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