Case Study: Helping a Client Recover a “Community Fee”

Summary

How Cate Searle, an experienced Paying for Care solicitor,  helped a client to recover a “Community Fee” paid to a large care provider.

The situation

Mr G suffered from vascular dementia and was prone to strokes. His health deteriorated to the point that he needed to go to hospital. Mr G had been in hospital for a month when the ward staff put pressure on Mr G’s daughter, Ms G, to move her father into residential care.

Ms G searched on the internet and eventually found a care home provider “brand” that appeared to have a good reputation. She attended an open day and explained her situation to the management. Ms G was assured that subject to an assessment of Mr G, it would be a suitable environment for Mr G and would meet his care needs in the long term. She was told that the average period of residency in the home was three years. Ms G thought she had found a perfect solution for her father.

The care provider told Ms G that there was only one remaining space but that she could secure it for her father by paying a £5,000 “deposit” – the deposit was never properly explained to Ms G, and it was not until after she had paid it that she learned it was a “Community Fee”.

The care provider described the Community Fee as being a “one time charge” which covered “the cost of maintaining the extensive communal areas in the community, which include the lounges, dining rooms and bistro, activity rooms, sunrooms, gardens and other outdoor areas such as porches” for the first year of residency.

It was payable in addition to the normal weekly care fees. It could be returned if Mr G chose to leave within 30 days, but after 30 days it would not be refundable.

Mr G moved into the care home the following month after an assessment. On the day that he moved in, Ms G was asked to sign a “Resident’s Agreement” on Mr G’s behalf. The Resident’s Agreement allowed the home to end Mr G’s placement with 30 days’ notice if it felt unable to care for Mr G, but Ms G was led to believe that this would be very unlikely to happen.

Mr G’s placement did not go well; the care provider stated that his behaviour was difficult to manage, and the weekly care fee was increased significantly to reflect a need for one-to-one care. Ms G was unhappy with some of the aspects of care that the home offered to her father.

Less than six months after Mr G moved into the care home, Ms G received a telephone call telling her that the care home could no longer care for her father because of his “challenging behaviour”. She was told that she could have as much time as she needed to find another care provider, but the next day she received a letter giving her 14 days notice, rather than the 30 days stipulated in the Residents Agreement.

Fortunately, Ms G was able to find another care provider for her father, and Mr G’s health and general wellbeing have improved greatly.

Despite Mr G having left the care home early, they refused to refund Mr G’s Community Fee.

What Martin Searle Solicitors did

Ms G got in touch with our team of specialist solicitors in Eastbourne for Community Care legal advice.

• We corresponded with the care provider to try and obtain a refund informally, and then by sending a Letter Before Claim. The care provider never responded properly to our letter
• We issued a claim against the care provider in the County Court, alleging that the terms relating to the Community Fee were unfair. We relied on arguments under the Unfair Terms in Consumer Contracts Regulations 1999 and guidance from the Office of Fair Trading
• We prepared a comprehensive witness statement, a well-researched skeleton argument and a bundle for the trial. Cate Searle represented Mr and Ms G at trial and succeeded in showing that the Community Fee was unfair. The Court was persuaded that Ms G was a vulnerable consumer, that the Community Fee was in fact a “Deposit”, and that the contract was weighted in the care provider’s favour. The Court ordered the care provider to repay Mr G over £4,000 of the Community Fee, some of his costs, and interest
• The care provider has ignored our requests to pay the Judgment and we have applied to Court for a Warrant of Execution on Mr G’s behalf. Court Bailiffs will attend the care provider’s head office to enforce the Judgment, together with further interest and further costs

We satisfied the Court that the care provider’s standard form contract was unlawful and contrary to the Unfair Terms in Consumer Contracts Regulations 1999. This allowed us to obtain a Judgment against the care provider for the majority of Mr G’s Community Fee, and we continue to fight to enforce Mr G’s rights.

Wider Implications

• The successful outcome in Mr G’s case might assist other people who have paid a Community Fee or other deposits to care providers, although each case will be assessed upon its own facts
• The Judgment should serve as a stark reminder to care homes who want to take additional payments from service users, and in relation to care homes generally
• The Judgment should make consumers more aware of the terms they are signing, and of their right to seek redress if they feel they have been exploited
• The Competition and Markets Authority issued guidance to care homes in late 2018 to avoid other care home residents experiencing these same issues

For specialist advice on recovering a Community Fee, contact our Community Care lawyers today on 01273 609911, or email info@ms-solicitors.co.uk.