Consumer laws in the care home sector
Care home operators will be familiar with their day-to-day care obligations and the applicable minimum standards of care. Regular inspections by the Care Quality Commissions ensure that this is the case. However, one area that can be overlooked is the relevance of consumer law to self-funded (or partially self-funded) residents. In November last year, the Competition and Markets Authority (CMA) published guidance on the steps that care home providers should take in order to ensure that they are compliant (see Care homes: consumer law advice for providers). This month the CMA is due to commence a compliance review of the sector. In anticipation of this review, we highlight some of the key issues raised in the guidance.
The CMA recognises the unique position of care home residents as particularly vulnerable consumers. They are often heavily reliant on help from family members and have less of an opportunity to ‘shop around’ in the way that other consumers do, whether before or after the start of the residency. One of the key themes of the guidance is to stress the importance of providing as much information as possible to the resident (or the resident’s family), prior to the signing of the care contract. This includes information on pricing, rooms, staffing levels, accreditations and any unusual or ‘surprising’ terms of the care contract that may apply.
The CMA also emphasises the importance of fairness and clarity when dealing with care home residents. The contract issued to the resident should clearly set out what happens if a resident is admitted to hospital, or when the resident dies. The charging of excessive upfront fees, or fees after the death of a resident, is likely to be deemed to be unfair and therefore unenforceable.
A relatively common practice that the CMA identifies as potentially falling foul of consumer law is the inclusion in the resident’s contract of a broad right for the home to increase its fees. A general right to increase fees due to an increase in operating costs (or similar wording) may not be sufficiently clear or precise to be enforceable, and significant increases in fees that are not justifiable may be challenged.
In addition to the risk to the home of not being able to enforce the care contract, a failure to comply with consumer rules could lead to care homes facing court action, orders to pay compensation or damages and, in some cases, criminal prosecution.
Whilst the guidance is fairly wide-ranging, it uses plain and clear language and is easy to follow. A short-form version of the guidance has also been produced. Care home operators are advised to ensure that they are familiar with the CMA’s advice, and if necessary to conduct a review of their current procedures, policies and contractual documents, to ensure compliance with consumer laws.
If you would like further advice on the best-practice guidance issued by the CMA, or if your care contract is due to be reviewed in light of recent changes to consumer laws, please contact Tom Rook at firstname.lastname@example.org or call Tom on 0114 2527183.