Legal challenge over £10 per hour home help contract win

Last month the Western Trust announced a major shake-up of domiciliary care provision would be implemented next April following a re-tendering exercise for care contracted from the independent sector.

The successful providers were notified on June 17, 2011 that the Trust intended awarding them contracts.

Domiciliary care in the Western Trust is currently provided by staff directly employed by the Trust and by independent sector providers.

On average more than 21,000 hours each week are provided by staff in the independent sector accounting for some 60 per cent of the Trust’s overall domiciliary care provision.

But the process has now stalled following a legal challenge by one of the current providers.

An application for an ‘automatic suspension’ of the award of the tender has been granted by the High Court following action taken by that provider. The Management Board of the Independent Health & Care Providers (IHCP) says it had already raised concerns about the process adopted by the Trust and supports the legal action taken.

IHCP claims the tender should be awarded on quality rather then price and earlier this year raised with the Trust its concern about “the overly restrictive cap of £10.40/hour below which providers had to bid.”

“It is believed that some of the successful bids have been made below £9.80, a rate significantly below the current average cost of care of £14.06/hour in the Trust which includes the in-house and independent sector provision,” according to IHCP.

Providers of domiciliary care were advised last month about the outcome of their bids.

The IHCP says that most of the current providers (including nine IHCP members) were unsuccessful due to their pricing structure and are currently involved in the difficult task of informing their staff and clients about the loss of the contract.

There is a considerable level of uncertainty about future employment and continuity of care for clients, says IHCP.

IHCP Chief Executive Hugh Mills said: “There are significant concerns about the price Trusts are paying for social care contracts. We see emerging difficulties in the way care provided in people’s homes and funding places in care homes will be met.

“The longer term care needs of older people will not be achieved by short term cuts. The review of Social Care which the IHCP called for as part of its pre-election lobbying can not be delayed any longer.

“We are seeking an urgent meeting with the Health Minister, Edwin Poots to address this issue in particular and the wider issues surrounding caring for an aging population at the earliest opportunity.”

Mr Mills said IHCP believes it will be difficult for providers to meet the quality requirements at this “exceptionally low price.”

“The hourly rate has to cover the full costs including; the salary of the carer, national insurance, statutory benefits, pension, leave, training, travel, supervision, equipment and overheads of the provider.

“There are concerns that this rate will impact significantly on the sustainability of the sector in the longer term and the overall level of service provided to some of the most vulnerable people in our society,” he said.

John McGarvey, Western Trust Assistant Director who led on the retendering initiative, said: “The primary objective of this reform is to improve the quality of domiciliary care services across the Western Trust area. Careful planning arrangements have been put in place to ensure a seamless transition and minimal disruption for service users.”

Mr McGarvey said current care staff would be protected under Transfer of Undertakings (Protection of Employment) legislation 2006 - which legally requires new providers to recognise the terms and conditions of employees as detailed in their contracts with outgoing providers - once they transfer.

“A key element of the transition plan is the application of TUPE and this means that affected staff will be transferred to the new providers with protected terms and conditions. The Trust has always been clear about this matter during the preparation for the tender and since the outcome has been known,” said Mr McGarvey.

“The process is now subject to a legal challenge. Given the size of this particular tender the Trust is not surprised that a legal challenge has been made. Now that there is a legal challenge the process is automatically suspended until the matter is resolved via the courts.”