Will UK consumer law destroy the care home market?
The Competition and Markets Authority is investigating amid concerns that the social care system could have competition and consumer protection problems
Adult social care is on the financial ropes. Last year it was the introduction of the “national living wage”, this year it’s the requirement to backdate pay for sleep-in shifts. In both cases, the government is being urged to step in to prop up care providers.
There is, however, a new threat lurking in the wings that could plunge social care into further chaos: the Competition and Markets Authority (CMA). In December 2016 the CMA launched a study into care homes amid concerns that the current system could be creating competition and consumer protection problems. An update paper was published in June that raises three main issues: information to support choice, better redress of grievances and compliance with consumer law.
Information and choice
The report notes that at the point of needing support, most individuals and families are poorly informed and have done little or no planning or research. Location is often the most critical factor in their decision, choice is often limited and people are unsure what questions to ask or how to assess options. Overall, the report says, people do not think of themselves as consumers when it comes to social care; they struggle with the notion of exercising choice and rarely move between providers. In short, the basic requirements for a market are not in place.
Redress of grievances
A functioning market requires proper means of redress for dissatisfied customers. The CMA reports low levels of complaints, fears of retaliation in the event of a complaint and lack of understanding of the formal procedure. It also notes concerns about “termination clauses” that are invoked to evict residents who have made complaints.
Consumer law compliance
This is the most far-reaching aspect of the CMA’s report, as a litany of malpractices come to light. These include: the lack of information about prices; demands for substantial “deposits” and other upfront payments; a raft of hidden extra charges and surcharges; demands for top-up payments without local authority agreement; and fees charged after death.
While all of these practices suggest a seedy side to the care home business, it is the CMA’s concerns about the price differential between local authority and self-funded residents that could have the biggest effect. There is now compelling evidence that self-funded residents are paying higher fees and effectively subsidising state-funded residents sharing the same home, and that without this much of the social care market would not be viable. Research indicates that self-funders are paying 43% more on average than state-funded residents in the same home, for the same type of room and the same level of care. This will surely be unacceptable to the CMA.
There are short and longer term implications of these findings. In the short term, the CMA has the power to enforce consumer protection legislation, but it does not seem minded to undertake a full market investigation (which could take up to 18 months). The report expresses concern that such a move would impose significant costs on the sector and could delay many of the changes to practice that are urgently needed. Instead, it looks as though the care home market is to be put on probation and monitored as to how well it responds to the CMA’s final recommendations, due for publication in December.
This might provide a bit of breathing space but it does nothing to address the two underlying weaknesses of social care – underfunding and a dysfunctional market.
The cuts to social care funding are well established and widely understood to be unsustainable. There is, however, a deeper question that has never been properly addressed – is it appropriate to create a market model for social care?