Case Study: Challenging Top-Up Fees and Unfair Terms in a Care Home Contract

Summary

How Andy McKay, expert Community Care solicitor based in our Haywards Heath office, challenged the terms of a client’s contract with a care home. This resulted in his client securing a reduction of the annual cost of care by over £8,000, and a significant reduction in the historic care fee debt.

The Situation

Kevin had been living in a care home in the North East of England for several years, initially as a self-funding resident. Due to his complex healthcare needs, the Clinical Commissioning Group (CCG) agreed that the care fees should be covered by an NHS Continuing Healthcare (NHS CHC) award. The care home manager asked Kevin’s daughter as Attorney to sign a new contract to pay for ‘environmental’ or “top-up” charges, which the home said were not covered by the NHS CHC funding. His daughter signed the contract and paid the extra fees.

Two years later, Kevin lost his NHS CHC funding and the care home increased their fees again. His daughter objected to the new fees, arguing that many of the services that the home were charging for were either not being provided or were unjustified. The extra charges were for a larger room, superior standard of catering and additional staffing – none of which Kevin was able to benefit from due to his disability.

Kevin’s daughter challenged these extra charges but the home refused to negotiate. They threatened her with recovery action over the unpaid fees, which exceeded £80,000. Kevin’s daughter approached Martin Searle Solicitors for advice.

What Martin Searle Solicitors did

Andy corresponded with the care home, highlighting the fact that “top-up” contracts for NHS CHC funded residents are generally unlawful. He reminded the care home that there was no valid contract between the home and Kevin’s daughter after the NHS CHC award was removed.

Andy argued that several specific terms in the home’s draft contract were likely to infringe the consumer law principles set out by Competitions & Markets Authority guidance on care home contracts.

The home backed down and withdrew their claim for top-up fees.

The Result

Andy negotiated a reduction in the weekly care fee care charges. A settlement was reached which reduced the historic care fee debt by around £20,000. The home also agreed to offset Kevin’s weekly NHS Funded Nursing Care payments against their weekly charge. This further reduced his annual care fees by £8,060.

For expert advice on Care Home Fees, contact our Community Care Law solicitors today on 01273 609911, or email info@ms-solicitors.co.uk.