RECITALS
A. Devon County Council (the “Council”) has received funding from the Department for Health and Social Care (“DHSC”) Adult Social Care Workforce Capacity Fund whose conditions of grant is attached at Schedule 2 (the “Fund”) for the purpose of supplementing and strengthening adult social care staff capacity to ensure that safe and continuous care is achieved within entities operating in the county of Devon.
B. The Grantee (whose details are contained in the Application Form) is an entity which provides or facilitates the provision of care within the county of Devon, and has submitted to the Council an application for the funding for the purposes of implementing the measures listed at Part A of Schedule 1 to these Terms (the “Supported Measures”).
C. Following the Council’s receipt of the Grantee’s application for funding, the Council is satisfied that the Grantee meets the Eligibility Criteria and as such is making grant funding available to the Grantee upon the terms and conditions set out below.
1. Interpretation
1.1. Reference to any statute or statutory provision includes a reference to:
(a) that statute or statutory provision as from time to time amended, extended, re-enacted or consolidated; and
(b) all statutory instruments or orders made pursuant to it.
1.2. Words denoting the singular number only shall include the plural and vice versa. Words denoting any gender include all genders and words denoting persons shall include firms, corporations and vice versa.
1.3. Unless the context otherwise requires reference to any clause, sub-clause or schedule is a reference to a clause, sub-clause or schedule (as the case may be) of or to these Terms.
1.4. The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms.
1.5. “Agreement” shall mean these Terms together with the Application Form.
1.6. “Application Form” shall mean the ASC Workforce Capacity Fund Application Form submitted by the Grantee to the Council to apply for the Funding.
1.7. “Terms” shall mean this Workforce Capacity Fund Terms and Conditions document including any recitals, schedules and appendices.
1.8. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.9. An obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.10. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
The Conditions
2. The Funding
2.1. The Grantee shall promptly repay to the Council any money incorrectly paid to it either as a result of an administrative error or otherwise. This includes (without limitation) situations where either an incorrect sum of money has been paid or where Funding monies have been paid in error before all conditions attaching to the Funding have been complied with by the Grantee.
2.2. Subject always to clause 2.3 and the conditions set out herein, the Council shall pay the Funding (as defined in the Application Form) to the Grantee.
2.3. The Grantee undertakes to use the Funding it receives from the Council for the purpose only of contributing towards the cost of implementing the Supported Measures and for no other purpose whatsoever.
2.4. The Grantee further undertakes that any part of the Funding which remains unexpended on the 31 March 2021 shall be repaid to the Council no later than the 9 April 2021.
2.5. The Grantee must ensure at all times that it complies with all necessary statutory requirements, including without limitation, those arising under the Health and Safety at Work etc Act 1974 and its duties therein as client, and codes of practice relating to health and safety, which may apply to employees and other persons providing services, or otherwise affected by, the Supported Measures.
2.6. The Grantee shall:
2.6.1. comply with all of the requirements, restrictions and conditions set out in Schedule 1 of these Terms; and
2.6.2. ensure that it does not do anything which may place the Council in breach of the Council’s obligations under the Fund determination attached at Schedule 2 of these Terms.
2.7. Where the Council suspects that the Grantee may be in breach of any obligation within the Agreement, the Council may, at its sole discretion, withhold any Funding which may be due under this Agreement until the Grantee has provided satisfactory evidence to the Council that there has not been any such breach.
2.8. The Council’s intention is that the Funding will be paid to the Grantee in full. However, without prejudice to the Council’s other rights and remedies, the Council may at its discretion withhold or suspend payment of the Funding and/or require repayment of all or part of the Funding if:
2.8.1. the Grantee uses the Funding for purposes other than those for which they have been awarded;
2.8.2. the Grantee fails to comply with any of the terms and conditions set out in this Agreement and, if capable of remedy, fails to rectify any such failure within 10 days of receiving written notice detailing the failure;
2.8.3. any information it supplied to the Council was completed fraudulently, incorrectly or materially misleadingly or the Grantee acts fraudulently or negligently at any time during the implementation of the Supported Measures;
2.8.4. the Grantee ceases to operate for any reason, or it passes a resolution (or any court of competent jurisdiction makes an order) that it be wound up or dissolved other than for the purpose of a bona fide and solvent reconstruction or amalgamation; or
2.8.5. the Grantee becomes insolvent, or it is declared bankrupt, or it is placed into receivership, administration or liquidation, or a petition has been presented for its winding up, or it enters into any arrangement or composition for the benefit of its creditors, or it is unable to pay its debts as they fall due;
2.8.6. it is found that any item provided by the Grantee in the Application Form is incorrect.
2.9. The time for payment of the Funding shall not be of the essence. The Council shall have no liability to the Grantee for any losses caused by a delay in the payment of Funding howsoever arising.
3. Safeguarding
3.1. The parties acknowledge that the services which the Grantee provide relate to a regulated activity for the purposes of the Safeguarding Vulnerable Groups Act 2006. The Grantee is a regulated activity provider with ultimate responsibility for the management and control of the regulated activity to be provided.
3.2. The Grantee shall ensure (in relation to any services which they supply) that all individuals engaged in the regulated activity are subject to a valid enhanced disclosure check undertaken through the Disclosure and Barring Service, and that it shall not allow any individual barred under the Safeguarding Vulnerable Groups Act 2006 to become engaged in the regulated activity.
4. Records
4.1. The Grantee must make available to the Council, at such times as it shall reasonably request, such information as the Council requires enabling it to satisfy itself that the Grantee is using the Funding in accordance with the terms and conditions of this Agreement. In particular the Grantee will maintain a financial audit trail in respect of implementing the Supported Measures and make such audit trail available to the Authorised Officer (as defined in clause 10) upon reasonable notice together with all other financial records concerning the implementation of the Supported Measures.
4.2. In addition to the above, the Grantee shall keep all invoices, receipts, and accounts and any other relevant documents relating to the expenditure of the Funding for a period of at least six years following receipt of any Funding monies to which they relate. The Council and the DHSC shall have the right to review (on request), the Grantee’s accounts and records that relate to the expenditure of the Funding and shall have the right to take copies of such accounts and records.
5. Data Protection
5.1. Both parties will comply with all applicable requirements of and all their obligations which arise in connection with the Agreement under applicable data protection and privacy legislation in force from time to time in the UK including (i) the retained EU law version of the General Data Protection Regulation (Regulation (EU) 2016/679), (ii) the Data Protection Act 2018 and / or (iii) any other national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK.
6. Monitoring
6.1. The Council shall monitor the operation of this Agreement and the Grantee shall co-operate with and assist the Council and / or the DHSC by:-
6.1.1. providing it with such information as the Council or DHSC may from time to time require in undertaking the monitoring; and
6.1.2. providing such further information, explanations and documents as the Council and / or the DHSC may reasonably require in order for it to establish that the Funding has been used properly in accordance with this Agreement;
6.1.3. meeting the Council as required from time to time to discuss any issues relevant to this Agreement.
6.2. The Grantee shall provide the Council with a statement prior to receiving funding, confirming that they have understood the grant conditions and that their spending plans are compliant with them. For the avoidance of doubt, this requirement shall be satisfied where the Grantee has signed and submitted the Application Form to the Council.
6.3. Notwithstanding the generality of clause 6.1, the Grantee shall provide a return in relation to Funding spend, in the form requested by the Council on or before 23 April 2021, together with a statement certifying whether the Funding was spent in its entirety before 31 March 2021 in compliance with this Agreement.
6.4. Where the Grantee does not comply with the monitoring and reporting obligations set out at clause 6.3, then without prejudice to any other rights and remedies available to it, and at the Council’s sole discretion, the Council may:
6.4.1. Conduct a full audit of the Grantee’s accounts in relation to the Funding; and/or
6.4.2. Withhold any payment which may be due to the Grantee until such obligations have been complied with; and/or
6.4.3. Require repayment of all or part of the Funding until such obligations have been complied with.
7. Subsidy Control
7.1. The Funding is awarded on the basis that it is consistent with the UK’s international obligations on subsidy control.
7.2. If the Funding is later found to breach any relevant subsidy control obligations, the Council shall be entitled to recover from the Grantee the amount of Funding together with such interest as it is required by law to recover and the Grantee must pay such amount within 30 days of the Council requesting repayment.
8. Liability
8.1. The Council accepts no liability whatsoever for the implementation of the Supported Measures whether before, during or after the implementation and the Grantee undertakes to indemnify and keep the Council indemnified from and against any and all loss, damage, liability (whether criminal or civil) and costs (including legal fees) suffered by the Council in respect of any matter arising under this Agreement including any breach thereof by the Grantee or in respect of implementation or non-implementation of the Supported Measures resulting in any successful claim by a third party.
9. Freedom of Information
9.1. The Grantee acknowledges that the Council and the DHSC are subject to the requirements of the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 and shall assist and co-operate with the Council and / or DHSC (at the requesters expense) at such timescales which are reasonably set by the requester to enable the requester to comply with these information disclosure requirements.
10. Authorised Officer
10.1. The Council will identify one or more officers (as may be nominated from time to time) (the “Authorised Officer”) who may liaise with the Grantee over all aspects of this Agreement.
11. Third Party Rights
11.1. The DHSC may in its own right enforce the provisions of this Agreement subject to and in accordance with the provisions of the Contracts (Right of Third Parties) Act 1999.
11.2. Except as provided in clause 11.1, this Agreement does not create any right enforceable by any person who is not a party to it (a “Third Party”) under the Contracts (Right of Third Parties) Act 1999, but this clause does not affect any right or remedy of a Third Party which exists or is available apart from that Act.
11.3. The rights of the parties to rescind or vary this agreement are not subject to the consent of any Third Party.
12. Partnership or Agency
12.1. This Agreement shall not create any partnership or joint venture between the Council and the Grantee, nor any relationship of principal and agent, nor authorise any party to make or enter into any commitments for or on behalf of the other party.
13. Assignment
13.1. The Grantee may not assign any or all of its rights under this Agreement without the prior written agreement of the Council.
14. Counterparts
14.1. This Agreement may be executed in any number of counterparts, each of which will be an original and all of which will together constitute a single agreement.
15. Law
15.1. This Agreement is made under and shall be governed by English Law and the parties irrevocably submit to the exclusive jurisdiction of the English courts.
SCHEDULE 1 – GRANT CONDITIONS
Part A – Supported Measures
1. The Funding shall solely be used to support implementation of one or more of the following Supported Measures:
(a) maintain the provision of safe care;
(b) restrict the movement of staff between care homes and other care settings;
(c) support timely and safe discharge from hospital into care settings;
(d) enable new admissions from the community into care services.
Example measures include:
– increasing the utility of existing staff by backfilling the administrative or non-regulated roles of experienced and skilled staff to free up their time to provide direct care and support;
– providing new incentives for existing staff to take on additional hours, e.g. paying for childcare and overtime;
– funding new training costs for new recruits or to increase productivity of existing staff;
– use of agency staff;
– redeployment of existing staff into new roles.
Further examples may be seen on this website.
Part B – Grantee Requirements
2. The Grantee shall comply with all of the following requirements:
(a) The Funding shall only be used in relation to one or more of the measures listed above in Part A of this Schedule and for no other purpose whatsoever;
(b) The Grantee shall account for all expenditure paid out of the Funding and shall accordingly keep and maintain appropriate records of the same in accordance with clause 4 of this Agreement.
(c) The Grantee covenants that it shall not apply for duplicate funding in respect of any the Supported Measures which the Council is funding under this Agreement, nor shall it claim for any additional Covid-19 related expenditure from the Council incurred in relation to the Supported Measures for the duration of this Agreement.
(d) The Supported Measures to be taken are not already being funded by the Adult Social Care Infection Control Fund or other sources of public funding.
Part C – Funding Conditions
The Funding shall be subject to the following conditions:
(a) The Funding must not be used for any:
– increase in any relevant rates from the existing rates;
– Expenditure already incurred by the Grantee prior to 16 January 2021;
– Activity or provision which falls outside of the permitted uses stated within this Agreement;
(b) Where the Funding is used to meet third party charges, these should be paid at the normal market rate. The Funding cannot be used to meet any uplifted third-party fee.
(c) The Grantee complies with all conditions and requirements placed on them within this Agreement.
SCHEDULE 2 – FUND CONDITIONS
1. In this Determination:
“an authority” means an upper tier or unitary local authority identified in Annex A.
“the Department” means the Department of Health and Social Care;
“grant” means the amounts set out in the ASC Workforce Capacity Fund Grant Determination 2020/21;
“upper tier and unitary local authorities” means: a county council in England; a district council in England, other than a council for a district in a county for which there is a county council; a London borough council, the Council of the Isles of Scilly; and the Common Council of the City of London.
2. The grant must only be used to deliver measures that result in additional staffing capacity for adult social care to:
– support providers to maintain the provision of safe care;
– support providers to restrict the movement of staff between care homes and other care settings;
– support timely and safe discharge from hospital into care settings;
– to enable new admissions from the community into care services.
3. Examples of the measures that this fund could be used for are:
– establishment or expansion of LA staff banks;
– increasing the utility of existing staff by backfilling the administrative or non-regulated roles of experienced and skilled staff to free up their time to provide direct care and support;
– providing new incentives for existing staff to take on additional hours, e.g. paying for childcare and overtime;
– local recruitment initiatives;
– funding new training costs for new recruits or to increase productivity of existing staff;
– redeployment of existing staff into new roles. This would cover LA employed staff as well as staff from other services e.g. closed day services.
4. Local authorities are encouraged to look at other local authorities’ strategies and replicate their approaches to successfully delivering additional staffing capacity (see Workforce Capacity Fund guidance). Where local authorities are already using such approaches, the funding can be used to increase the scale of activity. Local authorities may also use the grant to cover administrative and/or set up costs they incur for new measures that deliver additional staffing capacity.
5. The grant may be used to fund alternative approaches not specified above on the condition that such measures generate additional adult social care workforce capacity, such as employing more people, where shortages arise from COVID-related short-term workforce supply issues in adult social care.
6. Subject to the grant conditions being satisfied, local authorities can choose to pass some or all of their funding to care providers within the local authority’s geographical area to meet unprecedented levels of staff absence due to COVID-19. If the local authority choses to make payments to providers financed by this grant they must ensure that providers will use the funding to support genuinely new expenditure that delivers additional staffing capacity and has not already been funded by other sources of public funding.
7. Local authorities can use funding to deliver measures that help all providers of adult social care in their geographical area, this includes care home and domiciliary care, care providers with which local authorities do not have contracts, and organisations providing care and support who may not be registered with the Care Quality Commission (CQC). Day care, and short stay care services and supporting the capacity of the personal assistant workforce are also included.
8. However, if a local authority chooses to passport funding directly to a care provider, they should ensure funding is only given to a provider that is registered with the CQC. A provider is legally required to register with the CQC if it carries on a regulated activity set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations.
9. If a local authority chooses to transfer funding to a CQC registered care provider they should ensure that funding is allocated on condition that:
– the recipient care provider uses it for new expenditure that delivers additional staff capacity and has not already been funded by the Infection Control Fund or other sources of public funding;
– the provider will return any grant amount to the local authority that is not spent on those measures;
– the local authority has in place appropriate oversight of deliverables and outputs from any amount of grant passed to a provider;
– the local authority has due regard to their responsibilities with respect to international agreements on subsidy control;
– if requested to do so, the care provider should provide the local authority or the department receipts or such other information as they request to evidence that the funding has been spent in accordance with the measures above;
– if requested to do so, the care provider should provide the department or the local authority with an explanation of any matter relating to funding and its use by the recipient as they think necessary or expedient for the purposes of being assured that the money has been used in an appropriate way in respect of those measures.
10. The grant must not be used for fee uplifts, expenditure already incurred or activities for which the local authority has earmarked or allocated expenditure or for activities which do not support the primary purpose of the Workforce Capacity Fund which is to deliver additional staffing capacity. This means the grant cannot be used on non-staffing capacity expenditure – for example, isolation pay.
11. To be compliant with the conditions of this fund a recipient local authority must:
– only use the funding to support measures that deliver additional staffing capacity to address COVID-related workforce supply issues in adult social care. This includes the measures set out above and can include passing some or all of the funding to care providers, subject to the grant conditions above being satisfied;
– ensure that any payments to care providers are made on condition that it is used for measures that deliver additional staffing capacity. The provider should return any grant amount to the local authority that is not spent on those measures;
– report on their spending as outlined in the Reporting Section below. This includes providing the department with a report by 12 February 2021 confirming the local authority’s plan for spending the grant, including a breakdown of activity and costs that cumulatively add up to the full amount of grant allocated to the local authority;
– provide the department with a return by 15 May, certifying that their reported expenditure from this grant has been spent in compliance with the grant conditions.
12. If a local authority has any grounds for suspecting financial irregularity in the use of this funding, it must notify the department immediately, explain what steps are being taken to investigate the suspicion and keep the department informed about the progress of the investigation. For these purposes ‘financial irregularity’ includes fraud or other impropriety, mismanagement, and the use of grant for purposes other than those for which it was provided. The local authority must take all reasonable steps to recover the money that has been misspent.
Reporting
Local authority reporting requirements
13. Local authorities are required to provide the department with 3 returns covering the information set out in annex D by the dates below. If local authorities have passed funding on to care providers, they must obtain the information they need from providers to complete the returns.
14. reporting point 1: 12 February 2021.
15. reporting point 2: 5 March 2021
16. reporting point 3: 15 May 2021
Reporting point 1
17. Local authorities must write to the department by 12 February 2021confirming the local authority’s plan for spending the grant, including a breakdown of activity and costs that cumulatively add up to the full amount of grant the local authority will spend for the duration of the fund. These must be submitted to the department who will review the returns on behalf of the Secretary of State for Health and Care.
18. We do not expect local authorities to have spent all of the first instalment before reporting point 1 (12 February 2021). However, we do expect local authorities to report on their expected expenditure and activity.
19. The payment of the second instalment is contingent on the department receiving these returns and being satisfied that funding will be spent in accordance with the grant conditions set out above. The report must cover the following areas:
– plan for activities to deliver additional staffing capacity;
– spending plan. This should include any amounts the LA intends to passport to care providers. As set out above, if an LA passes funding directly to a care provider they should ensure funding is only given to a provider that is registered with the CQC to carry on a regulated activity set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014;
– additional workforce capacity expected to be delivered
20. A template for the return due on 12 February 2021 can be found at annex D. This should be returned to workforcecapacityfund@dhsc.gov.uk (further information can be found in the accompanying guidance).
Reporting Point 2
21. Local authorities must submit a high-level progress report to the department by 5 March 2021. This should confirm the current activity that is being undertaken, and the outputs that have been delivered.
22. The progress report should cover the spend period of February. A template for the return due on 5 March 2021 will be made available. Further information can be found in the accompanying guidance.
Reporting Point 3
23. By 15 May, local authorities will need to return a report on how they have spent this grant including the amount spent on different areas of activity and details of the activity carried out. The guidance summarises the information the department expects to collect at the end of the scheme. The local authority’s S151 Officer and the Director of Adult Social Services must submit the report to the department for the full grant period (January to March). This must certify that the grant has been used for the purposes intended, as set out in this Determination. S151 Officers and Directors of Adult Social Services have been provided with a statement of assurance for their signature as per annex E.
24. We expect local authorities to have fully spent the funding by the end point of the fund on 31 March 2021 (and to demonstrate this at reporting point 3, due 15 May 2021).We are clear that ‘spent’ means that expenditure has been incurred between 16 January and 31 March 2021. This means the activity leading to the expense must have happened by 31 March 2021, so that the local authority is accruing the expense and it appears in the local authorities 20/21 accounts. Those local authorities who have not fully spent their allocation at the end of the fund will be expected to repay any unspent monies.
Financial Management
25. A recipient local authority and providers must maintain a sound system of internal financial controls.
26. Local authorities must ensure that appropriate measures are put in place to mitigate against the risk of fraud. This is particularly important for local authorities who choose to pass some or all of this funding to social care providers.
27. A number of different public funding streams have been made available during the pandemic. Local authorities should as far as possible put measures in place to ensure this funding is not used to support activity which has already been funded by an alternative source of public funding.
28. If a recipient local authority has any grounds for suspecting financial irregularity in the use of any grant paid under this funding agreement, it must notify the department immediately, explain what steps are being taken to investigate the suspicion and keep the department informed about the progress of the investigation. For these purposes ‘financial irregularity’ includes fraud or other impropriety, mismanagement, and the use of grant for purposes other than those for which it was provided. Examples of this include a provider falsely representing themselves as eligible for funding, or a provider using the funding for purposes outside of the grant conditions.
29. Before passing funding on to third parties, local authorities should assure themselves that they are legitimate recipients of this funding. To help local authorities check the backgrounds of third parties the Government Grants Management Function have waived the annual fee of their digital assurance tool, Spotlight, and made it available to local authorities until 31 March 2021. Alongside other checks conducted by local authorities, the tool can help with pre-payment, and in some cases post-payment, assurance. The Government Grants Management Function and Counter Fraud Function can offer support in using Spotlight and interpreting results. We expect local authorities to undertake additional due diligence where Spotlight highlights issues.
Breach of Conditions and Recovery of Grant
30. If the local authority fails to comply with any of these conditions, or if any overpayment is made under this grant or any amount is paid in error, the Secretary of State may reduce, suspend or withhold grant payments or require the repayment of the whole or any part of the grant monies paid, as may be determined by the Secretary of State and notified in writing to the authority. Such sum as has been notified will immediately become repayable to the Secretary of State who may set off the sum against any future amount due to the authority from central government, including but not limited to the second installment of this grant.
31. Local authorities must submit reporting returns by 12 February, 5 March and 15 May. A template is provided at annex D for reporting point 1. These must be submitted to the department who may review the returns on behalf of the Secretary of State for Health and Care.