Legal update
Availabilityand funding of care across the market
In December 2016, the Competition and Markets Authority (CMA) launched a study to review how well the care home market works and whether consumers are being treated fairly. Emma Watt, solicitor, Anthony Collins Solicitors LLP, discusses the scope of the research
By its very nature, the need to find a care home can come at a distressing time, with decisions taken in challenging circumstances. Recent market pressures mean that questions are being asked about whether consumers are being provided with value for money when choosing a care home or are falling victim to emotional pressures and entering into unfair contracts. The purpose of the CMA study1
is to
assess how people find the experience of choosing a care home, to explore whether the current regulation and complaints system gives residents adequate protection and to examine how well care homes are complying with their obligations under consumer law.
The CMA is looking very closely at reports of potentially unfair practices and the contract terms being used by some care homes, how they are affecting residents and whether they are likely to breach consumer law. It has already flagged issues of concern where residents may have experienced: l unexplained or ‘hidden’ charges l unexpected fee increases l confusing requests for ‘top-up’ payments
l a failure to deal with complaints fairly.
While the study indicates that providers’ contract terms are likely to come under greater scrutiny, the investigation is also intended to give care home management the opportunity to raise concerns about funding in the sector and the lack of central government support for vulnerable adults and the ageing population. The market study comes at a time when the pressure to fill the funding gap is increasingly falling on private (and often vulnerable) individuals and it’s estimated that private payers cross subsidise publicly funded care home residents to the tune of £8,000 per year.2
16 Study stages
The study consists of a number of phases. The CMA has issued two separate surveys to providers across the UK requesting detailed information across a range of operational, financial and strategic areas. Groups of providers have been asked for this information, and a separate return has been provided for larger providers and smaller providers. Some providers initially felt that the volume of this request was vast and a significant administrative burden to complete within the time frame. Some also commented that the requests put their business under undue scrutiny, giving the impression that they needed to justify how they charge for their services. The CMA has since clarified that the study is not an investigation into
residential care providers, but a study into how residential care is made available (and funded) across the market. While this initial questionnaire stage now draws to a close, care home providers are still able to submit information to the CMA that is relevant to the scope of the study.
Interviews
In addition to the questionnaire responses, the CMA will conduct interviews with about 50 people who currently live in a care home or have relatives who receive care in a residential setting. The interviews are intended to draw out consumers’ experiences of arranging suitable finance, choosing from a range of care options and moving into a residential home. The interviews are small in number but are designed to
The CMA has expressed the desire to hear directly from providers in relation to the failure of local authorities to provide fee uplifts or pay sustainable fee rates
www.thecarehomeenvironment .com • May 2017
©Sandor Kacso/Fotolia
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