Scottish Care Home Contracts

Care homes regularly contact us about residency agreements and how they can be adapted to reflect the challenges they are facing. We have found that although in Scotland the National Care Home Contract (NCHC) applies to most placements, care homes must also have an agreement with each resident which reflects the funding route that they have in place. The template residency agreement appended to the NCHC is helpful but does not require to be used verbatim, and in our view should not be put in place without proper consideration by providers.

Care homes are free to use their own style agreement as long as the rights of the resident are not diminished, and the obligations are not increased by the content. We have found that this means they can be adapted to deal with the issues that providers are facing as long as the terms do not conflict with the provisions of the NCHC.

Agreements with self-funding residents must reflect the Scottish Government’s National Care Standard for Care Homes for Older People but we find that we can be more flexible with terms, within certain limits. The Competition and Markets Authority (CMA) has produced detailed guidance on care home contracts which specifically refers to the arrangements in Scotland.

For example, the CMA guidance states that care home providers must tell self-funding residents whether the care home will continue to accept them if they become eligible for further local authority funding and how their charges will change prior to their placement to the home.

Issues Arising

We have worked with several clients to create template agreements reflecting their approach to funding and expected behaviours that can be used for all types of residents.

In our experience, the financial arrangements are the cause of many problems faced by our care home clients and so they must be set out clearly as soon as possible. If there is a third-party providing payment, it is important that there is a separate agreement with that third party outlining what happens if the payments cease.

Your agreement should clearly state what will happen in the event of the non-payment of fees.

Finally, there should be provisions which deal very carefully with situations when the resident themselves is not causing problems, but their family member is. This must be dealt with very sensitively by care home providers. Setting out behavioural expectations at the start of the agreement can assist when the situation becomes intolerable.

We Can Help

We have worked with many care home clients to revise their agreements in a way which works better for them, along with advice based on our professional experience of when things do not go to plan.

Disclaimer The matter in this publication is based on our current understanding of the law. The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers Stewart LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.