MODERN SLAVERY RISK IN THE PUBLIC PROCUREMENT OF ADULT SOCIAL CARE IN ENGLAND - Caroline Emberson, March 2019

In this post Caroline Emberson discusses the results of a research study which examines the risks of modern slavery to care-workers in the labour supply chains of adult social care, created through contracting-out by English local authorities. While there are signs that the problems may now be receiving recognition, the findings presented raise questions about the adequacy and efficacy of current human rights accountabilities in our public authorities which may be of relevance to those in other EU member states.

Introduction

This post discusses the risks related to modern slavery that may arise from the contracting-out and personalisation of adult social care in the UK.

Adult social care services support adults with physical or learning disabilities and physical or mental illnesses. According to the Institute of Fiscal Studies total annual expenditure on adult social care in England reached nearly £35 billion of which £19 billion was state spending.

Over the past three decades there has been a shift in the medium of public provision of adult social care in England from homes owned and operated by local government to public procurement of care services by local government from private providers.

So when, in September 2018, the Governments of Australia, Canada, New Zealand, the United States and the United Kingdom jointly published a set of principles to guide Government action to combat human trafficking in global supply chains hopes were raised that Governments might take action to exclude from public tenders companies that have not committed to action to eradicate modern slavery.

However, while the first of these four principles requires Governments to take steps to prevent and address human trafficking in their procurement practices, its focus on global supply chains means it falls short of providing sanctions of relevance to the networks of small, domestic, private-sector organisations and individuals who provide services in their home countries’ adult social care markets.

Yet, as Claire Methven O’Brien identifies, the public procurement of such essential services may remain within the scope of the state’s duty to protect human rights which arises from international human rights instruments such as the European Convention on Human Rights: a premise that is reinforced by the recent publication of a Procurement Guidance Note related to Human Rights in Public Procurement from the Northern Ireland Public Procurement Policy Board.

However, as Anna Gorma and Patrycja Krupinska noted in this blog last year, Section 54 of the UK Modern Slavery Act (MSA), which might be expected to provide specific legal protection related to modern slavery, currently precludes public bodies such as local authorities from the duty to provide an annual statement of the steps that they have taken to eliminate modern slavery from their organisation and those of their suppliers or to state that they have taken no such steps. This may change. A number of local authorities have already opted to publish voluntary statements related to their activities and, in the second interim review report of the MSA published by the UK Government at the end of January, the reviewers recommend that Section 54 be extended to the public sector.

This is important since there is, at present, limited oversight of the fragmented adult social care sector in which the majority of private care providers fail to meet the £36 million threshold in place for commercial organisations’ annual reporting.

To better understand the risks of modern slavery in this sector, it is necessary to consider the context in which procurement decisions are made.

Adult social care work in England

Adult social care involves supporting individuals with personal care activities, such as eating, washing or getting dressed and domestic routines, such as cleaning or shopping. Residential care includes the provision of accommodation while nursing homes, in addition, support individuals with disabilities such as dementia.

In addition, Charlotte Pearson and Sheila Riddell[1] describe how direct payments for adult social care can be used to purchase a range of these and other personalised services, both inside and outside an individual’s home. Such direct payments provide greater choice and control over care provision by the service-user and this has led to an increase in care delivered in users’ own private homes.

Care in this setting is provided by care-workers who are recruited and employed either via agencies or directly by the service-user and employed as ‘personal assistants’ (PA). Care-worker agencies are regulated by the Care Quality Commission (CQC).

Overall, the care sector is labour-intensive with widely reported recruitment difficulties.

As the UK population has aged, demand for staff has increased and staff turnover is high. Statistics prepared by Skills for Care show that over 80% of the workforce is British, with a greater reliance on non-EU than EU migrant labour.

Though the introduction of a care training certificate has helped to raise skill levels, over half of the workforce still lacks adult social care qualifications.

Wages account for the majority of care home running costs. Operating profits have been squeezed by the introduction of the UK National Minimum and Living Wage, while breaches of minimum pay rules in the care sector have been identified as a concern by the UK Labour Market Director, David Metcalf.

Care-workers are known to ‘opt-out’ of the European Working Time Directive. Designed to protect workers’ health and safety, this directive gives EU workers’ rights to paid holiday, rest breaks and rest periods; restricts excessive night work; and limits the number of hours worked each week.

Writing about other sectors and geographies, Alex Balch[2] and Genevieve LeBaron[3] suggest that contracting-out and a reliance on unskilled, flexible labour increase the risks of forced labour.

Shaping the market

Over the past decade, some English local authorities have put the care homes that they previously owned up for sale. So, while some care homes run by local authorities  remain, councils are now more likely to exhibit a mixed model of procurement, with contracted-out residential care and nursing homes and direct payments for personalised care. The latter may account for a significant proportion of their adult social care budgets.

In this new landscape, local authorities have responsibilities for market shaping. This means that they must carry out activities to understand their local care provider market; to stimulate a diverse range of care and support services; and to ensure that service-users have a choice over how their needs are met.

Furthermore, the standardised supplier selection questionnaire issued by UK Crown Commercial Services[4] includes questions about suppliers’ duties with regard to the provision of annual modern slavery statements.

Some authorities have chosen to sign up to the labour union UNISON’s Ethical Care Charter, which seeks to improve working practices across the care sector, in particular by aiming to ensure that care services are priced at a level enabling all providers to pay reasonable wages to front-line care staff.

Despite the adoption of these measures, our recent study revealed evidence of serious modern slavery risks affecting both the procurement of care services from contracted-out residential care and nursing home providers and their agents, and personalised care delivery through the third-party support of PA employed directly by service-users.

Contracting-out care: Residential care and nursing homes procurement

Private care home providers rely on a mix of care-workers employed on permanent contracts and temporary agency workers. However, some providers fail to carry out required pre-recruitment checks, opening the way to exploitation of migrant workers without the legal right to work in the UK and, in one particular case, the exploitation of legal migrant workers by an unscrupulous international labour recruiter.

The legal scholar Jean Allain has highlighted the vulnerability of illegal migrant workers in other UK sectors. It seems that care-workers employed within the labour supply chains of contracted-out residential care and nursing home provision are exposed to similar risks. Under the current procurement framework, weak recruitment checks open the door to the exploitative employment of illegal workers.

While these findings concerning staff in privately-run care homes may give cause for concern, the risks of forced labour in the direct payment scenario may lead to further unease.

Supported provision of publicly funded personalised care

Direct payment support service providers are often used to process payroll and tax deductions for staff on behalf of individual service-users. While these organisations have no direct contractual relationship with the local authorities, direct payment support service provider managers were able to provide insights into the working conditions of PA employed directly by service-users.

Their evidence suggests that dismantling the employment and contractual relationships between the local authority and PA had introduced risks related to withholding of wages.

Withholding of wages can readily create a situation of forced labour.

A lack of oversight of the direct payment support service provider means the existence of practices such as withholding wages is more likely to go unnoticed. Due to the additional costs involved, however, managers at the local authority we studied felt under pressure to reduce the number of service-users using such services.

Other examples were also given of the ILO’s indicators of forced labour including the risk of excessive overtime and physical and sexual abuse.

Conclusion

In England the move to a longer and more complex adult social care labour supply chain has weakened managerial oversight over care-workers and heightened risks associated with forced labour.

Care-workers may be at risk of modern slavery regardless of whether local authorities procure services via contracted-out providers or they are employed directly by service-users themselves.

These changes may undermine just and effective conditions of employment for care-workers and jeopardise the dignity and quality of care provided to those who need it.

With the potential extension of MSA Section 54 to local authorities in England, it would be timely for these, and other, public buyers to attend to the serious human rights risks that may be present in these essential services.

This post is based on Caroline Emberson and Alexander Trautrim’s chapter in “Public Procurement and Human Rights: Opportunities, Risks and Dilemma’s for the state as Buyer” edited by Olga Martin-Ortega and Claire Methven O’Brien (Edward Elgar, forthcoming 2019)

[1] Charlotte Pearson and Sheila Riddell, ‘Introduction: The Development of Direct Payments in Scotland’ in Charlotte Pearson (ed), Direct Payments and the Personalisation of Care (Dunedin Academic Press 2006)

[2] Alex Balch, ‘Understanding and Evaluating UK Efforts to Tackle Forced Labour’ in Louise Waite, Gary Craig, Hannah Lewis and Klara Skrivankova (eds), Vulnerability, Exploitation and Migrants: Insecure Work in a Globalised Economy (Palgrave Macmillan 2015).

[3] Genevieve LeBaron, ‘Subcontracting is not Illegal, but is it Unethical? Business Ethics, Forced Labour and Economic Success’ (2014) 20 The Brown Journal of World Affairs 237.

[4] Crown Commercial Services provide commercial services related to policy, advice and direct buying for the public sector.