Older people: self-funders in care homes can’t complain

As you become older and increasingly more frail, it can be distressing to accept the need to move into residential care. And means-testing could result in having to pay the fees.

It would be perfectly reasonable to expect a good standard of care for your money. But what happens if you don’t receive it?

The complaints system for people who self-fund their own social care isn’t working now, which is why Age Concern says care services minister Ivan Lewis must act on his three-pronged pledge to strengthen the protection of vulnerable older people in the care system.

This is why. Some older people experience distressing treatment – even abuse – at the hands of residential care staff. The British Institute of Human Rights has documented treatment of older people in care homes that violates their human rights, including being left to lie in their own waste for hours because staff don’t bother to change the sheets routine over-medication to ensure docility continent residents being forced to wear incontinence pads because staff say they don’t have time to take them to the toilet and someone being slapped by a staff member after refusing a cup of tea.

If this kind of outrage was being visited upon you in your home – which is what residential care is – by the people you’re paying to take care of you, you’d be likely to complain with some vigour, right?

Deeply uncomfortable

Wrong. Because if you are someone who the state requires to pay for their own social care provision, then as the law currently stands, you have no independent recourse for your complaint. You can only speak to your care provider. And for a frail older person, criticising the workers on whom you depend for your daily needs is likely to be deeply uncomfortable. Branded troublemaker

If you’re branded a troublemaker and told to get out and find somewhere else to live, often at very short notice, the stress and physical disruption likely to ensue can take a very high toll on your health and mental well-being.

The disincentive to complain even in the face of sustained poor or abusive care is therefore exceedingly strong. Fran Branfield, director of the national service user organisation Shaping Our Lives, explains the dilemma. “Some service users have told us that they are reluctant to make complaints because of fears of victimisation and recrimination, so we feel it is vitally important to protect the anonymity of the service user making the complaint.”

Which is impossible when you’re advocating on your own behalf to the very service provider who has already let you down.

By contrast, if your social care is funded by your local authority, you have a range of options. First you can complain to your provider, but if you don’t receive any joy there, you can ask for an investigation by the local authority – and the provider knows you have this option, so its initial response may well be different to that experienced by a self-funder.

If you’re not happy, you can go and have that decision reviewed independently. And if you’re still not satisfied, the local government ombudsman can be appealed to. There are timescales for each of these processes, and you can go direct to the ombudsman at any stage if things are lagging to get the process hurried up.

However, none of this applies if you have savings that take you over the means-testing threshold for paying for social care, so you have to pay for your own care. Nor can you appeal under European Human Rights legislation, because there’s a loophole in UK law which means if you are in a private residential care home you are not protected by the Human Rights Act, regardless of whether you or your local authority is paying for your place.

Draft legislation

So, when the new Health and Social Care Bill was announced, Age Concern saw the draft legislation as a prime opportunity for both these anomalies to be addressed. The charity is one of several organisations that have lobbied to get amendments to the bill into legislation that would both strengthen the complaints procedure and extend people’s rights regardless of who pays for their care.

It has been a long road to the minister’s pledge to look at ways to resolve these issues through the bill. Indeed, the problem was recognised by Lewis (right) in September last year when he told the BBC that he was prepared to look at establishing an independent complaints agency to take the role of investigating specific complaints.

He repeated his dissatisfaction with the care complaints system, in a recent debate, saying, “In a modern care system, it is unacceptable that self-funders should not have the protection that other residents have of being able to rely on an independent element in the process, if they are dissatisfied with the handling of a complaint by the home that they are complaining about.”

This week Lewis pledged to ensure the provisions of the Human Rights Act would cover residents of private care homes. Ministers will seek to amend the Health and Social Care Bill currently going through parliament to reverse the ruling made by the House of Lords last year which ruled the act only applied to people in state-run institutions. He also launched proposals for an independent adjudicator to rule on complaints against private homes by people who fund their own care. Both these measures were welcomed by lobbyists.

Urgent amendments

Stephen Lowe, policy officer at Age Concern, says that the bill urgently needs to be amended to strengthen complaints procedures, but he is concerned that not all of the charity’s suggested amendments have been taken up. “Older people must have somewhere to turn to if they are not happy with the way they are treated,” Lowe insists. “The minister’s pledge to look into ways to create an independent complaints body through this legislation is welcome, as is ending a ‘two tier’ system that arbitrarily distinguishes between the rights of people in public and private care homes.

“But this announcement does not offer human rights protection to those who fund their own care. We will continue to press the government to offer the same rights to everyone, regardless of how they pay for their care.”

The two-stage pilot for streamlining complaints – completely separate from the processes set out in the Health and Social Care Bill – called the “Early Adopter” scheme, is no help either. This is to be trialled in six, as yet unannounced, areas starting this April, and focuses on local resolution followed by immediate recourse to the appropriate ombudsman. But it still excludes anyone who self-funds their own social care.

Super regulator

Having heard all this, Age Concern is still deeply concerned that the new super-regulator to be formed under the bill, the Care Quality Commission (amalgamating the roles of the Commission for Social Care Inspection, the Healthcare Commission and the Mental Health Care Commission) has been left bereft of powers to investigate complaints. In fact, says the charity, the situation could be worse under the new regulator than it is now, because currently the Healthcare Commission at least can investigate health-related complaints, but after the new body is formed, that power will be lost.

The Department of Health’s response to the problem is distinctly noncommittal in terms of setting any concrete time-frame for finding a solution that would address self-funders’, Age Concern’s and even Ivan Lewis’s anxieties.

A DH statement says: “We recognise that there is an issue about the fairness of these arrangements, and we are considering ways in which some form of independent resolution may be achieved for this group of service users. We are also looking at options for ensuring that local complaints procedures are as closely matched as possible, whether they relate to publicly or privately funded services. It is too early to say whether the timetable for any changes in this area will be the same as for the planned implementation of revised procedures for the NHS and local authorities (planned for 2009). But our ultimate aim is to achieve a set of procedures across health and adult social care that is as coherent as possible.”

So, it seems this group could be waiting for an effective way to complain for a long time yet. No matter how much they’re paying, apparently the customer isn’t always right.

Further information

The Early Adopter scheme

This article appeared in the 3 April issue under the headline “You can’t complain”