When a resident passes away, it can be a challenging time for both their family and those that have cared for them. Unfortunately after the initial shock, awkward conversations can arise about care home fees and who is liable to pay them. It is important for care home providers to be aware of the relevant legislation and guidance that has been issued on this topic to make sure they do not fall foul of consumer legislation.
What is the relevant legislation?
The starting point for the majority of consumer related issues is the Consumer Rights Act 2015. This act provides that any unfair term in a consumer contract is unenforceable against the consumer.
The Competition and Markets Authority ("the CMA") has issued Consumer Advice for Care Home Providers in respect of care home fees. Whilst guidance provided by regulators such as the CMA is not binding, the Court is likely to put emphasis on the guidance when making a decision as to whether a term is considered to be "unfair".
What does the Consumer Advice for Care Home Providers say?
The CMA have provided some recommendations for care home providers:-
- The care provider can continue to charge fees for a short fixed period after death. 3 days is the recommended time period.
- If the room is re-occupied within the fixed period, fees should not be charged from the date of re-occupation.
- A care home can continue to charge fees until possessions are cleared from the resident's room provided that a reasonable backstop period is included in the contract – 10 days is suggested.
- It is also possible for care home staff to clear the room but keep the deceased resident's possessions in storage until family members are ready to collect them. The care home would be entitled to charge a storage fee for this service.
- Care home fees paid in advance should be refunded and the refund should be paid within 28 days.
How does this guidance affect my business?
We would recommend that your contract incorporates the CMA guidance to avoid any ambiguity for residents and/or their families.
Whilst care homes will need to be sensitive to the bereavement, it is advisable to remind the deceased's family of the charging and clearance policy so that they have an opportunity to make an informed decision about how they want to proceed and are not surprised by unexpected fees.
Laura Stanley and Jeremy Crook have a significant amount of experience dealing with contractual disputes in the healthcare sector.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.