by Sally Gillies, Adult Social Care Project Manager at tri.x, part of Antser
The local authority you work for arranges and funds a placement for Mr X in a care home. You are his allocated social worker for the purpose of statutory review and receive the following email from the care home manager:
“I am sorry, but I have no alternative but to give 28 days notice from today in respect of Mr X. This will mean him moving out of the care home on (date). As you know, I have been of the view that we are not the right care home for many months. May I ask that you work with me on this date and I wish you all the best in finding him somewhere else to live.”
This article will guide social workers in providing a person-centred response to this scenario by supporting them to understand the rights of care home residents and the legal obligations of care homes.
It begins by highlighting the paramount importance of understanding the wishes and feelings of the affected resident as part of any response to notice being given by the care home.
Moving on, the article explains:
- The rights of care home residents as individuals with a ‘license to occupy’ the care home; and
- The legalities around notices and evictions to which care homes must abide.
Unfortunately, it can be the case that care homes do not always understand the statutory requirements and the way that they give notice is therefore not always lawful.
The article will cover a summary of the key ‘questions to ask’ and ‘things to do’ when the scenario arises.
Finally, the article will offer some additional advice and clarity for the following situations:
- The resident lacks capacity to make residency decisions;
- The resident (or their family) arranges and funds their own care;
- The accommodation is an extra care or supported living service.
The Wishes and Feelings of the Resident
The first step before doing anything should be understanding the wishes and feelings of the resident. This applies whether or not they have capacity to make decisions around residency.
Don’t make assumptions or take the word of the care home. They are not impartial.
Don’t assume the person wants to stay. They may not and they may have good reasons for this. Find out before you decide the local authority’s position.
Due to the gravity of the decision, consider advocacy to support the person to consider their options and express their views.
Legal Rights and Obligations
License to Occupy
A license to occupy is an agreement between a property owner (Licensor) and an occupier (Licensee). It gives the licensee permission to occupy named accommodation on a non-exclusive basis. Without the license the individual would be trespassing.
The contract between the care home and the resident and/or local authority acts as a legal license for the resident to occupy that accommodation.
A license to occupy is protected in the same way as a tenancy agreement under the Protection of Evictions Act 1977 (PEA).
What does this mean? The resident has legal rights.
The Protection of Evictions Act 1977
Under section 5 of the Protection of Evictions Act 1977 (PEA) the resident must be given a valid notice. For a notice to be valid it must:
- Be in writing; and
- Be provided at least 4 weeks before the date on which it is to take effect.
What does this mean? The resident must be given notice (not just the local authority) and this notice must include all the above to be valid.
At the end of the notice period, if the resident does not leave voluntarily the care home must take the following steps to evict them:
- Obtain a possession order from the county court;
- Execute that order via the court bailiffs.
There are some exceptions to this (set out in s3A of the PEA) but none of these apply.
What does this mean? Put simply, this means that a care home cannot simply ‘turf a resident out’; they have to follow the right legal steps to evict them.
Competition and Markets Authority guidance
The Competition and Markets Authority (CMA) has produced guidance for care home residents and their families, setting out what they should expect from a care home.
Care homes which do not meet their obligations might be in breach of consumer law and could face enforcement action by local Trading Standards Services or the CMA.
Upon admission the contract should clearly set out any valid reasons why the care home may ask a resident to leave. This is to ensure that the resident and/or person/organisation signing the contract is aware of these from the beginning.
According to the CMA valid reasons include:
- The care home cannot meet their care needs anymore, even after making reasonable adjustments
- The person has repeatedly not paid their fees and has large arrears.
What does this mean? The care home cannot give notice for a reason it has not stated as a ‘valid’ reason in the contract.
If a care home wishes to terminate a contract, they must clearly explain to the resident and/or person signing the contract the reasons why.
Other contractual obligations
When the contract is between the care home and the local authority, it is not uncommon for it to include an arbitration process that should be instigated should either party decide to give notice and the other party disagrees. An arbitration process involves taking the case to a neutral tribunal who will make a final decision.
Questions to Ask and Things to Do
Does the resident know?
- Has the care home given notice to the resident?
- Was this notice given in writing?
- Was this notice given at least 4 weeks before the date on which it was to take effect?
If the answer to any of the above is ‘no’, then the notice has not yet legally been given under the PEA 1977. The notice period will need to begin again from the date that notice is served correctly.
What are the wishes and feelings of the resident?
- How does the resident feel about notice being given?
- Does the resident want to stay or go?
- If the resident wants to stay – do they have any ideas or suggestions to resolve issues?
- If the resident wants to go – what are their wishes and feelings about where they move to?
- Does the resident need an advocate?
- Is specialist communication support needed e.g., from a SALT?
What is the reason that notice has been given?
It is important to understand why notice has been given, as this will indicate whether there may or may not be an alternative option that can be explored.
If the reasons have not been clearly explained to the person/organisation that signed the contract, this is in breach of the Competition and Markets Authority guidance.
Common reasons may include:
a. The home is struggling to meet the resident’s needs;
b. The home has lost it’s CQC registration, or is closing for some other reason;
c. The home cannot manage the resident’s behaviour;
d. The home is upset by the behaviour of family members or other visitors;
e. The home needs more financial support from the local authority and giving notice is one way of highlighting it.
When the reason is known check whether it is a ‘valid’ reason as set out in the Competition and Markets Authority guidance. Options d. and e. in the list above are unlikely to be ‘valid’ reasons.
Is there an alternative option?
It is really important to explore alternative options when:
- The resident does not want to leave; or
- The home appears open to exploring such options; or
- The reason that notice has been given is not a ‘valid reason’ as set out in the CMA guidance.
Sometimes, care homes give notice as a last resort attempt to get (or expedite) additional support or funding from the local authority or other organisation. Intervening to carry out a review, referring to a specialist agency or providing additional support or funding (when proportionate and appropriate to meet the resident’s needs) may mean the resident does not have to move.
Remember, under the Care Act 2014 personal budgets must be sufficient to meet a person’s eligible needs, so if the budget may no longer be sufficient to do that then a reassessment and budget review must be carried out.
If the notice stands
If a care home is adamant that the notice stands (and it is valid) the local authority and the courts have no powers to force them to withdraw it.
If the local authority does not agree with the notice, you should check what the contract says about any arbitration process. Where this is present, notify the commissioning team who can set this in motion. Until the outcome of the arbitration process is known, the care home cannot evict the resident.
The resident or a family member can also raise a formal complaint to the care home, and this should be investigated fully before continuing with any eviction process.
If the local authority agrees with or accepts the notice (or if the outcome of any arbitration process is to accept the notice), it is important to understand how ‘hard’ the deadline is. Don’t assume that the care home will be taking legal steps to evict the resident on the day the notice expires. Knee jerk responses that work to perceived hard deadlines can lead to ‘emergency’ or ‘interim’ placements that can be detrimental to the resident’s wellbeing.
Be honest with the care home about how long it may take to find an alternative placement, even if it is likely to be months. If the process of finding another placement has started, most care homes will be amenable to working with the local authority and recognise the importance of good planning and transition for the wellbeing of the resident.
There are a few other things that you should consider when notice is given.
1. Is discrimination an issue?
Take steps to be satisfied that the reason notice is being given does not indicate discrimination against the resident because of any of the protected characteristics of the Equality Act 2010; age, disability, race, religion or belief, sex, sexual orientation, gender reassignment, pregnancy and maternity, marriage and civil partnership.
Where there are concerns that discrimination is a factor, a safeguarding concern should be raised, as this could be indicative of organisational abuse or a closed culture.
2. Integrity of the care home
If the practices of the care home in regards to contracts and contract termination are a concern, this should be reported to commissioners, who will be able to decide if any action is required. If the local authority does not ordinarily commission the care home in question, it may be necessary to alert the Care Quality Commission of your concerns.
Residents that lack capacity to make decisions about residency
If the resident lacks capacity to make decisions about residency, there could be a role for the Court of Protection (COP), particularly if the move is not going to be in the residents’ best interests, a family member disputes the decision or there are concerns that the care home has not acted lawfully.
The COP can facilitate discussions and help in exploring alternative options, or, if the resident must move, make sure that this is done in a planned way that will work best for them.
However, the COP cannot prevent the eviction from taking place when instigated lawfully (Re JB (Costs)  EWCOP 49.)
Supported living services and extra care
In these services there is often one contractual agreement for care and another for accommodation.
As such, if the care provider gives notice, there may be no issue for housing and a change of provider may be all that is needed. You should always check individual contracts to see what they say.
If the notice is being given by the housing provider due to non-payment of rent, the person may need support to manage finances or debt:
- Enable access to CAB or another service able to provide debt advice;
- If there are income issues, check if benefits are being claimed correctly;
- Would a standard or mental health breathing space be applicable?
Differences for residents arranging their own care (or being supported by family)
There are no differences to the rights and considerations in this article when a resident arranges their own care.
However, because the contract is between the care home and the resident/family member (as opposed to the local authority) there are additional terms and conditions that the care home must meet under the CMA guidance:
- The terms and conditions in that contract must be written simply and clearly, avoiding jargon, so that the person can easily understand their rights and responsibilities.
- Terms must be written and agreed with the resident in a fair and open way.
- If a term in a contract is unfair, it will not be valid and the care home cannot hold the resident to it. Unfair terms include those which put the resident, or the person who signs the contract on their behalf, at an unfair disadvantage (for example, because they give the care home more rights).
Residents and family members can be signposted to the Citizens Advice Bureau, who can provide help on a case-by-case basis.