Decision Date: 9 January 2025
Summary
Miss X complained that Sutton Council failed to move a resident from the care home she manages, despite the care home giving notice on the placement. The care home incurred expenses in having to evict the resident and providing additional care to ensure their needs were met.
What happened
Miss X is the regional manager for a care home. The care home gave notice on a resident’s placement as it deemed itself no longer able to meet the resident’s care needs.
In July 2024, the care home served notice on the resident and the Council, giving 28 days’ notice. The care home expected the resident to be moved on, or before, the date of expiration of the notice.
[It is not possible to tell from the report whether the Council was the purchaser of the care placement in the first place or just a body to whom the end of the contract with the client was notified, for safeguarding purposes – and this is key to a comprehensive consideration of the rights and wrongs of the situation.]
The Council failed to move the resident. Consequently, the care home started legal proceedings to evict the resident.
The care home confirmed the possession hearing has been listed. The care home also indicated it would pursue legal action to make a claim against the Council for the expenses incurred in having to continue to care for the resident and for its legal expenses.
What was found
The LGSCO refused even to investigate Miss X’s complaint and asserted that it was reasonable for the care home to continue to pursue the matter in court.
The LGSCO noted that the law says that the Ombudsman cannot normally investigate a complaint when someone could take the matter to court. However, it was recognised that the LGSCO may also decide to investigate if the Ombudsman believes that it would be unreasonable to expect the person to go to court. The relevant statutory provisions derive from the Local Government Act 1974, section 26(6)(c), as amended.
The information provided by the complainant and the Ombudsman’s Assessment Code were each considered in reaching the conclusion.
Points to note for councils, professionals, providers, people using services and their carers, advocacy groups and members of the public
Section 26(6)(c) of the Local Government Act 1974 states that an Ombudsman cannot investigate an action if the affected person has or had a remedy by law of proceedings in any court of law, unless it is not reasonable to expect them to avail of that remedy.
Thus, it creates a jurisdictional hurdle of a sort, as the only exception is when the Ombudsman believes that it would be unreasonable for an individual to resort to legal proceedings.
The Ombudsman possesses the discretion in determining whether to initiate, continue or discontinue an investigation and regularly allows people to complain when they could have brought judicial review proceedings if they had only been able to source a legal aid practitioner.
Signing a care home contract is key to ensuring a person’s rights are protected and that there is accountability if things go wrong. The contract will include fees, and who is to pay whom, what services can be expected, and the terms of the stay.
In the majority of cases, the contract is between the care home and whoever is paying for the service, which will generally be the council, even if the person is paying the full cost back by way of social care charges.
It is settled law that the contract must cover the full cost of the needs that are to be met, together with the full package of accommodation – and even a top-up for wants, as it happens, when the council is the purchaser. Some councils’ contracts contain provisions as to what is the consequence of termination, including an agreement in advance that the clients or even just the one person should be able to spend further time in the placement at the old fees, so that the contract itself carries on, on agreed terms, for that client or clients, despite termination for the future for anyone else. That’s called an evergreen clause.
What would not be lawful would be if the contract also said that there would be no review of needs under the Care Act, or did not allow notice to be given. That would be contrary to public policy and a denial of the person’s Care Act rights – as they must have a care plan that actually provides the minimum a care provider must deliver upon which must be related to rationally and professionally defensibly assessed needs.
The Competition and Markets Authority published Care homes: consumer rights for residents and their families guidance in 2018.
This states: ‘’If you’re paying for your own care, there will be a contract between you and the care home.’’
There is no guidance, nor regulations, which state that a contract should be provided when a person is not paying for their care and not a party to the contract, but the regulations for registration envisage that even when a person is paying a small part of their care fees, regulation 19 should apply.
https://www.cqc.org.uk/guidance-providers/regulations/regulation-19-fees
To meet this regulation, providers must make written information available about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care, treatment and support.
Regulation 19
- Where a service user will be responsible for paying the costs of their care or treatment (either in full or partially), the registered person must provide a statement to the service user, or to a person acting on the service user’s behalf—
- specifying the terms and conditions in respect of the services to be provided to the service user, including as to the amount and method of payment of fees; and
- including, where applicable, the form of contract for the provision of services by the service provider.
- The statement referred to in paragraph (1) must be—
- in writing; and
- as far as reasonably practicable, provided prior to the commencement of the services to which the statement relates.
Even though they do not occupy a care home under a tenancy, and do not pay rent, but occupy a care home under a contractual licence (either under their own name or that of a commissioning entity), it appears to be accepted in the treatment of the issue across academic and practitioner texts that a care home resident is covered by the structured protection in the Protection from Eviction Act 1977.
This is because they are living there and it is their home; this means they are entitled to at least 28 days’ written notice before being expected to leave.
This period can be longer if specified in the contract, and councils often ask for 3 months’ notice for council funded clients.
The notice must be given in writing and cannot be enforced, it seems, other than by due process – ie a possession action if the council does not co-operate.
Given that Care Homes providing for council clients owe human rights under the Care Act, the least that respect for a person’s home and private life should entail would be communicating with the affected resident first, anyone assisting them and any other relevant professionals – unless the person lacks mental capacity to a significant degree, in which case it should be for the local authority to consult the person’s best interests consultees as to what should then happen so as to avoid distress.
The Council also owes human rights directly to the individual. It is hard to imagine how just leaving a person in an unwelcome placement is consistent with adequate respect for a person’s private and family life, but the investigator’s report does not engage with that question.
Where a local authority places a person who has been assessed as lacking mental capacity in a care home, unless that person has a best interests consultee such as a person with a power of attorney or deputyship for finance and property matters, to act on their behalf, it is the duty of the authority to ensure that person continues to receive the necessary care and support, irrespective of their financial resources.
If a resident lacks capacity, decisions over their residence can only be made following the ‘best interests’ decision-making process under the Mental Capacity Act 2005, because sorting out placements will involve conveying the person from one setting to another.
In such circumstances, it appears obvious that the Council owes the Care Act duty to review the person as soon as notice is given, under the Care Act – because the cessation of the agreed occupation rights is an obvious change of circumstances, taking care to abide by the requirements of best interests decision-making in the meantime, and ensuring that their care needs are adequately met.
This report does not state if the resident was placed in the care home by Sutton Council in the first place, or whether the resident made the arrangement, him or herself.
Either way, having been living there for money they are a permitted occupier. A permitted occupier cannot be deemed to be a squatter if they have exceeded their stay beyond the date of the expiration of notice. This is because the permitted occupier was never an unauthorised occupant to begin with.
Basic protection, deriving from Section 3 of the Protection From Eviction Act 1977, makes it unlawful for a landlord to recover possession of premises occupied by a person who has basic protection. Basic protection covers people who are considered tenants or have a tenancy-like status, and that would normally exclude licensees, such as is the nature of accommodated employees or residence shared with a landlord. The only avenue that a landlord can take for a protected occupier is through court procedure to obtain a court order, whereas a licensee can find their possessions put outside after the 28 days’ notice has expired.
There is no consideration in this refusal to take up the complaint as to whether there was a Deprivation of Liberty Authorisation in place, or whether the person had mental capacity. That’s a serious omission, to our minds, in light of recent case law regarding eviction from a hospital of a person without capacity. The Court considered the Equality Act, the Mental Capacity Act and the Human Rights Act too, in that case. Those interested in this area can start here: https://cornerstonebarristers.com/wp-content/uploads/old/seeking-possession-of-a-hospital-bed-pe-docx.pdf and then finish up with https://cascaidr.org.uk/2025/01/08/northampton-general-hospital-nhs-trust-v-mercer-2024-ewhc-2515-kb-4-october-2024/ a much more recent case concerning a hospital possession case.
We cannot disagree that the Home COULD apply to the civil court for restitution of the cost of care outside of contract, which the care home ought not be taken to be volunteering to provide after the expiration of the notice (unless it positively agreed in advance) but it is actually the position that the Home could also apply to the Court for an injunction to require the Council to do its duty under the Care Act, in public law proceedings – as a person affected by the omission. That is why it is so frustrating that the investigator was unclear about Sutton’s actual responsibility for the person.
There is no duty of care owed after the termination of the contract under which the duty was accepted in the first place, and if the Council is on notice that the person must be taken responsibility for because it will not carry on caring, it is unacceptable that the Ombudsman thinks it is down to the Care Home to just assume the responsibility for the client without at least explaining why, in our view.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s London Borough of Sutton (24 013 012) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
Did you enjoy this analysis? Want to stay informed with our weekly Alert Service?
Then do click here to find out how you can receive the latest insights from experts and commentators and stay updated on key judicial decisions, ombudsmen’s reports, and critical law and policy changes, all for just £50 per YEAR and sent straight to your inbox or WhatsApp!