Responsibility if things go wrong
A good contract should not try to limit or take away the care home provider’s liability if it’s at fault when things go wrong – for example, if unsatisfactory care leads to injury, or if a staff member loses or damages a resident’s possessions. Residents have a right to expect that they, and their possessions, will be looked after with reasonable care and skill.
Care home providers have certain obligations that they must fulfil. These are spelled out in the Which? Consumer Rights guide to the Consumer Rights Act 2015 and the minimum standards set by regulators.
Terms that may be unfair
Any terms that try to limit the care home’s responsibility if it’s at fault when things go wrong, may be considered unfair. Pay particular attention to any clauses that contain the words ‘disclaimer’, ‘exclusions’ or ‘liability’.
It may be unfair if a contract states that the care home is not responsible if:
- it loses or damages a resident’s personal possessions
- a failure in its care leads to a resident’s injury (or death)incorrect administration of medicines leads to a resident’s injury (or death).
What to do if there’s a problem before you’ve signed
If you have any doubts about a contract, do not sign. If you have a simple query about the terms of the contract, ask the care home provider to explain. They might be willing to amend a term if you’re not happy with it.
If you need help understanding the terms, or think something might be unfair, it’s best to get advice from a solicitor.
What to do if there’s a problem after you’ve signed
If a problem comes to light after you’ve signed the contract, and you think a term of the contract is unfair, you can challenge it. Remember that unfair terms are not legally binding so, whatever happens, don’t feel pressured into taking any action – such as paying any fees that you think are unreasonable, or moving out of the care home – until you have sought expert advice.
Get advice about your case
Consult a legal expert, who can take a closer look at the contract and advise on whether a term is unfair or not. They can recommend whether you should challenge the care provider by pursuing a complaint or by taking legal action. You can search for a solicitor on the Law Society website (England and Wales), the Law Society of Scotland website or The Law Society of Northern Ireland.
For more general information and advice about challenging an unfair term, see our Which? Consumer Rights website.
You can report unfair terms to:
- your local Trading Standards department, which deals with the day-to-day enforcement of consumer law
- the Competition and Markets Authority (CMA), which deals with systemic market-wide consumer problems. Which? Consumer Rights offers a template letter to report unfair terms to the CMA.
Both organisations have the power to enforce consumer-protection laws and prevent businesses from acting unfairly.
Make a complaint
If it turns out that the term is not unfair, but you’re still unhappy with the level of service provided, you can make an official complaint to your care home provider. If you’re not satisfied with their response, you can take your case to the relevant ombudsman.
Our article on making a complaint about your care provider has more information and contact details about ombudsmen that cover care homes.
If you’re interested to read about other people’s care home contract experiences, see Which? Conversation’s care home contracts: is the devil in the detail?
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