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  • Sarah Whitebloom


Britain’s care home industry potentially faces multi-million pound legal actions from consumers and Local Authorities over poor care in the wake of the recent Competition and Markets Authority’s report.

In its report, the markets regulator backed calls for cash-strapped care firms to be given £200 million-plus for local authority-funded residents – a move which was applauded throughout the industry. But the CMA also emphasised that care home residents have full consumer rights and this has potentially serious financial implications for care groups accustomed to receiving thousands of pounds in fees, even when the Care Quality Commission grades homes and care as substandard or inadequate.

CMA’s chief executive, Andrea Coscelli, said: ‘Of all people, it is especially important that care homes residents are treated fairly and have the full protections of consumer law. We will be taking steps to assist care homes in understanding their obligations, but we are also taking enforcement action now on some issues where we believe the law is being broken.’

The regulator is looking to act against specific unfair practices such as homes continuing to charge after a death and over insufficiently clear pricing. Many homes do not publish charges. As revealed elsewhere on OLM, everything is negotiable.

But the CMA’s intervention represents a new emphasis in respect of UK care home residents and has wide-ranging implications. Asked about the possible ‘game-changing’ nature of the authority's comments, a CMA spokeswoman said last week that care home residents have the protection of the full range of consumer law and can ‘act accordingly’ if they do not receive the care for which they are paying.

Thousands of homes, including some owned by leading care groups, have a documented history of delivering poor care in British homes. Every week, highly-critical CQC reports emerge detailing appalling standards across the country. Inspection teams frequently find residents are unsafe and uncared for. They complain there is insufficient staff to provide care and reveal cases of vulnerable people living in squalid conditions, without enough food or medical assistance. And such problems can be seen throughout the industry – from small, one home providers to the largest care groups. More than 30 per cent of homes owned by each of the so-called 'Big Five' care groups - Barchester, Care UK, Fourseasons, HC-One and Bupa - were given critical CQC reports in the 12 months to the end of September this year.

Only last week, the care regulator reported that a high-end Bupa care home was ‘not safe, responsive or well led and not always effective and caring’. In November, three care homes owned by the exclusive Barchester group received ‘Inadequate’ ratings. And a recent report into an ‘Inadequate’ home owned by HC-One – which bills itself as the ‘kind’ care company – revealed insufficient staffing. Meanwhile, at an independent home, it was discovered that one individual, whose leg was fractured, was not given medical attention for six days while other elderly residents were not treated with kindness or dignity and lacked basic care.

Altogether, more than 2,000 residential homes in England are currently failing to deliver ‘Good’ care, according to the CQC. Some 400 homes are actually graded as ‘Inadequate’ – the worst possible mark. Many more will be branded ‘unsafe’ and yet, until now, residents and local authorities have been expected to pay fees, often running into thousands of pounds a month.

Martyn Lewis represents his severely disabled brother Gary, whose leg was badly broken while living in a home owned by troubled care group Sussex Healthcare. Mr Lewis has already refused payments for his brother's care and has urged Camden, the local authority concerned, to consider if its care contract has been breached, in order to recover money - something Camden has refused to do. The local authority has claimed that this 'was not an appropriate use of resources' but, if care providers are now to be held to greater account, those who pay for care may take a different view and pursue care providers through the court. Mr Lewis has welcomed the CMA’s recognition that care home residents are consumers and he urges families not to pay for substandard care or make contributions.

Under consumer law, care home fee payers can withhold payment or demand reductions – if they do not receive what they have been contractually promised in terms of goods or services. The consequences are enormous for the scandal-ridden care industry.

Some care professionals will claim that poor standards result from lack of funding. But it is hard to take such assertions entirely seriously, when high-end care homes, which do not accept council rates, but charge private individuals £1,000+ a week, also receive scathing CQC reports, detailing appalling standards of care. And some private operators admit that good care does not necessarily cost a lot of money. According to one private home owner, it is all about culture rather than cash and attitudes.

In the United States, there is a long history of consumer rights for care home residents. Advocacy services have developed, as a response to scandals, and there have been numerous cases brought by both individuals and the authorities which paid for it.

If homes groups have not provided adequate care, they have regularly found themselves in the courts, defending their records and being sued for providing what is termed in the US ‘worthless’ care.

Currently, there is a multi-million dollar action in New Mexico, where it has been alleged that one group could not have provided good care because of ‘thin staffing’ – a major blight in British care homes. New Mexico’s Attorney General Hector Balderas said patients have suffered and even died as a result.

Five years ago, an Atlanta man was convicted of charging $32.9 million for providing worthless services while running a care home. He was convicted of defrauding the Medicare and Medicaid programs, which fund care for those without sufficient means – in the same way as local authorities do in the UK.

In another case, in 2014 there was a $28 million settlement after allegations that a care home group did not have sufficient nurses to care for residents. The company concerned charged for ‘materially substandard nursing services that were so deficient that they were effectively worthless’.

And earlier this year, care homes groups were forced to settle with the US Department of Justice after providing inadequate care – including inadequate bathing and lack of nourishment. Every week CQC reports reveal ‘Inadequate’ care homes and yet no action is taken to recover funds. In yet another American case, company executive have been forced to pay compensation for failing to provide proper care.

Meanwhile, US care groups have sought to mitigate the impact of consumer action by obliging new residents to sign away their rights, even if they suffer injury. There have been moves to ban this, but President Trump is keen to release care providers from such a check. This has attracted considerable opposition in Washington and throughout the US.

One of the CMA’s main gripes with the UK’s current system, is the lack of information on care options available to consumers. The CQC and local authorities provide some information. But, in the US, extensive hard facts are provided a Government website. . It provides an amazing level of detail about individual homes with star ratings on key measures including quality and staffing. And consumers can compare homes and find out about failings – without trawling through lengthy reports.

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