In this section
Other areas where terms can be unfair, which are covered in the CMA's guidance to help care home owners and registered managers treat residents fairly, include residents' visiting rights, temporary absences from your home, and terms dealing with situations where the resident breaches their contract with you.
These circumstances are explored here.
It is important that you do not impose unreasonable restrictions on your residents' rights to have visits from family and friends, as this could infringe consumer law. You may also infringe sector-specific legislation. In England, for example, the Care Quality Commission has given guidance on the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, stating that residents' relationships with friends, family and other relevant people should be respected.
For your terms to be considered fair, you must ensure that:
- Circumstances where visitors' access to your home can be restricted are very narrow and do not go beyond what is reasonably required to protect your legitimate interests, or those of your residents –for example, in extreme cases such as where visitors have abused, physically assaulted or posed a real and significant danger to your residents, staff or other visitors
- Circumstances in which a resident's visitors may be banned are transparent. This means that they are clearly and unambiguously set out and explained in the contract
- The decision to ban a visitor is made only after a thorough risk assessment and appropriate consultation with the individuals concerned – including the resident, their representatives and the visitor whose access may be restricted – and is subject to an appeal process, whereby the affected parties can dispute your decision
- Where the resident lacks mental capacity to make decisions, visits should be allowed – unless there are compelling reasons to say they are not in the resident's best interests. You must follow national legal requirements – for example, in England and Wales, the Mental Capacity Act 2005
- Any restriction or ban is kept under regular review and removed as soon as practicably possible
When a resident is temporarily away from your care home, such as for a planned holiday or unplanned hospital visit, a term that requires residents always to pay full fees is unlikely to be considered fair as it does not take into account whether allowances could be made by you for savings during this time, on things such as food and medication or personal care. A term that is more likely to be fair is one in which the full fees are only payable for a limited amount of time, after which a discount is applied, reflecting a reasonable estimate of the savings you are likely to make during the resident's absence.
Financial penalties when a resident breaches their contract
There will be times when a resident breaches their obligations to you in law and, as a care home owner, you may be entitled to take action against them to compensate you for your losses.
Having terms that are clear and fair is very important, particularly when your residents and their representatives may be vulnerable; in some cases residents may lack full mental capacity. Terms that allow you to charge disproportionately high amounts to residents who may have breached their contract with you are likely to be considered unfair in consumer law – for example, where you require the resident to pay more in compensation than any loss you are likely to suffer as a result of the resident's actions.
You can also seek advice from your local authority trading standards service.