What the CMA’s report means for care home operators

The decision for an individual to move to a care home is often taken in distressing and urgent circumstances and, once in care, moving to a different care home is stressful and can have an adverse impact on the resident’s health. As a result, residents and their families can be vulnerable to practices which are unfair under consumer protection law.

The rules around unfair contracts have been around for many years and the Competition and Markets Authority (CMA) - the UK's primary competition and consumer authority – opened cases in June 2017 against a number of care homes in relation to large upfront fees and the fees charged after a resident’s death.

The report is critical of a range of other practices including: those operators who do not provide indicative pricing information on their websites; those who fail to provide contracts to their residents or provide them very late; those who retain a wide discretion to increase fees; those who charge additional fees for extra services, like hairdressing, without making these clear; or those who reserve the right to ask a resident to move to another home at short notice.

The report expresses concern that many residents and their families find it difficult to complain about poor care, partly because complaints systems are often not clear and partly because of the concern that a complaint will lead to reprisals for the resident or to friends and family being stopped from visiting them.

Therefore the CMA is taking steps and making recommendations which will affect care home operators across the UK.

As well as continuing enforcement action (which may involve civil or criminal proceedings, compensation and cancellation of contracts between the home and its residents) the CMA will publish new guidance on acceptable practices and contractual terms for care home operators and suggest that the sector should consider the development of “model contracts”.

The CMA also recommends that regulators (such as the Care Quality Commission) should take a greater role in reviewing operators’ compliance with consumer law and that there should be regulations to require operators to publish information about their charges on their website.

Care home operators should be complying with consumer law and reviewing their commercial practices and contracts (if they have them) now. Experience suggests that although some practices make commercial sense to operators they do not necessarily comply with the law.

To discuss any aspects of the CMA’s report, or for more information about the health and care sector - including elderly care, learning disability, mental health, SEN, children’s day nurseries, GPs, primary care providers, dentists and pharmacies – please contact Mary Chant, Ben Tarrant or Simon Hore in Thrings’ Healthcare team.

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