There has been much public comment over recent weeks upon the subject of so-called hardship caused by “eviction” from a care home. The term “eviction” presents a picture of a blameless occupier being ejected against their will from a care service which they will have regarded as their home.
In our experience it is so rare as to become a “never” word for a care resident to be ejected without good reason. It is simply not in the interests of a care provider to seek to eject a resident. There may be many good reasons for a care provider to terminate the agreement which allows a resident to be accommodated and to receive appropriate care in the service.
It is a criminal offence to compel an occupier to leave their “home” without any appropriate court order. So, ejection at whim is a non-starter. The first step in this difficult task is to terminate the residents legal right to reside in the service, only rarely do care home residents enjoy tenancy rights. Occupation is usually on the basis of a simple licence which allows that person to occupy the accommodation. This license can be terminated by simple notice (best in writing and delivered in person) to that effect. The period of the Notice will usually be set out in the agreement if there is one or, if not, by common law. Under common law contract licences may always be terminated on reasonable notice. That “reasonable” notice period will be sufficient time for the resident to secure an alternative placement. Most agreements provide for 28 days. At common law most practitioners feel that 90 days is sufficient. Once the notice has expired the Provider can take legal action to enforce removal. The Court (which will be either the county court or, where the Resident lacks capacity the Court of Protection), will determine the right to possession and timescale.
That court will be required to be sure that the Provider is entitled to the vacation of their property, as a matter of law, and will be assisted if there is a clear sensible reason for the decision. If the Provider is entitled to recover their property, the reason will be of interest, rather a strict requirement.
There are many good reasons why a Provider may wish to require a service user to be removed:
- Non-payment of fees.
- A refusal to agree to fee increases where rising costs make this essential.
- An increase in dependency needs which the Provider cannot manage, or, the user/sponsor is unwilling to fund.
- Always remember that, whilst remaining in care, the resident is entitled to receive care to meet their needs even if sufficient funding is not forthcoming. The Regulator (CQC) will enforce this vigorously.
- A deterioration in behaviour so as to mitigate the challenges arising. That may require very urgent action. Always remember that the Provider owes a duty of care to all residents, staff, and visitors. If safety cannot be assured then, irrespective of fault, it may be necessary to insist on departure.
Other specific circumstances may justify the termination of the arrangement.
There may be a rationale; usually more subjective than objective on the part of an individual or family to seek to resist enforced removal. There should always be considerable sympathy for a Provider faced with such a dilemma. It is the Provider’s business to accommodate and provide care and support as the core of their business, it may be taken that cases where removal is considered necessary will always be seen as a very last resort. However, when it does arise the Provider will need to be of firm resolve in the interests of all those who deliver or receive services in that environment.
Usually firm and rational pressure will lead to the resident leaving by agreement. Where that does not follow, that rationale will be vital in securing the Court’s engaged support to enforce the Provider’s rights.
If an Order is made, enforcing the removal will be practically difficult. Reputational damage may be hard to redress. TV cameras rolling on forcible evictions will not often benefit the Provider.
For all these reasons, it is irresponsibly wrong for families, media, and/or politicians to use loaded language, such as “eviction” to describe this sensitive process. Contract termination in the best interests of all is a better linguistic approach. Very often the Provider has simply no option than to ask the resident to leave. This should be seen as “more in sorrow than in anger” and processed in the better interests of all concerned.
Should you be facing a similar situation, and need advice on how best to manage it, please contact Ridouts on 0207 317 0340 or email info@ridout-law.com.
