What are the effects of the care crisis on compensation claims?

The crisis in the care sector has been the subject of great concern in recent months. The National Care Forum has described it as the “most acute recruitment and retention crisis” in its history. 1

It produced a survey of more than 2,000 social care services, identifying that 74% of providers had reported an increase in staff exits. Staff turnover was estimated to be in the region of 30% at a time of increasing need for care services.

Similarly, a report by the charity Skills for Care found that an average of 6.8% of roles in the adult social care sector were vacant in the year 2020/21. This is equivalent to 105,000 jobs being advertised on any given day.2

In relation to pay in other sectors across the country, the

Consumer Prices Index rose by 5% in the 12 months to January 2022.3 UK employers expect to award pay rises of 3% in 2022, the highest for at least a decade. Job vacancies have reached record levels.4 The National Living Wage will increase in April 2022 by 6.6%. 5

Looking further into this area, the British Association of

Brain Injury Case Managers (BABICM) published its report

“Perfect Storm Survey Results” 6 . It makes for sobering but unsurprising reading for those of us working with brain and spinal cord injury survivors. Prompted by reports of increasing difficulty in recruiting and retaining skilled support workers, the crisis appears to be worsening with no clear end in sight.

BABICM conducted a survey that would gather objective statistics to go alongside the more anecdotal evidence in this specific sector of the care industry. BABICM wanted, among other things, to highlight to those involved the pay rates for support workers that are now being requested and paid.

Of 200 responses, more than 90% had experienced problems with staff recruitment. The reasons for the shortage of support workers included:

1. Low wages. 2. Increased rates of pay in other sectors. 3. Poor working conditions. 4. Loss of candidates and loss of some existing staff due to Brexit. 5. Impact of the pandemic on the role. 6. Introduction of mandatory vaccinations. The report mentions that these factors increase case management costs as well as increasing support worker wages. This is in part because difficulty finding appropriate support workers increases the time case managers need to be engaged in that part of their role.

The pressure on wages generally to go up is significant, as outlined earlier, but the other factors mentioned in relation to support workers in this sector only exacerbate these pressures.

The respondents in the survey expected increasing difficulty with recruitment because of the factors mentioned above. The recruitment crisis appears to be ongoing, with no end in sight. Wage increases were identified as necessary, an unsurprising conclusion in any industry, but again exacerbated by the other factors that disproportionately affect support worker recruitment.

The cost of retaining support workers in the future, after the case has been settled, is often the largest part of a compensation claim for those who have been seriously injured.7 The effect on a claimant if the future care claim is not correct can be catastrophic, as it means they will not have sufficient funds to pay for the care they require for the rest of their lives. This task can become much more difficult in an environment of rapidly accelerating care costs. This crisis is therefore having an ongoing effect on claims for brain and spinal cord injury, which all the professionals involved in these claims need to appreciate and act upon.

Future care claims have always taken a great deal of time and effort from all the professionals involved in a claim. As ever with compensation claims, it can be easy to achieve a settlement, but achieving the right figure is difficult.

HOW CAN THESE PROBLEMS BE DEALT WITH IN COMPENSATION CLAIMS?

The lawyers running such cases need to think carefully about the benefits of seeking payment of care costs on an annual basis rather than as a lump sum.8 If the care costs are paid on an annual basis, then they will be linked to increases in wages in the sector.

However, not every case is suitable for payments on an annual basis; they often do not work in cases involving significant liability disputes as the claimant then receives only

a relatively low percentage of the money required to pay care costs each year. Further, a lower capital sum provides less flexibility for making use of the compensation.

However the care costs are paid, the lawyers need to make strenuous efforts to ensure that the cost of providing care to the injured person is identified as accurately as possible. If the present cost of providing care is inaccurate, the future costs sought will become ever more insufficient as time goes by, leaving the claimant with a larger gap between what they need and what they have available to spend on their care costs.

It is therefore vital that the legal team thoroughly investigates the cost of providing the care required. There is never a substitute for putting in place the care regime for the injured person so that the cost of doing so is known rather than guessed at. Unfortunately, this is not possible in every case, as the money for a proper care regime through interim payments might not be available in a case in which liability is strongly contested.

When a care regime is put in place, it is all the more important in light of increasing care costs that the case manager thoroughly documents everything they have done to build and maintain the team of support workers. Difficulties in recruiting and retaining staff need to be recorded in the case management notes. There needs to be a particular focus on comments relating to pay in job interviews, which are often not well recorded. Exit interviews recording reasons should be considered as well, again with a focus on the reasons for leaving, particularly with regard to pay. 9

It may be necessary to think about not only the hourly rate for the support workers but also offering a retention bonus. This can be balanced out by the recruitment costs likely to be incurred if a particular member of the support worker team is not retained.

Kirstie Donnelly, chief executive of technical skills and education organisation City & Guilds, says: “In the face of a growing labour crisis impacting these vital industries and wider society, we need to collectively take a long, hard look at how we can make these jobs more attractive. We need to do more than simply clap for carers. We desperately need to re-evaluate the way we as a nation recognise these roles.”

While this more general action cannot be implemented, consideration needs to be provided to the role of support workers in individual cases and how the role can be made more attractive, particularly for claimants who experience problems recruiting appropriately.

1 https://www.thirdsector.co.uk/care-sector-facing-most-acute-recruitmentretention-crisis-its-history-not-for-profit-organisations-warn/management/ article/1728476 2 https://www.independent.co.uk/news/health/care-sector-jobs-recruitmentpandemic-b1937553.html 3 https://www.ons.gov.uk/economy/inflationandpriceindices/bulletins/ consumerpriceinflation/january2022#:~:text=current%20inflation%20rates.,The%20Consumer%20Prices%20Index%20(CPI)%20rose%20by%205.5%25%20 in,when%20it%20stood%20at%207.1%25. 4 https://www.theguardian.com/business/2022/feb/12/its-not-quite-the-blackdeath-but-worker-shortage-hits-uk-firms-hard 5 https://www.gov.uk/government/publications/minimum-wage-rates-for-2022 6 https://www.babicm.org/2022/02/03/perfect-storm-survey-results/ 7 https://www.judiciary.uk/wp-content/uploads/JCO/Documents/CJC/ Publications/consultation+papers/CJC+Costs+of+Care+Best+practice+guide.pdf 8 https://www.stewartslaw.com/news/how-will-the-care-crisis-affect-evidencein-injury-claims/ 9 https://www.stewartslaw.com/news/how-will-the-care-crisis-affect-evidencein-injury-claims/ 10 https://www.thirdsector.co.uk/care-sector-facing-most-acute-recruitmentretention-crisis-its-history-not-for-profit-organisations-warn/management/ article/1728476 11 https://www.theguardian.com/business/2022/feb/12/its-not-quite-the-blackdeath-but-worker-shortage-hits-uk-firms-hard

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