In the wake of a recent review of the care homes sector by the Competition and Markets Authority (CMA), CTSI has produced a series of booklets designed to provide guidance to care home owners and managers. The booklets contain a wealth of information about care homes’ responsibilities to residents, prospective residents and their representatives. For trading standards professionals, they offer important details of the relevant laws and practices to which care home workers should adhere.
After reading the following article, please answer the eight questions on page 50 – upon submission of your answers, and if you have completed the module successfully, you will be provided with a certificate. To read the guides in their entirety, visit www.businesscompanion.info.
Fair trading for care homes
Care home owners and registered managers are responsible for having clear processes in place that reduce the chances of infringing consumer law. They should also ensure that staff – and anyone acting in their name – are properly trained in the key areas of consumer law.
The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CCRs) apply to most on-premises, off-premises and distance contracts between traders and consumers. The regulations set out pre-contract information care homes should provide to consumers before they enter into a contract. This information should be clear and easy to understand. The CCRs also set out the cancellation periods for distance and off-premises contracts, as well as banning the use of premium-rate helplines and negative option practices, such as the use of pre-ticked boxes to sell additional products.
Types of contract
There are three types of contract. The type of contract a care home enters into with a resident will determine the information it is required to provide before a contract is concluded, and whether the resident has any mandatory cancellation rights.
▪ Off-premises contracts are concluded between a care home and a resident away from the care home’s premises, for example at a resident’s home or in the hospital. They may also cover situations where a resident or their representatives make an offer to enter into a contract at any of these places, or if they enter into a contract on a trip organised by a care home to promote its services. Contracts concluded by distance means or on a care home’s premises immediately after a negotiation with the resident away from the business premises are also covered.
▪ Distance contracts are negotiated and agreed by one or more organised means of distance communication, such as over the telephone or email, and without any face-to-face negotiation with the resident.
▪ On-premises contracts are not a distance contract or off-premises contracts and include contracts entered into at a care home by a resident.
If a care home enters into off-premises or distance contracts, it must ensure that the resident and their representatives are made aware of any right they have to cancel the contract before they are bound by it. The cancellation period will normally be 14 days, starting the day after the day on which the contract was made.
In particular, a care home must give the resident certain additional information before they are bound by the contract, including:
▪ Cancellation rights – including conditions, timings and methods of cancellation. Where a right to cancel exists, the resident and their representatives must be given the model cancellation form supplied in the CCRs.
▪ The requirement to pay a reasonable amount for services supplied during the cancellation period, where the resident expressly requests the service to start before the 14-day period ends.
Fair trading
The Consumer Protection from Unfair Trading Regulations 2008 (CPRs) prohibit traders from using unfair practices in their dealings with consumers. The CPRs apply to all care homes and their dealings with potential and existing residents, their family and other representatives.
The CPRs apply to any commercial practice a care home engages in with a resident either before, during or after they enter into a contract. They also apply if, for example, a potential resident makes enquiries and then decides that a particular care home isn’t right for them and doesn’t enter into a contract.
The information a care home provides on its website, advertising materials and any information that is given to residents by phone, email or face to face, as well as the way a care home enforces its terms and conditions and complaints handling procedure, are all considered to be commercial practices.
Key information
To comply with consumer law, the information a care home gives about its services should be clear, simple, accurate and easy to find. It should also be given in a way and at a time that ensures a potential resident and their representatives can understand and engage with it, enabling them to make informed decisions when they need to.
There is certain ‘key information’ that a care home should provide when a potential resident and their representatives first make contact. This can be on an initial phone call, during a first visit to a care home, a visit to a care home’s website, or at an open day.
Key information should be prominently highlighted on a care home’s website and in other written materials given to people or sent to them when they first get in touch.
At the point of first contact between a care home and a prospective resident, key information should be provided about:
▪ Funding arrangements
▪ Key features of the service offered
▪ Latest inspection rating or grade
▪ Surprising or important terms and conditions
▪ Fees and charges
Important, additional information
Important, additional information about a care home and its services – including a pro-forma contract – must be provided to a potential resident or representative when they want or need it, and ‘in good time’ before an offer of a place in a care home is made. In practice, this means that it should be easy for people to find from the start of their research – for example, it should be clearly signposted on a care home’s website and highlighted in information packs sent to enquirers.
It includes:
▪ Details of any trial period (including length)
▪ Detailed information about what happens if residents’ funding arrangements change while in the home
▪ Complaints handling procedure
▪ Reasons for ending the contract and any conditions (including notice)
▪ Trading name and contact details
▪ Information about how the home is regulated and by which regulator
▪ Details of who is registered as running the home and whether there is a registered manager in post (and, if not, the alternative arrangements in place)
▪ Latest food hygiene rating
▪ Information about contents insurance
▪ Whether residents can bring pets, choose male/female carers and whether you can meet dietary or religious requirements
▪ Where to find copy of your standard T&Cs for self-funders
▪ Information specifically required by sector regulations
▪ Any other information required under the CCRs
Misleading actions and omissions
The CPRs prohibit misleading actions and misleading omissions. For a practice to infringe the CPRs, it must normally cause, or be likely to cause, the average consumer to take a different transactional decision as a result.
▪ Misleading actions: these occur when a care home provides false information about a wide range of things listed in the CPRs, or if its presentation is deceptive – even if the information is factually correct – and causes (or is likely to cause) the average resident, family member or representative to take a decision that they would not have taken otherwise. This includes information relating to prices and how they are calculated, the main characteristics of a care home’s services – such as accommodation and facilities – a resident’s need for a particular service, or care home staff’s experience and qualifications.
▪ Misleading omissions: these occur when a care home omits or hides ‘material information’ that the average resident and their representatives need to make an informed decision, or where it is provided in a way that is untimely, unclear, ambiguous or unintelligible. Material information must be provided to consumers when they need it – whether or not they have asked for it.
Questions
Review the 8 questions below, and when you’re ready, submit your answers here
1. Which three contracts are relevant to care homes and their residents?
2. What is the usual cancellation period for a contract between a care home and prospective resident?
3. If a contract is negotiated over the phone, is it a distance or off-premises contract?
4. Which two main consumer regulations are relevant to care homes’ business practices?
5. Where and how should a care home provide key information?
6. If the information contained in a communication is correct, can it still be considered to be a misleading action?
7. On first contact, should a care home provide information about fees and charges?
8. At what point should a care home provide information about contents insurance?
The test must be taken by August 31st 2019.
If you have any questions, please email training@tsi.org.uk
