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  • Sarah Whitebloom

Hoorah and Hooray for the CMA: Crackdown on unfair practices heralds care industry revolution for co

FANTASTIC news today for care recipients - not so good for care home owners. The UK’s official consumer champion, the Competition and Markets Authority, has today effectively banned the care industry’s blatantly unfair and egregious money-making practices as well as the industry’s wide-spread use of untrue claims about the quality of care.

The CMA’s advice focuses on four key areas:

  • Upfront information;

  • Treating residents fairly;

  • Quality of service;

  • Complaints handling.

Caroline Dinenage

Although a low-key announcement in the midst of Brexit uncertainty, today’s CMA advice promises to force a revolution in the behaviour of care home owners and the treatment of older and vulnerable people, both in terms of fees and the care they receive.

Minister for Care Caroline Dinenage MP said: ‘It is a scandal some of the most vulnerable people in our society are being taken for a ride by a minority of unscrupulous care home providers. Everyone living in a care home should be treated fairly and with respect.

‘I am determined to protect residents by stamping out unfair practices and secretive fees. This important new guidance will help care homes to understand and comply with their responsibilities under consumer law.

‘Later this year we will set out plans to further improve consumer protections as part of the adult social care green paper.’

Families are currently charged extortionate fees and made to sign unfair contracts at the whim of home owners, who conceal weekly charges, terms and conditions and other costs. And, as OLM has long noted, many homes publicly claim to provide excellent care and services – when in reality the opposite has been true.

Websites and glossy marketing materials inevitably claim that homes offer ‘person-centred care’ and a ‘range of activities’, when every week damning Care Quality Commission reports find that residents are neglected, ignored and even under-fed.

Although care home residents have always been covered by consumer legislation, few vulnerable people are in a position to take action. Today’s CMA advice makes clear that the care industry is in the regulator’s sights: ‘If you fail to comply with consumer law, the CMA and other bodies, such as local authority Trading Standards Services, can bring court proceedings to stop infringements, seek compensation on behalf of residents and, in certain cases, bring criminal prosecutions.’

Despite consumer legislation, the care industry has always operated on a bazaar basis – everything is negotiable and their ability to negotiate has been a key factor in how much residents have been expected to pay. Today’s CMA advice will be devastating for the industry, which has relied on being able to charge whatever they can get away with and making untrue claims about standards. Not only will websites and marketing have to be completely rewritten because so many make untrue assertions about the care provided, the CMA has said that homes should ‘highlight all key information [which includes fees and charges] on your website (if you have one), and in other written materials that you give to people’.

The consumer champion goes on to document a range of information which must be given to prospective residents, that is currently closely guarded by the homes. The CMA wants care providers to inform families of a host of basic information, including trial periods, complaints procedures, room sizes and staffing arrangements as well as the procedure for ending a contract and, crucially, the total weekly fee rates and charges for ‘extras’.

Today’s advice really makes clear the existing situation. All consumers should receive what they pay for. But in too many cases care homes fail to deliver on their extravagant promised standards. The CMA makes clear, however, homes must provide residents with the service they are paying for: ‘Residents should receive the service they expect and on the agreed terms and not something that is, in any significant respect, different.’

Although much of today’s report concerns charges and fees, it heralds significant implications for care residents. Homes will no longer be able to ban visitors, as has happened, and they will not be able to force residents to sign away their rights. They will not be able to put unfair conditions into contracts or make charges for extended periods after a death. And the CMA emphasises: ‘The law provides that if you do not provide your service to residents with reasonable care and skill, you will be acting in breach of contract and residents may be able to seek compensation from you.’

With hundreds of homes either officially ‘Inadequate’ or ‘Requiring Improvement’, this could be a key passage in terms of the future of UK care.The CMA says: ‘You must ensure premises and equipment are suitable and safe and residents are treated with dignity and respect...

If you do not comply with the regulatory may also infringe your obligations under consumer law.’

And if they do not....While not providing an exhaustive list of conduct, the CMA’s 149-page report, says that homes will be in breach of consumer law if they: ‘Fail to treat residents with respect and dignity, which includes making sure that they have privacy when they need and want it and are treated as equals...

‘Fail to ensure that staff who are taking care of residents with dementia have the necessary training and skills.’

The CMA makes clear: ‘What you say must be true and accurate. This includes everything you say on your own website (or what you tell a care home listings site), in information packs or brochures, and what you tell people at open days or when they first get in touch.’

Unfair contracts and a lot of expensively-produced marketing materials are certain to end up in the bin by the end of the day. The danger, of course, is that home owners will seek to ‘comply’ in name only, providing information in inaccessible terms and conditions.

The CMA's advice can be seen here.

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