for change across the Inquiry’s 19 investigation reports. Survivors spoke of sexual abuse across multiple settings, the difficulties they’ve faced in speaking out and the devastating impacts of abuse on their lives. They emphasised the importance of a more open conversation on sexual abuse within society to spark cultural change.

Ivor says ‘Terrible things have happened to me, but if I’m able to do anything to make sure other people don’t go through what I did, I’ll put my best foot forward’.

For more than six years, the Truth Project provided an opportunity for survivors of child sexual abuse to share their experiences and make suggestions to help better protect children in future. The Truth Project came to a close in October last year so accounts shared can help to inform the Inquiry’s Final Report which will be published later this year. 

Talking about sharing her experience with the Truth Project, Kayla says ‘I can’t really explain why I wanted to … it just felt comforting that there was something like this that I could feel heard’.

Alongside the accounts published today, the Inquiry has also released its latest quarterly statistics, providing an update across all areas of its work, as well as illustrating the Inquiry’s engagement with victims and survivors over time.

Those who came forward to the Truth Project described sexual abuse taking place across a range of contexts, including residential care homes, schools and religious insitutions. They talked about those in authority turning a blind eye, or being encouraged to stay silent, ignored or threatened when they reported abuse. Some said they simply had no one to tell.

Helen says ‘Children are always in the wrong and adults are always in the right … if you’re a child in these institutions you’re not listened to’. 

Victims and survivors told the Truth Project about the struggles they faced in speaking out, describing fears of being stigmatised or not being believed. Many spoke about the severe impact the sexual abuse has had across all aspects of their lives including relationships, education and work, as well as physical and mental health. For some, the effects have lasted years.

Lucille would like a greater awareness that ‘the lives of sexually abused children are damaged not for weeks or months, but for decades’.

The experiences shared also describe changes that victims and survivors hope to see in future, such as better education, greater awareness and more open conversations about the effects of child sexual abuse.

For help and support, you can access information on a range of organisations signposted on our support page.

Notes to editors 

1.     The Independent Inquiry into Child Sexual Abuse is examining the extent to which institutions and organisations have failed to protect children in England and Wales from sexual abuse.

2.     Institutional failure means either the abuse was reported to someone in a position of authority, such as the police or a social worker, but appropriate action was not taken, or that the abuser was someone in a position of power, such as a teacher or religious leader.

3.  The 1,100 accounts shared with the Truth Project will be available here, including the 50 published today: https://www.truthproject.org.uk/experiences-shared

4. The Truth Project came to a close in October 2021. More than 6,000 victims and survivors shared their accounts in person, over the phone, via video call or in writing. 

5.     The Inquiry will also publish its latest quarterly statistics, as well as illustrating the Inquiry’s engagement with victims and survivors over time.

Update on the Australian NRS

As readers of our Abuse & Neglect Blog will be aware the NRS started on the 1st July, 2018 and will be open for 10 years, so it is now well into its fourth year of operation.

As of December, 2020 the Australian NRS had received 9,008 applications and had finalised 4,503 applications.

In its most recent update on the 1st April, 2022 the NRS advised as follows:-

Application progress

As of 25 March 2022, the NRS:-

  • Had received 14,582 applications.
  • Made 9,164 decisions — including 7,889 payments, totalling over $682.6 million (m), with an average of $86,521
  • Has made 8,679 offers for redress. Applicants have six months to consider their offer of redress.
  • 5,923 applications are currently being progressed, 702 are on hold or paused, including 112 applications due to institution not participating (representing 1.9% of applications on hand).
  • The total number of applications finalised and redress payments in Year 1 are 239 (AUS$19.8m), 2,537 (AUS$205.0m) in Year 2, 3,283 (AUS$285.0m) in Year 3 of the Scheme and 2,148 (AUS$172.8m) in Year 4 of the Scheme.
  • 43 Individual Decision Makers are currently actively making decisions.

Participating institutions update

  • All Commonwealth and State and Territory government institutions and 577 non-government institutions are now participating in the Scheme.
  • Approximately 70,200 sites across Australia are now covered by the Scheme.
  • To date, 63 institutions have been declared under the Funder of Last Resort (FOLR) arrangements. These institutions are defunct, as government is equally responsible for the abuse and the Commonwealth and/or relevant state governments are the FOLR.

Since December 2020, some 14 months ago, the NRS have finalised 3,659 applications, which allowing for the outstanding number of applications that have yet to be decided appears to be at a slower rate than would be anticipated. The rate of processing of applications by the NRS has been the subject of criticism by victims and survivors since the inception of the NRS.

Having received only 14,582 applications to date out of an expected 65,000 it appears that the real pressures of operating a national redress scheme has yet to be experienced by the NRS and questions remain whether the existing systems and processes operated by the NRS will be able to respond as and when the rate of applications inevitably increase.

Release decision for ‘Baby P’s mother to be appealed

Back in 2007 the tragic case of ‘Baby P’, later named as 17-month-old Peter Connolly, was brought to the attention of the media.

17-month-old Peter was subject to months of abuse at the hands of his mother Tracey Connolly and her partner. Connolly was jailed in 2009 after admitting causing and/or allowing the death of her son in Tottenham, London.

During the investigation, it was discovered that Connolly, her partner Steven Barker and their lodger (Steven’s brother) had all contributed to the injuries suffered by Peter.

Peter was sadly found with over 50 injuries at the time of his death.

A review following the death of Peter found that there had been missed opportunities from social services and other professionals involved with his case.

Connolly was previously released on licence in 2013 but was shortly recalled to prison in 2015 for breach of her licence conditions. When her case was reviewed in 2019, the Parole Board refused her release, they also declined the option of moving her to an open prison.

On this occasion, the fourth time before the Parole Board, they have decided she is suitable for release.

The Parole Board report suggests Connolly has taken part in a ‘very intensive’ treatment programme developed by the Ministry of Justice and have deemed her at low risk of committing further offences.

If released Connelly would be subject to strict licence conditions which include living at a specified address, being supervised by probation, wearing an electronic tag, adhering to a curfew, and having to disclose her relationships.

When Connolly was last released in 2013, she breached her licence conditions by inciting one of the residents in her living accommodation to engage in inappropriate sexualised behaviour.

The Justice Secretary Dominic Raab has now stood up in the House of Commons and demanded the Parole Board reconsider their decision to release Connelly – the decision is awaited.

This is a stern message to those who have committed similar offences who are currently serving prison sentences with a possibility for parole.

Only this week, the mother of 3-year-old Kemarni Watson Darby was convicted of causing or allowing her son’s death at her West Bromwich flat, the same offence as Tracey Connolly. The mother’s partner was found guilty of murder of Kemarni.

The strict licence conditions placed on such individuals are there for a reason; to prevent further offending.

In the Connolly case, the first set of parole restrictions were clearly not strict enough. It is likely given the high-profile nature of this case it will be taken into consideration when other offender’s releases are being considered. It is also likely the terms of the individuals licence conditions will be scrutinised in more detail to consider the risk of re-offending.

JC Guidelines 16th edition – new sexual and physical abuse category

Further to our earlier blog detail is now available as to the new approach in the Judicial College Guidelines for quantification of damages for pain, suffering and loss of amenity for claims which result from sexual and physical abuse. The inclusion of a separate category follows the recommendations made by the Independent Inquiry into Child Sexual Abuse – Accountability & Reparations Report published September 2019.

The new section is Chapter 4 – C and applies to cases of sexual and/or physical abuse. The explanation notes that the section includes damages for the abuse itself as well as any psychiatric injury, that is one award not two. The recommended sums are also stated to include an element in the award for indignity, mental suffering, humiliation, distress or anger. It is noted that this element is “sometimes characterised as aggravated damages, but more properly is injury to feelings.”

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16th edition of the JSB Guidelines

The 16th edition of the JSB Guidelines will be published on 11 April.

There will be a new category specifically focused on sexual abuse. That follows additional commentary in the 15th edition and the lengthy comments of Johnson J about the approach to quantum in the judgment in TVZ & Others v Manchester City Football Club (2022). A further blog with detailed commentary on the new category will be published next week.


Written by Paula Jefferson at BLM (paula.jefferson@blmlaw.com)

Abuse survivor speaks out on concerns about Facebook’s security

Abuse survivor and campaigner Rhiannon-Faye McDonald has written an open letter to Facebook about her concerns with their proposed new safety measures due to come into effect from 2023.

Facebook is proposing end-to-end encryption on messages on the platform which means messages can only be accessed and read by the sender and recipient. This change is said to protect personal data, however is it protecting the vulnerable; specifically children who often meet their future abusers online?

Rhiannon-Faye was abused as a 13 year old following interaction with her abuser online. It started when Rhiannon-Faye began speaking to who she thought was a teenage girl online about modelling resulting in her sending a topless photo in order to get work. Within 24 hours her abuser, who was posing as the girl’s boss, arrived at her family home and that is when the abuse occurred.

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IICSA residential schools report

Conclusions and recommendations

The Inquiry’s Residential Schools Report has concluded that schools are not as safe for children as they should be and that children’s interests still do not always come first when allegations of sexual abuse are made.  The report states that in spite of increased awareness of the risk some children continue to experience sexual abuse and sexual harassment in schools and highlighted the particular safeguarding challenges prevalent in music schools, boarding schools and residential special schools.

The report states that schools need to alter their mind set and accept that ‘it could happen here’ and in the case of harmful sexual behaviour between pupils that ‘it probably is happening here’. The Inquiry heard evidence about ineffective safeguarding in schools during the past 20 years and the testimonies on the Everyone’s Invited website demonstrate that currently, for children in some schools, sexual abuse and harassment between peers remain endemic. 


The report adds that many of the schools examined by the Inquiry responded inadequately to allegations against their staff and in some cases there was a culture which discouraged reporting. Too often, the Inquiry saw examples of head teachers who found it inconceivable that staff might abuse their positions of authority to sexually abuse children, were unaware of current statutory guidance or did not understand their role in responding to allegations against staff. It was clear that some staff were more focused on protecting the reputation of the school than protecting the interests of the children.

The report also highlights that for many victims and survivors, the impact of abuse has been profound and lifelong. In addition, it mentions that many of those in positions of authority and responsibility have not been held to account for their failures of leadership and governance and that many perpetrators have not been brought to justice.

The recommendations made in the report can be summarised as follows :

  • Specific recommendations for residential schools to include inspection, reporting duties and a system of licensing and registration of educational guardians for international students
  • The introduction of national standards for LADOs to promote consistency and statutory guidance confirming that LADOs can provide informal advice
  • Amendments to Independent School Standards to include the requirement to have an effective system of governance
  • The establishment of nationally accredited standards and levels of safeguarding training in schools, with the highest level of training being mandatory for head teachers and DSLs
  • Schools to be required to inform the relevant inspectorate when a member of staff has been referred to the DBS, the Teaching Regulation Agency (TRA) or the Education Workforce Council
  • Regulations to be amended to bring all teaching assistants, learning support staff and cover supervisors within the misconduct jurisdiction of the TRA

The potential impacts of the report

We share a number of thoughts as to the potential impact as follows:

  • This report may well encourage previously reluctant victims of historical abuse in schools to come forward and/or be encouraged to do so.
  • The number of schools investigated by IICSA was only a very small sample. There will be other school in England and Wales which could have had similar historical CSA issues. Victims from those schools may well now feel empowered to raise complaints and claims.
  • Renewal audits, especially with Independent Specialist schools, should ensure that the schools safeguarding policy reflects good practice and takes account of the recent recommendations.  Particular focus should be given to the schools ability to review, monitor and respond to Specialist Tutors performance or concerns about their behaviour.
  • The Everyone’s Invited (“EI”) movement is referenced a number of times in the report. EI focusses on more contemporary, peer on peer abuse and harassment behaviours. EI has a significant and very active media profile and the types of claims that could arise from EI scenarios are much wider than conventional CSA injury claims. Potential arguments around systemic failings in an institution’s safeguarding practice, and the impact these failings had on the claimant’s mental health are likely to be referenced in claims. The combination of all these factors and the additional profile raising of EI by IICSA may well have a significant impact on the claims numbers and the way they are presented.
  • EI is referenced in complaints raised directly with schools.  Complaints of harassment are raised alongside systemic failure allegations;  accounts from fellow pupils are referenced to support complaints about a schools failures to adequately respond to inappropriate behaviour/harassment/assault. 
  • Limitation and mandatory reporting are going to be the subject of IICSA’s final report expected “later in 2022”. The nature of the recommendations made by IICSA may impact on future civil claims for damages.

Written by Sarah Murray-Smith at BLM sarah.murray-smith@blmlaw.com

Historic Abuse and Statute of Limitations

Limitation in historic abuse claims has been a controversial concern for some time as strict application of the statute on Limitation can result in unfair outcomes.

As a consequence there is a groundswell of support for review and revision of limitation periods in such cases.

There is a current lack of uniformity.

In England and Wales primary limitation periods remain subject to a three year period from when a claimant reaches majority (age 21), albeit subject to discretion to extend the period in certain circumstances.

However in other jurisdictions change is already afoot and embedded.

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