Serving Notice to Care Home Residents: A Guide for Care Providers

Legal Framework

Termination notices are used when a care provider needs to end a resident’s placement. Common grounds for termination may include:

1. The care home may not be able to meet the resident’s needs, for example if they have particularly complex needs or display challenging/disruptive behaviour that impacts the wellbeing of staff and/or other residents.
2. Friends or relatives visiting the resident have repeatedly been disruptive or have upset staff or other residents.
3. The resident and/or their visitors they have not complied with policies put in place by the care home.
4. There has been an incident which has caused harm to others or damage to property.
5. The care home has lost its CQC registration or is closing down for another reason.
6. The resident has repeatedly not paid their fees and the provider has large arrears.

Care home residents are protected by the Consumer Rights Act 2015, regardless of how their care is paid, and the Protection from Eviction Act 1977. The latter provides that a resident cannot be lawfully removed from their accommodation without a court order.

Providers should also bear in mind their obligations under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, in particular the obligation to provide person-centred care (R.9) which requires a provider to make sure the resident, or a person acting on their behalf, is involved in the planning, management and review of their care and treatment.

Best Practice Tips

1. Clear contracts – when a resident moves into a care home, ensure you have a clear contract that is properly understood, agreed, and signed by the resident or their next of kin as appropriate. There will usually be a provision giving the resident a right to leave with reasonable notice. Similarly, there should be a provision permitting the care provider to terminate the placement on reasonable notice, usually a 28-day period. The contract should set out the notice period, how notice should be served and on who, plus the effect of any agreed extensions ideally.
2. Communicate before service – providers should ensure that the decision to serve notice is in the best interest of the resident and they should ideally engage in discussions with them and their next of kin about this, before serving the notice.
3. Serve notice in clear format – a termination notice is usually served on the resident and their next of kin in the form of a letter. If the resident’s care is being paid for by a public body or they have a social worker, the letter should also be served on them. The letter should clearly set out the reason for the notice, refer to the relevant contractual terms and clearly state the date by which the resident needs to leave the home.
4. Keep a record – it is worth keeping clear and accurate records of the decision-making process, including assessments, communications, and actions taken regarding the termination of a placement, should a dispute arise or if the notice is challenged.

What about residents subject to DOLs or Court of Protection proceedings?

If you wish to terminate the placement of a vulnerable resident who falls in either of the above categories, the local authority or NHS may ask you to reconsider or cancel the notice or extend the notice period. They may want to do this if, for example, they are not able to find a suitable alternative placement by the end of the notice period.

There will be immense pressure on the public body to find an alternative placement and they will have an obligation to do so under the Care Act 2014. In the meantime, or to avoid having to find a new placement entirely, they may offer additional help that allows the resident to stay at the home beyond the notice period. For example, they might offer funding for 1:1 care or specific activities, or they might arrange a multi-disciplinary meeting to discuss what further support can be given.

Ultimately, the decision to reconsider, cancel, extend or accept further help, is down to the provider. If the notice is lawfully served pursuant to the contract, the provider cannot be made to agree, and it will ultimately come down to the circumstances of each case.

However, if the contract is silent on agreed extensions to notice periods, it is worth seeking legal advice before agreeing to extend, to ensure that an implied licence is not being granted.

What happens on expiry of the notice period?

It is not the case that a resident can just be removed from the home on expiry of the notice period. The resident will most likely have a licence to occupy, meaning that possession proceedings would need to be issued, and an Order for Possession obtained, before you could evict the resident.

This is an expensive and time-consuming process, which is generally not desirable for anybody. Practically, the offer of additional help from a public body, as referred to above, may therefore be a more attractive solution for care providers (even if temporarily) than engaging in court proceedings.

How can Ellis Jones help?

Serving a termination notice to care home residents is a tricky issue for care providers. Our Healthcare Team have the requisite expertise to ensure there are no such pitfalls in your contracts and can help you to navigate this issue, or any subsequent dispute that might arise as a result. If you have a matter you would like to discuss, please contact Henrietta Frew by email at Henrietta.Frew@ellisjones.co.uk.