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Government consultation - Making vaccination a condition of deployment in older adult care homes

LGA submission

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About the LGA

The Local Government Association (LGA) is the national voice of local government. We are a politically led, cross-party membership organisation, representing councils from England and Wales. 

Our role is to support, promote and improve local government, and raise national awareness of the work of councils. Our ultimate ambition is to support councils to deliver local solutions to national problems.

Key points

  • The issue at the heart of this consultation is highly sensitive and complex and there are likely to be a range of views in the responses to it from across the entire care sector. We urge Government to take the time to understand and respect this diversity of views which will be essential to avoid entrenching vaccine hesitancy, which could then exacerbate existing health inequalities.
  • Irrespective of what the Government ultimately decides, it is of the utmost importance that we all continue current efforts to maximise voluntary take-up of the vaccine. Many of the barriers to take up, such as inaccessibility and lack of tailored information addressing concerns about vaccination, are already being addressed through effective national, regional and local level close partnership working between health and care partners. The greater diversity of high-profile vaccine champions is also increasing confidence in the vaccination programme and helping to dispel some of the myths surrounding vaccination.
  • As the impacts of this work to increase voluntary vaccination take-up takes effect, and more frontline care workers opt for vaccination, we may see the level of take-up reach desired levels by the time the consultation period is completed and any further work on implementation in completed. If this happens, then Government may need to revisit its case for the central proposal in this consultation. Should Government choose to proceed with their proposal despite reaching acceptable levels of vaccination on a voluntary basis it will need to be completely clear and transparent on the latest levels of take-up and why this particular intervention is still warranted.
  • At the time of writing, we understand the notional target of 80 per cent take-up has been reached (currently 82 per cent) but that, for some areas, take-up rates remain lower. This might suggest that a targeted is more proportionate and appropriate; it would be helpful for the Government to address this point in its response, particularly if it chooses to apply condition of deployment a national policy.
  • The pandemic has served to illustrate in the starkest possible ways the entrenched absence of parity of esteem between the NHS workforce and the care workforce. Care workers across all settings understandably feel undervalued, underpaid and marginalised compared to their NHS counterparts, and may feel particularly aggrieved that the outstanding commitment and care they have shown in performing their caring duties, often sacrificing time with their own families in the process, is to be rewarded with a mandatory vaccination requirement which will not apply to those in similar frontline care roles in the NHS or in other parts of the care sector. There is a real risk that making vaccination a condition of deployment in older adult care homes will perpetuate the belief this group are being singled out for different treatment to the rest of the health and care workforce, which may have adverse consequences for recruitment and retention. This proposal, as it stands, does not offer a convincing clinical and scientific argument for limiting this intervention to a single segment of the health and care workforce, or set out how the risks in terms of impacts on morale, motivation, recruitment and retention will be mitigated eg through increased pay or improved terms and conditions.
  • There are a number of implementation and operational challenges which would accompany the proposal to make vaccination a condition of deployment in older adult care homes. These include, but are certainly not limited to: the feasibility for many care providers of redeploying unvaccinated staff; the time, cost and resources involved in making changes to existing contracts and terms and conditions; the cost of defending potential legal challenges; and the administrative burden on providers of verifying vaccination or exemption from vaccination. These are complex matters requiring sufficient lead-in time and engagement to work them through fully.

Consultation questions

We are commenting only on the questions of most relevance to local government. We note that a number of the consultation questions are aimed specifically at care home managers.

How do you feel about the proposed requirement for workers in older adult care homes to have a COVID-19 vaccination?

It is difficult to provide a definitive answer to this question that fits neatly into the options provided, which reflects the complexities involved in responding to this proposal. As it stands, the case made by Government is not sufficiently robust or transparent enough to enable us to fully support it outright. Linked, we consider we may not yet be at the point of needing to make this particular intervention, which is unquestionably at the extreme end of the spectrum of possible approaches in maximising vaccination in older adult care homes. We support maximum take-up of the vaccine and offer qualified support to the proposed policy, subject to the issues and questions raised in this response being addressed.

  • We need a fuller understanding of why a minority of older adult care home workers are still choosing not to be vaccinated and what progress has been made in achieving vaccination targets voluntarily since the consultation was launched
  • We need to know the Government’s estimate of the anticipated impacts of this proposal on existing recruitment and retention, and projected numbers of leavers from the sector following implementation of this policy, as well as the assumptions underpinning the estimate.
  • We need to see factual and demonstrable evidence that this policy will have a net benefit, and that the benefits of implementing this policy will not outweigh the negative consequences for the sector, and quality and sustainability of care overall
  • We need to understand what additional and more focussed work the Government intends to undertake to increase voluntary vaccine take-up 
  • We need to understand how (beyond this consultation) the Government would engage with all relevant stakeholders, including: councils, care providers, care workers, unions, organisations representing people who draw on social care and support, and individuals in receipt of care and support, and their families, friends and advocates.
  • We need to understand why this particular group of staff are being singled out for mandatory vaccination
  • We need to see and understand the final Equality Impact Analysis that the Government has committed to publishing as part of its response to this consultation.

In setting out the above conditions, we do not discount the benefits of the proposed policy. Making vaccination a condition of deployment in some care home settings will offer important reassurance to residents and their families, and staff. We know that vaccination reduces the severity of COVID-19 and should lead to a reduction in sickness absence and therefore help maintain safe care levels, both of which will be important for the sustainability of older adult care homes.

Do you agree with using this definition [“any care home which has at least one person over the age of 65 living in their home in England and which is registered with the CQC”] to determine which care homes this regulation would apply to?

Do you have any concerns about the proposal to limit this policy to older adult care homes?

The definition setting out which care homes this regulation would apply to is clear. We do question the proposal to limit this policy to these particular care homes, and also note that the definition will bring into scope a number of smaller care homes whose primary focus is working age adults. The case is not sufficiently well made in the consultation for why vaccination is not a condition of deployment for colleagues in similar care roles in the NHS, or those working in other health and care settings, such as supported living and hospices. The risk with this selective approach is that older adult care home workers will feel alienated and marginalised, potentially adversely impacting recruitment and retention, which is so essential for the delivery of safe and quality care.

Which people working or visiting in an older adult care home should be covered by the scope of this policy?

We would expect that any requirement for care home staff to be vaccinated would extend to those visiting care homes for professional or voluntary reasons; excluding these would undermine the rationale for implementation of the policy in the first place. This means that this requirement would apply to all paid staff entering the care home, including GPs, nurses, social workers and CQC inspectors responsible for enforcing the regulation governing mandatory vaccination. Consideration should also be extended to whether family and friends visiting should also be required to have the vaccination.

Our understanding is that the proposed policy does not cover people under the age of 18. Whilst this group of people may not be large in number, they do exist and work in homes covered by the scope of the proposal. It is unclear in the proposal what vaccine they would be required to have.

Do you have any concerns about the impact of the proposed requirement on your [councils’] ability to commission services?

We are mindful of the risks to the delivery of safe and sustainable care services associated with the proposed policy and its potential to adversely impact recruitment and retention within a sector already grappling with a high vacancy rate.

We are also mindful of the potential for legal challenges which would incur costs for care providers. As vaccination in the UK is currently governed by the principle of consent, the proposal undermines the important principles of autonomy, freedom to choose and consent. The practical impact of enforcing the policy is that care homes will refuse to consider employing applicants who are not vaccinated and dismiss current employees who are not vaccinated. This presents a number of potential routes for claims by existing and prospective employees.

Making vaccination mandatory for a selected group of workers and not others could be discriminatory, and we could see legal challenges from employees and potential employees under the Equality Act 2010 and the Human Rights Act 1998 in which case the employer would have to justify its actions. As the employer would be implementing government policy the government would no doubt be joined in some claims.

Should an employer dismiss an existing employee for not having the vaccination, they may additionally face a claim of unfair dismissal under the Employment Rights Act 1996. The employer would need to demonstrate that they acted reasonably and that the dismissal was justified.

Justification arguments in all cases would likely focus on the extent to which not having an unvaccinated employee in the workplace would protect the health and safety of clients or colleagues, and potentially the functional capability of the service. Also, very importantly there would need to be consideration of the reason why the employee did not have the vaccine.

Where employers are in the position of having to dismiss, they will also need to consider whether they are able to redeploy the employee as an alternative to dismissing. In terms of redeployment, whilst redeployment to non-contact roles may be a viable option in the NHS, or for very large care providers, the reality for many SMEs will be very different, with little scope to achieve this, meaning dismissal is the only realistic option. Where this would be the case, some registered care home managers have said they may find it difficult to sustain provision of essential care for a significant period.

Returning to recruitment, another complicating factor is that under s.60 of the Equality Act 2010 it is unlawful for an employer to ask an applicant about health, which may include vaccination status, before a job offer is made. There are a small number of exceptions to this rule, one of which is where the employer is asking the question for the purposes of establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned. Should vaccination become a condition of deployment, then we would seek clarification that the exception applied so that questions could be asked about vaccination status early in the recruitment process.

If the Government considers that all employers should obtain their own legal advice before implementing this policy, this could represent a significant amount of public money being diverted away from frontline care. Care providers are already under significant financial pressure for a number of reasons and could be unable to bear the additional financial burden associated with legal and other challenges from workers, which could include industrial action.

Considering the above points more generally and in terms of the impact on councils’ ability to commission, most commissioning contracts demand that providers comply with all relevant legislation and statutory guidance. Councils would therefore need to have an exit route for providers who did not ensure that their staff were compliant, which could jeopardise continuity of support in some cases.