TC09678 - [2025] UKFTT 01320 (TC)

An email dated 15 December 2011 and accompanying “audit report” prepared by Neuven. The report appeared to indicate that checks were undertaken by Neuven in respect of agency workers. It identifies certain deficiencies in respect of 6 such workers. For two of those workers references were incomplete and for five the note states “safeguarding but level not indicated”. The action associated with the absence of a safeguarding level was stated as “A lot of [the Appellant’s] staff training is done on site by Delta Nursing Agency – we recommend that they consult the Intercollegiate document regarding the different [text then missing]”. We note that this document is outside the Relevant Period but that in the period to which it relates the Appellant achieved a compliance score of 220 representing a percentage score of 95.24%.

Certificate of registration for the Appellant under the Care Standards Act 2000 issued by the CQC dated 17 February 2010.

Audit report prepared under the London Procurement Partnership (LPP) Nursing 2012 Framework by Neuven on 8 October 2012. The accompanying email indicates that the Appellant’s compliance score was less than 79.99%. For four staff, a list of deficiencies is identified. For the first worker it was identified that a series of training requirements had not been completed before a shift on 10 May 2012. The action identified was to ensure that all workers receive induction and annual ongoing training. There were also failings in connection with records of employment history and references. As regards the second identified worker issues were again noted with a failure to complete all mandatory annual training. There was also an absence of confirmation that the worker had received induction and orientation training. A failure to appraise was also noted. The required action states that appraisals are to be undertaken annually by a practitioner of the same discipline to confirm performance and standards of practice. For the third worker it was noted that qualifications had not been verified, and references not been updated annually. Fitness to work certificates were noted as having expired for the fourth worker with vaccinations having lapsed. Vis a vis the fifth worker the audit notes that NMC registration had not been confirmed on a 4 weekly basis as required. For all workers it was identified that they did not have identification bearing the name of the Appellant to facilitate identification that the worker was supplied by the Appellant and that the Appellant was required to have their own paperwork, policies occupational health contract etc and could not rely on those belonging to Delta.

An undated brochure (Brochure). This appears to be material the Appellant made available to hospital and care home clients explaining the Appellant’s services. It describes the Appellant as a leading provider of healthcare staffing founded in 1994 specialising in the recruitment of registered nurses, healthcare assistants and allied healthcare professionals for placement in public and private healthcare settings nationwide. The document states that the Appellant provides support and advice in connection with continued professional development and that it had in place “systems to maintain an excellent delivery of service”. The Appellant’s skill is said to be matching “candidates to the right work opportunities and providing customers with the right staffing and service solutions. The page heading “Training” states: “as part of our initial and ongoing registration, all candidates are required to undertake basic mandatory training” and a list of such training categories is provided. The recruitment procedure for workers is narrated and is said to include the receipt of satisfactory Criminal Records Board (CRB)checks, a requirement for two references sent to work addresses and a face-to-face interview “by a suitably trained person”. The recruitment process is also said to require applicants to undergo an assessment of their occupational health status: “Delta has employed the services of an independent occupational health team that verifies and certifies that our healthcare staff are fit for work, and their health status adhere [sic] to the minimum health standards requirements.”. NMC registration is stated to be verified and copied together with identity checks and course qualifications. Completion of “Delta’s in house training covering such matters and Fire & Safety, CPR, and Manual Handling”, all in house training stated to be provided by a “suitably trained person”. The section on maintaining standards explains the approach to ensuring quality of services through policies and procedures as specified under the Care Standards Act and referring again to the comprehensive training provided and delivered through the internal training department. A section on “Induction Programme and Annual Monitoring” briefly sets out how workers are inducted and familiarised with company policies and procedures. All workers are said to be subject to ongoing appraisals and annual mandatory/refresher training and occupational health screening to ensure vaccinations are up to date and the professional thereby fit to work. The Brochure documents accreditations and memberships including the CQC and CRB.

An undated flowchart (Flowchart) bearing no corporate logo or corporate indicationsaid to set out the Appellant’s processes for recruitment, placement and invoicing of workers. The Flowchart indicates that the registration unit reviews qualifications, registration, right to work, DBS and vaccinations, together with an occupational health assessment (including blood tests) prior to a clinical assessment of the candidate under “Nursing Agency Act 1957, Care Standards Act 2000 and Nurses and Midwifery Order 2001. Training and ongoing compliance assessments are referred to as being carried out by licenced nurses. The chart indicates that the business is externally audited by social services, police, CQC and Nursing and Midwifery Council.

A letter from LPP to Delta concerning confirming appointment of Delta under the National Clinical Staffing Framework Agreement for the period 8 August 2016 to 7 August 2018 in respect of “Lots” for the placement of temporary agency workers and permanent and fixed term recruitment in the categories of nursing and midwifery, medical and dental, other clinical and all clinical staff.

Partial copy of the standard terms and conditions between the Appellant and its clients. Pursuant to clause 8 the Appellant guaranteed that workers had been interviewed by qualified personnel and references had been taken up. Clauses 10, 11 and 12 provide that the client shall be responsible for providing the relevant insurance for the workers, compliance with health and safety legislation and that the workers are under the supervision and control of the client.

Undated Manual for Bookings Team (UMBT)bearing the Appellant’s corporate logofor the supply of nursing staff to a range of NHS providers pursuant to a Master Vendor agreement established with Medacs Healthcare. The procedures identified for booking staff was stated to involve the uploading of a completed checklist evidencing, DBS, right to work, references and occupational health/bloods through “Envoy”. Once uploaded Medacs clear the worker who is then available to the identified Trust through the Medacs booking system.

Timesheets and invoices provided for workers dated October 2018. All timesheets are signed by the worker; some are signed by the client.

Materials provided by NHS trusts to the Appellant seeking to book workers. The documents show a list of roles available i.e. community nurses RGNs 5 and 6, mental health nurse, mental health support worker, etc. by reference to the hospital locations. The materials specify that the supplier provide the information on a checklist (not provided). The documents are undated.

Excerpt of a document apparently produced by the NHS Staff Council providing national profiles for midwifery. A very detailed job description is provided for each grade of midwife/assistant for the maternity services.

Undated general terms of engagement between the Appellant and the workers. The document references the Nursing Agencies Act 1957 and the Nurses Agencies Regulations 1961 both of which were repealed before the Relevant Period. The terms of the agreement expressly provide that the workers are self-employed and are placed on assignments in accordance with the Appellant’s terms of business with its clients. The terms also reference medical/health assessments and the requirement to undertake all mandatory training though does not specify who will provide such health assessments or training.

Contract dated 11 February 2014 between the Appellant and British United Provident Association Limited (BUPA). The recitals recognise that the Appellant is “in the business of sourcing and introducing suitable temporary resource to its clients based on information supplied by its clients regarding the assignment, type of work, the experience, qualification, training and any authorisations required”. The Appellant was appointed under the framework as part of a panel of agencies providing temporary workers. The contract refers to de Poel’s and e-tips and to a requirement that the Appellant carry out an induction programme for all workers supplied under the contract to include training in the core competencies for the assignments to be filled. The Appellant is obliged to demonstrate through the production of relevant documentation that the worker proposed for an assignment had the “experience, training, qualifications and authorisations” necessary to meet the requirements of the assignment including DBS, right to work and other statutory checks and assessments. The Appellant undertakes to provide a worker who represents “an excellent match” for the specifications of the role provided by BUPA. The Appellant was required to fill 95% of roles offered by BUPA.

A series of “e-tips vacancy” emails dated 20 November 2016 for placement of care assistants with Bupa establishments.