Challenging care home evictions / restrictions on visiting

Serious concerns have also been raised that some care homes may be relying on widely drafted termination clauses to unfairly evict residents by way of reprisal for their families or relatives making complaints (as well as imposing other measures such as visitor restrictions or bans).[1]

 

This is a widespread problem that Age UK and other charities have sought to highlight on a number of occasions.[2]  A 2017 Competition and Markets Authority study[3] expressed serious concern about the practice – which the Government in response (in March 2018) undertook to look into.[4]

The relevant regulations stress the importance of appropriate complaints’ procedures for care home residents[5] and the Care Quality Commission(CQC) guidance states that:

Complainants must not be discriminated against or victimised.  In particular, people’s care and treatment must not be affected if they make a complaint, or if somebody complaints on their behalf.[6]

 

The ombudsman[7] has considered a complaint concerning a care home that banned the partner of a resident from visiting him ‘without warning, without giving them reasons, without any duration for the ban, and without conditions for its lifting’. The home additionally warned that ‘if relationships with the management did not improve it would consider evicting’ the resident.  In finding maladministration the ombudsman referred to the failure to comply with the relevant regulations and also a failure to have ‘regard to Article 8 of the Human Rights Act 1998’ (para 47).

Although bans on family visits and threats of eviction are often characterised at law as contractual issues – the position is more complex.  The care home owner will generally be considered to be a public authority for the purposes of the Human Rights Act 1998[8] and so a decision to evict / restrict access could be challenged under this Act (for example Article 8 European Convention on Human Rights – which protects a persons right to ‘respect’ for their home and family life).

Unfortunately, all too often (as the CMA / Age UK evidence suggests) care homes seem to think they can simply terminate a contract and evict.  Even if this is only a ‘licence’ the home would have to give ‘reasonable notice’ (see CMA report para 11.41) and there is a strong argument to suggest that this may often be several months – if not longer – if there is a shortage of suitable alternative care homes in the area.

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[1]Competition and Markets Authority Care homes market study Final report (CMA 2017) para 11.40.
[2]ibid para 11.38 and see also H Bontoft ‘Drawing a line: is it possible to ban family from visiting?’ Nursing & Residential Care Sept 2018, vol 20, no 9  465- 467.
[3]ibid paras 11.38 – 11.41 and 11.67.
[4]Department of Health and Social Care Government Response to the Competition and Markets Authority’s ‘Care homes market study, final report(March 2018) para 2.17.
[5]Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 16.
[6]Care Quality Commission Guidance for providers on meeting the regulations (2015) – regulation 16.  In addition a 2016 CQC guide (CQC Information on visiting rights in care homes 2016para 8Information on visiting rights in care homes, November 2016para 8) states that “People should feel confident that complaining will not cause problems for them or the resident. For example, it the omb should not affect the visitor’s ability to see their relative or friend, and it should not lead to the resident being asked to move to a different home”.
[7]Complaint No. 16 010 110 against Liverpool City Council 26 February 2018.
[8]The Care Act 2014 s73 provides that (in essence) that where a person receives personal care in their own home or a registered care home and that care is arranged or funded directly or indirectly by a local authority  then the provider of the care is a ‘public authority’ for the purposes of the Human Rights Act 1998, s6(3)(b).