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 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)

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.”

The 16^th 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 15^th 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)