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FINAL VERSION © Copyright, The Council Adults, Health and Communities 2017 No part of this Contract may be reproduced without the Council Adults, Health and Communities prior written permission.

FRAMEWORK AGREEMENT

FOR THE PROVISION OF

CARE IN A REGISTERED

CARE HOME

2016 – 2018

FRAMEWORK AGREEMENT FOR PROVISION OF CARE

IN A REGISTERED CARE HOME

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CONTENTS

SECTION ONE 4 PREFACE 4 TERMS AND CONDITIONS 6 DEFINITIONS AND INTERPRETATION 6 1 GENERAL 11 1.1 THE AGREEMENT 11 1.2 VARIATION OF AGREEMENT 11 1.3 ADDITIONAL CONTRACT 11 1.4 STANDARDS OF CARE 11 1.5 ASSIGNMENT, TRANSFER AND SUB-CONTRACTING OF THE HOME 12 1.6 CHANGE OF OWNERSHIP/CLOSURE OF A HOME/CHANGE OF USE OF

PREMISES/ CHANGE OF MANAGEMENT 12 1.7 CHANGE IN MINOR REGISTRATION DETAILS 12 1.8 BREACH OF CONTRACT 13 1.9 TERMINATION OF THE CONTRACT 13 1.10 RIGHT OF APPEAL 15 1.11 PROCEDURE IN CASE OF DISPUTES 15 1.12 HEALTH AND SAFETY 15 1.13 FIRE PRECAUTIONS 15 1.14 CODE OF PRACTICE ON WHISTLEBLOWING 17 1.15 ANTI-FRAUD AND BRIBERY 17 1.16 DATA PROTECTION 19 1.17 CALDICOTT 20 1.18 EQUALITY 21 1.19 HUMAN RIGHTS ACT 21 1.20 RIGHTS OF THIRD PARTIES 21 1.21 CONFIDENTIALITY 22 1.22 FREEDOM OF INFORMATION 23 1.23 FORCE MAJEURE 24 1.24 BUSINESS CONTINUITY 24 1.25 MONIES RECOVERABLE NEW CLAUSE 25 1.26 BEST VALUE NEW CLAUSE 25 1.27 WAIVER 25 1.28 SEVERABILITY 25 1.29 NOTICES NEW CLAUSE 26 1.30 GOVERNING LAW 26 2 STAFFING 26 2.1 STAFF RECRUITMENT AND SELECTION 26 2.2 STAFF TRAINING AND DEVELOPMENT 28 2.3 STAFF SUPERVISION 29 2.4 CODE OF CONDUCT 29 3 SAFEGUARDING 30 3.1 PROTECTION OF THE RESIDENT 30 3.2 THE MENTAL CAPACITY ACT AND DEPRIVATION OF LIBERTY SAFEGUARDS

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3.3 RESTRAINT 33 4 QUALITY SYSTEMS 33 4.1 VIEWS OF USERS AND CARERS/RESIDENT AND CARER FEEDBACK 33 4.2 QUALITY ASSURANCE 33 4.3 COMPLAINTS 34 4.4 COMPLIMENTS 35 5 FINANCE, INDEMNITY AND INSURANCE – GENERAL 35 5.1 FINANCIAL STABILITY OF THE HOME 35 5.2 INDEMNITY AND INSURANCE 36 5.3 COMPLETION AND RETURN OF INDIVIDUAL AGREEMENT 36 5.4 RESIDENT CONTRIBUTION 36 5.5 THE COUNCIL’S CONTRIBUTION 36 5.6 CCG CONTRIBUTION 37 5.7 THIRD PARTY TOP-UP CONTRIBUTION 37 5.8 ISSUE OF THE INDIVIDUAL AGREEMENT BY DEFAULT 38 5.9 PERSONAL ALLOWANCE/DISABILITY LIVING ALLOWANCE (MOBILITY

COMPONENT) 38 6 FINANCE – PAYMENT SYSTEM 38 6.1 THE COUNCIL’S ALLOWABLE RATES 38 6.2 PAYMENT DAYS 39 6.3 PAYMENT ADVICE 39 6.4 CHANGE IN RESIDENT’S FINANCIAL CIRCUMSTANCES 40 6.5 PRIVATELY FUNDED RESIDENTS (SELF FUNDING) 40 6.6 DEFAULT OF RESIDENT CONTRIBUTION / THIRD PARTY TOP-UP

CONTRIBUTION 40 6.7 DEPARTURE/RETURN TO THE HOME 41 6.8 HOSPITALISATION 41 6.9 RESIDENT HOLIDAYS 42 6.10 RESIDENT ABSENCE (OTHER THAN HOLIDAY) 42 6.11 TRANSFER OF A RESIDENT 42 6.12 DEATH OF A RESIDENT 43 6.13 RE-ASSESSMENT OF TYPE OF CARE 43 6.14 NOTICE PERIOD 43 7 MONITORING AND DEFAULT IN THE PERFORMANCE OF SERVICES 44 7.1 ACCESS TO PREMISES 44 7.2 CONTRACT MONITORING 44 7.3 RECORDS 45 7.4 WEEKLY CARE HOME REPORT - BED VACANCIES, GENERAL AND SHORT

TERM RESPITE 46 SECTION TWO 47 SERVICE SPECIFICATION 47 8 SERVICE OUTCOMES 47 9 SERVICE PRINCIPLES 48 10 GENERAL 49 11 CARE AND SUPPORT 50 11.1 CARE PLAN 50 11.2 ADVOCACY 51 12 INFORMATION TO RESIDENTS 51 12.1 GENERAL 51



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12.2 YOUR RIGHTS 51 APPENDIX ONE 54 THE COUNCIL’S ALLOWABLE RATES FOR PLACEMENTS 54 APPENDIX TWO 55 PROCESS FOR FUNDED NURSING CARE CONTRIBUTION (FNCC) 55 APPENDIX THREE 57 YOUR RIGHTS 57 APPENDIX FOUR 61 CONFIRMATION OF RECEIPT OF ‘YOUR RIGHTS’ 61 APPENDIX FIVE 62 RECORDS TO BE MAINTAINED BY THE SERVICE PROVIDER 62 APPENDIX SIX 64 USEFUL TELEPHONE NUMBERS AND CONTACT DETAILS 64 APPENDIX SIX CONTINUED 66



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SECTION ONE

PREFACE A. The Council has a statutory responsibility under the Care Act 2014, to meet the needs

for care and support of individuals who have physical or mental impairment or illness who are unable to live independently.

B. To undertake this responsibility the Council will contract for appropriate care for Individual’s when it is no longer appropriate to care for them in their own home.

C. The purpose of this Agreement is to set out the Councils usual terms and conditions and to set out the principles and standards upon which the provision of independent sector care and support will be based in a registered care home. This Agreement shall not imply any guarantee on the numbers of places (if any) subsequently purchased from Service Providers.

D. The Service Provider is required to be registered with the Care Quality Commission (CQC) and to follow their Guidance about Compliance in order to comply with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and Care Quality Commission (Registration) Regulations 2009. The Service Provider is required to forward to the Council any plan of action/improvement (including time scales) prepared in response to a CQC inspection or visit activity, which may form part of the Contract Monitoring.

E. The Service Provider shall provide Placements for Service Users placed within a Care Home under the Individual Agreement upon and subject to the attached terms and conditions. Each Individual Agreement shall (together with the attached terms and conditions) be a separate agreement for the placement of any Service User detailed therein.

F. Any individual is entitled to choose the accommodation, which meets his/her needs. the Council will enable individuals to choose the accommodation which meets their needs subject to the attached terms and conditions.

G. Where a Service User chooses accommodation suitable to meet their needs an Individual Agreement will be entered into between the Council, the Service Provider, Service User and any Third Party. This will be based upon the needs outlined in the individuals Care Assessment and subsequent reviews.

H. The Service Provider will ensure that the accommodation provided meets the needs of the individual as assessed by the Council through the use of a Care Assessments, which will be shared with the Service Provider.

I. The Council’s payment (Allowable Rates) will be in respect of accommodation, full board, personal care, staffing on a 24 hour basis, and the provision of meaningful activities appropriate to an individuals interests and abilities. In addition to this the relevant CCG will be responsible for funding the assessed level of nursing care (registered nursing care contribution).



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J. Any individual has the right to choose to live in more expensive accommodation than that normally funded by the Council. In these circumstances it will be for a third party to pay the additional cost (third party top-up) between the Service Provider’s charge and the Council’s Allowable Rate.

K. CCGs have a duty to assess and provide for the nursing care needs of the Care Home’s resident’s. The CCG’s responsibility of nursing care is set out under Appendix Two.

L. The Service Provider will be required to enter into contracts with the relevant CCG’s in respect of Registered Nursing Care Contribution.

M. The Council will consult with Service Providers via the Independent Sector Liaison Group. The Council, through the establishment of contract monitoring and review systems will ensure that quality services are developed and maintained.

N. Where a the Council Requirement specified below is more exacting or precise than a similar provision in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and Care Quality Commission (Registration) Regulations 2009 or Guidance, the attached terms and conditions shall take precedence.



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TERMS AND CONDITIONS

DEFINITIONS AND INTERPRETATION “Agreement” means the Framework Agreement for the Provision of

Care in a Registered Care Home 2016 – 2018 comprising these terms and conditions, the Service Specification at Section Two and the Appendices at Section Three.

“Allowable Rate” means the rate payable by The Council for board, accommodation and personal care in respect of independent sector care provided in a registered care home as set out in Appendix One and represents the maximum the Council would usually expect to pay for someone with the Residents assessed needs.

“Business Continuity Management” (BCM)”

means all the assessed risks that might affect the Service Provider’s ability to deliver a service and considers how services can be maintained, regardless of the cause of the disruption.

“Business Continuity Plan” means a plan, which sets out the detailed procedures and processes to be followed and actions to be taken if there is a critical failure or disruption of the Service.

“Care Assessment” an assessment carried out by the Council or Care Co-ordinator within the agreed inter-agency Assessment and Care Management procedures.

“Care Home” means the accommodation provided in a residential setting by the Service Provider where individuals live and receive personal care and , if appropriate, nursing care.

“Care Manager” is the person employed (Social Worker/Care Co-ordinator) by the Council, who is responsible for undertaking Care Assessments and for monitoring Service User/Residents needs.

“Care/Support Plan” means a document identifying the care and support needs of a Resident as a result of the Care Assessment.

“Carers” means the relative, family or representative of a Resident as defined by the Carers (Equal Opportunities) Act 2004.

“CCG” is the relevant NHS Clinical Commissioning Group.



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“Confidential Information” means information, the disclosure of which would constitute an actionable breach of confidence, which has either been designated as confidential by either Party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including Commercially Sensitive Information, information which related to the business, affairs, properties, assets, trading secrets, Intellectual Property Rights, know-how, personnel, customers and suppliers of either Party and all personal data within the meaning of the DPA.

“Council Data” shall mean any Data and Personal Data that the Service Provider accesses as a consequence of providing the Services.

“DPA” means the Data Protection Act 1998 and any subordinate legislation made under such Act from time to time, together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government Department in relation to such legislation.

“End of Life Care” means support for people who are approaching death. It helps them to live as well as possible until they die and to die with dignity. It includes support for their family or carers. It includes palliative care.

“European Economic Area” means the geographical area served by the states which are contracting parties to the agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993.

“FOI” means the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 and any codes of practice, guidance or subordinate legislation made under that legislation from time to time.

“Force Majeure Event” means acts of war; acts of God; decrees of Government; riots; civil commotion; and any event or circumstance which is both beyond the control of whichever party is affected and which could not have been prevented by acting prudently, diligently or with reasonable foresight.

“Funded Nursing Care Contribution” (FNCC)

means the contribution made by the relevant CCG towards the cost of nursing care of a resident.



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“Healthwatch Wakefield” means the statutory service commissioned by the Council to act as an independent consumer champion to gather and represent views of the public about Health and Social Care Services.

“Individual Agreement” means the agreement between the Parties, the Resident and any other party identified within the Individual Agreement comprising the terms and conditions of this Agreement (including the Service Specification at Section Two and the appendices at Section Three) in the form as notified to the Service Provider by the Council in respect of each Resident placed in the Care Home.

“Independent Sector Liaison Group (ISLG)”

are the representative body of Independent Care Homes within Wakefield District.

“Information Commissioner” has the meaning given to it in Freedom of Information (FOI) and the Data Protection Act (DPA)

“Key Worker” is a named member of Staff who is responsible to the Service Provider for taking a key or lead role in the co-ordination and delivery of care and supporting a particular Resident throughout their stay.

“NHS” means the National Health Service responsible for the provision of Nursing Care with whom the Service Provider is in contract with in respect of Nursing Care.

“Nursing Care” means nursing care by a registered Nurse.

“Nursing Care Assessment” means an assessment in relation to a Resident’s needs for nursing care and continence products and which is the prevailing NHS assessment process.

“Party/ies” means the Council and/or Service Provider.

“Quality Intelligence Group” means the multi-agency group who gather intelligence about quality from a range of sources. The Quality Intelligence Group (QIG) meets every six weeks and is a subgroup of the Wakefield District Safeguarding Adults Board.

“Records” means the record, which shall be produced/ reviewed by the Service Provider in accordance with Appendix Five

“Registered NHS Nursing Care Assessor”

means a registered NHS nurse of the relevant CCG authorised to carry out an assessment.



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“Request for Information” Shall have the meaning set out in FOI under the FOI and/or the Environmental Information Regulations and includes any apparent request for such information.

“Resident” means an individual who is a resident at the Care Home and is receiving the care and support of the Service Provider and who was placed by the Local Authority in order for his/her assessed eligible care needs to be met.

“Resident Contribution” is the Resident’s financial contribution, as financially assessed by the Council, towards the provision of the provision of the Services covered by this Agreement.

“Service” or “Services” means the Services to Residents provided by the Service Provider in accordance with an Individual Agreement, the principles, objectives, aims and obligations set out in the Service Specification.

“Service Provider” means the person or Organisation providing he Service of Care and Support in a registered Care Home.

“Service Provider Charge” is/are the weekly charge/s set out on the ‘Details of Home’ proforma, completed and submitted by the Service Provider and accepted by the Council.

“Service Provider’s Manager” means an employee of the Service Provider that the Service Provider nominates (in writing) as having authority to make binding decisions on behalf of the Service Provider in respect of the Agreement and any Individual Agreement.

“Service Specification” means the Service Specification attached at Section 2 of this document the details of the Services to Residents living in the Care Home as set out at Section 2 which may be amended from time to time by the Council in consultation with the Service Provider.

“Service User” means the person living within the boundaries of the Council’s area who has been assessed by the Council as requiring Services.

“Short Term Resident” means a Resident who remains or is expected to remain at the Care Home for a period of less than six weeks.



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“Staff” means each person paid or unpaid (including but not limited to persons who are permanent, temporary, casual, volunteers, agency workers and/or contractors) who is employed, engaged, retained, recruited, selected, or appointed by the Service Provider/Service Provider’s Manager, to provide or assist in the provision of Services to Residents living in a registered Care Home.

“Statement of Purpose” is the legally required document that includes a standard set of information about a Service Provider’s Service, as defined in the CQC Statements of Purpose Guidance for Providers, February 2016.

“The Council” means the Council of the City of Wakefield.

“The Council Contribution” is the difference between the Resident’s Contribution and the Council’s Allowable Rate.

“The Council’s Officer” means the Officer of the Council authorised by and acting on behalf of the Council.

“Third Party Top-Up Contribution”

is the difference between the Council’s applicable “Allowable Rate” and the corresponding applicable “Service Provider Charge”.

The headings in this Agreement are for convenience only and shall not affect its interpretation. In this Agreement unless the context requires otherwise, words in the singular include the plural and words in the plural include the singular and any reference to the masculine gender shall include the feminine and vice versa Any reference in this Agreement to a person includes a firm, company, corporation, partnership, trust, authority and other body whether incorporated or unincorporated. References to Clauses, Schedules and Appendices are, unless otherwise provided, are references to Clauses, Schedules and Appendices of the Agreement. The Agreement constitutes the entire agreement and understanding between the Parties in respect of the matters dealt within and supersedes all previous contracts between the Parties. Where there is any conflict between any of these Terms and Conditions and other parts of the Agreement or an Individual Agreement, the parts of the Agreement and/or Individual Agreement shall, at the Council Manager’s sole discretion, be given the following priority in descending order:

• these Terms and Conditions;

• all other documents forming the Agreement/Individual Agreement The expressions “Council”, “Service Provider” and “NHS” include their respective successors, personal representatives and permitted sub-contractors and assigns.



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Any reference to an Act of Parliament or Order or Regulation or Statutory Instrument, Bylaw, Directive, Standing Order, statutory guidance, Codes of Practice or the like shall include reference to any amendment, re-enactment or replacement of it.

1 GENERAL

1.1 THE AGREEMENT

1.1.1 This Agreement shall commence on 1st July 2016 and shall expire on 31st March 2018, unless terminated earlier in accordance with the provisions of this Agreement.

1.1.2 The Council does not provide any guarantee of any exclusivity or any value or volumes of Services under this Agreement or otherwise. For the avoidance of doubt the Council is not bound to enter into any Individual Agreement and the Council shall not incur any liability in respect of any failure to enter into any Individual Agreement or in connection with the total value of Services anticipated by the Service Provider. The Service Provider shall not be reimbursed for any costs or expenses incurred in discussions or any preparation of any documentation for any prospective Services.

1.2 VARIATION OF AGREEMENT

1.2.1 The Council reserves the right to vary this Agreement, subject to consultation with the Independent Sector Liaison Group. Any variation of this Agreement will be recorded in writing.

1.3 ADDITIONAL CONTRACT

1.3.1 Any additional agreement the Service Provider enters into with the Resident shall not conflict with this Agreement, nor shall the Service Provider impose any financial obligations on a Resident in respect of any Services covered by this Agreement and therefore to be delivered by the Service Provider in accordance with the assessed needs of the Resident.

1.4 STANDARDS OF CARE

1.4.1 The Service Provider will provide services in accordance with the service specification as set out in section two and relevant legal provisions including the requirements of health and social care act 2008 (regulated activities) regulations 2014 and associated relevant statutory regulations, instruments, codes of practice and standards.

1.4.2 The Service Provider shall comply with the CQC guidance in relation to the Health and Social Care Act 2008 (Registration Requirements) Regulations 2009 and any Regulations made there under or any replacement provisions as enforced and required by CQC as well as any standards and measures required by the Service Specification.

1.4.3 Compliance with the guidance detailed in clause 1.4.2 shall be determined by the CQC and not the Council. However, the Council may determine for the purposes of this Agreement that a Care Home fails to meet the Specification.



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1.4.4 The Service Provider shall provide to the Council a Statement of Purpose and/or Service User Guide in respect of each of its Care Homes, when requested.

1.4.5 The Service Provider shall not discriminate between the standards of care provided for private and public funded Residents.

1.5 ASSIGNMENT, TRANSFER AND SUB-CONTRACTING OF THE HOME

1.5.1 The Service Provider shall not transfer, sub-contract or assign its rights or obligations contained in this Agreement without the prior written approval of the Council’s Officer which shall not be unreasonably withheld.

1.6 CHANGE OF OWNERSHIP/CLOSURE OF A HOME/CHANGE OF USE OF PREMISES/ CHANGE OF MANAGEMENT

1.6.1 The Service Provider shall inform the appropriate CQC and the Council’s Officer giving 28 days prior written notice of the proposed change of ownership, proposed closure of a Home, a proposed change in the use of the premises or proposed change of management.

1.6.2 In relation to notification of change of ownership, the Service Provider shall inform the Council’s Officer and the relevant CCG of the contact details of the proposed new Service Provider in order that the relevant contracts can be entered into.

1.6.3 In relation to notification of change of management, the Service Provider shall inform the Council’s Officer and the relevant CCG of the contact details of the proposed new manager or interim management arrangements, and ensure regular updates are provided relating to manager’s registration.

1.6.4 In the event of either: -

(i) the closure of a Home, the Service Provider will ensure that they comply with the requirements of clauses 6.11.1 and 6.11.3.

(ii) a change in the use of the premises, the Service Provider will ensure that they comply with the requirements of clauses 6.11.1 and 6.11.3.

Failure to comply with the requirements of Clause 1.6.4(i) or 1.6.4(ii) will mean that the Council shall be entitled to claim, from the Service Provider, the total cost to the Council for the provision of alternative services in relation to the 28-day period.

1.7 CHANGE IN MINOR REGISTRATION DETAILS

1.7.1 The Service Provider will notify the Council’s Officer of any changes to the Homes registration details within 7 days of notification being given to CQC. Once CQC has given approval a copy of the revised registration certificate should be forwarded to the Council’s Officer.



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1.8 BREACH OF CONTRACT

1.8.1 In the event that the Council considers that the Service Provider is in breach of any of the terms of this Agreement and/or Individual Agreement, the Council shall serve a notice of breach on the Service Provider.

1.8.2 The notice of breach shall specify the precise nature of the breach and whether the breach relates to the delivery of or performance of service to Residents or is an administrative breach and shall be deemed to be conclusive on the point.

1.8.3 The notice of breach shall specify a period for compliance with the terms of the Agreement/Individual Agreement which shall be not less than three days in the case of a breach relating to the delivery or performance of service to Residents and not less than fourteen days in relation to an administrative breach, (i.e non-compliance, identified during a contract monitoring exercise).

1.8.4 Where the Service Provider is unable to remedy such a breach within the period specified in the notice of breach the Service Provider will be required to submit to the Council a realistic action plan within the period specified.

1.8.5 The Service Provider’s action plan will cover all non-compliance issues and set out the action, which will be taken by the Service Provider to remedy the breach and the timescales for completion.

1.8.6 The Council will periodically monitor the implementation and progress of the Service Provider’s action plan. The Council reserves the right to suspend further placements at the Care Home where the Council deems that insufficient progress is occurring in respect of the implementation of the action plan.

1.8.7 Where a breach has not been remedied within the period specified in the notice of breach and no action plan has been received in lieu of a remedy the Service Provider will be granted a period at the Council’s discretion not exceeding 28 days to remedy the breach.

1.8.8 If the breach has not been remedied within the period granted in accordance with clause 1.8.7 the Council reserves the right to suspend further placements at the Care Home until such time that the breach has been remedied.

1.9 TERMINATION OF THE CONTRACT

1.9.1 The Council may terminate this Agreement and/or any Individual Agreement forthwith by giving written notice to the Service Provider and may recover from the Service Provider any loss resulting from such termination if:

(a) The Service Provider shall commit any act of bankruptcy or if (the Service Provider being a Company) proceedings shall be commenced for its winding-up, or if a Receiver, Administrative Receiver or Administrator (or notice of intention to appoint an Administrator is given to the Service Provider) or manager on behalf of the Service Provider shall take or suffer any similar action in consequence of a debt.



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(b) The Service Provider receives notice of proposed cancellation of its registration under the Health and Social Care Act 2008 (Registration Requirements) Regulations 2009 or ceases to hold the appropriate registration under the Health and Social Care Act 2008 (Registration Requirements) Regulations 2009.

(c) The Service Provider persistently breaches the obligations under this Agreement/Individual Agreement.

(d) The Service Provider takes any financial advantage of the relationship with the Resident, or acts in any way, which is prejudicial to the proper discharge of this contract.

(e) The Service Provider is in breach of any of the terms of this Contract and:

• the breach is incapable of remedy; or

• the breach is capable of remedy but the Service Provider has failed or refused to remedy the breach in accordance with the notice of breach.

(f) The Service Provider is convicted of any offence arising out of the performance of the Service or related operation of the Care Home;

(g) Upon completion of all investigations in accordance with Section 3.1, it is determined in accordance with Clause 3.1.7 that a member of Staff has committed any physical, sexual, psychological or financial abuse in respect of a Resident or Carer, the Council may terminate this Agreement and/or any Individual Agreement immediately, remove all existing Residents from the Care Home and recover any losses resulting from the termination from the Service Provider.

(h) The Service Provider fails to implement any necessary action or measures as directed by the Council in accordance Clause 3.1.6.

(i) At the date of termination all rights to payments in respect of care provision shall cease but such termination shall be without prejudice to any rights or liabilities under any part of this Agreement and/or Individual Agreement, which have arisen prior to the date of termination.

(j) The Service Provider or any of its Staff or agents have committed any offence under the Prevention of Corruption Acts 1889-1916, s.117(2) of the Local Government Act 1972 or the Bribery Act 2010.

1.9.2 Termination or expiry of the Agreement shall not cause any Individual Agreement to terminate automatically. All Individual Agreements shall remain in force unless and until they are terminated in accordance with their own terms.

1.9.3 Termination of an Individual Agreement shall be without prejudice to any accrued rights

or remedies under an Individual Agreement.



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1.10 RIGHT OF APPEAL

1.10.1 The Service Provider will have the right to make an appeal against the termination of the Agreement. The appeal must be made in writing within 14 days of the termination of the Agreement termination to the Corporate Director of Adult, Health and Communities (see Appendix Six for contact details).

1.11 PROCEDURE IN CASE OF DISPUTES

1.11.1 If any dispute, issue or difference (“Disputes”) arises under this Agreement and/or any Individual Agreement, the Parties shall make genuine efforts to resolve the Dispute by negotiation and failing such resolution the Dispute shall be referred within 28 days from the date when the Dispute first arose to the Council’s Officer and the Service Provider’s Manager (the Managers) who shall endeavour to resolve the Dispute.

1.11.2 The references of Dispute to the Managers and any agreement or failure to agree the resolution of the Dispute by the Managers shall be recorded in writing.

1.11.3 If the Managers fail to agree the resolution of any Dispute within 28 days after reference of the dispute to them, the Dispute shall be referred without delay to an Arbitrator chosen by agreement between the Parties or, failing such agreement, appointed by the President for the time being of the Chartered Institute Of Arbitrators. The decision of the Arbitrator appointed under this Clause shall be final and binding on the Parties and the costs of the arbitration shall be in the sole discretion of the Arbitrator.

1.12 HEALTH AND SAFETY

1.12.1 The Service Provider must comply with the Health and Safety at Work Act 1974 and all relevant and future legislation required in the provision of the Services in the Care Home. The Service Provider shall be responsible for the health and safety of Staff and Resident’s in all respects.

1.12.2 The Service Provider shall be solely responsible for assessing the nature of any and all risks to which Residents and/or Staff may be exposed in the provision of care to Residents.

1.13 FIRE PRECAUTIONS

1.13.1 The Service Provider shall comply with the Regulatory Reform (Fire Safety) Order 2005 or any replacement provisions enforced and follow the recommendations and guidance given in the HM Government Guide - Fire Safety Risk Assessment – Residential Care Premises.

1.13.2 The Service Provider shall ensure that the Care Home is subject to a fire risk assessment in accordance with the obligations at 1.13.1 and is updated annually or when there is any significant change in risk.

1.13.3 The Service Provider shall ensure that the ‘responsible person’ (as defined in the Regulatory Reform (Fire Safety) Order 2005) undertakes a fire safety risk assessment



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which focuses on the safety in case of fire of all ‘relevant persons’ (as defined in the Regulatory Reform (Fire Safety) Order 2005).

1.13.4 Where relevant a personal emergency evacuation plan (PEEP) should be developed and incorporated into the Residents care plan. The Service Provider shall ensure adequate staffing levels which take into account all persons on the premises including those who may need assistance to escape.

1.13.5 The Service Provider will provide in accordance with the HM Government Guide - Fire Safety Risk Assessment – Residential Care Premises (ISBN: 978 1 85112 8181) (Web page link Fire Safety Risk Assessment - Residential Care Premises - Fire and resilience - Communities and Local Government the appropriate firefighting equipment and fire detection and warning system for the Care Home and will also ensure the maintenance of the equipment provided. The Service Provider will also carry out and record periodic checks of the equipment as advised to ensure that it is working properly.

1.13.6 The Service Provider will have a written fire safety/prevention procedure and will ensure that all Staff are trained (including refresher training) in the use of the Care Homes fire detection and firefighting equipment. The Service Provider shall ensure that the training includes: -

• Action to be taken on discovering a fire/hearing the fire alarm (respond in an emergency);

• Raising the alarm, the location/use of equipment;

• Calling the fire and rescue service;

• The method of evacuation/escape routes.

1.13.7 For the avoidance of doubt the Service Provider will maintain training records which will include the date training has been provided, the content of the training, the name/employer of the trainer, the name of the Staff who has received training, including the Staff’s signature.

1.13.8 The Service Provider will document the outcome of all discussions with the Fire and Rescue Authority or other expert including details of action undertaken and action planned.

1.13.9 The Council does not accept any liability in respect of deficiencies within the risk assessments, personal emergency evacuation plan, policies and procedures adopted by the Service Provider in respect of Fire Safety.

CARE HOMES REGISTERED FOR 3 BEDS OR LESS - Fire Precautions

(Applicable to Care Homes within the City of Wakefield Metropolitan District Council’s Boundary)

1.13.10 The fire safety required standards for small Care Homes are higher than those normally required by the Fire and Rescue Authority, however in order for the Council to make placements in the Service Providers Care Home the following Fire Precautions



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must be complied with. Care Homes outside of the the Council’s boundary should seek advice from the Fire and Rescue Authority within their area and act upon the advice provided.

1.13.11 The Chief Fire Officers’ Association Guide – A short guide to making your premises safe from fire states Service Providers must have a suitable fire detection and warning system. It has been agreed in consultation with the Fire and Rescue Authority, the Council and the Independent Sector Liaison Group that the fire alarm system installed must comply with British Standard 5839 (Part 6), Grade D, Type LD1, which is a linked alarm system and does not necessarily require a control panel. This is to include a smoke detector in each bedroom, escape routes and ancillary accommodation. In the case of ancillary accommodation a heat detector maybe more suitable than a smoke detector e.g. kitchen area due to steam etc. (Expert advice must be sought in terms of the appropriate use of smoke or heat detectors).

The Chief Fire Officers’ Association Guide – A short guide to making your premises safe and the Fire Safety Risk Assessment – Residential Care Premises are available from:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/14879/making-your-premises-safe-short-guide.pdf

1.14 CODE OF PRACTICE ON WHISTLEBLOWING

1.14.1 The Public Interest Disclosure Act 1998 requires people other than employees of the Council to be made aware of the fact that the Council has a Whistleblowing Code of Practice. The Service Provider is required to be aware of, and to make all Staff aware, of the contents of the Whistleblowing Code of Practice, copies and updates of which can be obtained from the Council web site (Part 5 of the Council’s constitution):

http://www.wakefield.gov.uk/Documents/policies-procedures/codes-of-practice-protocols-procedures.pdf#search=whistleblowing%20policy

1.14.2The Service Provider shall comply with the Council’s whistleblowing procedure which ensures that employees of the Service Provider are able to bring to the attention of the Relevant Authority malpractice, fraud and breach of laws on the part of the Service Provider or any sub-contractor without fear of disciplinary and other retribution or discriminatory action.

1.15 ANTI-FRAUD AND BRIBERY

1.15.1 The Service Provider shall comply with the Council’s Anti-Fraud and Bribery Policy and Strategy Statement, which sets out the roles and responsibilities of the Council and those associated with the Council. The policy emphasises the firm approach which the Council takes in addressing the prevention of fraud, bribery theft and corruption, and the same approach is expected from all organisations that have dealings with the Council.

1.15.2 The Service Provider is responsible for ensuring that staff are aware of policies, procedures, protocols and codes of practice, relating to fraud and bribery and that the requirements of each are being met in everyday business activities. Staff should know:



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• what action to take in the event of suspicion about the possibility of fraud and bribery

• what action to take including to whom they should report, any personal mis-conduct whether at work or personal life, so that the Service Provider can risk assess the situation.

1.15.3 The Service Provider shall ensure they have policies to support compliance with these requirements which take into account legal requirements – including the due diligence expectations of the Bribery Act 2010 and expected standards relating to Public Sector life including:

• Codes of Conduct for Staff

• Financial and Contract Procedure Rules

• Disciplinary Procedures

• Whistleblowing Code of Practice

• Complaints Procedures

• Code of Corporate Governance

• Gifts and Hospitality Protocols

• Register of Employee Interests

• Anti-Money Laundering and Anti- Terrorist Financing Policy These documents set the ethical standards to which the Care Home should operate.

1.15.4 The Service Provider shall ensure they have the appropriate arrangements in place to tackle the risk of fraud and bribery which:

• Assess and manage risks

• Prevent risks materialising

• Gather, collate and disseminate intelligence/information as appropriate

• Take appropriate action including reporting to Internal Audit arrangements, the Council and other external bodies for example, the Council considers: the National Anti-Fraud Network (NAFN) – of which the Council, is a member; National Fraud Authority; the Police.

1.15.5 The Service Provider is required to have internal controls, and steps must be taken as

necessary following any identified incident of fraud, bribery or other wrongdoing, or if weaknesses in controls are identified through other means. Examples of the internal control include:

• Supervisory checks

• Authorisation Procedures

• Random spot checks/observations

• Other internal checks where the work of one person acts as a check on another person such as ‘reconciliation procedures’

• Other operational and management control procedures such as formal ‘Segregation of Duties’.

1.15.6 The Service Provider shall ensure sufficient segregation of duties, or alternative effective control arrangements when allocating tasks to staff. In particular:

• duties of providing information about sums due to or from the Council, and calculating, checking and recording these sums should be separated from the duty of collecting or spending them;



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• staff with the duty of examining or checking the accounts of cash transactions must not themselves be engaged in these transactions;

• separation of duties between ordering/receiving goods and approving/paying the related invoices.

Staff should be properly trained to discharge their responsibilities and following training, performance should be monitored and action taken where appropriate to ensure adherence to policies, procedures, protocols and codes of practice.

1.15.7 The Service Provider will notify the Council immediately of any suspected fraud or bribery, and will;

i. respond promptly and fully to the enquiries of the Council ii. cooperate with any investigations undertaken including, allowing the

Council to audit any books, records and other relevant documentation. The Service Providers obligations under this clause1.15.7, shall survive the expiry or termination of this Agreement for a further six (6) years.

1.16 DATA PROTECTION

1.16.1 For the purposes of the arrangements governed by this Agreement and any Individual Agreement, the Council is Data Controller and, in circumstances where the Service Provider has access to the Council Data, the Service Provider is Data Processor.

1.16.2 For the avoidance of doubt ownership of any Council Data shall at all times remain with

the Council. The Service Provider shall (and shall procure that its Staff, Subcontractors and Agents) duly observe their obligations under the DPA.

1.16.3 Notwithstanding the general obligation at Clauses 1.16.1 and 1.16.2 above, in

Processing the Council Data the Service Provider shall:-

1.16.3.1 do so in accordance with the DPA and all other applicable laws;

1.16.3.2 ensure that access to any Council Data shall be restricted to Staff who are directly involved in the provision of the Services;

1.16.3.3 implement appropriate technical, organisational and contractual measures to protect the Council Data against unauthorised or unlawful Processing and against accidental loss, destruction, damage, alteration or disclosure. These security measures shall be reasonable and appropriate to the harm which might arise from any unauthorised or unlawful Processing, accidental loss, destruction or damage to the Council Data and having regard to the nature of the Council Data which is to be protected;

1.16.3.4 take reasonable steps to ensure the reliability of its Staff who may have access to the Council Data and use all reasonable endeavours to ensure that such persons have sufficient skills and training in the handling of Data and Personal Data;



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1.16.3.5 not cause or permit the Council Data to be transferred outside the European Economic Area without the prior written consent of the Council;

1.16.3.6 not disclose the Council Data to any third parties in any circumstances other than with the written consent of the Council;

1.16.3.7 co-operate with the Council to enable the Council to comply with any request under Section 7 or section 10 of the DPA;

1.16.3.8 ensure that it does not knowingly or negligently do or omit to do anything which puts the Council in breach of its obligations under the DPA; and

1.16.3.9 promptly notify the Council of any breach of the security measures that are required to be implemented under Clause 1.16.3.3.

1.16.4 The Provider shall give reasonable assistance as is necessary to the Council in order to enable the Council to respond to complaints from Data Subjects and otherwise investigate any breach or alleged breach of the DPA.

1.16.5 Notwithstanding the Provider’s obligations in this Agreement/Individual Agreement

regarding the Processing of Council Data the Provider shall comply with any notification requirements under the DPA and both Parties shall comply with all their obligations under the DPA which arise in connection with the Agreement/Individual Agreement.

1.16.6 The Service Provider shall indemnify and keep indemnified the Council in full from

and against all claims, proceedings, actions, damages, costs, fines, expenses and any other liabilities which may arise out of, or in consequence of, the breach or purported breach of the DPA or the performance or non-performance by the Service Provider, its employees, agents or subcontractors of its obligations under the Agreement/Individual Agreement, including loss of or damage to property, financial loss arising from any breach of the DPA, or any other loss which is caused directly or indirectly by any act or omission of the Service Provider or its subcontractors. The Service Provider shall not be responsible for any loss, damage, cost or expense if and to the extent that it is caused by the negligence or wilful misconduct of the Council or by breach by the Council of its obligations under this Agreement or Individual Agreement.

The terms “Data”, “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data” and “Processing” shall have the meanings given to them in the DPA.

1.17 CALDICOTT

1.17.1 The Council also follows the Caldicott principles and expects Service Provider’s to comply with these, which are as follows:

Principle 1 Justify the purpose

Principle 2 Do not use personal data unless it is absolutely necessary.



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Principle 3 Use the minimum necessary personal data

Principle 4 Access to personal data should be on a strict need to know basis.

Principle 5 Everyone with access to personal data should be aware of their responsibilities.

Principle 6 Understand and comply with the law.

Principle 7 The duty to share information can be as important as the duty to protect patient confidentiality

1.17.2 The Council and Service Provider shall enter into an Information Sharing Protocol concerning the sharing of information regarding Residents placed in a Registered Care Home.

1.18 EQUALITY

1.18.1 The Service Provider shall:

1.18.1.1 Ensure that no recipient of the Services receives less favourable treatment on the grounds of age, gender, colour, race, nationality, ethnic or cultural origin, religious persuasion, sexual orientation, disability or on any other grounds prohibited under the Equality Act 2010 or any other equality law;

1.18.1.2 Ensure that no recipient of the Services is disadvantaged by conditions or

requirements which cannot be justified to the satisfaction of the Council;

1.18.1.3 Comply with the reasonable instructions of the Council’s Officer to enable the Council to meet its statutory obligations including (but not limited to) the supply to the Council of information to facilitate compliance with equality law.

1.19 HUMAN RIGHTS ACT

1.19.1 The Council has obligations under the Human Rights Act 1998. The Service Provider shall not do anything to cause any infringement by the Council of its obligations under this legislation or any other human rights legislation. Where the Service Provider is itself a public authority as defined by the Human Rights Act 1998, it shall comply with, and ensure compliance by its Staff with this legislation and any other Human Rights legislation.

1.20 RIGHTS OF THIRD PARTIES

1.20.1 A person who is not a Party to the Agreement or Individual Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of the Agreement or Individual Agreement.



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1.21 CONFIDENTIALITY

1.21.1 The Service Provider and Council shall keep confidential all matters relating to this Agreement and/or any Individual Agreements and shall use all reasonable endeavours to prevent their directors, members, officers and employees and agents from making any disclosure to any person of any matter relating to this Agreement and/or any Individual Agreement.

1.21.2 Clause 1.21.1 shall not apply to:

(a) Any disclosure of information that is reasonably required by persons engaged in the performance of its obligations under the Agreement and/or any Individual Agreement;

(b) Any matter which the Service Provider and Council can demonstrate is already generally available and in the public domain otherwise than a result of a breach of this Clause;

(c) Any disclosure of information by the Council which is required by operation of FOI under Clause 1.21.1;

(d) Any disclosure of information by the Council to any other department, office or agency of the Government;

(e) Any disclosure which is required by law or legislation, for the avoidance of doubt this includes any Act of Parliament or subordinate legislation within the meaning of Section 21(1) Interpretations Act 1978 or any exercise of the Royal Prerogative and any enforceable Community right within the meaning of the European Communities Act 1972 in each case having effect within the United Kingdom.

1.21.3 For the purposes of the Audit Commission Act 1998 the District Auditor and the Audit Commission may examine such documents as he may reasonably require which are owned, held or otherwise within the control of the Service Provider and may require the Service Provider to produce such oral or written explanations as he considers necessary.

1.21.4 The Service Provider shall not make use of the Contract or any information issued or provided by or on behalf of the Council in connection with the Contract otherwise than for the purpose of the Contract, except with the written consent of the Council.

1.21.5 The Service Provider shall neither dispose of nor part with possession of any Confidential Information provided to the Service Provider by the Council pursuant to the Contract or prepared by the Service Provider pursuant to the Contract other than in accordance with the express written instructions of the Council’s Officer.

1.21.6 Each Party shall indemnify and keep indemnified the other against all actions, claims, demands, costs, charges and expenses whatsoever in respect of any breach of this Clause 1.21.

1.21.7 Any information supplied by the Council or its agent to the Service Provider for any



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purpose regarding a Service User who does not subsequently become a recipient of the Services or Resident in accordance with any Individual Agreement shall be promptly disposed of by the Service Provider upon the written instructions of the Councils Manager or once the Service Provider becomes aware that they will not be providing the Services to the Service User.

1.22 FREEDOM OF INFORMATION

1.22.1 The Service Provider acknowledges that the Council is subject to the requirements of the FOI and shall assist and co-operate with the Council (at the Service Providers expense) to enable the Council to comply with these Information disclosure requirements.


(a) transfer any Request for Information to the Council as soon as practicable after receipt and in any event within two working days of receiving a Request for Information;

(b) provide the Council with a copy of all Information documentation in its possession or power in the form that the Council requires within five working days (or such other period as the Council may specify) of the Council requesting that Information; and

(C) provide all necessary assistance as reasonably requested by the Council to enable the Council to respond to a Request for Information unless expressly authorised to do so by the Council.

1.22.3 The Council shall be responsible for determining as its absolute discretion whether:

(a) the Information is exempt from disclosure under the FOI and the Environmental Information Regulations;

(b) the Information is to be disclosed in response to a Request for Information;

1.22.4 In no event shall the Service Provider respond directly to a Request for Information unless expressly authorised to do so by the Council.

1.22.5 The Service Provider acknowledges that the Council may, acting in accordance with FOI to disclose Information:-

(a) without consulting with the Service Provider or

(b) following consultation with the Service Provider and having taken its views into account.

1.22.6 The Service Provider shall ensure all information submitted in connection with any approval process or during the term of the Agreement, or the course of any Individual Agreement, or relating to the Agreement or any Individual Agreement, is retained for disclosure and shall permit the Council to inspect such records as requested from time to time.



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1.22.7 The Service Provider acknowledges that any lists or schedules provided to the Council containing Confidential Information are of indicative value only and that the Council may nevertheless be obliged to disclose Confidential Information in accordance with Clause 1.21.

1.23 FORCE MAJEURE

1.23.1 If either Party is prevented from or delayed in the performance of its obligations under this Agreement or an Individual Agreement by an event arising after the formation of the Agreement or an Individual Agreement which was unforeseeable, irresistible, insurmountable and independent of the will of the Party concerned, that Party shall notify the other within 10 Working Days of a Force Majeure Event and shall not be liable for the failure to undertake its contractual obligations under this Agreement or an Individual Agreement.

1.23.2 This is subject to the proviso that whichever Party is affected shall have given the other notice that such failure is the result of Force Majeure Event within 10 Working Days of such failure occurring.

1.23.3 If a Force Majeure Event occurs then both Parties shall meet to discuss how best to continue to provide the Services until the Force Majeure Event ceases, which may include the Council providing the Service Provider with assistance, where possible.

1.23.4 For the avoidance of doubt ‘force majeure’ shall not include any labour dispute between the Service Provider and its Staff.

1.23.5 If a Force Majeure Event continues for a period of more than 90 days, then either Party may at any time thereafter, and provided such performance or punctual performance is still affected, terminate by written notice.

1.24 BUSINESS CONTINUITY

1.24.1 The Service Provider acknowledges that the Council is subject to the requirements of the Civil Contingencies Act (2004) and shall assist and co-operate with the Council (at the Service Providers expense) to enable the Council to maintain services in the event of major emergencies. Where a Service is contracted out, or is dependent on external suppliers, it is still the responsibility of the Council to ensure continuity, therefore the Council requires Service Providers to have continuity arrangements.

1.24.2 The Service Provider will have and maintain a properly documented system of Business Continuity Management including a Business Continuity Plan, which should follow best practice and contain:

1.24.2.1 Business Impact Analysis and/or Risk Assessments, which should be reviewed on an ongoing basis;

1.24.2.2 Strategy; 1.24.2.3 Continuity plans (detailed procedures and process to be followed actions

to be taken); 1.24.2.4 Processes to test your plans, not less than once in every twelve month

period, and to train Staff.



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1.24.3 The Service Provider shall, if requested, provide the Council with a copy of its Business Continuity Plan, Business Impact Analysis and/or Risk Assessments. For the avoidance of doubt whilst the Council may discuss improvements and remedial measures that may be made to the Business Continuity Plan the Council does not accept any liability in respect of deficiencies within the policies and procedures adopted by the Service Provider in respect of Business Continuity Management.

1.24.4 In circumstances where: 1.24.4.1 there has been a substantial change to the Service; 1.24.4.2 there has been a change in underlying business processes; or 1.24.4.3 there is an increase likelihood of an event happening, which would

necessitate the implementation of the Business Continuity Plan. The Council may require the Service Provider to undertake additional tests of the Business Continuity Plan. The Council reserves the right to attend any Business Continuity Plan test undertaken by the Service Provider.

1.25 MONIES RECOVERABLE

1.25.1 Whenever, under an Individual Agreement, any monies are recoverable from or payable by the Service Provider, such monies may be deducted from any sum due or which may become due to the Service Provider under this or any other contract with the Council.

1.26 BEST VALUE

1.26.1 The Council is subject to requirements imposed on local authorities by legislation to achieve “Best Value”. The concept of Best Value is essentially concerned with the provision and maintenance of service standards that have been established in consultation with local taxpayers and service users. In addition, there is a requirement for services to continuously improve. The Service Provider shall co-operate with the Council with the introduction and implementation of any requirements imposed on the Council in connection with “Best Value” and shall comply with the reasonable instructions of the Council’s Officer in respect thereof.

1.27 WAIVER

1.27.1 The failure by either Party to enforce at any time the provisions of this Agreement or any Individual Agreement or to require at any time performance by the other of any of the provision hereof, shall in no way be construed as a waiver of such rights nor in any way affect the validity of this Agreement or any Individual Agreement or any part hereof of the right to enforce each and every provision.

1.28 SEVERABILITY

1.28.1 If any provision of this Agreement or Individual Agreement is held invalid, illegal or unenforceable for any reason, such provision shall to that extent be deemed not to form part of this Agreement or Individual Agreement and the enforceability of the remainder of the Agreement or Individual Agreement shall not be affected.



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1.29 NOTICES

1.29.1 All notices required by or relating to this Agreement and/or any Individual Agreement shall be in writing and shall be sent to the Parties at their address appearing in the Agreement and any Individual Agreement or such other address as may be notified in writing. Notices shall be deemed duly given on the day following posting or immediately if sent by email or facsimile transmission to the Councils Officer and/or the Service Provider’s Manager when the notice is transmitted.

1.30 GOVERNING LAW

1.30.1 This Agreement and any Individual Agreement shall be governed by the Laws of England and subject to the jurisdiction of English Courts.

2 STAFFING

2.1 STAFF RECRUITMENT AND SELECTION

2.1.1 The Service Provider shall ensure that it takes due precautions and has due regard to the vulnerabilities of the Resident when employing, engaging, retaining, recruiting, selecting and appointing Staff.

2.1.2 The Service Provider shall obtain two written references prior to employment/engagement of Staff, one of which must be from the potential Staff’s last permanent employer, or satisfactory evidence of conduct in previous employment concerned with the provision of services relating to;

a) health or social care

b) children or adults at risk

2.1.3 Where a potential staff member has been previously employed in a position whose duties involved work with children or adults at risk, satisfactory verification so far as reasonably practicable of the reason why the potential staff members employment position ended.

2.1.4 The Service Provider shall ensure that any gaps in the employment record of potential Staff are explored.

2.1.5 The Service Provider shall require current and future Staff to disclose details of any convictions regardless of the date of the conviction or level of the penalty.

2.1.6 The Service Provider shall determine the appropriate level of Disclosure and Barring Service, (DBS) disclosure check that it they are required to obtain having regard to the roles, duties and activities of the job in question and the roles, duties and activities referred to in the Rehabilitation of Offenders Act (Exceptions Order) 1975 and the Police Act 1997 (Criminal Records) Regulations 2002. The Service Provider acknowledges that it is legally responsible for ensuring that it is entitled to submit an application for all DBS disclosure checks submitted.



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2.1.7 The Parties acknowledge that the Service Provider is a provider of regulated activity as defined in the Safeguarding Vulnerable Groups Act 2006 (‘’Regulated Activity’’) and has ultimate responsibility for the management and control of Regulated Activity being provided under this Contract for the purposes of the Safeguarding Vulnerable Groups Act 2006.


2.1.8.1 comply with Section 34ZA of the Safeguarding Vulnerable Groups Act 2006 (regardless of whether that section is in force). This means that the Service Provider must ascertain whether Staff are barred before employing to engage in Regulated Activity and before permitting Staff who have not previously been engaged in providing Regulated Activity, to engage in Regulated Activity ; and

2.1.8.2 subject to Clause 2.1.14 ensure that all Staff engaged in Regulated Activity are subject to a valid enhanced disclosure check undertaken through the DBS including a check against the adults' barred list and ensure that any Staff who are not engaged in Regulated Activity are subject to a standard disclosure check through the DBS. Where the Service Provider is any doubt about the suitability of Staff, the Service Provider shall obtain any other information that is available about such person’s suitability to work with or have access to adults at risk (for example, without limitation, information accessible through relevant common law police powers to disclose information); and

2.1.8.3 monitor the validity, relevance and age of the certificates obtained pursuant to the checks referred to in Clause 2.1.8.2 for all Staff and refresh the checks in accordance with national guidance.

2.1.9 The Service Provider warrants at all times that it has no reason to believe that any Staff who are or will be employed or engaged by the Service Provider in the provision of Care and Support Services, is barred from the activity in accordance with the provisions of the Safeguarding Vulnerable Groups Act 2006 and/or any regulations made thereunder.

2.1.10 The Service Provider shall immediately provide the Council with any information that it reasonably requests to enable it to be satisfied that the obligations of this Clause 2.1 have been met.

2.1.11 The Service Provider shall refer information about any Staff to the Disclosure and Barring Service where it removes permission for such person to carry out Care and Support Services in their Care Home, (or would have, if such person had not otherwise ceased to carry out Care and Support Services in their Care Home) because, in its opinion, such person has harmed or poses a risk of harm to vulnerable adults.

2.1.12 The Service Provider shall not employ (on a paid or voluntary basis) or use the services of any person who is barred from working with, or whose previous conduct or records indicate that he or she would not be suitable to work with, adults at risk or who may otherwise present a risk to Service Users/Residents/Short-Term Residents.



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2.1.13 For the avoidance of doubt the Service Provider shall not involve any person in the provision of the Services where a valid enhanced or standard Disclosure and Barring Service check (as appropriate) cannot obtained for that person.

2.1.14 A “DBS Adult First Check”: means the DBS’s adult first service which allows an individual to be checked against the DBS adults barred list while waiting for the full criminal record check to be completed. This results in one of two responses:

Response 1: „registered body must wait for the DBS certificate‟

Response 2: „no match exists for this person on the current adults barred list‟.

Staff may work with Service Users/Residents/Short-Term Residents prior to receipt by the Service Provider of a valid enhanced DBS check certificate or a standard DBS check certificate (as appropriate) from the DBS in respect of that member of Staff (as requested in accordance with Clause 2.1.8.2) only:

2.1.14.1 in accordance with the guidance described in Regulation 19- Fit and Proper Persons Employed of CQC Fundamental Standards; and

2.1.14.2 if a member of Staff is accompanied by a supervising member of Staff for whom the Service Provider has a valid recent complete full certificate following the check required by Clause 2.1.8.2; and

2.1.14.3 if a DBS Adult First Check is obtained and the response from the DBS regarding the DBS Adult First Check is Response 2.

2.2 STAFF TRAINING AND DEVELOPMENT

2.2.1 The Service Provider shall ensure that:

a) Staff have the necessary qualifications, knowledge, skills, experience, personal qualities, and caring attitudes to enable them to relate well to Residents and carry out their role; and

b) there are sufficient appropriately trained and qualified Staff in the areas required in order to meet the specific needs of Residents and will disclose to the Council, on request, staffing levels applied within the Care Home.

c) Staff are competent and can evidence training received and competency to provide the Services.

d) Nursing staff are applying for revalidation every three years, using the Nursing Midwifery Council (NMC), online system as a means of renewing their registration

2.2.2 The Service Provider shall establish and maintain an induction and learning and development programme for Staff, which meets the requirements of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and takes account of recognised standards e.g. Skills for Care training targets and standards, (www.skillsforcare.org.uk)



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• Care Certificate

• National Occupational Standards

• Health and Social Care Standards

• Manager Induction Standards

• Common Core Principles

and ensures that Staff fulfils the aims of the Home and meets the changing needs of Residents. The Service Provider shall ensure that this is supported by individual training records for Staff.

2.2.3 The Service Provider shall ensure that Staff have their qualifications, knowledge and skills updated on a regular basis and that refresher and updating training is identified at least annually through a staff performance review process (appraisal) and incorporated into the staff learning and development programme.

2.2.4 The Council do not wish to constrain the Service Provider by prescribing specific approaches or methods of training, staff records or performance review processors however there is an online assessment tool linked to the Care Certificate which is free and available for Service Providers to make use of and is available at www.TGMGroup.net

2.3 STAFF SUPERVISION

2.3.1 The Service Provider shall ensure that they have regular individual or group staff supervision sessions in respect of Staff. Supervision sessions will take place a minimum of four times per year. The Service Provider shall ensure that there is documentation to support this.

2.3.2 The Service Provider shall implement structured staff/team meetings as a forum for discussing the running of the Care Home, communicating important and relevant information about the Residents’ needs and ways in which the care of Residents in general can be improved. These meetings shall occur regularly and a written record of the meetings kept.

2.3.3 The Service Provider shall ensure that staff ‘Hand-over’ arrangements are in place between staff shifts.

2.4 CODE OF CONDUCT

2.4.1 The Service Provider shall have policies and procedures in place, which ensure that all Staff at the Care Home treat all Residents with respect and act in a courteous, caring and professional manner at all times.

2.4.2 The Service Provider shall ensure that its Staff do not:

2.4.2.1 Enter into any financial transaction whatsoever with a resident or any



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Carers of a resident including the borrowing or lending of monies or property.

2.4.2.2 Accept gifts from a Resident or Carers (unless it is of low monetary value).

2.4.2.3 Sell anything to, borrow anything from or exchange anything with a resident or their Carer. The reference to the words sell, borrow or exchange in the preceding sentence shall include any attempt to sell, borrow or exchange.

2.4.2.4 Act as witness to any Wills.

2.4.3 The Service Provider shall ensure that Staff are made aware of the provisions contained in Clause 2.4.2 as part of their induction and training.

3 SAFEGUARDING

3.1 PROTECTION OF THE RESIDENT

3.1.1 The Service Provider is required to comply with and abide by the Safeguarding Adults Multi-Agency, Policy and Procedure, for West Yorkshire and North Yorkshire published April 2015, (copy available on line at http://www.wakefield.gov.uk/Documents/health-care-advice/adult-services/safeguarding/safeguarding-adults-from-abuse/safeguarding-adults-board-policy-procedure.pdf for the investigation of complaints about alleged abuse. Furthermore, that the Service Provider agrees to accept the decision and any recommendations of an investigation carried out by the Council under this policy and procedure. For the avoidance of doubt all references to the ‘Safeguarding Adults Multi-Agency, Policy and Procedure, for West Yorkshire and North Yorkshire’, in this Agreement shall be deemed to include a reference to any amendment or replacement of them.

3.1.2 In the event of a complaint or allegation being made against the Service Provider or a member of Staff which initiates an investigation, including investigations by other Commissioning Authorities, the Council will consider all of the circumstances regarding the complaint/allegation and form a decision as to whether to suspend further placements being made at the Care Home by the Council. Where a decision has been made to suspend further placements being made by the Council in the Care Home, the Council’s Officer will inform the Service Provider of this in writing. Suspension of placements means that the Home will be temporarily removed from the Contracted Provider List (Care Home Directory) and bed vacancies will not be shared with relevant professionals until the suspension is lifted. The Council will make no additional placements in the Care Home. Existing Residents will continue to be funded by the Council during the period of suspension.

3.1.3 In the case of pre-arranged respite or short stay placements the Service Provider will provide full details of these cases to the Council’s Care and Support Commissioning Team, who will form a decision as to whether each placement is or is not allowed to take place. These decisions will be made taking into account all of the circumstances including the complaint or allegation and the circumstances of the individual.



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3.1.4 During the period of suspension the Council shall maintain contact with the Service Provider to review the investigation and review the suspension of placements in line with the Safeguarding Adults Multi-Agency, Policy and Procedure, for West Yorkshire and North Yorkshire or within each 28 days.

3.1.5 Throughout the investigation the Service Provider will be required to fully co-operate with the Council’s investigation processes

3.1.6 During the investigation, the Service Provider will be required to take all necessary action to protect Residents or the investigation processes as maybe directed by the Council in accordance with the application of the Safeguarding Adults Multi-Agency, Policy and Procedure, for West Yorkshire and North Yorkshire. Such action may include:

• the removal of the Resident from the Care Home

• requiring the Service Provider to temporarily cease to use a member/s of Staff involved in a complaint/allegation to deliver services under this Contract and requiring the Service Provider to undertake their own investigation following the processes as set out in the Care Home’s Terms and Conditions of Employment, which may include obtaining legal advice.

Failure by the Service Provider to implement any necessary action or measures either set out specifically within this clause or as maybe directed by the Council in accordance with the application of the Safeguarding Adults Multi-Agency, Policy and Procedure, for West Yorkshire and North Yorkshire, within a specified period will allow the Council to terminate this Contract in accordance with Clause 1.9 and immediately, remove all existing Residents from the Home and recover any losses resulting from the termination

3.1.7 On completion of all investigations*, if it is subsequently determined under the Safeguarding Adults Multi-Agency, Policy and Procedure, for West Yorkshire and North Yorkshire, that the member of Staff has committed an act of abuse or neglect in respect of a Resident or Carer the Council may:-

3.1.7.1 require the Service Provider to permanently cease to use the services of that Staff to deliver services under this Contract.

3.1.7.2 terminate this Agreement or any Individual Agreement immediately, remove all existing Residents from the Care Home and recover any losses resulting from the termination.

3.1.8 The Service Provider shall indemnify the Council against any claims made by or on behalf of any Staff in respect of any suspension and/or termination of their employment as a result of the Council enforcing Clauses 3.1.6 and/or 3.1.7 above.

3.1.9 Where placements at the Home have been suspended, the Council will as appropriate and necessary, carry out a contract monitoring visit in respect of the contract clauses relevant to the complaint or allegation unless instructed otherwise by the Police. Once notified by the Police that they have concluded their investigation a contract monitoring



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visit will be undertaken, as appropriate and necessary, in accordance with clause 7.2. Where it has been deemed contract monitoring is appropriate and necessary, the Council will not reinstate the Home onto the Contracted Providers List (Care Home Directory) and Bed Vacancy List until a contract monitoring visit has been undertaken which determines that the Home in question complies with the contract requirements.

3.2 THE MENTAL CAPACITY ACT AND DEPRIVATION OF LIBERTY SAFEGUARDS

3.2.1 The Service Provider will ensure that the service provided to all Residents, including those who self-fund, complies with the provisions of the Mental Capacity Act 2005, as amended by the Mental Health Act 2007 and within the guidelines set out in the Mental Capacity Act 2005 Code of Practice and the Deprivation of Liberty Safeguards supplement to the Code of Practice.

3.2.2 The Service Provider will ensure that where restrictions are believed to amount to a deprivation of liberty the deprivation of liberty safeguards must be followed.

3.2.3 The Service Provider will ensure that no Resident is unlawfully deprived of liberty and ensure that all Staff know about any Resident who is subject to a deprivation of liberty authorisation, and that they understand their care plan.

3.2.4 The Service Provider will ensure that all Staff:

• Receive induction and training which includes learning how the Mental Capacity Act 2005 deprivation of liberty safeguards affects Residents.

• have regard for the MCA Code of Practice when working with people who may lack capacity to make decisions for them.

3.2.5 The Service Provider will ensure that:

• Policies and procedures relating to the deprivation of liberty are in place and that copies of the Mental Capacity Act 2005 deprivation of liberty code of practice are available to all Staff.

• The Service Provider’s admission process includes:

o asking about and recording whether the Resident has made an advance decision on receiving medical treatment;

o recording if the Resident has a Lasting Power of Attorney (LPA), Independent Mental Capacity Advocate (IMCA) or Relevant Persons Representative (RPR).

3.2.6 The Service Provider shall in its role as Managing Authority make application(s) for

Standard Authorisation to the Supervisory Body for the Administrative Area. 3.2.7 The terms Managing Authority, Supervisory Body and Standard Authorisation within

this Clause 3.2 are as defined in the Mental Capacity Act 2005 and the Codes of Practices related to it.



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3.3 RESTRAINT

3.3.1 “Restraint” is defined in the Mental Capacity Act 2005 as the

• use, or threat to use, force to secure the doing of an act which a person resists, or

• a restriction of a person’s liberty of movement, whether or not a person resists.

3.3.2 The Service Provider is responsible for compiling a risk assessment in respect of the Resident.

3.3.3 Any inappropriate use of Restraint (including the use of drugs) to a Resident is unacceptable.

3.3.4 The Service Provider is responsible for authorising the use of immediate protective measures involving Restraint; and any Restraint used will be carefully noted in the Resident’s record.

3.3.5 The Service Provider will ensure that all Staff who are involved in the use of immediate protective measures involving Restraint have received full appropriate training.

3.3.6 Any restraint employed must not be prolonged after the immediate need has been met and the Care Manager must be informed of any protective measures employed as soon as possible and within one Working Day.

3.3.7 Care Homes registered for people with learning difficulties will follow the Department of Health Guidance for Positive and Proactive Care: Reducing the need for restrictive interventions (April 2014) or any successive guidance.

4 QUALITY SYSTEMS

4.1 VIEWS OF USERS AND CARERS/RESIDENT AND CARER FEEDBACK

4.1.1 The Service Provider shall ensure that the views of Residents and their Carers are sought and acted upon by implementing procedures for obtaining the views of Residents and their Carers about the Service they are receiving and taking action, where reasonable, to meet their views.

4.1.2 The Service Provider will collate the information gathered from Residents and their Carers annually to identify any trends which may impact on services and improve service delivery, and, if requested, share results with the Council.

4.1.3 The Service Provider will support Healthwatch Wakefield, through a partnering approach to fulfill its responsibilities in seeking the views of Residents about the services they receive.

4.2 QUALITY ASSURANCE

4.2.1 The Service Provider will have and maintain a properly documented system of quality assurance, including standard setting, monitoring management and review processes, to ensure that the required standards of the Care Services provided to Residents are being delivered and the needs of Residents are being met. The Council shall have the



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right to inspect any records relating to the quality assurance system and the Service Provider shall make full details of the quality assurance system and annual analysis available to the Council on request.

4.2.2 The Council do not wish to constrain the Service Provider by prescribing specific approaches or methods of quality assurance, however, it is recommended that the following is taken into account:

• Regularly seeking the views of Residents, their Carers, and other stakeholders in the community (e.g. G.P.’s, District Nurses, Podiatrist etc.)

• Policies, procedures and practices are regularly reviewed in line with changing legislation and good practice guidance.

• Analysis of safeguarding referrals, compliments, complaints, accidents and incidents including action taken or changes made to care provided to reflect the analysis.

• Assessment and monitoring of the quality of the Services.

• Method of ensuring Staff understand the overall philosophy of the service and are suitable for the work required, including any qualifications, competencies, or experience.

• Methods of assessing staff performance and continuing development of competencies of Staff.

4.3 COMPLAINTS

4.3.1 The Service Provider shall have a written complaint procedure and shall ensure that Residents are fully aware of the existence and nature of the complaint procedure. The Service Provider shall record the nature of each complaint, the investigation and the outcome.

4.3.2 The Service Provider shall ensure that the complaint procedure is in a format accessible to all Residents to enable an individual, or someone acting on their behalf to make a complaint or suggestion in relation to Services they are receiving.

4.3.3 The Service Provider shall ensure that the complaint procedure specifies and makes each Resident with whom the Service Provider is working aware of:-

4.3.3.1 The stages of the complaint procedure including how to make a complaint, who they make the complaint to, the appeals process and how it works;

4.3.3.2 Target time limits for processing complaints and reporting progress to complainants;

4.3.3.3 The Residents right to seek advocacy and how the Service Provider would assist them in this process;

4.3.3.4 The Residents right to contact the Council in relation to any matter concerning or connected with the Services provided by making appropriate reference to the Council’s statutory complaint procedure.



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4.3.4 The Service Provider should attempt to resolve complaints by informal discussions with the Resident and/or their Carers. If discussion fails to provide a solution satisfactory to both Service Provider and the resident, the Service Provider will fully investigate and formally respond to the complaint. Where such a response is not to the satisfaction of the Resident or their Carer, the Service Provider should inform the Resident/Carer of their appeals process and right to access the Council’s Complaint Procedure. The Council will investigate a complaint in accordance with the Social Care complaint policy and procedure, where appropriate. However, it will usually be appropriate for the Service Provider to undertake the initial investigation.

4.3.5 On receipt of a complaint, the Service Provider should contact the Council’s Complaints and Representations Team, who will log the complaint notification. A copy of the response, outcomes and actions taken to improve service delivery should also be submitted once completed. This information is submitted for discussion to the Quality Intelligence Group.

4.3.6 The Service Provider should ensure they collate the information from complaints annually to identify any trends which may impact on services and improve service delivery, and, share results with the Council on an annual basis.

4.4 COMPLIMENTS

4.4.1 The Service Provider shall have a written compliment procedure and shall ensure that Residents are fully aware of the existence and nature of the compliment procedure.

4.4.2 The Service Provider shall ensure that the compliment procedure is in a format accessible to all Residents to enable an individual, or someone acting on their behalf to make a compliment, in relation to Services they are receiving.

4.4.3 All compliments should be recorded, passed on and responded to appropriately.

5 FINANCE, INDEMNITY AND INSURANCE – GENERAL

5.1 FINANCIAL STABILITY OF THE HOME

5.1.1 The Council has a duty to ensure that Residents are placed into Homes offering financial stability. In order to satisfy the Council of this, the Service Provider shall upon the request of the Council’s Officer provide the Council with either

5.1.2 a letter written by their Chartered Accountant (registered to audit accounts) to confirm

that the Service Provider’s books have been prepared/ examined by a Chartered Accountant. This letter will refer to the Service Provider’s financial position within the last 6 months, and needs to state whether the Home can ensure financial viability. Or

5.1.3 the latest annual accounts signed by a director for the Care Home.

5.1.4 Where the Service Provider of a Home registered for 3 beds or less is unable to