Decision date 30/09/19
Mr Y moved into the Care Provider’s care home in May 2017 following a period in hospital. The Care Provider’s terms require payment for services 28 days in advance, which Mr Y paid for himself. The Care Provider claimed Mr Y refused to sign a formal contract for the Care Provider’s services.
The Care Provider also said Mr Y did not pay for some of the services received, which they had given him reminders about. On 3 July 2017 the Care Provider served a notice on Mr Y which terminated his occupation due to the outstanding fees. Sometime afterwards Mr Y paid these and remained in the care home.
The Care Provider served a second notice on 26 October and a third notice on 16 November telling Mr Y he must leave by 15 November, the day before the final notice was dated. Mr Y responded by saying he would leave on 17 November 2017.
Mr X claimed that this did not constitute as a valid notice under the Protection from Eviction Act 1977 and that therefore Mr Y should not have been asked to leave so quickly. Most importantly, Mr X said that the Care Provider had put Mr Y at risk by encouraging him to leave at such short notice.
The Care Provider said its staff did not carry out a risk assessment when Mr Y told staff he had decided to leave on 17 November as he had mental capacity to decide where he wanted to live. The Care Provider’s staff assessed Mr Y as fully able to understand the consequences of his decision. Staff say Mr Y told them he would not pay for any other accommodation and that he wanted to go to Mr X’s home.
The Care Provider said that its staff contacted the Council’s adult social care safeguarding team to discuss whether the Care Provider could allow Mr Y to leave. The Care Provider claimed that the Council said the Care Provider could not prevent Mr Y leaving because in the Care Provider’s own judgement Mr Y:
- Had capacity to make his own decision on where he wanted to live;
- Understood the consequences of that action;
- Had not paid his fees and;
- Had received the appropriate notice.
In a conversation with the staff, Mr X had told the Care Provider he could not house Mr Y because of previous difficulties he had experienced while Mr Y stayed with him. The Care Provider called a taxi for Mr Y and claimed that he directed the taxi to take him to Mr X’s home. Mr Y said that he had asked the taxi to take him to hospital and that it was the Care Provider who told the taxi where to take him (Mr X’s house).
The Council denied that it advised the Care Provider to send Mr Y to Mr X’s home. The Council understood Mr Y had capacity to make his own decisions and as far as the Council was aware Mr X had agreed Mr Y would be staying with him.
The Council told the Ombudsman that it had advised the Care Provider to seek independent legal advice to ensure that, in allowing or asking Mr Y to leave, it had fulfilled its duty of care. The Council had also offered to visit Mr Y on the following Monday to discuss alternative care arrangements. There are records of the Council’s staff having raised concerns about Mr Y being discharged on a Friday evening. They were also surprised that Mr X had agreed to house Mr Y, as they knew of the difficulties the pair had experienced previously.
The Care Provider did not take independent legal advice and gave notice, ending Mr Y’s placement, but said that Mr Y decided to ‘self-discharge’ which they could not prevent. It claimed that it had to respect the decision to self-discharge. It said it assessed the risk, through contact with the Council’s adult care service and had suggested possible alternative accommodation by giving Mr Y a list of local bed and breakfast services, hotels and care homes but that Mr Y rejected them all as too expensive.
When Mr Y arrived at Mr X’s home Mr X refused to let him in. Mr Y then spent two hours outside until a concerned neighbour called the Police who in turn called an ambulance resulting in Mr Y’s admission to hospital.
In both Mr X’s and Mr Y’s view, the Care Provider wrongly ‘evicted’ Mr Y from the care home, which resulted in his admission to hospital.
Mr X regarded the Care Provider as having failed to properly consider its duty under the Equality Act as it failed to act on his concerns about Mr Y’s mental health. Mr X had told the Care Provider in an email in May 2017 that Mr Y would likely refuse to pay for any form of accommodation which he was unhappy with. Mr X described Mr Y as having “a pathological aversion to spending money, even where it is clearly for his own benefit…” and had said it might be useful for Mr Y to be referred to a psycho-geriatrician although he believed improvement would be unlikely. Mr X had written again in June saying Mr Y could no longer be considered realistically capable of managing his own affairs.
Mr X said that the Care Provider had discriminated against Mr Y as they had failed to take reasonable steps to obtain an assessment of the impact of his mental and physical health issues on his decision not to pay the fees. The Care Provider claimed it had taken decisions on capacity, ensured when delivering its letter that staff remained with Mr Y so he could ask questions, and that they had offered him his magnifying glass or a large print alternative.
Mr X complained to the Care Provider about these events. However, as Mr Y has capacity the Care Provider first said it could not respond to Mr X’s complaint. Only once Mr Y had given written authority to complain could the Care Provider respond.
What was found
Mr Y accepted that he had declined to pay the four weeks care charges in advance and laid out the reasons for doing so. He said he had recently had a fall and badly injured his right knee, and he thought he might need hospital treatment. He was concerned that he would be wasting money by paying for a place in the Care Provider’s care home if he went into hospital. Mr Y proposed paying for a further two weeks stay as an interim arrangement, which the Care Provider refused. Mr Y claimed the Care Provider said he had to pay for the four weeks in advance or find somewhere else to go.
The Care Provider claimed Mr Y did not enter a contract with the Care Provider therefore it did not owe him a duty of care. However, a contract does not necessarily have to be in writing. There was an agreement between Mr Y and the Care Provider that it would provide him with services in return for payment, which is in itself a contract.
Mr Y had a licence to occupy a room in the Care Provider’s care home, demonstrated by the Care Provider having allowed Mr Y to live in its care home, having provided services to him and having expected and accepted payment for those services. The Care Provider did not dispute Mr Y stayed at its care home and received services it provided.
The Ombudsman decided that at the relevant time, Mr Y did have full capacity to decide where he wished to live and that this had been properly assessed by the Care Provider. Mr Y had physical limits on what he could do but he did not have any recorded medical condition that would have impacted on his cognitive ability. Mr X did not hold any power of attorney for Mr Y, and Mr Y had not appointed anyone else as his attorney. However, Mr X believed that some of the medical issues affecting Mr Y may have affected his capacity.
Mr Y’s age and mobility issues could make him vulnerable, so, the Care Provider decided to check with the Council about what to do. The Care Provider took expert advice from the Council before accepting Mr Y had capacity to leave and ordered his taxi for him. Under the Equality Act, the Care Provider should ensure staff struck a “careful balance between the negative impact of a provision on the disabled person and any lawful reason for applying it.” The Care Provider did consider Mr Y’s capacity and his physical disability, including short sightedness. Staff remained with him to help him read and understand the letter, ensured Mr Y had his magnifying glass and asked him if he understood the letter. The Ombudsman does not see any evidence the Care Provider failed to consider Mr Y’s disability when presenting him with the letter.
The Care Provider said it did not end the care in July 2017, as Mr Y offered to pay after the original notice had been served. The Care Provider therefore believed Mr X knew failing or refusing to pay would result in a short notice period. However, this does not mean the Care Provider could rely on giving such short notice.
The Care Provider believed Mr Y had exercised his right to leave. He may well have done so but the Ombudsman regarded any decision that he made about leaving as having arisen from the notice to leave.
Care providers must respect a resident’s mental capacity and their right to make unwise decisions, even if those may place someone at risk. They must ensure the resident understands the risk involved and provide advice and support.
A person’s capacity can change and so must be assessed when someone makes each significant decision.
While Mr Y had capacity, the Care Provider should have considered consulting Mr X and anyone else with an interest in his welfare. The Competition and Markets Authority’s guidance recommends Care Providers talk with residents and their relatives before asking a resident to leave, whatever the reason for wishing to end the care arrangement.
The notice ending Mr Y’s care service at the care home gave only a few days for him to leave which is not a valid notice under the Protection from Eviction Act 1977 or Consumer Protection Regulations. While Mr Y may have received several reminders about non-payment for his care, that did not mean the Care Provider could give him two days’ notice to leave. There is nothing in the law, regulations or guidance which allowed the Care Provider to give such short notice.
Giving Mr Y only two days’ notice denied him the opportunity of considering if he wanted to meet with the Council’s officers before leaving the care home. The Ombudsman found the Care Provider’s failure to present a proper 28-day notice to Mr Y did lead him to decide to leave sooner than he needed to. The lack of this notice denied him the time to seek professional advice, obtain the support of Mr X and arrange a move to another home.
In deciding to travel to Mr X’s home without first gaining Mr X’s agreement Mr Y made an unwise decision. The Ombudsman recognised that the Care Provider took steps to help Mr Y make a more informed decision. However, having given Mr Y such short notice the Care Provider had already denied him time in which to consider the alternatives, and gave itself insufficient time to contact Mr X. The Care Provider did not follow the law or guidance and therefore caused Mr Y an injustice.
Mr X felt under pressure to accept Mr Y on the day he left the care home. Had the Care Provider given Mr Y longer notice staff might have persuaded him to remain safe in the care home until he received advice from Council staff or found alternative accommodation. The Care Provider’s hasty actions led to a lost opportunity for Mr Y and caused unnecessary distress both to him and Mr X.
To remedy the injustice caused, the Ombudsman recommended the Care Provider within one month of my final decision:
- Pay Mr Y £1,000 in recognition of its failure to provide him with appropriate notice and the impact that had on Mr Y’s decision to leave;
- Review the notice given to all residents in the care home ensuring improvements in practice for the future;
- Pay Mr X £250 in recognition of the time and inconvenience to which he has been put in following up his complaint;
- Review its service agreement to ensure it provides for 28 days’ notice and gives a right of appeal before a resident is made to leave its care home.
Points for the public, lawyers, advocates, providers, service users and their families – and safeguarding teams, whose ‘expert’ advice here seems sadly lacking in awareness of the Protection from Eviction Act
A “Residential Occupier” is defined in S1(1) as “A person occupying the premises as residence, whether under a contract, or by virtue of any enactment or rule of law giving him the right to remain in occupation, or restricting the right of any other person to recover possession of the premises.
Care home residents are usually covered by the Protection from Eviction Act 1977, and are entitled to a notice to quit of at least 28 days (or whatever period is agreed in the contract if this is longer) and a court order before they can be evicted.
Under S1(2) Protection from Eviction Act 1977 it is an offence for any person to unlawfully deprive a residential occupier of the premises (or any part of it) that they occupy. Breaches of the Act can give rise to a civil action and be a criminal offence.
So the law does not permit a care-home owner to enforce the ending of an occupier’s licence to stay in the home otherwise than through proceedings in the court even where the occupier is in arrears in paying fees. (Protection from Eviction Act 1977, S.3)
If a person makes a contract with a home in his own name and then loses capacity, giving notice provided for under the contract, or the minimum required by the Protection from Eviction Act, will still be effective, but the steps the provider then needs to take become more complicated because of the need to take court proceedings which will require finding a litigation friend to act for the person lacking in capacity, and communication with the local authority regarding the duty to accommodate a person if eligible for social care services AND lacking in capacity, regardless of their means.
In the main, Notice of some sort, followed by a Possession Summons, then a Possession Order is the usual procedure. Even when the Possession Order expires, the tenants can stay in place until the landlord obtains a Bailiff’s Warrant of Execution. Only the County Court Bailiff can carry out the eviction.
There is a statutory defence to an action for unlawful eviction if the accused can prove that he believed and had reasonable cause to believe that the residential occupier had ceased to reside on the premises.
If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection can decide if a person has capacity to make the decision.
Touching the person then is allowed to the Bailiff, regardless of capacity, but not by anyone else without compliance with the Mental Capacity Act if the person probably lacks capacity. That is because under the Mental Capacity Act 2005 any act done for, or any decision made on behalf of a person who lacks capacity, must be in that person’s best interest after considering any less restrictive alternatives that might bring about the desired outcome.
The Competition and Markets Authority has issued advice entitled “UK care home providers for older people – advice on consumer law” which gives examples of care homes infringing Consumer Protection Regulations. The Regulations say service user agreements should always provide at least 28 days’ notice even where there are serious breaches of contract or harmful behaviour.
The Competition and Markets Authority advices that where a resident is in serious breach of a contract the Care Provider should ensure they give residents and their representatives an opportunity to appeal a decision to end a contract.
That is because breach of a term of the contract might be on account of someone’s disability, in which case it could be discriminatory to hold it against the person, unless justified, and proportionate.
When a person has been given insufficient notice time to get advice they cannot be taken to have made a capacitated decision to self discharge.
That is because the basis for capacitated cognitive functioning being presumed, in law, involves having been given all the basic information that’s relevant and needed, for weighing up the pros and cons of taking a decision either way in the particular issue.
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The full Local Government Ombudsman report on the actions of Pendene House can be found here: