Care homes for older people

Care homes are run by local authorities, voluntary organisations, NHS bodies, or organisations in the private sector. They usually consist of single or shared rooms and shared facilities with staff on site to assist with day-to-day tasks and personal care. Care homes vary greatly in the level of support they provide.

A care home is often arranged following a needs assessment under the Care Act 2014[1] but can also be arranged privately. Key issues for choosing residential care are cost and location as well as the level of care provided. From April 2020 there is a cap on the lifetime cost of care payable by an individual, so 'self-funders' (ie adults paying their own care home costs) will benefit from being in touch with their local social services department so that their eligible care costs can be monitored.

A care home is defined[2] as a home that provides accommodation together with personal or nursing care (which could arguably include emotional or psychiatric care) for people who:[3]

• are or have been ill

• have or have had a mental disorder

• are disabled or infirm

• are or have been dependent on alcohol or drugs

An establishment is not a care home if it is a hospital, independent clinic, children's home, or is otherwise exempted by regulations.[4] However, a residential college that a person attends in term-time has been held to be care home within the meaning of the relevant legislation.[5]

Registration of care homes

All care homes in England fitting the above description must register with the Care Quality Commission (CQC).

Homes must comply with national minimum standards. Registration should only be granted to those homes with adequate services and facilities, appropriate buildings and suitably qualified staff. Homes are registered in the name of the manager or person running the home. The CQC carry out a programme of inspections, concentrating on those homes with the poorest ratings.[6] Inspection reports should be available to the public.[7]

Care homes and human rights protection

Where a registered care provider provides care and support to an adult in the course of providing residential accommodation, that provider is taken to be exercising a public function under the Human Rights Act 1998 where the care and support is either:[8]

• arranged by a local authority

• paid for (directly or indirectly, in whole or in part) by that authority

This means that human rights protection extends to an adult who is paying for their care home placement, but who asked the local authority to make the arrangement.

Care home providers must treat their residents fairly under consumer law. This includes providing accurate information upfront to allow a person to make an informed choice, ensuring that contract terms are fair and having an effective complaints procedure.

For more information, see the CMA advice on consumer law for UK care home providers.

A person whose needs assessment concludes that their needs should be met by the provision of a care home has the right to choose which particular home they are placed in.[9] This is called the 'preferred accommodation'.

The local authority must place the person in the preferred accommodation if:[10]

• the adult's care and support plan specifies that their needs will be met by care home accommodation

• the preferred accommodation is of the same type as identified in the care and support plan

• it is suitable for the adult's needs and available

• the management of the accommodation is willing to provide a place on the usual local authority terms

Where the preferred accommodation is not immediately available, the authority must provide adequate services in the interim. The local authority must let the person know how long they may have to wait.The temporary arrangements should be indicated in the care plan.

If the cost of the preferred accommodation would be greater than social services has agreed to pay in the adult's personal budget, the local authority could still arrange a place providing a third party (for example the family of the assessed person) is willing to pay the difference (called a 'top-up'). A resident cannot top up their own fees unless they have entered into a deferred payment agreement, or if the 12 week property disregard applies.[11]

From April 2015, councils must offer at least one placement at an affordable rate to comply with the Care Act 2014.[12] However, for placements offered before that guidance came into effect, if the only accommodation the council offered was more expensive than the council would usually pay because it was unable to find a cheaper alternative to meet the adult's assessed needs, then the council should not seek a top-up fee.[13]

Provision of information about the care home

Under consumer law, key information about the care home must be provided upfront, so that the resident and their family can make an informed decision about moving in. Practices such as giving misleading information or using aggressive practices are prohibited.

Most care homes in the UK operate a 'no dogs or pets' policy; however even the court of protection has recognised the importance of pets in the life of vulnerable people.[14]

The Dogs Trust may be able to help dog and pet owners to find a pet-friendly care home, and can provide details of organisations that provide temporary foster care for animals whose owners are unable to look after their pets while in hospital or in a care home where animals are not accepted.

Contact the Dogs Trust for more information.

A challenge was made to a local authority's decision to close a care home on the grounds that there was an increased risk of mortality if residents had to move. This challenge failed. The decision was held to be neither unreasonable nor contrary to Article 2 (the right to life) of the European Convention of Human Rights. The court found there was no medical evidence establishing that there was a statistically demonstrable rise in mortality following relocation.[15]

In another case, the court found that there was no breach of the Public Sector Equality Duty where a local authority decided to close a care home that catered largely for the elderly Asian community in its area. The council was held to have had due regard to its duty to avoid unlawful indirect discrimination against persons with the protected characteristic of race, by carrying out an extensive consultation on the likely impact of the decision, and identifying alternative accommodation that would meet the needs of the home's Asian residents, in particular, the culinary, religious, linguistic needs, as well as the need to remain in close contact with family.  The expectation that the care home would provide a 'home for life' for its residents could not be supported in the face of an overriding interest, in this case, the council's desire to use its resources effectively.[16]

By placing someone in a care home, the local authority takes legal responsibility for paying the fees. It can, however, charge for the accommodation it arranges. A standard rate is used, based on the type of care provided.

The person being placed in the care home has their income and capital calculated. If their income or capital exceeds the applicable amount, they are expected to make payments out of this towards the cost of the care home. The minimum that someone can be left with after paying for their accommodation and care is a small amount for personal expenses. The authority must be able to show reasons if it has decided that a care home resident has sufficient assets so as to have to pay towards the cost of the care home.

This applies whether someone is placed in one of the local authority's homes or an independent home. If a placement is made in an independent home, the local authority must contract to pay the full fees to the provider (some of which may be recoverable from the resident). However, if someone chooses to live in a more expensive home, or is already living in a more expensive home before they become entitled to receive any funding from the local authority, a third party (for example family or friends) can pay a top-up. A local authority should assure themselves that a third party has the resources to continue to make the required top-up payments for the duration of the arrangement.

The charging assessment does not apply to people who entered residential care before 1 April 1993, or who make their own arrangements, since they are legally responsible for paying the fees. If they require help with the fees at a later date, they will have to approach social services and ask if it will support them. This will depend on the outcome of the needs assessment and the cost of the accommodation.

Mental capacity

Where a local authority places a person who has been assessed as lacking mental capacity in a care home, unless that person has a deputy or other personal representative to act on their behalf, it remains the duty of the authority to ensure the person receives the appropriate assistance regardless of their financial resources.[17]

Regulations acknowledge that older people lacking mental capacity may need assistance in accessing accommodation, financial support and managing financial advice and legal services.[18]

Anyone with a complaint about their care should first complain to the care provider or the council.

Where a person claims to have suffered an injustice relating to a care service, they can complain to the Local Government Ombudsman (LGO). The LGO only considers a complaint after the council or care provider has had a reasonable opportunity to consider and respond to it.

In addition, all adult social care services regulated by the Care Quality Commission (CQC) must have a complaints procedure.

Most care home residents are contractual licencees. Care home residents are usually covered by the Protection from Eviction Act 1977. They 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.

Breach of a term in the contract between the resident and the care home may be a ground to terminate the resident's licence to occupy the care home. The contract may purport to give the care home a right to evict a resident, for example in situations of anti-social behaviour. However, breach of a contractual term by a resident lacking mental capacity may not be relied upon.

All decisions regarding residents lacking mental capacity must be made pursuant to the Mental Capacity Act 2005, and possibly through the Court of Protection.

Under consumer law, the terms in the contract regarding eviction must be fair.

Breach of contractual term by member of resident's family

A care home may rely on a bad behaviour clause where a member of the resident's family is responsible for the bad behaviour. It is possible that a care home could invoke such a clause where a family member is making complaints against the home. In such cases an adviser must establish if:

• the behaviour clause in fact covers anyone other than the care home resident

• the resident has mental capacity

• human rights protection applies

Resident lacks mental capacity

If a resident lacks mental capacity, decisions about their residence and their contact with family members can only be made by following the 'best interests' decision-making process under the Mental Capacity Act 2005. Detailed guidance on this process can be found in the Mental Capacity Act Code of Practice. The Court of Protection has the power to settle disputes over a best interests decision, and may issue an interim order to prevent an eviction pending a decision.

A resident who lacks the mental capacity to decide where they want to live is likely to be subject to a 'deprivation of liberty' authorisation, which will have assessed that it is in their best interest to live in their current place of residence. Only the Court of Protection can vary a decision as to where the resident should live once a deprivation of liberty authorisation is in place.

A final order by the Court of Protection may include terms covering the ongoing relationship between the care home and the resident's family. Breach of those terms is likely to require the parties to return to court.

Human rights

When exercising functions of a public nature, registered care providers must act in a way that is compatible with residents' rights under the European Convention on Human Rights.

Where this applies, a care home seeking to evict a resident must be able to demonstrate what consideration it has given to their human rights in reaching its decision.

Hospices are homes for people who are terminally ill. They do not usually make charges for the services that they provide. They may be run by health authorities, NHS trusts or voluntary organisations.

If a local authority wishes to arrange hospice care, it must obtain the permission of the health authority. As hospice care is free, it is not subject to the local authority charging assessment.