Challenging restrictions on visiting or contract terminations by care providers
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).
Concerns about Care Home’s imposing visitor restrictions/bans and threats to evict are not new. The citation above is contained in a 2017 Competition and Markets Authority (CMA) study[1] to which the Government (in March 2018) undertook to respond.[2]
Not infrequently a Care Provider uses an incident and/or a complaint by a disabled person or a family member/friend as a reason for imposing visiting restrictions on the resident or unilaterally terminating their care contract (or threatening action of this kind).[3]
Care providers are subject to regulations that require them to have complaints procedures and not to take action of this kind without having cogent reasons and evidence for so doing. Where care has been commissioned by a local authority, then the individual has – in addition – the right to complain to the council.
Restrictions or evictions (or threats) of this kind engage fundamental human rights protected by the Human Rights Act 1998 – for example the right not to be subjected to degrading treatment (Article 3) and the right to respect for one’s private and family life, and one’s home[4] (Article 8). Indeed, in situations where the resident is particularly frail, the right to life (Article 2) may also be engaged.[5]
Where challenges are made to decisions by care providers in such cases, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the accompanying Care Quality Commission Guidance (the ‘CQC Guidance’[6]) are of central relevance. For example:
Regulation 9(3)(d) requires care providers to enable and support residents[7] to make or to participate in making, decisions relating to their care to the maximum extent possible.
Regulation 9A requires[8] that care providers, except in ‘exceptional circumstances’, (among other things) respect the right of residents to receive visits and to be accompanied, following an assessment of their needs and preferences.
Regulation 10 requires that people’s relationships with their visitors, carer, friends, family or relevant other persons should be respected and privacy maintained as far as reasonably practicable during visits and that they must be supported to maintain relationships that are important to them while they are receiving care and treatment.
Regulation 16 requires Care Providers to have effective complaints procedures to ensure that people can make a complaint about their care and treatment – which requires that (among much else): that providers have an effective and accessible system for identifying, receiving, handling and responding to complaints from people using the service, people acting on their behalf or other stakeholders; that all complaints must be investigated thoroughly and any necessary action taken where failures have been identified and that 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 complains on their behalf.
Additionally the Competition and Markets Authority (CMA) issued guidance in 2021[9] concerning the consumer rights of residents and the consequential obligations on providers, including, for example (para 1.44):
You must never, for example:
-
- Threaten to restrict or ban visitors or ask a resident to leave the home in retaliation to a complaint.
- Mislead a resident about how they can exercise their rights, for example, by failing to tell them that they can escalate their complaint to a more senior manager or head office, or to an external body such as an Ombudsman, the Care Inspectorate in Scotland, or the appropriate local authority
A 2018 Local Government Ombudsman report[10] concerned a care home that imposed a visiting ban on the partner of a resident: ‘without warning; without giving reasons; without any duration for the ban; and without conditions for its lifting’. The Care Home additionally warned that ‘if relationships with the management did not improve it would consider evicting’ the resident. In finding maladministration the ombudsman referred (at para 47) to the failure to comply with the relevant regulations and also a failure to have ‘regard to Article 8’ of the European Convention on Human Rights / Human Rights Act 1998.
A 2021 Local Government Ombudsman complaint[11] concerned a care company that had been commissioned by a council to provide care for an adult. The company subsequently contacted the council stating that it did not consider that the adult needed personal care and that he had shouted at two staff members and made one cry. The council agreed to cancel the contract without trying to work with the provider and the adult to resolve the issue or complete a new needs assessment. The council took this action even though the care company had provided no records to substantiate the allegations nor had it followed its own complaint’s procedures (as required by the Regulation 16 above).
Although the Council accepted that the adult had an ongoing need for care – the Ombudsman found no evidence that it had tried to source an alternative provider. In finding that these actions constituted maladministration, the Ombudsman noted (among other things) that (paras 37-38):
- when a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them; and that the council should
- remind relevant staff to challenge providers that want to cancel contracts, and to follow its standard operating procedures in resolving issues between care providers and clients; and
In the same year, another Local Government Ombudsman complaint[12] concerned restrictions imposed by a Care Home on a son’s visits to see his mother after he had complained about her care in the home. The Ombudsman held this to be maladministration as: these actions interfered with the son’s and mother’s fundamental rights under Article 8 European Convention on Human Rights; the home’s decision making rationale was flawed; and that it did not comply with its obligations under The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 regs 12, 13 , 14 & 17.
A 2024 Local Government Ombudsman report[13] concerned a resident receiving end of life care. Her son complained about the conduct of a staff member and in response the Care Provider raised concerns that he had been ‘rude and intimidating’. The son asked the Care Home to escalate his complaint, but this was done by way of the Care Home owner undertaking a review (without it appears involving the mother) and then issuing her with a 28-day eviction notice (later put I abeyance subject to the son’s good behaviour). In addition to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, the CQC Guidance and the CMA 2021 guidance – the Ombudsman’s report refers to the 2019 NICE Clinical guideline [NG142] for ‘End of life care for adults: service delivery’ and the Care Quality Commission (Registration) Regulations 2009.
In finding maladministration the Ombudsman held that the Care Home (para 58):
- did not give a formal warning to the son before restricting his access to his mother;
- did not give the son a right of appeal of the decision;
- although it reviewed its decision, it did not put in place review dates when it issued its decision;
- did not properly consider or record how the decision would affect the mother or involve her in the decision making;
- did not consider or record whether the decision would impact on the mother’s right to family life and whether Article 8 of the Human Rights Act had been engaged.