RECITALS
A. Devon County Council (the “Council”) has received funding from the Department for Health and Social Care (“DHSC”) Workforce Recruitment and Retention Fund for the purpose of supplementing and strengthening adult social care staff workforce capacity to ensure that safe and continuous care to adults is achieved during the winter season, support a safe and timely discharge from hospital, and prevent admissions to hospital.
B. The Grantee (whose details are contained in the Application Form) is an entity which provides or facilitates the provision of domiciliary care within the administrative area of Devon County Council, and has submitted to the Council an application for the funding for the purposes of supporting recruitment and retention in the domiciliary care sector.
C. Following the Council’s receipt of the Grantee’s application for funding and issuing the Confirmation, the Council is satisfied that the Grantee employs Eligible Staff and as such is making grant funding available to the Grantee upon the terms and conditions set out below.
1. Definitions and Interpretation
1.1. “Agreement” means these Terms together with the Application Form and Confirmation.
1.2. “Application Form” means the ASC Workforce Recruitment and Retention Fund Application Form submitted by the Grantee to the Council to apply for the Funding.
1.3. “Confirmation” means a written communication signed on behalf of the Council which confirms that the Application Form has been accepted and the Funding shall be granted.
1.4. “Eligible Care Staff” means staff who are directly employed by the Grantee who provide CQC regulated domiciliary care services to: (i) adult service users in their own homes within the Council’s administrative area; and/or (ii) adult service users who reside in extra care housing facilities located within the Council’s administrative area. For the avoidance of doubt, domiciliary care delivered to service users in other settings such as supported living, shared lives, and singleton placements and domiciliary care delivered to children are outside of the scope of this definition.
1.5. “Eligible Staff” means:
1.5.1 Eligible Care Staff;
1.5.2. Eligible Support Staff; and/or
1.5.3. Eligible Reserve Staff;
provided always that such staff are not Ineligible Staff.
1.6. “Eligible Reserve Staff” means staff who are directly and exclusively employed by the Grantee and who, since 21 October 2021, has regularly acted as reserve support and assumed the role of Eligible Care Staff albeit on a temporary or time-limited basis.
1.7. “Eligible Support Staff” means staff who are directly employed by the Grantee to directly support the Eligible Care Staff.
1.8. “Ineligible Staff” means any of the following:
1.8.1 agency staff;
1.8.2. staff who are directly employed by the Grantee but who are also employed by another provider of CQC regulated domiciliary care to adult service users within the Council’s administrative area; or
1.8.3. owners, directors, or shareholders of the Grantee.
1.9. “Funding” means, unless otherwise provided for in the Confirmation, the number of Eligible Staff identified on the Application Form multiplied by £500.
1.10. “Terms” means this Workforce Capacity Fund Terms and Conditions document including any recitals, schedules and appendices.
1.11. 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.
1.12. An obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13. 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.
1.14. 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.
1.15. 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.
1.16. The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms.
1.17. A reference to the Council’s administrative area excludes Plymouth and Torbay.
The Conditions
2. Formation of the Agreement
2.1. This Agreement is formed and shall come into effect when the Council issues the Confirmation.
2.2. This Agreement is legally binding.
3. The Funding
3.1. 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.
3.2. Subject always to clause 3 and the conditions set out in these Terms, and unless otherwise stipulated in the Confirmation, the Council shall pay to the Grantee:
3.2.1. 60% of the Funding as early in January 2022 as possible; and
3.2.2. the remaining 40% of the Funding early in February 2022.
3.3. The Grantee undertakes to use the Funding it receives from the Council for the purpose only of contributing towards supporting and boosting the recruitment and retention of Eligible Staff as more particularly set out in Schedule 1 (Grant Conditions). The Grantee acknowledges that it, as the employer, (and not the Council) is responsible for deducting all income tax, National Insurance contributions, and pension contributions (if applicable) from the Funding and no additional funding will be made available from the Council for this purpose.
3.4. 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 recruitment and retention of Eligible Staff.
3.5. The Grantee shall comply with all of the requirements, restrictions and conditions set out in Schedule 1 (Grant Conditions) of these Terms.
3.6. 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.
3.7. The Council’s intention is that the Funding will be paid to the Grantee in full in two payments. 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:
3.7.1 the Grantee uses the Funding for purposes other than those for which they have been awarded; or
3.7.2. 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; or
3.7.3. 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 grant period; or
3.7.4. 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
3.7.5. 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; or
3.7.6. the Grantee has received duplicate public funding to address local workforce capacity pressures in adult social care which the Council is funding under this Agreement; or
3.7.7 it is found that any item provided by the Grantee in the Application Form is incorrect.
3.8. 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.
4. Warranty
4.1. The Grantee warrants that:
4.1.1. it is a Care Quality Commission (CQC) registered provider; and
4.1.2. employs Eligible Staff.
5. Safeguarding
5.1. 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.
5.2. 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.
6. Records
6.1. The Grantee must make available to the Council, at such times as it shall reasonably request, such information and evidence, and provide such explanation as the Council may require to enable it to satisfy itself that the Grantee is using the Funding in accordance with the terms and conditions of this Agreement.
6.2. In particular, the Grantee will maintain a financial audit trail in respect of payments made to Eligible Staff as more particularly set out in the Grantee Requirements contained in Schedule 1 (Grant Conditions) and make such audit trail available to the Authorised Officer (as defined in clause 12) upon reasonable notice.
6.3. The Grantee shall comply with the Reporting Requirements set out in Schedule 1 (Grant Conditions).
7. Data Protection
7.1. 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.
8. Monitoring
8.1. The Council shall monitor the operation of this Agreement and the Grantee shall co-operate with and assist the Council by:-
8.1.1. providing it with such information as the Council may from time to time require in undertaking the monitoring; and
8.1.2. providing such further information, explanations and documents as the Council may reasonably require in order for it to establish that the Funding has been used properly in accordance with this Agreement;
8.1.3. meeting the Council as required from time to time to discuss any issues relevant to this Agreement.
9. Subsidy Control
9.1. The Funding is awarded on the basis that it is consistent with the UK’s international obligations on subsidy control.
9.2. 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.
10. Liability
10.1. The Council accepts no liability whatsoever for the recruitment and retention of Eligible Staff at any time 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 recruitment and retention or non-recruitment and retention of the Eligible Staff resulting in any successful claim by a third party.
11. Freedom of Information
11.1. 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 such timescales which are reasonably set by the requester to enable the requester to comply with these information disclosure requirements.
12. Authorised Officer
12.1. The Council will identify one or more officers (as may be nominated from time to time) by notice in writing to the Grantee (the “Authorised Officer”) who may liaise with the Grantee over all aspects of this Agreement.
13. Third Party Rights
13.1. With the exception of clause 2, this Agreement does not create any right enforceable by any person who is not a party to it under the Contracts (Right of Third Parties) Act 1999.
13.2. DHSC shall be granted third party rights under this Agreement to enforce the terms of this Agreement as if it were the Council.
14. Partnership or Agency
14.1. 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.
15. Assignment
15.1. The Grantee may not assign any or all of its rights under this Agreement without the prior written agreement of the Council.
16. Law
16.1. 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 – Grantee Requirements
1. The Grantee shall comply with all of the following requirements:
(a) The Grantee shall only use the Funding to deliver measures that creates additional staff capacity or retains existing capacity in adult social care between 21 October 2021 and 31 March 2022 as more particularly set out in paragraph 1(b) below and for no other purpose whatsoever;
(b) The Grantee must consult with Eligible Staff, and then either provide to Eligible Staff cash payments or in kind benefits equivalent to the value of the total grant of £500 gross income per Eligible Staff member (the precise form of payment is at the discretion of the Grantee in consultation with their staff) on or before 31 March 2022;
(c) The Grantee may make the payments to the staff members either in lump sum payments or in any phased way as is deemed appropriate, so long as the full amount has been paid by 31/3/22;
(d) 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 6 and clause 8 of this Agreement;
(e) The Grantee covenants that it shall not apply for or spend duplicate public funding to address local workforce capacity pressures in adult social care which the Council is funding under this Agreement (e.g. the Infection Control and Testing Fund).
Part B – Funding Conditions
The Funding shall be subject to the following conditions:
(a) The Funding must not be used for any:
- fee uplifts, expenditure already incurred or activities for which the Council has earmarked or allocated expenditure or for activities which do not support the primary purpose of the Workforce Recruitment and Retention Fund;
- Expenditure already incurred by the Grantee prior to 21 October 2021;
- Activity or provision which falls outside of the permitted uses stated within this Agreement;
(b) The Grantee complies with all conditions and requirements placed on them within this Agreement.
(c) The Grantee is a CQC registered provider.
(d) If the Grantee works in more than one local authority area, then (as per the definition of Eligible Staff) the only staff who may receive the Funding are those whose duties are carried out in the Devon County Council administrative area.
Part C – Reporting Requirements
On or after 31 March 2022 and on or before 15 April 2022 The Grantee must provide certain reporting information to the Council to enable the Council to submit a reporting return to DHSC by no later than 29 April 2022.
The exact content of the reporting information that the Council must submit to DHSC is not yet available but is likely to include the following:
- list of measures or activities the fund is being used for
- funds spent on each measure or activity
- estimated total number of hours generated from the funded measures or activity since 21 October 2021
- total number of recruits generated from funded measures or activities since 21 October 2021
- how many staff left your employment in the local authority area since 21 October
- how many staff your employment in the local authority area during the baseline period, September 2021
The Council will write to the Grantee on or around 17 March 2022 with the reporting information that will be required from the Grantee. The Grantee agrees to provide the requested reporting information promptly, and in any event no later than 15 April 2022.