Social care
112. Social care comes in many forms,
such as care at home, in day centres or by way of residential
or nursing homes. [189]
Its delivery is changing in ways that create particular challenges
for HSE in ensuring health and safety risks are managed effectively.
According to the Audit Commission, some one million people
work in various care settings, including in other people's homes.
[190] Two-thirds work
for some 25,000 employers in the independent sector. About one
third work in the statutory sector for local authorities.
113. The Employer's Organisation for Local
Government (EO) points out that the way that social care is provided
and the role of local authorities in its delivery has been subject
to significant and continuing change.[191]
There has been a move away from local authorities (LAs) as providers
of care to an emphasis on contracting out functions to private
and voluntary sectors and the establishment of partnerships with
the NHS, private and voluntary organisations. Enforcement of health
and safety in this context is complex and is split between HSE
(who inspect local authority delivered services) and local authorities
(who inspect private and voluntary sector provision).The Commission
for Social Care Inspection (CSCI) is responsible for ensuring
service user safety. A memorandum of understanding is being developed
to mark out the boundaries between HSE, LAs and CSCI.
114. Musculoskeletal disorders are a
significant cause of absence from work in the health and social
care sectors.[192]
A key issue arising from the evidence was a potential tension
between protecting staff who are at risk of injury and providing
care recipients with a service that meets their wishes and needs.
Both the National Centre for Independent Living (NCIL) and the
United Kingdom Home Care Association (UKHCA) are concerned that
in some cases an over-restrictive interpretation of health and
safety legislation is taken.[193]
The National Centre for
Independent Living points to a court judgement (R (on the application
of A, B, X and Y) v East Sussex County Council) which held that
risk assessments must be based on consideration of individual
needs and circumstances, including the physical, emotional, psychological
and social impact on the disabled person of any proposed manual
handling arrangement. NCIL argues that it will be a challenge
to bring day-to-day practice into line with the East Sussex judgement.
Bill McClimont, a consultant to UKHCA said:[194]
"In social care, we are attempting to encourage
the independence of the individual, encourage their empowerment,
to get them to take risks. It is an oddity that the standards
for care in home care are specific: that you must encourage a
user to take risks. That sits uneasily with a health and safety
approach which says you must minimise risks. I feel that health
and safety ought to be a balance. I think the legislation probably
is a balance. Unfortunately, many people who interpret that legislation
balance that far too far on the precautionary side."
115. UKHCA argue that a number of factors
make achieving this balance a particular challenge in a home care
situation:[195]
- There is no clear legal responsibility
on third party purchasers of care for health and safety. They
have 'no legal responsibility but have tight budgetary constraints.
The provider has almost total legal responsibility but cannot
decide basic matters such as the number of workers required to
do the job.' The most common dispute is over the need for more
than one worker to perform manual handling tasks.
- In the experience of UKHCA 'attempts by non-experts
to codify and define working practices too often result in inappropriate
'blanket' rulings, which can be inadequate or excessive to the
circumstances. Health and safety experts, on the other hand, often
come from industrial or commercial situations and give advice
that is 'often impractical or out of all proportion when applied
to home care.'
- The law apparently fails to take account of some
of the complications which can arise from private homes being
workplaces. For example, the care recipients may not be in a position
to make adaptations to the home in order to make it safe, may
have little or no understanding of health and safety law and may
be uninsured.
116. The
situation becomes more complex still with the recent extension
of direct payments to a wider range of disabled people. Direct
payments are made by local authorities to people eligible for
care services, as an alternative to having care services arranged
for them. Recipients often use them to pay for care workers. In
doing so, they can find themselves taking on all normal employment
responsibilities, including full responsibility for health and
safety. Mr Bill McClimont told the Committee:[196]
"How do we get health and safety regulations
into the home? I think the sad thing is they are already there.
Effectively, they apply to an individual as an employer in exactly
the same way as they would apply to ICI. The trouble is that that
individual as an employer does not know that."
117. The situation was described as a disaster
waiting to happen. The chance of an accident is 'aggravated severely
by the absence of proper information and support for the individuals
as employers' and is likely to be rendered more acute by the absence
of insurance in most cases.[197]
Direct payment support schemes ought to assist with these issues
but it remains to be seen whether they will be adequate.
118. Evidence to the Committee suggests
HSE has been slow to address this issue. UKHCA had been trying
for some years to persuade the Health and Safety Executive that
they should be addressed but had been unable to get a response.[198]
The National Care Homes Association said that, while HSE holds
an important position within the social care field, there was
'limited dialogue with the sector at any level.'[199]
This was said to lead to differences in interpretation and difficulties
in promoting good practice.
119. The Committee supports the United
Kingdom Home Care Association's view that that HSC/E should develop
guidance in consultation with care providers, purchasers and recipients
on health and safety where the workplace is a private home and
believes that local authorities should ensure that schemes to
provide individuals with direct payments for care include the
support necessary to comply with their duties under health and
safety law.
120. The Committee is concerned that
there does not appear to be an all-embracing strategy to address
the changing world of work and recommends that such a strategy
must be developed as a matter of urgency. This should include,
in particular, measures to reduce the health and safety risks
faced by agency workers and migrant workers. By 31 December 2005,
clear, comprehensive and appropriate guidance should be published
by the HSC/E on health and safety where the workplace is a private
home. In particular, and more urgently, local authorities should
issue guidance on the Employer's Liability (Compulsory Insurance)
Act 1969 to those employing carers directly in their own homes,
and assist in arranging appropriate cover.
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