I’ve been informed by his care provider that it has given the LA notice of termination of the contract because the fees paid by the LA do not cover the provider’s costs.
It is entitled to do that, yes, under most local authority contracts for residential care; not all, however. One would have to understand the contract terms and conditions – a surprising number of providers will allow themselves to be bound by a contract which pays the admission fee at the point when the power is in THEIR hands but which providers forever afterwards for the council’s commissioner to tell the provider what they can charge for the future. This is not commercially sensible, but not agreeing an uplift is not a breach of contract. The bottom line is that one must search the terms for the GROUNDS on which a provider is allowed to terminate the actual individual placement before one can be sure of this.
When I asked the provider whether my brother should also have been given notice in writing I was told that that was not necessary as he was not party to the contract. Is that true?
It is true that in law, the notice is given to the council, and the council must then deal with the change in circumstances that what it has contracted for is not in fact going to be available. The person is definitely not a tenant, but they are a residential occupier, and not excluded, so they should be copied in, in order to enable the provider to bring possession proceedings.
If it isn’t, would failure to give him notice of at least the period specified in the contract invalidate the notice given to the LA?
Since it is true in law that the notice must be given to the LA, not doing so would not invalidate that notice, no. Not in contract law.
Also, if he must be given notice in writing, is there a prescribed form it should take?
No, just copying him in would do, to bring to an end his permission derived from the local authority contract, to remain in occupation.
I also asked the provider whether it would have to seek a court order under the Protection from Eviction Act 1977 to evict him if he was still at the care home after a (valid) notice had expired. I was told that that would not be necessary as he was not a tenant at the care home. Is that true?
It is not true: even though he is not a tenant, he cannot be physically put out without due process. The Court would insist on the local authority being joined into the proceedings in my view, in order that its duty still to meet the needs for care together with accommodation, is encouranged, or the person would be told to get legal aid to bring judicial review proceedings against their council.
If it isn’t and the provider gets an order for possession, could it pursue my brother for its legal expenses in doing so?
I think that the local authority would be made to pay but technically, your brother would be liable for remaining in occupation as a person beyond the end of the notice.
Also, if it were to start legal proceedings to evict him how would I know?
Nobody can sue someone who does not have mental capacity to defend the proceedings, ie litigation capacity – the cognitive ability to take advice and talk to a lawyer. So the provider would be likely to be asked by the court about how the proceedings had been served, and whether the person could have understood the notification he would have got. If the provider knows you are the deputy, you would be likely to be informed, and then you would decide whether you were willing to stand as litigation friend in the proceedings.
The current care provider ‘absorbed’ the original care provider in a merger some ten years or so ago. I don’t have anything in writing regarding terms, conditions etc of my brother’s residence in his care home since some time prior to that merger and, as far as I know, neither does he. Should he have?
Yes, the Competition and Markets Authority says that even in local authority purchased placements, there should be knowledge of the contract that is governing the provision of services for the client, because the client is dealing as a consumer, even though not contracting.