KEEBLES Upholding Standards
ON THE CASE
Even in these challenging times, it’s important that care home managers don’t overlook their ‘background’ legal obligations. Tom Rook, from Yorkshire law firm Keebles LLP, shares advice on dealing with consumer laws.
Other information, including in relation to pricing, rooms, staffing levels, accreditations, steps taken in connection with the pandemic and any unusual or ‘surprising’ terms of the care contract, must also be provided as early as possible.
The Care Quality Commission has published guidance relating to many on-the-ground issues arising in care homes as a result of COVID-19, and has made certain changes to the way it operates.
However, it’s important that care home managers don’t lose sight of their other obligations to residents in the current difficult circumstances. Prior to the COVID-19 pandemic, the Competition and Markets Authority (CMA), a body with the power to enforce consumer laws, identified certain practices in the care sector which fall short of those laws.
Ensuring that residency agreements and terms and conditions are compliant with consumer laws is not likely to be high on the agenda at this time. However, current events will not excuse poor or improper practices on the part of care homes, in their dealings with self-funded (or partially self-funded) residents under consumer laws.
Both parties can benefit from the home implementing the guidance in the CMA’s publication, Care Homes: Consumer Law Advice for Providers which is intended to assist operators in meeting their requirements under consumer laws.
Care providers owe a special duty of care to residents and prospective residents when it comes to applying consumer laws. Care home residents are a particularly vulnerable class of consumer, owing to their reliance on family members in many cases, and inability to ‘shop around’ in the normal sense. This vulnerability has been amplified in the wake of COVID-19.
Transparency and fairness are key principles that must be adopted when dealing with residents and their families - providing full details of the legal rights and obligations of both parties, upfront and in plain language, is vital.
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The contract should clearly set out what happens if a resident is admitted to hospital, or when a resident dies. This information will be particularly useful to residents and their families in the current circumstances and providing it early-on will reduce the likelihood of anxious phone calls from family members who are unsure of any processes or procedures.
"Current events will not excuse poor or improper practices on
the part of care homes, in their dealings with self-funded (or
partially self-funded) residents under consumer laws."
Fees are another crucial area for compliance purposes. Requiring residents to pay a substantial non-refundable upfront fee, particularly if this is simply an ‘administration fee’ for which the resident receives no discernible benefit, will be contrary to consumer laws.
Equally, a broad right for the care home to unilaterally increase its costs without a legitimate right to do so in the contract, or the imposing of excessive charges in the period following a resident’s death, will likely be a breach of the laws.
Care home operators are advised to ensure that they are familiar with the CMA’s guidance, and if necessary to conduct a review of their current policies, procedures and contractual documents, to ensure compliance with consumer laws. Whilst the guidance is wide-ranging, it uses plain and clear language and is easy to follow.
A non-compliant contract is not likely to be enforceable. In addition, a failure to comply with consumer laws could lead to care homes facing court action, orders to pay compensation or damages and, in some cases, criminal prosecution.”
www.keebles.com
www.tomorrowscare.co.uk
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