Written by: Errol Archer
After two years of examining how the care home market treats consumers, the Competition and Markets Authority has today published guidance for providers. It has the backing of the Care Minister, Caroline Dinenage who speaks of being determined to protect residents by stamping out unfair practices and secretive fees. During the market study, CMA opened investigations in June 2017 into some providers and secured undertakings from Maria Mallaband Care Group and Sunrise Senior Living Ltd.
In an open letter to providers, George Lusty, Senior Director, Consumer Protection, stresses that “CMA’s advice is there to help you comply with the law” while warning that care homes that are not complying, “risk facing enforcement action”. The CMA will work closely with Trading Standards Services and CQC to monitor and enforce compliance, so the sector needs to take action now. It should be noted that the market study looked only into residential care homes and nursing homes for people over 65 but the advice will be useful to all providers in the sector. From November 2019, CMA will carry out a compliance review to assess the progress care homes have made. Prudent providers will act on the guidance now.
CMA published three documents today:
All three documents are on CMA’s website page here: (https://www.gov.uk/government/ations/care-homes-consumer-law-advice-for-providers)
CMA’s guidance must be taken in context. It is CMA’s current view but it is not a substitute for the underlying consumer law itself which providers must comply with and ultimately the courts, not CMA, would interpret the application of the law in individual cases. That said, providers can be left in no doubt that where CMA or Trading Standards Services (who will work closely with CQC) find that a provider is not complying with consumer law, enforcement action should be expected. The guidance applies to providers running care homes anywhere in the UK.
Whether or not you agree with the policy behind consumer law or the reach of the law itself, it is fair to say that CMA’s guidance is well drafted, thoughtfully laid out and clearly aimed at informing and assisting the sector to comply.
The guidance covers four areas, namely:
Key Information includes funding arrangements permissible at the home, key features of the services offered (e.g. types of care service offered, information about rooms, facilities, services available, number of beds at the home and staffing arrangements), particularly important or surprising terms and conditions (e.g. how self-funding fees may change) and fees and charges (including permissible up-front fees, how deposits will be protected and refunded, optional extras and unavoidable additional costs such as to attend medical appointments).
Important additional information (e.g. about trial periods or how residential contracts can be ended) must be provided in good time and, at the latest, by the time that a care needs assessment is carried out. A copy of the standard contract / terms and conditions must also be provided before the care needs assessment.
CMA repeats, in both its open letter to providers and the guidance, a number of steps that providers should take now:
Practical steps to consider
As the guidance applies to all relevant providers in the sector, there is a level playing field. So, I would encourage providers to focus on how they can use the new guidance as a ‘good news story’ to communicate a positive message to existing and potential residents and relatives, in order to give achieve a competitive advantage.
Errol Archer Consultant Solicitor Advocate (Civil) Health & Social Care Law Expert Regulation | Compliance | Advocacy
Errol's LinkedIn can be found here.