Keith M Lewin

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Keith M Lewin

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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

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keith.lewin@brunswicks.eu

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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...

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Introduction

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Needs Assessment

Financial Assessment (already done…)

Criteria for assistance

Council must arrange care, if no one else

Does SU have ‘capacity’ to make decisions ?

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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

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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 ?

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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

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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!

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What does resident really want?

Choice of accommodation directions (1992)

Family ?

MPs, Councillors ?

Costs… you’re too expensive! Are you, really ?

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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 !

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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.

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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!

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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

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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

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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?

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Philosophical view…Should council be interested:

◦in the cost of toilet rolls◦Services and supplies◦Consumables

Argument – ‘seeking value for money’ - ‘protecting public funds’

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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!

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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’

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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

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Request, persuade…

Untruthful

Brow-beat/bully

threaten

Slash fees

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First principles – what’s in the contract ?

Status of business/person making approach

Data Protection Act

‘Erect’ proper hurdles/barriers

What if threatened ?

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Appointed lawyers and merchant bankers to renegotiate its loans

Wrote to 150 LAs asking to discuss fees… strategic partnerships…

Quality comes at a cost

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In June 2010 - £200/£300 a day for individual

% of saving

Ask for their detailed contractual info…

They don’t like it up ‘em!

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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 ?

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Local Authorities simply seeking to cut payments

PCTs seeking to cut payments

Purchasing cartels

How to approach…

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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...

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If you can keep your head when

all about you are losing theirs …

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11.06.2008(c) Brunswicks LLP 2008 36

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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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