CMA - Residential care home terms and conditions

[Getitdone]

If a registered dementia care home's terms and conditions state

(8a) However, it must be noted that Northumbria Care Limited reserve the right to immediately
terminate any Service Users Residency for the following reasons:
 Physical, mental or verbal abuse, shown towards other service users, staff or visitors.
 Racial abuse, shown towards any other service user, staff or visitors.
 Deliberate or wilful damage to property or equipment, this includes damage caused by
family members, friends, advocates or personal visitors.
 Refusal to pay fees.
 Refusal to comply with Health and Safety and or Fire Regulations.
 Any family members, friends, advocates or visitors being abusive, aggressive or threatening
towards residents, visitors or staff.

would these terms be considered unfairly favouring the care home?

This is a registered dementia care home therefore its seems more likely that some of these scenarios may occur. Whilst at the moment its not likely to be an issue for us , knowing how hard it is to find a decent care home and having just experienced a very stressful 5 week period of hospitalisation of my 91 year old father and the almost constant pressure on us after a week to find a care home as he was "medically fit for discharge" it would be good to know how well the contract stands up.

Its not been helped by the fact that we weren't given the contract or a Key Facts until now and he's been there for 4 days. The terms and conditions came in the post after the invoice for 8 weeks payable up front.


The CMA guidance summary states

Generally, your contract terms will be unfair if they put residents at an unfair disadvantage. If a term is unfair, it will not be enforceable. For example, a term may be unfair if it gives you greater rights than the resident.
and
Asking a resident to leave
1.32 The circumstances in which you can terminate your contract with a resident must be clearly explained in the contract. They must be limited to valid reasons, for example, where you can no longer meet the resident’s care needs even after making reasonable adjustments.
1.33 You should not ask a resident to leave the care home without first consulting with them and their representatives, and any other relevant independent professionals, and after efforts have been made to meet the resident’s needs.
1.34 You should give the resident at least 28 days’ written notice to leave, unless they are staying with you on a trial period, in which case you must still give them adequate notice to make alternative arrangements.
1.35 You must never ask a resident to leave or restrict a resident’s right to have visitors or threaten to do so in retaliation to a complaint.

[R0b]

The CMA's guidance is just that and merely an interpretation of the law but it doesn't mean that it is guaranteed that a court will take the same view. There have been several situations where the courts have taken a different view to supervisory bodies and their guidance.

On the face of it however, I would think given the type of care home that it is, I should think those terms face a realistic possibility that they are deemed unfair. I suspect the terms might be a general standard set of terms used across all care homes rather than a specific set of terms written for dementia care homes.

Just be mindful that placing sole reliance on an unfair contract term argument is risky and is usually supplemented by some other reasonable grounds. At this stage there is probably not much you can do but I would suggest you write to the CMA and set out your concerns and see if they will look into it. You contact them using the link below, though I would recommend emailing them for records purposes.

You should make reference to their own guidance so you give some context for the reason of your complaint.

Report a competition or market problem - GOV.UK (www.gov.uk)

[atticus]

I would not be so confident that clause 8(a) would be held to be unfair.

[Getitdone]

rob Thank you .
MY understanding is that conditions for termination of the contract need to be non ambiguous.
They don't state what steps they would take in the first instance to attempt to remedy the situation / behaviour nor who they would involve in the decision eg GP, psychiatrist, Social services
It seems to suggest that if they so choose to they could immediately terminate the contract for any degree of abuse / damage / failure to comply with health and safety .
How is someone with dementia who lacks capacity as defined by the MCA supposed to comply with Health and safety regulations and where does it define the health and safety obligations for residents ?


In the case of the fire alarm going off all the room doors automatically close . If a resident opens their door and leaves their room are they non compliant with health and safety rules?

What if they fall and fon a floor that's been mopped because they can't understand the " wet floor" sign ?
Will the care home deny responsibility ?

I also notice that there are no terms that relate to their obligations regarding the quality of care, nor the conditions under which the consumer can immediately terminate the contract , eg failure to comply with the Care Act , abuse , Inadequate rating by the Care Quality Commission

[Getitdone]

atticus
Thank you.
Could you possibly expand a little on your reply please?

[atticus]

In court the judge will hear evidence and argument on both sides. This may include the care home's reasons for including these terms. I can envisage arguments as to how those terms might be justified, and this is what I had in mind when I wrote my earlier post.

It is the judge who will decide. I would not be so bold as to say on reading the words quoted that they amount to an unfair contract term. R0b has said that there is a realistic possibility that the terms will be held to be unfair. That is not a certainty. Nor have I said that the terms are not unfair.

[Getitdone]

atticus Thank you.
The terms of business include this to be signed when in the case of a privately funded service user someone other the service user id responsible for payment of fees.
I have POA for finances.
In consideration of your agreeing to admit the above named Service User, the terms and conditions on pages 1 – 2, I agree:-
To Fully Indemnify The Home In Respect Of Any Failure To Pay The Fees Due.

To Indemnify The Home, In Respect Of Any Breach By The Service User Of Any Of The “Terms And Conditions Of Residency” And To Guarantee The Performance Thereof.

This Indemnity And Guarantee Is A Continuing Indemnity And Guarantee To The Home, In Respect Of All Sums Due From The Service User, And Is Only Capable Of Cancellation Once All Sums Due From The Service User Or Me Under The Terms And Conditions Contained Have Been Fully Discharged. Until Such Time The Terms Of This Indemnity And Guarantee Cannot Be Cancelled Or Liability Discharged And Shall In The Event Of My Death Be Binding Upon My Personal Representatives.

I Have Read The Above Terms And Conditions Before Signing And Fully Understand And Accept Them:

I've asked the care home manager if either her or the sole director and owner can explain it in plain English.
Initially I didn't get a response, but then when I stated I would sign the conditions of residency but couldn't sign the Indemnity part because I didn't understand it, I received this response on Jan 10th.

With regards to the contract of residency, we are unable to deviate from the contract which forms part of our registration with CQC and Sunderland LA. Our contract is an approved document and reviewed annually. If the family are unwilling to sign this document, then unfortunately, the contract of residency must be terminated as these forms an integral condition of our registration which is monitored by CQC, Sunderland Council Commissioning and our Insurers.

It still doesn't explain the indemnity clauses in plain English .
I've been trying to read around and ask questions on care groups etc

My father is self funding but I'm aware that often when someone is funded by the LA care homes require someone other than the resident ( who by law cannot pay their own top up fees).
Failure to pay top ups will result in termination of an existing contract .
I wanted to understand if the indemnity included an obligation to pay top up fees if my father started to receive LA funding in the future.
I'm also aware that LA financial assessments are taking up to 6 months in some cases, therefore it's possible that someone could be left in a situation where they're unable to pay the full fees as savings are depleted while waiting for the FA and funding from the LA

Does this mean that whoever signs the indemnity clause is responsible for paying the fees in such a situation?

The manager told us verbally that they used to charge top up fees but no longer do so, however I've asked her 3 times in writing to confirm whether they do and I haven't had a response .

Today I've received a letter asking us to attend a meeting on Wednesday 17th re Care needs and placement review and also a letter saying they've terminated the contract with immediate effect because we haven't signed the terms and conditions

I don't know whether I should contact LA social care and ask for their input or what to do

We're trying to get another home to go and assess Dad ASAP to see if they can meet his needs with the staffing levels they have. To be honest there aren't a lot of beds available anywhere and a lot of homes reserve beds for LA placed residents.
Our LA won't get involved with placing people if they're self funding , presumably because they're short of Social workers and they know there's a shortage of places.

In moving into this care home he's moved across the border into another LA so not sure what their policy is.

Presumably they can't just throw him out or stop providing him with care without going to the court for an eviction order?
We don't want him to stay there for any longer than he has to

I should point out that we paid the £8200 invoice almost a week ago despite them not clarifying the contract terms , and that we've raised several concerns regarding his care which have resulted in harm and some of the issues haven't been resolved.

Grateful for any advice

[R0b]

You really need to get some legal advice so someone can give you the fully picture. An indemnity simply means you agree to make the care home whole if your dad is unable to pay the fees. It is also saying you are effectively a personal guarantor which has certain legal rules but generally, indemnity and personal guarantee obligations are enforceable. When a court finds them not to be enforceable, it usually comes down to technicalities.

If they have terminated the placement and the invoice is for an upfront payment, it's not unreasonable to ask for a pro-rated refund since you haven't signed any of the terms they are not applicable and should only be paid for the actual days your dad has been living there.

You may also find the below guidance useful. The Competition and Markets Authority carried out a review into unfair practices and contract terms for care homes. Whilst their guidance is not legally binding, it is highly persuasive to the courts who could choose not to accept that guidance if the care home provider offers a more persuasive argument.

https://assets.publishing.service.go...dvice_----.pdf

[Getitdone]

@Rob . Thank you.
So we did the right thing in not signing as we wouldn't be able to pay the fees if for some reason he wasn't able to do so.
We have requested a refund of 4 weeks of fees and offered to pay by standing order on a week by week basis after the initial 4 weeks has passed. The Director replied that they wouldn't do that and would refund the amount due on the day if discharge.
When I've re read the contract it doesn't actually state fees must be paid weekly 4 weeks in advance , only that they must be paid weekly.
I was so busy looking for something re 8 weeks that I missed that.

I don't think it's clear from the Directors response exactly when they'll refund . If it's delayed until the end of an accounting period ( which was the case when we were due a refund from a care home previously) then it will potentially impact on my father being able to pay any advanced fees when he moves to another care home.

I have contacted the CMA via email, raised an Adult safeguarding concern with the LA and fed back to the Care Quality Commission as the regulator.


Regarding legal advice , the director wrote " cc Sintons, Sunderland commissioning and the Care quality commission in his email but hadn't actually Cc'd them so we're waiting to see what might arrive in the post in the next few days.
In the meantime another care home are carrying out an assessment tomorrow. We've looked at their contract and it's much closer to meeting the CMAs guidance.
Clearly states their contractual and legal obligations , there is no indemnity to sign and info' re 3rd party top up fees and when they may be payable is clear. No ambiguous, unqualified conditions under which they can immediately terminate the contract .