Duration
Commencement Date 1 April 2017
Contract Documents means all of the documents annexed to, contained and referred to within this Contract including any Individual Placement Contracts “IPAs”
Expiry date 31 March 2021
Financial Year the period of 12 months from and including 1st April i none year to the 31st March in the next.
Individual Care Plan a written plan (related to the Assessment of Needs) drawn up by the Service Provider in respect of the Service User (to show the person centred care objectives and provision of Service and where appropriate nursing care).
Individual Placement Contract or IPC means a contract formed under the terms of this Pre- Placement Contract where the Service Provider agrees to provide the Service to a Service User identified in the IPC
Payment Review The review of Payment as detailed in clause 7
Review means a formal review of the progress of the Services and the achievement of the Outcomes
Term means the period commencing on the Commencement Date and expiring on the Expiry Date
Third Party Agreement the Third Party contribution contract for care costs in respect of a Service User made between the Third Party and the Council
Commentary:
INTERPRETATIONS
11. Where there is any conflict or inconsistency between the provisions of these terms and conditions or any other document forming part of the agreement with the Council, such conflict or inconsistency shall be resolved in a manner at the Council’s sole discretion.
Commentary:
1 – CONTRACT AND TERM
1(a) In consideration of the Payments the Service Provider will provide to the Service User(s) the Service in accordance with the Assessment of Needs and the IPC. Where there is any conflict or inconsistency between the provisions of the terms and conditions contained in this Contract or any other document forming part of the agreement with the Council, such conflict or inconsistency shall be resolved in a manner at the Council’s sole discretion.
1(b) This Contract shall commence on the Commencement Date and shall continue until the Expiry Date subject to clauses 12 (Breach), 13 (Prevention of Bribery) and 17 (Extension and Termination) in accordance with the terms of this Contract.
1(d) The terms of this Contract come into effect when the Parties enter into an IPC and commence from the Admission Date
1(e) The Service User’s accommodation at the Home will be agreed by the Service Provider and the Care Manager in consultation (where appropriate) with the Service User and their family and carers and the Care Manager will record the details on the IPC.
Commentary:
2 – PAYMENT
2(a) Payments to be made by the Council under this Contract shall be as specified in each IPC. The sum payable by the Council is detailed in the IPC and is to cover the provision of the Service. The Payment shall include the Service User’s Contribution
2 (b) The Council will determine each Service User’s Contribution to the cost of their residential or nursing care. The Council will carry out financial assessments with all
Service Users using the CRAG and will invoice each Service User in accordance with their assessed contribution. Under no circumstances should the Service Provider attempt to charge a contribution from the Service User for the cost of their residential or nursing care
2(l) For the avoidance of doubt the Council will not be liable:
2(l)(i) to make Payments for any Service User residing in the Home who has not been assessed via the Council’s assessment and care management system.
2(l)(ii) for any nursing care costs properly payable by the local Health Authority in accordance with any statutory provision
2(l)(iii) for any default by a Third Party in respect of the payment of a Third Party Contribution; or where there is no Third Party Agreement signed by the Third Party and the Council; or where the amount of the weekly contribution claimed by the Service Provider exceeds the amount of the weekly Third Party contribution specified in the Third Party Agreement
2(l)(iv) to make any Payments in respect of any Service User following the termination date of an IPC
2(p) The Service Provider shall not be entitled to vary the care home fee during the
Commentary:
5 – COMPLIANCE
5(b)(viii) the standard required of a local authority under the Human Rights Act 1998. The Service Provider shall protect and shall not do anything in
breach of Service Users’ rights under the Act.
5(f) Where following a Review, the Council acting reasonably determines that the Service Provider has not met the Performance Indicators the Council may:
5(f)(i) serve the Service Provider with a written notice (“Notice”) within one month of the Review meeting specifying which of the Performance Indicators it considers that the Service Provider has not met or failed to achieve and giving the Service Provider one calendar month from the date of the Notice to remedy the failure
5(f)(ii) if after one calendar month from the date of the Notice the Service Provider has failed to remedy the failure specified in the Notice then this will be considered to be a breach of the terms of this Contract and the Contract may be terminated in accordance with the provisions contained in clause 17 (Extension & Termination) herein
5(f)(iii) The Council shall take into account any verbal or written representations made by the Service Provider before proceeding to take any action to terminate this Contract pursuant to this clause.
5(h) If for any reason the Service Provider is unable to comply with any of its obligations under this Contract it shall notify the Council’s Contracts Manager and appropriate Care Manager forthwith in Writing of its failure and the reasons. Compliance with this clause shall not prejudice the Council’s rights under clauses 12 (Breach) and 17 (Extension and Termination).
5(k)(vii) The Service Provider shall not be entitled to recover any additional costs from the Council which arise from, or be relieved from any of its obligations as a result of, any matters or inaccuracies notified to the Council by the Service Provider in accordance with sub-clause 5(k)(vi) save where such additional costs or adverse effect on performance have been caused by the Service Provider having been provided with fundamentally misleading information by or on behalf of the Council and the Service Provider could not reasonably have known that the information incorrect or misleading at the time such information was provided.
Commentary:
6 – VARIATION
6(a) This Contract may only be varied by consent of both of the Parties and any such variation must be in writing and signed by an authorised officer from the Service Provider and an appropriately authorised officer of the Council authorised under the Council’s Constitution and it must be annexed to this Contract and shall record the date from which the agreed variation shall have effect.
6(b) The Service Provider will not enter into any negotiations either directly or indirectly with any Service User or Third Party the effect of which would be to vary or amend the terms of this Contract without the prior written agreement of the Council.
Commentary:
7 – PAYMENT REVIEW
7(a) The Service Provider may request the Council to review the Payment under this
Contract on the 1st of April following the first full year of operation of the Service
and once in each subsequent year of the Contract provided that such request is
submitted to the Council by 1st of March in the previous Financial Year to which
the increase will apply.
7(b) Following such review the Council may increase the fee payable to the Service Provider which shall be linked to the annual inflationary provision to the Council as determined by the Council’s Chief Finance Officer or Officer of equal standing and reflective of any inflationary increase for care homes as agreed with Shropshire Partners in Care (SPIC). SPIC shall advise the Council of any factors for consideration concerning changes imposed nationally on Homes which have a cost implication to the Home
7(f) The Service Provider shall not be entitled to vary the Payment during the
existence of this Contract unless with the prior written consent of the Council.
Commentary:
12 – BREACH
12(a) In the event that the Service Provider is in breach of his obligations under this Contract then the Council shall serve a Notice requiring the Service Provider to take such action as the Council deems necessary to remedy the breach upon the terms and within the time stipulated in the Notice.
12(b) The following obligations are conditions of this Contract and any breach of them
shall be deemed a fundamental breach which shall determine this Contract
immediately by the giving of a written Notice:
12(b)(i) Failure to comply with a Notice to remedy a breach pursuant to clause 12(a)
12(b)(ii) Assignment by the Service Provider of any of his obligations under this
Contract without the prior written consent of the Council
12(b)(iii) If the Service Provider was convicted of any offence the effect of which
under the provisions of any legislation would prevent the Council from contracting with him or maintaining any existing contractual relationship
12(b)(iv) If the Service Provider is issued with a Notice from the Health and Safety Executive or Registration Body prohibiting it from operating.
Commentary:
17 – EXTENSION AND TERMINATION OF THE PRE – PLACEMENT CONTRACT
17(a) Unless terminated in accordance with this clause or clause 12 (Breach) or 13 (Prevention of Bribery) this Contract will remain in force from the Commencement Date until the Expiry Date.
17(b) The Council may in its absolute discretion extend the duration of this Contract by a further period of up to 2 years commencing from the day following the Expiry Date and must inform the Service Provider in writing of its intention to extend this Contract at least 3 months before the Expiry Date. Any extension must be agreed in writing by both Parties, be signed by an authorised officer, record the date from when it was agreed and be annexed to this Contract
17(c) This Contract may be terminated prior to the Expiry Date in the following circumstances:-
17(c)(i) by the Council on giving 6 months’ Notice in writing to the Service Provider
17(c)(ii) by the Council giving the Service Provider written Notice to terminate if, in the reasonable opinion of the Council as a result of any investigations undertaken in accordance with its safeguarding procedures, it considers there is or has been any improper conduct on the part of the Service Provider or its Staff to the effect that it is no longer practicable for the Council to maintain a satisfactory or viable relationship with the Service Provider. Improper conduct includes any unlawful or fraudulent act or any action (including those referred to in clause 21 ( Suspension of the Referral of Service Users to the Home) which the Council considers to be to the detriment of the welfare of any Service User either by action or neglect.
17(c)(iii) by the Council giving the Service Provider written Notice with immediate effect if in the reasonable opinion of the Council it is no longer practicable to maintain a satisfactory or viable relationship with the Service Provider because the Service Provider or its Staff have acted unlawfully or fraudulently
17(c)(iv) by the Council giving the Service Provider written Notice with immediate effect if the Service Provider becomes the subject of a voluntary arrangement under section 1 Insolvency Act 1986 or is unable to pay its debts within the meaning of section 123 Insolvency Act 1986; has a receiver manager administrator or administrative receiver appointed over all or any parts of its undertaking assets or income; has passed a resolution for its winding up; has a petitionpresented to any court for its winding up or for an administration order; or if any distraint execution or other process is levied or enforced on any property of the other and is not paid out withdrawn or discharge within 14 days
17(c)(v) by the Council giving the Service Provider written Notice in the event that the Service Provider, being a company, seeks to change the registration of the Home with the Registration Body such that the revised registration is not compliant with this Contract17(c)(vi) by the Council upon giving seven day’s written notice to the Service Provider following the Service Provider’s conviction of an offence contrary to the Care Standards Act 2000
17(c)(vii) by the Council giving to the Service Provider written Notice to take effect from the date(s) specified in the Notice where the Council
becomes aware that an event referred to in clause 43(e)(Notification) has occurred or is about to occur and the Service Provider has failed to provide the Council with sufficient prior written notice as require by clause 43 (e)(Notification) and where in the reasonable opinion of the Council it is in the best interests of the Service Users for the Council to secure alternative accommodation for the Service Users as a consequence presented to any court for its winding up or for an administration order; or if any distraint execution or other process is levied or enforced on any property of the other and is not paid out withdrawn or discharged within 14 days
17(c)(v) by the Council giving the Service Provider written Notice in the event that the Service Provider, being a company, seeks to change the registration of the Home with the Registration Body such that the revised registration is not compliant with this Contract17(c)(vi) by the Council upon giving seven day’s written notice to the Service
Provider following the Service Provider’s conviction of an offence contrary to the Care Standards Act 2000
17(c)(vii) by the Council giving to the Service Provider written Notice to take effect from the date(s) specified in the Notice where the Council becomes aware that an event referred to in clause 43(e)(Notification) has occurred or is about to occur and the Service Provider has failed to provide the Council with sufficient prior written notice as required by clause 43 (e)(Notification) and where in the reasonable opinion of the Council it is in the best interests of the Service Users for the Council to secure alternative accommodation for the Service Users as a consequence
17 (d) The Service Provider may terminate this Contract by giving 3 months’ prior written notice in advance to the Council if it intends to either:
17(d)(i) sell or close the Home and/or
17(d)(ii) transfer its business to a third party The Service Provider must if requested provide appropriate financial records sufficiently detailed to evidence any closure arising from the Home not being sufficiently financially viable to continue operation
17(f) If the Service Provider commits a fundamental breach of its obligations in accordance with clause 12(b) of this Contract then in such circumstances the Council may without prejudice to any accrued rights or remedies under this Contract terminate this Contract by Notice in writing having immediate effect and take action to enforce any right arising to the Council under this Contract.
17(g) If this Contract is terminated as provided by Clause 12 (Breach) or 13 (Prevention of Bribery) or 17(Extension and Termination) above the Council shall:
17(g)(i) cease to be under any obligation to make further Payment.
17(g)(ii) pay such sum as shall be due if the cost loss and/or damage resulting from or arising out of the termination of this Contract shall have been calculated and it is found that such calculation shows a sum or sums due to the Service Provider;
17(g)(iii) be entitled to make other arrangements and if necessary pay other persons to provide the Service
17(g)(iv) be entitled to a refund of any Payment made by the Council in respect of any Service which have not been performed by the Service Provider
17(g)(v) be entitled to either
17(g)(v)(a) deduct from any sum or sums which would have been payable by the Council to the Service Provider under this Contract or
17(g)(v)(b) be entitled to recover the same from the Service Provider as Debt. Any loss or damage to the Council resulting from or arising out of the
of this Contract, such loss or damage to include the reasonable cost to the Council of the time spent by its officers in terminating this Contract and in making alternative arrangements for the provision of the Services PROVIDED that the Council will be under a duty to take all reasonable action to mitigate the loss or damage incurred pursuant to this clause.
17(g)(vi) be entitled to copies of all records relating to the Service unless prohibited by law and the Council shall be at liberty to use the same in its absolute discretion
17(h) Both Parties acknowledge that the expectation of most Service Users is that the Parties will not act unreasonably or to the prejudice of the Service Users so far
as is reasonably practicable
17(i) In the event of termination in accordance with this clause during any Notice period both Parties shall ensure that the interests of the Service Users are met. During any such Notice period;
17(i)(i) should the Council decide, with agreement with the Service User and their family or representatives, to facilitate uptake of a place at an alternative care service the Service User shall leave the Home at whatever time is in their best interests, and if needs be with immediate effect;
17(i)(ii)the date at which the last Service User leaves the Home shall be the date that this Contract is deemed to have terminated and any remaining Notice period will be waived;
17 (j) For the avoidance of doubt termination of this Contract by the Council or the Service Provider shall automatically terminate all IPCs for Service Users at the Home
Commentary:
18 – INDIVIDUAL PLACEMENT CONTRACTS – ISSUE AND TERMINATION
18(a) IPCs shall be issued to the Service Provider and administered by the Council in accordance with the procedures set out in Appendix 3
18(b) In the event that either Party gives Notice to terminate this Contract the last date for terminating all associated IPCs shall be the termination date of this Contract but this provision shall not prevent the Council from terminating an IPC on an earlier date where a Service User is moved to a different care home prior to the termination date of this Contract
18(c) In the event of either the Service Provider serving notice of closure of the Home or where the Council has made a decision to move all the Service Users from the Home as a matter of urgency to protect their safety and wellbeing, acceptance of a placement by a Service User in an alternative care home or other care service shall result in the IPC terminating on the date that the Service User leaves the Home
18(d) Except where an IPC is terminated as a result of the termination of this Contract further to clauses 13 , 15 , 17 or sub-clauses 18 (b), (c), (e), (f), (g) and (h), an IPC may be terminated by either Party giving 4 weeks written notice to the other at any time subject to the provision that the either Party may not terminate more than 4 IPCs within each calendar month unless agreed in Writing.
18(e) An IPC can be terminated by the Council giving seven days’ notice in writing to the Service Provider where:
18(e)(i) during any period of admission of the Service User to hospital which results in the Service provided under the IPC being inappropriate to the Service User’s needs
18(e)(ii) there has been a reassessment of the Service User’s needs which results in the Service provided under the IPC being inappropriate to the Service User’s needs
18(e)(iii)referrals to the Home have been suspended by the Council as detailed in clause 21 (Suspension)
18(f) An IPC may be terminated by the Council upon written notice with immediate effect upon notification of a Service User becoming self-funding
18(g) Where an IPC has been made for a fixed period, it shall terminate immediately at the end of the fixed period
18(h) An IPC shall terminate immediately upon the date of death of a Service User. On the death of a Service User the Council will pay a maximum of 1 night at the rate set out in the IPC
18(i) Where a Service User is admitted to hospital or other residential health care provision whereby they temporarily cease to reside at the Home, the Council will pay the Service Provider the Payment as a retainer for up to four weeks and thereafter shall reduce the Payment to 80% of the agreed weekly charge until the Service User returns to the Home or the IPC is terminated by the Council in accordance with clause 18(e). Should the absence from the Home continue beyond a four week period the situation will be reviewed by the Care Manager in conjunction with the Service User’s relative, carer or friend as appropriate. The views of the Service Provider will be sought and taken into account. The final decision on the continuance of a retainer payment or termination of the IPC will rest with the Care Manager.
18(j) When a Service User has temporarily stayed at hospital and is then deemed medically fit for discharge and able to return to the Home the Service Provider will seek to ensure that the Service User is returned to the Home within 24 hours,
18(k) Where a Service User elects to transfer from the Home to another care home the Council will not enter into an IPC in respect of the second home until the notice period in respect of the Home has expired or unless alternative funding has been secured until the commencement date of the new IPC. The Council will not pay for accommodation or Services at two care homes for the same period except where authorised by the Contracts Manager at his/her own discretion.
18(m) For the avoidance of doubt the Council shall not be liable to make any Payment to the Service Provider following the date of termination of an IPC except those payments agreed by the Council as being due to the Service Provider up to the date of termination that the Council has not previously paid
Commentary:
19 – EMERGENCY ADMISSIONS
19(a) In the event of an emergency admission to the Home the Council will only accept financial responsibility if the Service User is placed at the Home by a Care Manager. An IPC shall be completed as soon as possible after the emergency admission by the Council and the Service Provider and in these circumstances the Council will pay for the Service User from the Date of Admission until an Assessment of Needs has been undertaken.
19(b) In the event of a Service Provider being requested to provide a Service User with additional care and support and/or emergency care and support that has not been authorised by the Council further to an Assessment of Needs, the Service Provider must notify the Council as soon as reasonably possible after such a request is made to enable the Council to conduct an Assessment of Needs and to issue or amend an IPC accordingly. Failure by the Service Provider to notify the Council of the request for additional care and support further to this clause 19 may result in the Council refusing to make Payment for such care and support for any period prior to it receiving notification of the need for any such additional or emergency care and support.
Commentary:
21 – SUSPENSION OF THE REFERRAL OF SERVICE USERS TO THE HOME
Commentary:
21(a)(v) Where there is a suspension of purchasing by the Council the Service Provider shall provide the Council, within 7 days of being requested in writing to do so, with the following information:
21(a)(v)(i) details of each placing Local Authority or publically funded Body together with the relevant contact information;
21(a)(v)(ii) details of how each resident’s placement is funded including the number of residents who self-fund; and
21(a)(v)(iii) the contact names, postal addresses, telephone numbers and e-mail addresses for each Service User and resident placed by other local authorities and private residents (who give their permission)
21(a)(vii)The Service Provider agrees that, in the interests of rectifying the shortfalls in the Service as soon as possible, it will not take any new admissions to the Home during the period of suspension.
21(a)(viii)The Council shall not be liable for any estimated or actual loss of income arising from the suspension of referrals.
21(b) Without prejudice to the generality of the foregoing the Council reserves the right to suspend referrals to the Home and/or reduce or clawback part of the Payment consistent with the reduction in Service where in the reasonable opinion of the Council:
21(b)(i) the Registration Body has found that the Home is non-compliant with the standards of its requirements for a period of one year or longer.
21(b)(ii) there is any improper conduct on the part of the Service Provider or its Staff. Improper conduct includes any action which the Council may reasonably consider to be detrimental to the welfare of Service Users either by action or neglect including but not limited to:
21(b)(ii)(a) Fraud or theft from Service Users
21(b)(ii)(b) Neglect of Service Users
21(b)(ii)(c) Cruelty and assault to or upon Service Users including verbal and any other forms of psychological abuse21(b)(ii)(d) Financial malpractice
21(b)(ii)(e) Sexual relationships between Staff and Service Users
21(b)(ii)(f) Racial and or sexual harassment
21(b)(ii)(g) Loss of registration with the Registration Body
21(b)(ii)(h) Under investigation by the Council
21(b)(ii)(i) improper inducement
Commentary:
22 – DISPUTES
22(a) If any dispute or difference shall arise between the Parties as to the construction of this Contract or any matter or thing of whatever nature arising under this Contract or in connection with it then the same shall be dealt with as follows:-
22(a)(i)In the first instance a special meeting of both the Parties shall be arranged on 14 days’ written notice to the other party and the matter shall be discussed and the representatives shall use their reasonable endeavours to resolve the dispute
22(a)(ii)If the dispute cannot be resolved in accordance with the preceding sub-clause then either one of the Parties may serve the Council’s Chief Executive or the Service Provider’s senior officer or such other authorised officer of either party whose details have been notified to the other party, with notice of the dispute and those officers shall then appoint their representative to adjudicate and use their reasonable endeavours to resolve the dispute within 21 days of receipt of such notice
Commentary:
35 – CONFIDENTIAL INFORMATION
35(a) The Service Provider will keep confidential any information it becomes aware of by reason of the operation of this Contract and any other information which the Council may from time to time determine as relevant to this Contract and shall not use divulge or communicate the same to any third party without the consent in writing of the Council.
35(b) The Service Provider shall at all times keep confidential all information held or known in respect of its past or present Service Users.
35(c) The Service Provider shall not mention the Council’s name in connection with this Contract or disclose the existence of the Contract in any publicity material or other similar communication to third parties without the Council’s prior consent in writing.
35(d) Except to the extent set out in this clause or where disclosure is expressly permitted elsewhere in this Contract, each party shall:
35(d)(i) treat the other Party’s Confidential Information as confidential; and
35(d)(ii) not disclose the other Party’s Confidential Information to any other person without the owner’s prior written consent
35(e) Clause 35(d) shall not apply to the extent that:
35(e)(i) such disclosure is a requirement of law placed upon the party making the disclosure, including any requirements for disclosure under the Audit Commission Act 1998 or under the FOIA or the Environmental Information Regulations pursuant to the above clause regarding Freedom of Information
35(e)(ii) such information was in the possession of the party making the disclosure without obligation of confidentiality prior to its disclosure by the information owner
35(e)(iii) such information was obtained from a third party without obligation of confidentiality
35(e)(iv) such information was already in the public domain at the time of disclosure otherwise than by a breach of this Contract
35(e)(v) it is independently developed without access to the other party’s Confidential Information.
35(f) The Service Provider may only disclose the Council’s Confidential Information to the Service Provider’s Staff who are directly involved in the provision of the Service and who need to know the information, and shall ensure that such Service Provider’s Staff are aware of and shall comply with these obligations as to confidentiality.
35(j) The Service Provider its Staff and any person employed or engaged by the Service Provider in connection with this Contract shall:
35(j)(i) only use the Confidential Information for the purposes of this Contract
35(j)(ii) not disclose any of the Confidential Information to any third party without the prior written consent of the Council which consent the Council shall be absolutely entitled to refuse
35(j)(iii) not use the Confidential Information for the solicitation of business from the Council
Commentary:
40 – AGREEMENT STATUS AND TRANSPARENCY
40(b) Notwithstanding any other term of this Contract, the Service Provider hereby gives his consent for the Council to publish this Contract in its entirety, including from time to time agreed changes to the Contract, to the general public.
40(c) The Council may consult with the Service Provider to inform its decision regarding any exemptions but the Council shall have the final decision in its absolute discretion.
40(d) The Service Provider shall assist and cooperate with the Council to enable the Council to publish this Contract..
Commentary:
42 – COMPLAINTS
42(a) The Service Provider shall operate a complaints procedure in respect of the Services which shall comply with basic principles of effective complaints
SCHEDULE 1 THE SERVICE: RESIDENTIAL
Commentary:
3.0 – ASSESSMENT AND REFERRAL TO THE SERVICE
3.1 Assessment and referral to the Service will be undertaken between the Council’s Care Managers and the Service Provider.
3.2 Where possible and whenever appropriate the involvement and wishes of the Service User will be taken into account.
3.3 It is recognised that pre-placement assessment is a collaborative process and will include a multi-disciplinary approach in consultation with next of kin and any other party important to the Service User.
Commentary:
4.0 – REVIEW OF SERVICE TO AN INDIVIDUAL SERVICE USER
4.1 Formal reviews will usually be held after three months initially and thereafter every six months.
4.2 The review process will involve the Service User where appropriate and all other relevant professionals and representatives.
4.3 The outcomes of reviews undertaken by the Service Provider will be communicated to the Care Manager.
Commentary:
6.0 – THE SERVICE PROVIDER’S INDIVIDUAL CARE PLAN
6.1 The Service Provider will produce an Individual Care Plan related to the Assessment of Needs which will describe the specific care objectives and Service arrangements including written risk assessments and will take into account the Service User’s physical emotional spiritual social cultural and intellectual needs This will be discussed with the Service User or the Service User’s representative where appropriate.
6.2 The Service Provider shall keep the Care Manager informed of any change of
circumstances that are pertinent to the Service User’s Individual Care Plan.
Commentary:
8.0 – TRANSFER OF SERVICE USERS
8.2 Allocation of a room to a Service User implies exclusive use of that room until such time as the IPC is terminated and would normally be for the life time of that Service User. If a Service User requests a change of room the Service Provider must notify the Care Manager.
8.4 The Service Provider may move a Service User to an alternative room with the agreement of the Care Manager if the needs and requirements of the Service User change.