Looking for closure

Nothing lasts forever, it is said. Many residents in care and
nursing homes sleep easy in their beds each night, believing they
can stay in that home until they die. But burgeoning administrative
burdens on care providers, and the increased financial costs of
complying with the recently implemented legislation, have had a
crippling effect on many care homes. This raft of changes has meant
that, for some providers, closure is the only option.

But closing a home is not simply a case of nailing the shutters
tight and dismantling the flatpacks. Home owners have a vast array
of responsibilities and obligations towards their residents and
staff, and duties under the Care Standards Act 2000, all of which
have to be addressed and complied with. Many of the procedures to
which home owners are subject involve periods of consultation, and
home owners should bear these in mind before they embark on
closure.

People will normally occupy homes on the basis of a residential
licence, although increasingly there is a desire to give residents
the greater security in law offered by a tenancy. So home owners
also need to consider how court orders are to be obtained, as well
as the amount of any compensation for home loss or disturbance that
may be payable. Obtaining court orders for possession can be costly
and time-consuming.

Home owners will also have to assess whether suitable alternative
accommodation is available for each resident. To do this
effectively, home owners must take into account individual care
needs, as well as the location of the new home, the type of tenure,
and the wishes of the resident’s next of kin.

Timing is essential in the home closure process and a home owner
must bear it in mind, especially in deciding when to tell the
residents about impending home closure. For many residents, this
will be a distressing ordeal. Tabloid newspapers have recently been
full of stories about residents who have fought tooth and nail to
stay put, engaging in hunger strikes and commencing legal battles
through the courts. Obviously there is a risk when closing a home
that tensions will run high. But this, in itself, is not a reason
to keep information from residents. Recent case law has established
that any consultation with residents can commence after a firm
decision has been made, but should always include “full and frank”
disclosure by the home owner. This disclosure should include
information regarding any new home or alternative accommodation on
offer.

The Care Home Regulations expand the requirement on home owners to
disseminate information, and oblige them to inform the resident of
the termination of their accommodation, as well as the person who
seems to be their next of kin. Where the local authority has
arranged for the provision of accommodation for residents, they
will also need to be informed of any termination. Home owners also
need to inform the National Care Standards Commission, as any home
closure will inevitably entail the cancellation of a home’s
registration under the Care Standards Act.

When closing homes, owners also have responsibilities towards their
staff. While larger care providers may have the choice to redeploy
staff on different sites when one of their homes is being closed,
often the only option for many care providers is redundancy, which
requires them to follow certain procedures.

Redundancy is a statutorily defined term, and, to comply with the
relevant employment law, the employer must ensure any redundancy
dismissals are carried out fairly. Failure on the part of the home
owner to carry out a “fair” selection process means risking severe
financial penalties of up to 90 days’ pay for each affected
employee. Employers have a duty to undertake a consultation
procedure with staff, fairly select employees for redundancy, and
consider whether there is any other suitable alternative employment
for them.

So yet again, a home owner must consult – this time with their
employees. Timing is of the essence, and all consultation should
start in “good time”. The length of the consultation period varies
between one and three months depending on the number of employees
involved. This means that redundancy is not a quick-fix option; in
most cases there will be a minimum period of consultation and
negotiation. If more than 20 employees are being made redundant –
which includes all positions at the home, from the home manager to
chief washer-up – the Department of Trade and Industry must be
informed of the proposed redundancy plans. Failure to do this
attracts criminal sanctions.

Throughout the whole of the redundancy process the employer must
act “fairly”‘. This includes choosing objective criteria for the
selection of redundant employees. Such criteria could include
length of service, experience and efficiency. Selection must not be
discriminatory, and employers should avoid choosing criteria based
on sex, disability and race. This is a potential minefield for the
employer, as, for example, an employee’s performance may well be
affected by disability. Therefore, employers are well advised that
even seemingly objective criteria must not be blindly applied
without careful consideration in each individual case.

Home owners must also bear in mind the controversial issue of
promising residents a “home for life”. Many occupancy agreements or
literature handed to residents when they move into a home have
given them such an assurance. Where residents have relied on verbal
assurances given by staff, the courts have been reluctant to find
that a promise of a home for life exists, and have decided that it
is the resident who has to prove that they have been given such a
promise. A resident must prove this with sufficient clarity and
certainty. Additionally, they must show that the consultation
process undertaken by the home owner before the closure was
inadequate.

Recently, residents have been battling in the courts, claiming that
their human rights and, more specifically, their right to respect
for their home, have been interfered with by the proposed closure
of their home. However, because a person’s right to a home is not
absolute and can, in some cases, be legitimately interfered with,
closure remains a possibility. The courts have also considered how
far the Human Rights Act 1998 might apply in these circumstances,
and whether a private home owner who provides care and
accommodation for people placed by a local authority or an NHS
Trust is carrying out a public function, and is thereby covered by
these provisions of the act. Whether the act is relevant will
depend on the circumstances of any particular case.

All this shows that care home owners should plan any home closure
with military precision. They should put in place procedures that
manage the expectations of all parties involved. Consultation is
key, with the exchange of information between the parties involved
being an essential part of the process.

Home owners should also revise any current literature, brochures,
staff training and residency contracts to ensure that residents are
not under the false expectation when entering the home that they
can stay there for ever. This, in turn, may decrease the casualties
of a “broken home”.

Rosemary Hart is partner and head of the Trowers &
Hamlins Care Group.