The guidance makes clear how the CMA will decide whether care homes are treating residents and their representatives fairly and addresses many of the issues we have highlighted in our previous briefings (see the bottom of this article for links to these). The CMA has considered the wider process, where providers engage with potential residents and their representatives; from the point of first contact through to how the contractual relationship is managed and what happens when the residents move out or pass away.
The CMA and Trading Standards have a wide variety of powers available to them in situations where they believe that providers are in breach of consumer law. This includes bringing court proceedings to stop infringements, seeking compensation on behalf of residents and, in some cases, bringing criminal prosecutions. In addition, residents may be able to seek damages in the Courts and unfair terms will not be enforceable against them or their representatives.
We have already seen several providers come under scrutiny and agree variations to their contracts (in accordance with the CMA’s instructions):
The CMA continues to scrutinise contracts and take enforcement action. Whilst it is the Courts that ultimately decide whether consumer law has been breached, the guidance sets out the new regulatory landscape for consumer protection in the care sector and provides a clear explanation where investigative action will be taken, or prosecutions brought. Those providers who are in the process of communicating fee reviews to their residents should tread carefully and check whether their contract terms support the changes that are proposed.
We will be running a series of workshops in the new year which are designed to take delegates through the guidance, discuss whether the Courts might take a different approach to the CMA and to share examples of good practice when developing your customer contracts.
The full guidance and summary notes are available here.
If you would like further information regarding this e-briefing, or for any enquiries relating to residential care, please contact Emma Watt.
Previous residential care contracts e-briefings:
Residential care contracts - consumer rights and the cost of charging fees in advance
A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
This ebriefing considers the Government’s proposals for challenges, as set out in Chapter 7 of the Green Paper entitled 'Fast and fair challenges'.
We’re delighted to announce that we have been ranked in the top five national legal advisers in the Top 3000 Charities 2021 directory.
The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
Changing charitable purposes and amending governing documents.
One of the stated aims of the Green Paper is “to deliver the best commercial outcomes with the least burden on the public sector".
The proposals concerning dynamic purchasing systems (DPS) and framework agreements are the most disappointing aspect of the Green Paper.
Family team partner, Elizabeth Wyatt, is delighted to congratulate Kadie Bennett for attaining Resolution Specialist Accreditation in both children law - private and complex financial remedy matters.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.